Everyone versus the EPA on WOTUS

• The EPA and Army Corps of Engineers issued a rule giving themselves broad new power over water and land across the country.

• The rule is another Washington power grab that has more to do with controlling land-use decisions than ensuring access to clean water.

• The Federal Water Quality Protection Act – S. 1140 – is the Senate’s best opportunity to revise the rule in a strong, bipartisan way. 

On June 29, the Obama administration published a final rule expanding the definition of “waters of the United States” for purposes of the Clean Water Act. It extends federal jurisdiction to irrigation ditches, isolated ponds, prairie potholes, and other non-navigable waters. The rule represents another executive power grab that has more to do with controlling land-use decisions than ensuring access to clean water.

Stakeholders Ignored

When finalizing the rule, the administration was insincere in listening to stakeholder concerns – then effectively ignored them. It ignored opposition from families, farmers, ranchers, home builders, state and local governments, small businesses, and other property owners.

The administration failed to conduct outreach to state and local governments, as required by executive order. It improperly claimed that the rule “will not have substantial direct effects on the states.” It also failed to adequately examine effects on small governmental entities and on small businesses.

“The rule will have a direct and potentially costly impact on small businesses. The limited economic analysis that the agencies submitted with the rule provides ample evidence of a potentially significant economic impact.” – Small Business Administration, 5/19/2015

Army Corps of Engineers Ignored

The administration even bypassed the advice of its own Army Corps of Engineers, which jointly issued the rule with the Environmental Protection Agency at the direction of its political leadership at the Department of Defense. It is “not accurate” to say that the “rulemaking has been a joint effort of the EPA and the Corps, and that both agencies have jointly made significant findings, reached important conclusions, and stand behind the final rule,” wrote Major General John Peacock, the Corps’ deputy commanding general for civil and emergency operations, to Jo-Ellen Darcy, the assistant secretary of defense in charge of the Corps, just before the rule was finalized.

“[T]he documents can only be characterized as having been developed by EPA, and should not identify the Corps as an author, co-author or substantive contributor,” he wrote in a separate memo. That memo noted: “Corps data to EPA has been selectively applied out of context, and mixes terminology and disparate data sets. In the Corps judgement, these documents contain numerous inappropriate assumptions with no connection to the data provided, misapplied data, analytical deficiencies and logical inconsistencies.”

Law Ignored

Separate preliminary reviews of the rule by a federal district court and a federal appellate court concluded that lawsuits filed against the rule have a substantial likelihood of success on the merits of their claims. In August, the U.S. District Court for North Dakota issued a preliminary injunction halting implementation of the rule in 13 states. It found that the rule was likely the result of “a process that is inexplicable, arbitrary, and devoid of a reasoned process.” It also found that the EPA likely “violated its Congressional grant of authority” and likely “failed to comply with the [Administrative Procedure Act] requirements.” Last month, the U.S. Court of Appeals for the Sixth Circuit issued a stay halting implementation of the rule across the country pending further judicial proceedings. It found that the rulemaking process was likely “facially suspect” and that the rule itself was likely inharmonious with Supreme Court precedent.

Legitimate Comments Ignored

The administration claims that it fairly weighed input received in more than 400 meetings and from more than one million comments. But a May 18 article in the New York Times reported that the administration conducted a “campaign that tests the limits of federal lobbying law” when the EPA “orchestrated a drive to counter political opposition” and “enlist public support in concert with liberal environmental groups and a grass-roots organization aligned with President Obama.” The report called into question how many of the supportive comments the federal agencies heard were manufactured by the EPA’s improper lobbying campaign. It suggested that the administration was incapable of weighing feedback in a neutral manner.

Unchecked Expansion of Federal Power

Under the rule, the EPA can automatically regulate all water within 100 feet of any other water and all water within 1,500 feet of any other water in the same floodplain by redefining what it means to be “adjacent” to navigable water. The EPA can automatically regulate all water within 4,000 feet of any other water by claiming a “significant nexus” between the two water bodies. Virtually every nook and cranny of the country will be subject to EPA control.

On August 12, the American Farm Bureau Federation released a series of maps demonstrating how the rule will radically expand federal Clean Water Act jurisdiction. The rule will empower EPA to control 100 percent of acreage in Virginia; more than 99 percent in Missouri; 99 percent in Montana; 99 percent in Pennsylvania; 98 percent in New York; 95 percent in Oklahoma; and 92 percent in Wisconsin.

AFBF explained some of the ways the rule harms farmers. For instance, “when the rule defines features right in the middle of a farm field to be ‘waters of the U.S.,’ putting any amount of fertilizer or pesticide in those features will be an illegal ‘discharge’ unless the farmer gets a permit under Clean Water Act section 402. That’s true even at times when the protected ‘water’ (low spot) is perfectly dry – and regardless of whether the application would have any environmental effect!” 

Senate Must Stand Up for Americans

Nearly 90 plaintiffs have filed lawsuits regarding the legality of the rule, including 31 state governments, and other groups. While the Sixth Circuit’s nationwide stay currently provides relief from the rule, this judicial freeze could be temporary. If the stay is lifted at some point, the rule could do grave damage even if it is ultimately struck down. When the Supreme Court struck down EPA’s mercury rule in July, it made little practical difference for the coal industry, power companies, and energy consumers since irreversible damage had already been done. Even EPA admitted this when it stated, “EPA is disappointed that the Court did not uphold the rule, but this rule was issued more than three years ago, investments have been made and most plants are already well on their way to compliance.” In other words, thousands of gigawatts of affordable, reliable coal-fired capacity was retired – and thousands of associated jobs were lost – in response to a rule that turned out to be legally indefensible. 

The Senate cannot wait for the courts to deal with this destructive and politically motivated rule. This week, the Senate will consider the Federal Water Quality Protection Act – S. 1140 – introduced by Senator Barrasso. The bill directs the EPA and the Corps to issue a revised rule that protects traditional navigable water and wetlands from water pollution, while also protecting Americans’ right to enjoy and use their own property. It establishes specific guidelines that the revised rule must follow, and requires specific analyses that the EPA and the Corps must conduct.

By requiring a revised rule, the bill provides Americans with a pathway to resolving ongoing uncertainty over the definition of “waters of the U.S.” and the jurisdiction of the Clean Water Act. By setting statutory parameters for the revised rule, the bill gives Americans a more powerful voice in the rulemaking process that cannot be discarded by unelected federal bureaucrats and Obama administration ideologues. By rejecting the administration’s expansion of federal jurisdiction in the current rule and specifically limiting it in the revised rule, the bill provides the Senate with its best opportunity to achieve the policy outcome that a strong, bipartisan group of 59 Senators voted for on March 25.

The rule is one of a series of executive actions by the Obama administration that will constrain our country’s economic growth. Republicans are working to support Americans who responsibly enjoy our nation’s abundant natural resources and use them to create economic opportunity. With the Federal Water Quality Protection Act, Republicans and Democrats can ensure that a revised rule defining the federal government’s Clean Water Act jurisdiction is issued in an inclusive, cooperative, responsible, and bipartisan way.