The Senate Committee on Environment and Public Works and the House Committee on Transportation and Infrastructure held a joint hearing Feb. 4, 2015, “Impacts of the Proposed Waters of the United States Rule on State and Local Governments.”

In March 2014, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers released the 370-page proposed rule known as the “Waters of the United States,” (WOTUS). The measure proposed clarifying protection under the Clean Water Act (CWA) for streams and wetlands that form the foundation of the nation’s water resources.

The public comment period, originally scheduled for 90 days, was extended to November 14, 2014. The docket, EPA-HQ-OW-2011-0880, indicates that 1,034,375 comments were received. The date for the final rule has not yet been announced.

Bill Shuster, R-Pa., Chairman of the U.S. House Committee on Transportation and Infrastructure, opened the five-and-a-half-hour-long meeting by labeling the rule “troubling,” and said it undermines the federal-state partnership. “While the agencies had an opportunity to develop a reasonable rule, they instead chose to write the proposed rule vaguely in order to give federal regulators free rein to claim federal jurisdiction over most any water or wet area,” Shuster charged.

Shuster commented that 34 states oppose the rule; 22 of those states say it should be withdrawn.

Senator James M. Inhofe, R-Okla., who chairs the Senate Environment and Public Works Committee, said he has concerns not only with the substance of the rule, but also with the process. He called attention to the Advocacy review that reported the missing Regulatory Flexibility Act process. Inhofe also said his committee attorney believed the EPA had exceeded its authority.

House Committee on Transportation and Infrastructure Chairman Bill Shuster (R-Pa) considers the consequences of the proposed rule. Photo Credit: Bob Ferguson

EPA Administrator Gina McCarthy testified that the proposed rule responds to requests by stakeholders to make the process of identifying waters under the CWA easier to understand, more predictable and more consistent. She said the proposal would not change existing exemptions, and will not change the exemptions from permitting for agriculture, ranching and forestry activities.

Jo-Ellen Darcy, assistant secretary of the Army (Civil Works), said the objective is balancing the protection of the nation’s aquatic resources while allowing for fair and reasonable development. Referring to Justice Kennedy’s “significant nexus” standard, she added it is reasonable and appropriate to apply it to both open waters and wetlands to determine whether they are subject to CWA jurisdiction. Recognizing the million-plus comments, including 20,000 unique and individual ideas, opinions and suggestions, Darcy said the agencies are considering each in developing the final rule.

Areas with particularly robust comments are being evaluated, McCarthy said. “We’ll protect what we need to, and leave alone what we don’t,” she clarified. McCarthy stressed that it was EPA’s intent to clarify the confusion that followed the Supreme Court decisions. She added that EPA has had requests for clarification for decades, has spent years looking at the science, and has had 400 meetings and met with 2,500 individuals.

Senator Barbara Boxer, D-Calif., ranking member of the Senate Committee on Environment and Public Works, asked McCarthy if isolated puddles, ponds, artificial irrigation, reflecting pools or depressions would be regulated. McCarthy answered “No” to each. Boxer stated, “People are arguing against a mythical rule.”

Representative Peter DeFazio, D-Ore., ranking member of the Transportation and Infrastructure Committee, commented that under the Bush Administration’s guidance the rules were a “hodgepodge.” “It failed to protect and failed regulatory certainty. Let the agency go forward,” he urged.

Representative Bob Gibbs, R-Ohio, chair of the Water Resources and Environment Subcommittee, said the states had not been consulted on the rule. “The process is broken; stop and do it over,” he stated.

McCarthy said agriculture wants clarification and predictability. “Go back and look at the science,” she urged.

Over 30 members of Congress asked questions. McCarthy responded that the proposed rule narrowed EPA’s jurisdiction, and that the exemptions, many of which are for agriculture, were unchanged.

In her written testimony, McCarthy indicated that protection would include tributaries and adjacent wetlands because they’re critical to the integrity of the waters and influence traditional navigable waters, and some waters would remain subject to a case-specific evaluation. During the hearing, McCarthy said ephemeral streams to a tributary would need a significant nexus. Ditches, she added, must have a significant connection to warrant jurisdiction.

Adam Putnam, Commissioner of Agriculture, state of Florida, on behalf of the National Association of State Departments of Agriculture, said the proposed rule would significantly expand federal jurisdiction, impose additional burdensome requirements on agricultural producers, and impede environmental efforts.

Sallie Clark, National Association of Counties, said the consultation with state and local governments was flawed – one-size-fits-all federal regulation is not the answer – and the proposed rule only complicates matters. F. Scott Pruitt, Attorney General of Oklahoma, citing the court cases, said the proposed rule is unlawful and must be withdrawn.

Lemuel Srolovic, New York State Environmental Protection Bureau Chief, and Timothy Mauck, Clear Creek Board of County Commissioners, Colorado, both supported the proposed rule.

According to McCarthy, the EPA was not planning to do a supplemental proposal. The agency’s regulatory agenda denotes April for the final rule, but McCarthy said they planned to issue it in the spring and would not give a specific date.

In a press release after the hearing, Shuster and Inhofe called for withdrawal of the WOTUS rule. They pledged continuing oversight, and working toward legislation to prevent the rule from being finalized.

Cover Photo by burwellphotography /iStockphoto.com