"If EPA moves forward with this draft rule, as they have already committed to, the property rights of millions of Americans would be at stake. In an instant, EPA's expanded jurisdiction would become a federal takeover of all waters in the U.S. That includes your and your neighbor's pond in the backyard," said Vitter. "It is troubling to see EPA avoiding the scientific review process on their Connectivity report while redefining this major issue, especially after all the promises we've heard from the Agency about increasing transparency and aspiring to use the best available science."

Multiple attempts by the EPA and the U.S. Army Corps of Engineers to expand their CWA jurisdiction have been struck down by the Supreme Court of the United States. As well, multiple attempts to similarly redefine the CWA's jurisdiction in Congress have all failed. However, the EPA is moving forward with another expansion attempt, this time using the Connectivity report as their basis.

The EPA's Connectivity report, which ties every body of water in the U.S. together, has not received public scrutiny, and the EPA has not allowed the Science Advisory Board to complete a critical peer review of the report. Vitter and the lawmakers note that EPA's commitment to the Connectivity report contradicts OMB and EPA peer review guidelines, and suggest that the CWA rulemaking is proceeding anyway. The letter requests that OMB immediately return the draft rule to EPA so that the Connectivity report can be properly and fully evaluated and the rulemaking may eventually proceed in a credible manner.

Vitter is joined by Rep. Bob Goodlatte (R-Va.), Chairman of the House Committee on the Judiciary, and Rep. Spencer Bachus (R-Ala.), Chairman of the House Subcommittee on Regulatory Reform, Commercial and Antitrust Law, in sending a letter to OMB requesting they return the draft rule to EPA. The letter is below. Click here for the PDF.

November 15, 2013

The Honorable Howard Shelanski
Administrator
Office of Information and Regulatory Affairs
The Office of Management and Budget
725 17th Street, NW
Washington, DC 20503

Dear Administrator Shelanski,

We write regarding the Environmental Protection Agency's (EPA) draft rule on the definition of "waters of the United States" under the Clean Water Act (CWA), currently before the Office of Management and Budget's (OMB) Office of Information and Regulatory Affairs for interagency review.[1] As you may be aware, EPA has already declared that its final rule should be and will be based on a scientific report titled Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence.[2] EPA has committed to predicating the final rule on the Connectivity Report, even though critical review of the Report's draft version is far from complete.

We are concerned that EPA's decision to base the final "waters of the United States" rule on a report that is still only in draft form creates the appearance that peer review and public input for the Connectivity Report are nothing more than paper exercises. We likewise fear that EPA will rely on the Report regardless of any deficiencies which may be identified during the review process. We note as well that EPA's decision to transmit the draft rule to OMB prior to the completion of rigorous Science Advisory Board (SAB) peer review and finalization of the Connectivity Report contradicts EPA and OMB peer review principles. Therefore, and in order to preserve the integrity of critical review of the rule's foundational scientific report, we ask that OMB immediately return the draft rule to EPA. Only by returning the draft rule to EPA may OMB's interagency review eventually proceed in a fully informed manner.

EPA's draft "waters of the United States" rule was transmitted to OMB on September 17, 2013. Despite the early stages of the rulemaking process, EPA declared that the final rule will be based on the Connectivity Report, a document the agency claims to "represent[] the state-of-the-science on the connectivity and isolation of waters in the United States."[3] According to EPA, the Connectivity Report "will provide the science foundation for agency decisions concerning the implementation of the Clean Water Act."[4]

Given that EPA has already decided the final "waters of the United States" rule will be based on the Connectivity Report, one would think the Report's validity and scientific merit are foregone conclusions. In reality, however, EPA has committed to relying on a report whose legitimacy is far from certain. For one, the Report is still in draft form and was only recently disseminated to the public for review and input. In fact, several parties have highlighted significant flaws in reviewing the Report and in particular its failure to distinguish between significant and insignificant connections to downstream waters.[5] EPA's decision to predicate the final rule on the Report implies no amount of criticism will convince the agency to take an alternative path. OMB should not sanction such inflexibility.

Equally important, SAB peer review of the draft Connectivity Report is still in its early stages. In theory, the SAB peer review should proceed openly and transparently, with its results allowing EPA to make an informed decision on whether or not to base its rule on the Report. Yet EPA has already made this decision without SAB's input. This leads us to wonder whether EPA feels the SAB peer review is merely a box-checking task, rather than an opportunity to meaningfully examine the scientific merits of a significant regulatory report.

We also note the EPA's presumptuous approach contradicts peer review principles recognized by OMB as well as EPA itself. For example, OMB has observed that "[w]hen an information product is a critical component of rule-making, it is important to obtain peer review before the agency announces its regulatory options so that any technical corrections can be made before the agency becomes invested in a specific approach or the positions of interest groups have hardened."[6] EPA has likewise remarked that peer review "is a process for enhancing a scientific or technical work product so that the decision or position taken by the Agency, based on that product, has a sound, credible basis."[7] Thus, with respect to the Connectivity Report, the proper course of action would be for EPA to allow the SAB peer review panel to provide relevant input on the Report's draft; depending on the resulting changes to the Report, EPA can then decide whether it should serve as a basis for the rule. As it stands now, however, EPA is already invested in basing the rule on the Report, no matter the flaws that may be exposed during the SAB peer review process.

The consequences of a rushed "waters of the United States" rulemaking are too important to ignore. The property rights of millions of Americans are at stake, as many fear their ability to make productive use of their land will become subject to EPA's regulatory whims. EPA has already sent a dangerous signal by committing to the Connectivity Report well before the Report's merits have been decided. Further, given that the text draft rule would provide EPA with authority over ponds, tributaries, and ditches never before subject to federal regulation, the significance of the Report and its relationship to the rule make EPA's premature commitment to the Report even more suspect.

OMB must not countenance EPA's current approach, which calls for OMB to review a draft rule predicated on a report whose validity is uncertain. It would make a mockery of OMB's responsibility, described on its website, and fulfilled through the Office of Information and Regulatory Affairs (OIRA) to "oversee[] agency implementation of the Information Quality Law, including the peer review practices of agencies."[8] EPA must allow full review and evaluation of the Report to be completed by SAB and others, and then it will be in a position to decide whether it should serve as a basis for the rule.[9] Therefore, we request that OMB and the Office of Information and Regulatory Affairs immediately return the draft rule to EPA so that the Connectivity Report can be properly and fully evaluated and the rulemaking may eventually proceed in a credible manner.

If you have any questions regarding this request, please feel free to have your staff contact the Senate Environment and Public Works Committee at (202) 224-6176 or the House Judiciary Committee at (202) 225-3951.

Sincerely,

Sen. David Vitter
Ranking Member
Senate Committee on Environment and Public Works

Rep. Bob Goodlatte
Chairman
House Committee on the Judiciary

Rep. Spencer Bachus
Chairman
House Subcommittee on Regulatory Reform, Commercial and Antitrust Law, Committee on the Judiciary

cc: Gina McCarthy
Administrator, U.S. Environmental Protection Agency

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