In an announcement last week, the EPA proposed a rule for the Waters of the United States that would lead to a massive expansion of power over the nation’s water resources.
The Clean Water Act gives the EPA authority to regulate only navigable waters, but with this new proposed rule, the EPA gives itself sweeping permission to regulate everything from the nation’s largest rivers to small irrigation ditches under the guise that all water will eventually end up in a “navigable waterway.”
Senator Toomey and 14 of his colleague sent a letter to EPA administrator Gina McCarthy pointing out the dubious legal and scientific basis for the proposed rule and asking for the maximum comment period to hear from affected Americans.
“The EPA’s proposed rule is a terrifying power grab,” said Senator Toomey. “Common sense has gone out the window. The EPA’s new position seems to be that a puddle from your garden hose will ultimately end up in a navigable waterway, so the agency should have dominion over that water too.”
The letter also was signed by Senators Vitter, Rubio, Risch, Paul, Coburn, Cruz, Lee, Cornyn, Enzi, Fischer, Sessions, Ron Johnson, Scott, and Chambliss.
Pennsylvania Farm Bureau President Carl T. Shaffer said, “It is clear to Farm Bureau that Congress intended to use the term ‘navigable’ waters to limit the scope of federal authority when it passed the Clean Water Act in 1972.
And several recent attempts in Congress to specifically delete the term ‘navigable’ from the law have been flatly rejected. The intermittent streams and ditches – only wet immediately after a rain storm, which we believe EPA is now trying to regulate – were surely not what Congress had in mind when they wrote the Clean Water Act more than 40 years ago, and are certainly not ‘navigable.’ Unfortunately, EPA and others would have you believe that unless they regulate it, a body of water is unregulated; when in fact, these small and local streams are regulated… by state governments. And Pennsylvania’s Department of Environmental Protection is currently busy inspecting farms and other activities along our 58,000 miles of rivers and streams.”
“This proposed rule is going to enable EPA to take jurisdiction over any puddle of water created by any person in any location,” said Pennsylvania Builders Association 2014 President Kevin Coutts. “This rule proposes to expand the power of EPA through the CWA far beyond the intent of the original legislation and in direct contradiction to the most recent rulings of the United States Supreme Court. This is an egregious example of the largest land taking in the history of these United States of America and must be stopped immediately. As such, we are very grateful for the strong opposition and leadership being demonstrated by our Pennsylvania Senator Pat Toomey and pledge our support of his efforts.”
The text of the senators’ letter is below and a pdf of the signed version is attached.
Dear Administrator McCarthy:
We write to you today regarding our concerns about the Environmental Protection Agency’s (EPA) proposed rule to significantly expand its permitting authority over American farmers, construction workers, miners, manufacturers and private landowners, among others, by unilaterally changing the definition of “waters of the United States” under the Clean Water Act. We believe that this proposal will negatively impact economic growth by adding an additional layer of red tape to countless activities that are already sufficiently regulated by state and local governments.
This proposed rule will do little to clarify the ambiguities of Clean Water Act regulation. In fact, the agency’s proposed interpretation of “significant nexus” is sufficiently vague enough to allow EPA to assert its jurisdiction over waters not previously regulated, rather than to curtail its jurisdiction, as the agency suggests. Furthermore, the rule continues to incorporate the Kennedy “sufficient nexus” test that arose out of Rapanos v. United States (547 U.S. 715 (2006)) without meaningfully addressing the Scalia test that also arose out of that ruling. Specifically, Justice Scalia called for jurisdictional waters to mean only relatively permanent, standing or flowing bodies of water, such as streams, rivers, lakes, and other bodies of water "forming geographic features." This definition leads him to exclude "channels containing merely intermittent or ephemeral flow." We feel there is no justification for EPA’s failure to respond in detail to the equally important interpretation put forth by Justice Scalia.
We also take issue with EPA’s reckless disregard for the science that will apparently underpin this ruling. The report, titled Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence, has not been finalized, and Science Advisory Board peer review for the report is not yet complete. For EPA to propose a rule without the supposed foundational scientific document firmly in place both violates the spirit of the Administrative Procedures Act, as well as OMB and agency circulars. It is our belief that EPA should withdraw this proposed ruling until such time as the Science Advisory Board completes its review of the Report and the Report is finalized. Failure to do so puts the legitimacy of the Report, and thus, the underlying science of the rule, in doubt, and creates the impression that the EPA intends to finalize this rule on its own whims, rather than on the validity of the science.
Finally, we understand that EPA is currently soliciting comments from the public on this proposal. Given the serious impact that this proposal will have on our constituents, if enacted, we request that you give all due consideration to the correspondence that you receive and extend the comment period to the full 180 days as provided by current law.
We appreciate your prompt attention to this matter.
Elizabeth “E.R.” Anderson
U.S Senator Pat Toomey
248 Russell Senate Office Building
Washington, DC 20510
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