Mar 28: Senator James Inhofe (R-OK), Ranking Member of the Senate Committee on Environment and Public Works, joined Senators Jeff Sessions (R-AL) and Pat Roberts (R-KS), as well as Representatives John Mica (R-FL), Frank Lucas (OK), and Bob Gibbs (OH) to send a letter to Cass Sunstein Administrator of Office of Information and Regulatory Affairs at the Office of Management and Budget (OMB) asking that the document, "Guidance on Identifying Waters Protected by the Clean Air Act," put forth by U.S. EPA and the Army Corps of Engineers (USACE) not be finalized. They said, "This guidance document seeks to give the federal government control over virtually every body of water in the United States, no matter how small."
In their lengthy letter, the Members said in part, "We continue to be concerned that this so-called guidance misconstrues and manipulates the legal standards announced in the SWANCC and Rapanos Supreme Court decisions [i.e. Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159 (2001); and Rapanos v. United States, 547 U. S. 715 (2006)], and will not further the goal of clarifying which waters are subject to CWA jurisdiction. We are also concerned that the Administration is seeking, through so-called guidance, to change the scope and meaning of the CWA.
"If the Administration seeks statutory changes to the Clean Water Act, a proposal must be submitted to Congress for legislative action. If the Administration seeks to make regulatory changes, a notice and comment rulemaking is required, following the proper, transparent rulemaking process that is dictated by the Administrative Procedure Act. We have informed the Agencies of this, and that we expect them to formally withdraw this guidance and undertake a formal rulemaking to address the definition of "waters of the United States" in the context of the SWANCC and Rapanos decisions. However, the Agencies have repeatedly ignored our calls to not finalize the guidance. . .
"Further, we remain concerned that the Agencies have not fully taken into account the full extent of the changes the guidance would make in expanding the scope of Federal jurisdiction under the CWA. . . the guidance is intended to apply to more jurisdictional interpretations, under other CWA programs, than just those covered by the Army Corps in making §404 determinations. Specifically, the guidance also would apply to jurisdictional determinations made under §402, which governs National Pollutant Discharge Elimination System permits, §311, covering oil spills and SPCC plans, §303, dealing with water quality standards and total maximum daily loads, and §401, involving State water quality certifications. . .
"Finally, it was reported recently that there is no clear path forward on when or how the Agencies will proceed with a rulemaking. . . Changes in guidance will only exacerbate the confusion and legal uncertainty that surrounds the CWA and continue to embroil the States and regulated community in unending legal challenges. The scope of those affected by the guidance document is far reaching and it is clear that sufficient review of the impacts has not been considered by the agencies. We request that the guidance document not be finalized."
Senator Inhofe said, "The Obama-EPA continues to pursue a water guidance document that sets the stage for the federal government to take over virtually every body of water in the United States from irrigation ditches to puddles of water on the road. Republicans believe that any changes to the Clean Water Act through the Administration should be done through rulemaking, which requires a transparent process that allows for a public comment period. Instead, the Agencies appear to be skipping these required steps and relying on this guidance document to change the scope and meaning of the Clean Water Act. We will continue fighting this every step of the way."
House Agriculture Committee Chairman Lucas said, "The EPA has ignored repeated requests from Congress to abandon a guideline that creates a foundation to regulate essentially any body of water, such as a farm pond or even a ditch. Through this measure the EPA and the Army Corps of Engineers would assume broad and expanded authorities under the Clean Water Act to further regulate land use for farmers and ranchers. Similar legislative proposals have already been rejected by Congress, yet this Administration continues down a path of regulatory overreach. The vitality and health of our nation's waterways are important to all of us. Our disagreement is how we achieve this goal."
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