170 Members of Congress, including Transportation and Infrastructure Committee leaders, have written to the Environmental Protection Agency and the Army Corps of Engineers to express deep concerns that the agencies are attempting to circumvent the proper regulatory process in order to push through a dramatic expansion of federal jurisdiction under the Clean Water Act.
Water Resources and Environment Subcommittee Chairman Bob Gibbs (R-OH) and Transportation and Infrastructure Committee Member Tim Holden (D-PA) were joined by Full Committee Chairman John L. Mica (R-FL) and a large, bipartisan group of Members on the letter to EPA Administrator Lisa Jackson and Assistant Secretary of the Army for Civil Works Jo-Ellen Darcy.
In December 2010, EPA and the Corps sent draft "Clean Water Protection Guidance" to the Office of Management and Budget for regulatory review. By the agencies' own admission, this "Guidance" will substantively change federal policy with respect to which waters fall under the jurisdiction of the Clean Water Act (CWA) and significantly increase the scope of the federal government's power to regulate waters.
"It is intolerable and irresponsible of the EPA to address such a fundamental issue through an informal, procedurally easier-to-issue guidance document," said Gibbs. "This is a thinly-veiled attempt to bypass formal rulemaking procedures and force implementation of the Administration's radical agenda. This so-called "Guidance' is not merely clarifying which waters are currently subject to the Clean Water Act, it is a vast expansion of the federal government's jurisdiction and ability to impose its will on the states and the regulated community."
"The nature of this issue causes persistent confusion and frustration on many levels, so I encourage the EPA and the Corps to act more deliberately and cautiously when developing and promulgating Clean Water Act jurisdictional guidance," said Holden. "In difficult economic times throughout our country, it is critical that we do not unilaterally make decisions that will disenfranchise farmers and American workers while we are making efforts necessary to protect clean water. I urge the EPA and the Corps to work collaboratively with the states and stakeholders to ensure clarity, transparency and effective rule-making."
"This massive federal jurisdiction grab has failed to pass in previous Congresses, and now the EPA and the Administration are attempting to achieve the same economically stifling results by ignoring the proper rulemaking process," Mica said.
Gibbs continued, "As the U.S. economy struggles to get back on track, we should not allow the EPA to sidestep transparency and impose costly, burdensome de facto rules disguised as mere advisory guidelines. This blatant disregard for Congressional intent and law will deal a devastating blow to job creation and economic development at the worst possible time and must be reconsidered immediately."
The effect of the "Guidance" will be to reverse decisions by the United States Supreme Court that recognized limits to the federal government's regulatory authority, and to undermine the long-standing federal-state partnership in the regulation of waters. This expansion will result in confusion, permitting delays, and added costs and burdens for communities, farmers, small businesses, industries and other Americans.
Legislative proposals to expand federal regulatory authority under the Clean Water Act met with stiff bipartisan resistance in previous Congresses. Now the Administration is attempting to achieve the same objective through so-called "Guidance" without following the proper, transparent rulemaking process that is dictated by the Administrative Procedure Act (APA). The APA sets standards for the activities and rule making of all federal regulatory agencies, and is designed to ensure those federal agencies use open, uniform, and fair procedures. The requirements of the APA are not mere formalities.
The letter signed by the 170 Members of Congress states, "By developing this "Guidance,' the Agencies have ignored calls from state agencies and environmental groups, among others, to proceed through the normal rulemaking procedures, and have avoided consulting with the States, which are the Agencies' partners in implementing the Clean Water Act.