Today, 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 Chairman John Mica (R-FL), Chairman Frank Lucas (OK), and Representative 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 asking that the document, "Guidance on Identifying Waters Protected by the Clean Air Act," put forth by the Environmental Protection Agency (EPA) and the Army Corps of Engineers not be finalized. This guidance document seeks to give the federal government control over virtually every body of water in the United States, no matter how small.
Senator Inhofe: "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."
Chairman Mica: "The Obama EPA appears that it will stop at nothing in order to aggressively expand its regulation of small businesses, farmers, property owners and Americans across the country. EPA is trying to skirt the law and force through its massive federal jurisdiction grab and expansion of government regulations. This agency cannot ignore the necessity for transparency and the proper rulemaking process required by law."
Senator Roberts: "The Administration's proposed changes to the interpretation of the Clean Water Act will create layers of bureaucratic confusion for farmers, ranchers and forest landowners across the country. This effort will substantially broaden the regulatory reach of the EPA and the US Army Corps of Engineers. Our farmers and others affected by this closed door regulatory change deserve an open review process to voice their concerns."
Chairman Lucas: "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."
Chairman Gibbs: "Congress continues to remind the administration that their role is to suggest legislative changes for Congress to consider as a clarification to the waters of the United States, but this Administration continues to turn its deaf ears to Congress and the public's input to push its own extremist agenda. It is unacceptable for the EPA to continue overreaching their authority and legislate behind closed doors via these unaccountable guidance documents."
Text of the letter:
Dear Administrator Sunstein:
On February 21, 2012, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers (collectively, the "Agencies") sent to the Office of Information and Regulatory Affairs of the Office of Management and Budget, for regulatory review, a final guidance document entitled "Guidance on Identifying Waters Protected by the Clean Water Act" (RIN: 2040-ZA11), relating to the identification of waters subject to jurisdiction under the Clean Water Act ("CWA").
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, 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.
On April 14, 2011, 170 Members of the U.S. House of Representatives sent a letter to the Agencies stating concerns that the development of a new guidance document ignored calls from State agencies and environmental groups, among others, to proceed through the normal rulemaking procedures, and avoided consulting with the States, which are the Agencies' partners in implementing the Clean Water Act. The letter went on to urge that the Agencies not pursue this guidance, but instead to conduct a rulemaking.
On June 30, 2011, 41 members of the U.S. Senate sent a letter to the Agencies outlining specific concerns with the draft guidance and expressing their concerns that the guidance contained clear legal and regulatory consequences that go beyond being simply advisory guidelines and that changing the legal rights and responsibilities of individuals must be done through formal rulemaking. The letter went on to request that Agencies abandon any further action on this guidance document.
On November 8, 2011, a bicameral letter from the committees of jurisdiction was sent to the Agencies, again insisting that the Agencies not finalize the guidance and further requesting that they solicit input from the general public, scientific communities, and Federal and State resource agencies to determine the appropriate scope of CWA jurisdiction and the range of issues to be covered by proposed regulations through an advance notice of proposed rulemaking.
In response to the November 8, 2011 letter, Jo-Ellen Darcy, Assistant Secretary of the Army (Civil Works) said that, as was stated in the request for comment in the Federal Register on May 2, 2011(76 Fed. Reg. 24479), "the guidance would not go into effect until final guidance was issued after making changes in response to substantive comments." However, the Agencies received over 200,000 comments in response to the Federal Register request, but the final guidance that was leaked to the press on March 7, 2012 appears to be substantively identical to the draft guidance. We find it incredulous that, with over 200,000 comments, a large portion of which proposed substantive changes, the proposed guidance has not been changed in any substantive way.
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.
For example, in the economic analysis completed by the Agencies, it was determined that as few as 2% or as many as 17% of non-jurisdictional determinations under the current 2003 and 2008 guidance would be considered jurisdictional using the expanded tests under the draft guidance. However, this analysis was only for the Army Corps making §404 determinations compared to current practice.
Instead, 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.
Because most States have authority to implement the programs under many of these sections, this change in guidance also would result in a change in the responsibilities of States in executing their duties under the CWA. Failing to consider the potential costs of changes for States and an increase in programs outside the §404 program dramatically underestimates the costs of the changes this guidance document would make.
Finally, it was reported recently that there is no clear path forward on when or how the Agencies will proceed with a rulemaking. We are concerned that, like in 2003, following the Agencies' issuance of an advance notice of proposed rulemaking to obtain public input on issues associated with the definition of "waters of the United States" under the CWA, the Agencies are simply going to change the guidance and fail to undertake 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.
Thank you for your attention to this matter.