Hearing of the Senate Environment and Public Works Committee - State & Local Impacts of Administration's Proposed Expansion of Waters Regulation

Hearing

Administrator McCarthy and Secretary Darcy, thank you both for taking the time to be here today.

I have a number of concerns with your proposed "waters of the United States" rule and even more questions. My concerns stem not only from the substance of the rule but also from the flawed process employed by your agencies in developing it.

First, I take issue with the fact that this proposed rule, if finalized, would significantly expand federal authority under the CWA beyond that intended by Congress. Agencies can only carry out the authority that Congress gives them. They cannot create it unilaterally.

I am troubled by the fact that for many years, EPA and the Corps have embarked on what seems to be a relentless quest to expand the definition of "waters of the United States," and therefore federal authority under the CWA. This agenda has been advanced in individual permit decisions by Corps Districts across the country.

But, the Supreme Court drew the line when you tried to claim jurisdiction over isolated ponds and wetlands because birds could fly there and again when you tried to claim jurisdiction over wetlands adjacent to ditches and dry channels. The Supreme Court expressly rejected broad assertions of regulatory authority and made it clear that all water is not subject to federal jurisdiction under the CWA.

Instead of respecting these limits on your authority, you then tried to memorialize the most extreme examples of bureaucratic overreach --first in a 2011 guidance document and now in this proposed rule.
Your agencies purportedly based this proposed rule on a scientific report that was incomplete and had not been properly peer reviewed prior to the development of the proposed rule.

You finalized that report in January 2015. Unsurprisingly, the scientists found that all water is connected. Every child is taught about the water cycle in elementary school.

But, Congress did not give EPA and the Corps the authority to regulate the water cycle. So your report has no relevance to your legal authority.

The Chief Counsel for the Small Business Administration Office of Advocacy disagrees with you. In comments on the rule, he said:

Advocacy and small businesses are extremely concerned about the rule as proposed. The rule will have a direct and potentially costly impact on small businesses. The limited economic analysis which the agencies submitted with the rule provides ample evidence of a potentially significant economic impact. Advocacy advises the agencies to withdraw the rule and conduct a [small business review panel] prior to promulgating any further rule on this issue.

I ask unanimous consent that this letter be placed in the record for this hearing.

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