Tuesday, July 05, 2011

GOP Senators Object To CWA Guidance Document; Comment Extended

Jul 5: U.S. EPA and Army Corps of Engineers announced in the Federal Register [76 FR 39101-39102] they are extending the comment period until July 31, on their proposed Guidance Regarding Identification of Waters Protected by the Clean Water Act (CWA). On May 2, 2011, EPA the Corps officially announced availability of draft guidance (76 FR 24479) that describes how the agencies will identify waters protected by the Federal Water Pollution Control Act Amendments of 1972 (Clean Water Act or CWA or Act) and implement the Supreme Court's decisions on this topic (i.e., Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) (531 U.S. 159 (2001)) and Rapanos v. United States (547 U.S. 715 (2006)) (Rapanos)). The comment period was originally set to expire on July 1, 2011, and the agencies are extending the public comment period by 30 days. EPA and the Corps originally announced the Guidance on April 27, as part of the Administration's National Clean Water Framework [See WIMS 4/27/11]. The Guidance would replace previous guidance concerning the scope of protection for critical waters.
    On June 30, Senator James Inhofe (R-OK), Ranking Member of the Senate Committee on Environment and Public Works (EPW), along with 40 Republican colleagues sent a letter to EPA and the Corps asking the agencies to abandon their draft guidance document. Senator Inhofe, who is leading the effort said, "I am pleased to join 40 of my colleagues in opposition to EPA and Army Corps' recent guidance document, which seeks to greatly expand federal jurisdiction over our nation's waters. Whether it's global warming or clean water, the Obama EPA is aggressively trying to achieve through regulation what could not be achieved through legislation, and this guidance document is a prime example. The agencies should immediately abandon it and work to implement an effective balance between state and federal authority-that balance is the best way to achieve substantial progress in protecting water."

    In their letter the Senators said, "We have a great deal of concern about the actions that the Agencies are pursuing. The Agencies claim that this guidance document is simply meant to clarify how the Agencies understand the existing requirements of the CWA in light of the current law, regulations, and Supreme Court cases. More than clarifying, they greatly expand what could be considered jurisdictional waters through a slew of new and expanded definitions and through changes to applications of jurisdictional tests. This guidance document improperly interprets the opinions of the plurality and Justice Kennedy's opinion in Rapanos v. United States by incorporating only their expansive language in an attempt to gain jurisdictional authority over new waters, while ignoring both justices' clear limitations on federal CWA authority. . .
    "Because the draft guidance will substantively change how the agencies decide which waters are subject to federal jurisdiction and will impact the regulated community's rights and obligations under the CWA, this guidance has clear regulatory consequences and goes beyond being simply advisory guidelines. The draft guidance will shift the burden of proving jurisdictional status of waters from the Agencies to the regulated communities, thus making the guidance binding and fundamentally changing the legal rights and responsibilities that they have. When an agency acts to change the rights of an individual, we believe that the agency must go through the formal rulemaking process."
    On June 22, 2011, the Small Business Administration (SBA) Office of Advocacy also submitted public comments on the Guidance and among other concerns raised questions regarding the "guidance" v. "rule" issue [See WIMS 6/24/11]. SBA Advocacy said, "Advocacy is concerned that the Agencies are choosing to address the very important issue of the determination of jurisdictional decision in guidance rather than through the rulemaking process. Advocacy believes that imposition of the changes the Agencies propose in the Guidance is properly made through the rulemaking process as governed by the Administrative Procedure Act. Advocacy realizes that the Agencies are soliciting comments on the proposed guidance. However, the rulemaking process provides the public and small businesses with important protections beyond the ability to comment such as the right to a Regulatory Flexibility Analysis and the requirement that agencies respond to comments. . ."
    Access today's FR announcement (click here). Access the letter from Republican Senators including highlights of several specific issues regarding the draft guidance document (click here). Access the EPA Docket for this action for background and to submit and review comments (click here). Access the Obama Administration's Clean Water Framework (click here). Access the draft Clean Water Act guidance from U.S. EPA and the U.S. Army Corps of Engineers with supporting documents and commenting instructions (click here). [*Water]

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