By Madeline Urbish
The House passed a bill on May 12th that would require the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) to withdraw their proposed Waters of the U.S. rule and restart the rule making process. H.R. 1732, Regulatory Integrity Protection Act of 2015, passed mostly along party lines by a vote of 261 to 155, with 24 Democrats voting with Republicans in favor of the bill.
Waters of the U.S. Debate
On March 25, 2014, the EPA and the Corps published a proposed rule, “Definition of ‘Waters of the United States’ Under the Clean Water Act.” The rule defines which waters are covered under the Clean Water Act (CWA), also known as jurisdictional waters. Under the EPA’s and the Corps’ proposal, jurisdictional waters would include tributaries and waters “adjacent” to jurisdictional waters. There has been significant backlash to the proposed rule from a variety of sources, including Congress. The major alarm concerns the proposal’s broad language and definitions. Opponents of the rule fear that it would give the EPA and the Corps unprecedented authority, leaving individuals, local and state governments, and businesses subject to regulatory overreach.
Additionally, conservative groups have called out the proposal as an attack on property rights. A Heritage Foundation report mused about the possibility of “common activities, from farming to home building, could require a permit.” Others argue that the proposed regulation is an attempt to circumvent Congress and the precedent set forth by the Supreme Court’s decision in 2001 and 2006 (see Background below).
Representative Paul Gosar (R-AZ) reintroduced a bill to prevent the EPA and Corps from finalizing and implementing the proposed rule. H.R. 594, Waters of the United States Regulatory Overreach Protection Act of 2015, has 184 cosponsors, three of whom are Democrats, and is currently under the auspices of the House Committee on Transportation and Infrastructure’s Subcommittee on Water Resources and Environment. Additionally, the Full Committee on Transportation and Infrastructure and the Senate Committee on Environment and Public Works held a joint hearing on the proposed rules on February 4th, during which strong opposition was voiced by Republican members.
What’s in the Proposed Rule?
The rule focuses on clarifying the regulatory status of waters located in isolated places in a landscape and streams that flow only part of the year, along with nearby wetlands; these were left ambiguous after the Supreme Court’s rulings in 2001 and 2006 (see Background below). Specially, the rule proposed categories of water that are and are not jurisdictional. The following waters fall under the jurisdictional category:
- All tributaries to the nation’s traditional navigable waters, interstate waters, territorial seas, or impoundments of these waters
- Waters, including wetlands that are “adjacent” to traditional navigable waters, interstate waters, territorial seas, jurisdictional tributaries, or impoundments of these waters.
- Some waters (fewer than under current practice) would remain subject to a case-specific evaluation
The proposed rule makes no change to and does not affect existing statutory and regulatory exclusions (i.e. normal farming, ranching, etc.). The list of new exemptions include:
- Waste treatment systems, including treatment ponds or lagoons (no change from current rules)
- Prior converted croplands (no change from current rules)
- A list of features that have been excluded by long-standing practice, including artificially irrigated areas (see a full list in the Congressional Research Service Report)
- Two types of ditches:
- Ditches that are excavated wholly in uplands, drain only uplands or non-jurisdictional waters, and have less than perennial flow
- Ditches that do not contribute to flow to a traditional navigable water, interstate water, impoundment, or territorial seas
The EPA and Corps estimate that approximately 3% more acreage of wetlands and stream miles would additionally be subject to CWA jurisdiction – approximately 1,500 acres nationwide. According to the analysis, Federal and state governments would likely see an increase in regulation costs of about $1 million annually. Coupled with other costs, such as compensatory mitigation requirements, the EPA and Corps estimate the rule change will cost between an additional $162 million and $279 million each year.
The Clean Water Act (CWA) protects “navigable waters,” which is defined as “waters of the United States, including the territorial seas.” The definition is quite broad, and includes waters that are not truly navigable. Some of the more important provisions include the federal prohibition on pollutant discharges except in compliance with the act, permit requirements, and enforcement authorities. The CWA gave agencies the authority to define the term “waters of the United States” (WotUS) in its regulations, which the EPA and the Corps have done several times, most recently in 1986.
In 2001 and 2006, the United States Supreme Court interpreted the regulatory scope of the CWA more narrowly, which created significant uncertainty about the precise effect of its ruling (see. Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (2001) and Rapanos v. United States (2006)). The EPA and Corps issued guidance in 2003 and 2008 to reduce confusion over the Court’s rulings; however, some have argued that these clarifications did not adhere to the spirit of the court’s rulings. In 2011, the Obama Administration proposed revised guidance, which served as the basis for the 2014 proposed rule.
The major support for the bill, unsurprisingly, lies in the Obama Administration and consequently the Democratic Party. EPA Administrator Gina McCarthy and Assistant Secretary of the Army Jo-Ellen Darcy contend the rules better define protected waters since the Supreme Court cases. Additionally, the EPA and Corps argue that all the agriculture exemptions and exclusions from CWA requirements that have been in place for the past 40 years are retained and clarified through the proposed rules.
There are also several groups that have openly supported the proposed rules, including the National Farmers Union, the National Wildlife Federation, the National Resources Defense Council, the American Sustainable Business Council, the Theodore Roosevelt Conservation Partnership, the Izaak Walton League of America, the Waterkeeper Alliance, the Association of Northwest Steelheaders, Pennsylvania Trout Unlimited, and the Iowa Environmental Council.
Many of these organizations have developed talking points and sent letters to members of Congress in support of the rules. The American Sustainable Business Council (ASBC) sent a letter to U.S. Senators arguing that the business community needs clean water to be successful, and that protecting these waters is not a burden on businesses. The ASBC also lauded the rules for providing clarity and certainty in the regulation of waters. In addition, the National Farmers Union sent out a talking points memo to its members, explaining the functions of the proposed rule, as well as dispelling the "myths" circulated by opponents, including the claim that the rule will be used to justify federal land grabs.
Significant opposition to the proposed rule has surfaced from a variety of sources, including local governments, the agriculture industry, and congressional Republicans. The biggest concern is that the rule is incredibly broad and applies CWA jurisdiction to waters previously outside the act's purview, particularly regarding the definition of "adjacent waters."
The National Association of Counties (NACo) argues that counties and local governments would see their public infrastructure, including roadside ditches, flood control channels, and stormwater management structures, come under federal jurisdiction. In a letter to Congress in support of H.R. 1732, NACo expressed deep concern with the rulemaking process as well as the substance of the WotUS proposal, including its broad nature.
The Farm Bureau has also been vocal in its opposition to the proposed WotUS rules, and officially endorsed legislation in Congress (H.R. 1732) that would withdraw the proposal. The Farm Bureau sent a letter to the House Transportation and Infrastructure Committee on April 16th detailing its concerns. Similar to NACo, the Farm Bureau raised alarm over the vague definitions of water features, such as ephemeral streams and floodplains, and the subsequent potential regulation thereof.
Other organizations and public officials that have expressed concern about the broadness of the rules, as well as outright opposition to them include: National Sustainable Agriculture Coalition, National Cattlemen’s Beef Association, National Stone Sand and Gravel Association, and Public Lands Council.
The Regulatory Integrity Protection Act of 2015 will now move to the Senate. It is likely to face opposition with Democrats; however, there may be enough momentum to move the measure through. We will continue to monitor the bill and provide updates as they arise.
For more information and an update on the status of the EPA WotUS proposal, email email@example.com