Letter to U.S. Environmental Protection Agency Acting Administrator Bob Perciasepe - Avoid Expanding Water Regulations

Letter

U.S. Sens. John Barrasso (R-Wyo.) and David Vitter (R-La.), top Republican on the Environment and Public Works Committee, led a group of 30 senators urging the Administration in a letter to withdraw draft guidance to define "waters of the United States" under the Clean Water Act (CWA). If not withdrawn, the guidance could lead the EPA to redefine when isolated wetlands, intermittent streams, and other non-navigable waters should be subject to regulation.

"If we don't stop this extreme idea, the EPA will have virtually unlimited regulatory control over all wet areas within a state," said Barrasso. "Responsible landowners and state officials, not Washington bureaucrats, should have authority over these areas. It's time for the Administration to withdraw this unprecedented Washington power grab."

"If the EPA is allowed to move forward with this guidance, streams, lakes and wetlands in nearly all of our states are going to be overburdened with federal bureaucracy," Ranking Member Vitter said. "We're simply asking them to withdraw the guidance and stick to formal rulemaking procedures."

On April 5th, EPW Republicans released a document highlighting several cases in which the EPA's regulatory intentions through the CWA were overturned by the courts. The EPA's proposed CWA guidance continues the agency's recent pattern of asserting regulatory jurisdiction beyond statutory limits.

Cosigning Barrasso and Vitter's letter to the EPA today are: Roy Blunt (R-Mo.), John Boozman (R-Ark.), Saxby Chambliss (R-Ga.), Daniel Coats (R-Ind.), Tom Coburn (R-Okla.), Thad Cochran (R-Miss.), John Cornyn (R-Texas), Mike Crapo (R-Idaho), Michael Enzi (R-Wyo.), Deb Fischer (R-Neb.), Chuck Grassley (R-Iowa), Orrin Hatch (R-Utah), Dean Heller (R-Nev.), John Hoeven (R-N.D.), James Inhofe (R-Okla.), Johnny Isakson (R-Ga.), Mike Johanns (R-Neb.), Mike Lee (R-Utah), John McCain (R-Az.), Jerry Moran (R-Kan.), Lisa Murkowski (R-Alaska), Pat Roberts (R-Kan.), Marco Rubio (R-Fla.), Tim Scott (R-S.C.), Jeff Sessions (R-Ala.), John Thune (R-S.D.), Roger Wicker (R-Miss.), and Ron Johnson (R-Wis.).

A copy of the Senators' letter is below.

April 23, 2013

The Honorable Bob Perciasepe
Acting Administrator
U.S. Environmental Protection Agency
1200 Pennsylvania Ave, NW
Washington, D.C. 20460

Dear Acting Administrator Perciasepe:

The Environmental Protection Agency (EPA) has indicated that it plans to move forward with a formal rulemaking to clarify the definition of "waters of the United States" under the Clean Water Act (CWA). We understand that the agency has yet to determine whether it will go forward with finalizing the proposed guidance in addition to the rulemaking or choose to conduct only a rulemaking. As you know, this rulemaking is of extreme significance, as the scope of the final rule will indicate whether EPA intends to redefine when isolated wetlands, intermittent streams, and other non-navigable waters should be subject to regulation under the CWA.

We write to express continued concern over the possible finalization of the proposed guidance. We request that you formally withdraw the draft guidance sent to Office of Management and Budget (OMB) in February 2012, and redirect the agency's finite resources. The draft guidance promulgated in 2011, if finalized, could expand the scope of the waters to be regulated beyond that intended by Congress. Moreover, leaving the guidance in place would further frustrate any potential rulemaking process. Given the significance of redefining jurisdictional limits to impose CWA authority, a formal rulemaking process provides a greater opportunity for public input and greater regulatory certainty than a guidance document.

With regard to the rulemaking, we ask that you stay within the confines of current law and eschew attempts to expand jurisdiction beyond the intent of Congress. Any rulemaking should identify limits to EPA's jurisdiction under the statute consistent with those articulated in the Supreme Court decisions of SWANCC and Rapanos. In both of these cases, the U.S. Supreme Court made it clear that not all water bodies are subject to federal jurisdiction under the CWA. Any proposed rule should reflect this principle.

As you are aware, several recent cases indicate that the courts remain critical of EPA's efforts to expand jurisdiction or aggressively exercise the agency's enforcement powers. For example, in March 2012 the Supreme Court unanimously rejected EPA's position that a compliance order issued under the CWA was not final agency action subject to judicial review. More recently, the District Court for the Eastern District of Virginia held that EPA lacks authority under the CWA to establish a Total Maximum Daily Load (TMDL) for the flow of a non-pollutant (i.e., stormwater discharges) to regulate pollutant levels of an impaired water body. Just last month, the Supreme Court again thwarted attempts to expand jurisdiction when it held that the flow of water from an improved portion of a navigable waterway into an unimproved portion of the same waterway does not qualify as a "discharge of a pollutant" under the CWA. These cases demonstrate the readiness of the courts to ensure that EPA does not abuse the statutory and regulatory authority granted to it by Congress.

Accordingly, we request that you formally withdraw the proposed guidance and proceed with a formal rulemaking process. In conducting this process EPA should not attempt to expand its statutory authority beyond that intended by Congress. The final rule should reflect the principles promulgated in recent case law and identify limits on the agency's jurisdiction under the CWA.

Sincerely,

Also available in PDF format below:
http://www.epw.senate.gov/public/index.cfm?FuseAction=Files.View&FileStore_id=92800e3d-d601-481d-a8c0-503e9350f8d7