2013 Year End Review: Holding EPA Accountable for Clean Water Act Abuse
December 16, 2013
2013, the U.S. Senate Environment and Public Works Committee Republicans, and
ranking member U.S. Sen. David Vitter (R-La.), challenged the Environmental
Protection Agency (EPA) on several items related to the Agency's implementation
of the Clean Water Act (CWA).
are a few of the key actions Vitter took this year:
"Waters of the United States" Rulemaking
EPA is currently engaged in
a CWA rulemaking, which would significantly expand federal authority over
streams, ditches, ponds, and other local waterbodies located on private
property throughout the U.S. The new rule would
give the federal government outright permitting authority over virtually any
wet area in the country and would provide a new tool for environmental groups
to sue private property owners.
EPA has rushed the
rulemaking using a controversial scientific report to support their would-be
drastically expanded authority. Sen. Vitter has questioned this tactic
and requested an independent Science Advisory Board complete its review of the
controversial report, before the Agency proceeds with the rulemaking can
proceed in a credible manner.
Sen. Vitter and Sen. Barrasso express concerns that EPA is drastically
expanding scope of CWA
Sen. Vitter emphasizes concerns remain after EPA rulemaking announcement
EPW Republicans demand that Agency formally announce withdrawal of
controversial CWA guidance
Sen. Vitter and Reps. Goodlatte and Bachus call for Office of Management and
Budget to return the draft CWA rule to EPA
EPA's Troubling View of the Agency's CWA
Section 404 Authority
Section 404 of the CWA authorizes the
Army Corps of Engineers to oversee and issue permits for the statute's dredge
and fill program. But EPA is now attempting to effectively take away the
Corps' permitting authority, at the cost of jobs and economic progress
throughout the country.
According to EPA, the Agency has the
authority to veto a permit even before an applicant has submitted a permit
application, as well as the authority to revoke a permit years after it has
been issued. EPA's supposed preemptive and retroactive veto authority
violate the terms of the CWA, as well as fundamental due process principles,
and Sen. Vitter has repeatedly criticized the EPA for creating so much
uncertainty for American businesses.
February 20: Sen. Vitter
and Sen. Roger Wicker request EPA to explain Agency's actions in threatening to
preemptively veto the Pebble Mine project in Alaska
April 29: Sen. Vitter
demands that EPA stop playing dangerous, hypothetical games to determine new
June 11: EPW
Republicans ask EPA Office of Water Nominee Ken Kopocis to clarify Agency's
inadequate responses to preemptive veto inquiries
July 17: Sen. Vitter
blasts EPA's false claim in response to June 11 Pebble Mine inquiry
August 29: Sen. Vitter
and Sen. Joe Manchin request information relating to EPA's decision to
retroactively veto CWA permit for Spruce Mine in West Virginia
September 16: Sen. Vitter
calls out EPA for chasing mining investment and jobs out of U.S.
November 14: Sen. Vitter
and Sen. Manchin react to coal company's challenge against EPA's supposed
retroactive veto authority
EPA's Illegal Release of Private
Personal Data to Environmental Groups
EPA has strong track record of avoiding
public scrutiny, transparency, and Congressional oversight. However, earlier
this year, EPA illegally released personal and
confidential business information related to Concentrated Animal Feeding
Operations (CAFOs) to three environmental groups. In doing so, EPA
demonstrated a troubling disregard for the privacy interests of both private citizens
and competitive businesses.
On April 4th, Sen. Vitter
along with seven other Senators sent a letter to EPA expressing their concerns
over the matter and sought an explanation for EPA's actions and the
circumstances behind this breach of public trust.
EPA's Continued Transgression Against
Following EPA's failure to effectively
protect personal and confidential business information pertaining to CAFOs,
Sen. Vitter learned that an EPA Region 9 employee planned to speak on a panel,
moderated by the Natural Resources Defense Council, an environmentalist group,
intended to assist third parties in obtaining hard-to-get government
information that could potentially be used in citizen suit litigation against
farmers, ranchers, and other natural resource users.
On June 21st, Sen. Vitter,
along with six other Senators, sent a letter to EPA requesting that the Agency
refrain from participating in the panel in light of the Agency's recent and
inexcusable failure to effectively protect private data relating to
CAFOs. The Agency subsequently accommodated Sen. Vitter's request.
EPA Stormwater Regulations
For the past few years, EPA has been
engaged in an effort to draft a new rule that would require individuals and
small businesses to comply with costly new regulations limiting stormwater flow
from developed or redeveloped property. Yet EPA has failed to provide
Congress with a required report on the necessity of new stormwater discharge
regulations, and its outreach to small businesses that would be affected by the
rule has been inadequate.
On May 20, EPW
Republicans sent EPA Acting Assistant Administrator Stoner a letter demanding
that EPA suspend the stormwater rulemaking until the Agency complies with their
reporting requirements and reengages with the small business community. EPA later
from proposing a new stormwater rule in June, as the Agency had previously
promised to do.
Iowa League of Cities
EPA has a history of using guidance
documents, and in one particular case, letters, to affect policy change. Most
recently, EPA attempted to change wastewater treatment processes rules using
two letters sent by EPA to Sen. Chuck Grassley (R-Iowa). In Iowa
League of Cities v. EPA, the Eighth Circuit held that both letters
constituted new legislative rules undertaken outside of the notice and comment
procedures required by the Administrative Procedure Act. Both of EPA's falsely
created rules were invalidated. Shortly after, EPA signaled its
to limit this decision only to the Eighth Circuit.
On June 18, Sen. Vitter
and Sen. Grassley sent a letter to Acting Administrator Bob Perciasepe calling
on EPA to acknowledge its error in creating "regulations by letter" and to take
greater care to abide by the APA's regulatory framework.
EPA's Use of a Stated Preference Survey
to Inflate Benefits Calculations
In April 2011, EPA issued a proposed
rule under the CWA to set new standards for cooling water intake structures at
existing power facilities. After determining that its original
cost-benefit analysis, using conventional methods, was "incomplete," EPA
decided to recalculate the benefits using the highly controversial stated
preference survey. The difference in the results was dramatic.
EPA's use of a stated preference survey in this instance appeared to be an attempt
to deliberately inflate the benefits calculations in order to justify an
extremely costly regulation.
Sen. Vitter, along with Jim Inhofe (R-Okla.), Mike Crapo (R-Idaho), and John
Boozman (R-Ark.), sent a letter to Acting Assistant Administrator Nancy Stoner
requesting that EPA refrain from using this survey as a basis for the final
rule. The Senators
that the Agency stick to well-established methods to determine the costs and
benefits of the regulation.
EPA Enforcement Methods: EPA's Armed
Raid of Chicken, Alaska
In August, EPA and other state and
federal agencies conducted an aggressive armed
against small operation miners in Chicken, Alaska to investigate alleged CWA
violations. The investigators even went so far as to wear full body armor
and carry guns.
On September 11, in an effort
to promote government transparency and hold federal agencies accountable for
their actions, Sen. Vitter partnered with Sen. Barrasso and sent a letter to
EPA requesting information surrounding the circumstances of the Agency's
On October 22, Sen. Vitter
sent a follow-up letter to the Department of Justice (DOJ) requesting that it
examine whether EPA law enforcement agents are conducting criminal
investigations in accordance with guidelines approved by the Attorney
General. There is growing concern that EPA is more interested in shutting
down natural resource industries than it is in faithfully executing federal
Monitoring Hypoxia in the Gulf of Mexico
One issue that continues to affect the
Gulf of Mexico is the hypoxic "dead
along the Texas and Louisiana coast. Sen. Vitter has been monitoring both
the phenomenon's effects, as well as potential solutions to appropriately
mitigate the problem.
On November 1, in response to
EPA's June listing of three Louisiana coastal water segments on Louisiana's
Clean Water Act 2012 Section 303(d) List as impaired, Vitter sent a letter to
Acting Assistant Administrator Stoner requesting that EPA better support its
listing decision and refrain from mandating the development of a
counterproductive Total Maximum Daily Load plan. In an effort to find
real, workable solutions to the problem, Vitter asked that EPA work with Louisiana
Department of Environmental Quality, other Louisiana officials, and other
Mississippi-Atchafalaya River Basin States in their efforts to achieve prudent
nutrient reduction strategies.
EPA Abuse of Clean Water Act on Poultry
Farm Struck Down by Court
Sen. Vitter has worked to ensure that
EPA is held accountable for its implementation and enforcement of the CWA. This
includes EPA's standards for the issuing of compliance orders.
On November 5th, Sen. Vitter
sent a letter to EPA expressing his support for the decision by the U.S.
District Court for the Northern District of West Virginia which held that EPA's
attempt to regulate and excessively fine a fully compliant West Virginia
poultry farm was unlawful. According to the court, EPA had no business
attempting to subject agricultural stormwater runoff to certain permitting
requirements. In the letter Vitter insisted that it should not require
taxing litigation to prevent unnecessary bureaucratic interference where it is
clearly beyond the scope of federal regulatory authority.
Republicans will be sending out additional documents recapping the committee's
work during 2013 on various issues. Stay tuned for more in the coming days and