The Obama Administration is currently attempting to expand the federal government’s power under the Clean Water Act (CWA).  EPW Republicans have been concerned with the way this Administration’s water-related policies threaten our nation’s economy, families, farmers, and small business owners. Click here to read more.

On a number of occasions, EPA’s Administrator Gina McCarthy has publicly made disingenuous statements regarding the Agency’s CWA policies, particularly on March 25, 2014 when they released the “waters of the United States” rule.

Administrator McCarthy said: “Our proposed rule will not add to or expand the scope of waters historically protected under the Clean Water Act.” Click here.

Fact check:  This assertion is false as the Agencies admit that they “expect that the outcome of the proposed rule will be an approximate 3 percent increase in assertion of jurisdiction,” showing that Ms. McCarthy is not being forthright when discussing the proposed rule and its potential impacts.  Moreover, the methodology used to determine jurisdiction impacts is highly questionable, suggesting the Agencies are unwilling to acknowledge the full impact of their proposal.  By adding and expanding numerous definitions in the proposed rule, the Agencies are ensuring that virtually all waters, regardless of how remote or isolated they may be, will be swept under the control of the federal government.

This expansion will have a significant impact on numerous regulated activities, such as home building, mining, road construction, commercial property development, water infrastructure projects, and even farming.  It is a prime example of government overreach that puts the Administration’s ideals ahead of the rights of property owners.

McCarthy said: “Water is vital to America’s farmers & ranchers.  Our proposed rule keeps existing Clean Water Act exemptions for agriculture.” (see Gina McCarthy’s Twitter feed, @GinaEPA 3/25 at 11:45 am)

Fact check:  The proposed rule expands the Agencies’ control over land management on farms and ranches.  The agricultural exemptions contained in the proposed rule are essentially exemptions in name only.  Under the proposed rule there are a number of common farm activities that may trigger CWA liability and require a federal permit.  These include ordinary fieldwork, fence construction, pruning trees and shrubs, and controlling weeds, insects, and diseases.

It is also important to note that the Administration refuses to honor existing agricultural exemptions under the Clean Water Act.  In 2012, EPA threatened a West Virginia poultry farmer with civil penalties of up to $37,500 per day for failing to obtain a CWA permit.  However, last year a federal court rejected EPA’s threats because the agency was clearly ignoring the CWA’s agricultural stormwater exemption. More recently, another federal court dismissed EPA’s prosecution of a Wyoming farmer, who spent $30,000 to clean-up an irrigation ditch and improve local water quality, because the Agency had failed to recognize the CWA’s exemption for normal farming and ranching activities.

McCarthy said: The new proposed rule “adds certainty for business…” (see @GinaEPA 3/25 at 10:18 am)

Fact check:  The EPA’s current CWA policy creates regulatory uncertainty.  EPA has attempted to use the CWA to kill a business project before a company’s planning documents have been submitted to permitting authorities, and the Agency retroactively terminated a company’s CWA permit four years after it was obtained, despite the company’s compliance with the permits terms.  By subjecting more waters to federal jurisdiction, the proposed rule--combined with the Agency’s eagerness to veto CWA permits whenever it pleases--will add to the uncertainty for businesses.

McCarthy said: “Red tape is not good for business. Our new rule streamlines the process of determining what streams and wetlands are protected.” (see @GinaEPA 3/25 at 12:33 PM)

Fact check:  The CWA permitting system can be incredibly slow and costly.  This proposed rule would only exacerbate the problem by significantly expanding the number of permits that will be required across the country.  This will result in delayed development and longer permitting timelines for the business community.  

The Administration is using the logic that  if more people are aware that they have to obtain a CWA Section 404 “dredge and fill” permit—which takes an individual on average more than two years and more than $270,000 to obtain—red tape will somehow be reduced.  That does not make sense.

McCarthy said: “Our businesses and communities rely on abundant, clean water.  Today’s rule clarifies what’s protected under the Clean Water Act.” (see @GinaEPA 3/25 at 11:07 AM)

Fact check:  Rather than provide clarity to property owners, the proposed rule will only result in more confusion and frustration.  Federal bureaucrats will be able to exploit the rule’s broad regulatory definitions in order to subject homeowners, small businesses, and municipalities to costly permitting requirements and job-killing litigation. The proposal would allow the Agencies to determine on a case-by-case basis whether local waters, such as isolated ponds and wetlands, are subject to federal jurisdiction, rendering the agency’s “clarification” claim meaningless and dubious.