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Letter to Administrator Jackson

Today, Senator John Barrasso (R-WY) and other Senators sent a letter to Environmental Protection Agency (EPA) Administrator Lisa Jackson. They strongly oppose the EPA's recently released Clean Water Act jurisdictional guidance that will impact the U.S. economy and jobs across the nation.

Senator Barrasso released the following statement about the letter:

"EPA bureaucrats continue to overreach and undermine our economy. Their latest "guidance' is another example of Washington taking more control of private lands and water across America. Today, my colleagues and I are calling on them to stop immediately. The EPA also needs to answers our questions so that the American people receive more information about this unprecedented power grab. With 9% unemployment, Washington should break down barriers to job creation and make it easier for the private sector to create more jobs."

The letter was signed by Senators Roy Blunt (R-MO), John Boozman (R-AR), Saxby Chambliss (R-GA), Dan Coats (R-IN), Mike Crapo (R-ID), Mike Enzi (R-WY), Lindsey Graham (R-SC), Charles Grassley (R-IA), Orrin Hatch (R-UT), Mike Johanns (R-NE), Mike Lee (R-UT), John McCain (R-AZ), James Moran (R-KS), Lisa Murkowski (R-AK), Jim Risch (R-ID), Jeff Sessions (R-AL), John Thune (R-SD), David Vitter (R-LA) and Roger Wicker (R-MS).


Dear Administrator Jackson:

For nearly a decade, repeated efforts were made in both the House and Senate to pass legislation (commonly called the "Clean Water Restoration Act") to fundamentally alter the Clean Water Act (CWA) by expanding Federal government jurisdiction over water and land features whose regulation is subject to state oversight. These bills, introduced in the 111th Congress by former Senator Russ Feingold (D-WI) and former Congressman James Oberstar (D-MN), were never even scheduled for floor consideration in either Chamber. The House version of the bill never even came to a vote in committee. The reasons for this are simple. The measure was highly controversial and was strongly opposed by a broad cross-section of economic interests, including farmers, ranchers and small business people back in our home states and across the country.

In this context, we reviewed the Clean Water Act jurisdictional guidance document released by your agency on April 27th and concluded, just as your agency has, that the guidance will significantly expand federal control of private lands. In the process, it will almost certainly erect barriers to economic activity and job creation, and it will greatly expand the possibility of litigation against private landowners.

Despite revisions to some of the rhetoric in the document, the effect of the guidance will be to expand federal control into areas currently reserved to state authority. Some experts have characterized this guidance as circumventing Congress by effectively implementing the goals of the Clean Water Restoration Act, despite the fact that Congress has never authorized such an expansion of jurisdiction. Just as troubling as ignoring Congressional intent, the guidance appears to disregard the fundamental tenet embodied in two decisions of the United States Supreme Court (SWANCC and Rapanos) -- that there are limits to federal jurisdiction.

It is particularly troubling that the guidance allows the U.S. Army Corps of Engineers and EPA to regulate waters now considered entirely under state jurisdiction. This unprecedented exercise of power will allow EPA to trump states' rights, and vitiate the authority of state and local governments to make local land and water use decisions. This is particularly troubling when we have seen no evidence that the states are misusing or otherwise failing to meet their responsibilities.

Enormous resources will be needed to expand the CWA federal regulatory program. Not only will there be a host of landowners and project proponents who will now be subject to the CWA's mandates and costs of obtaining permits, but an increase in the number of permits needed will lead to longer permitting delays. Increased delays in securing permits will impede a host of
economic activities in our states. Commercial and residential real estate development, agriculture, electric transmission, transportation, energy development and mining will all be effected and thousands of jobs will be lost. Moreover, the agencies will need additional resources to complete jurisdictional determinations and administer the overall program. As the geographic scope of authority grows, so do the needs for program resources.

With that in mind, we request clarification on the draft guidance and request a response to the following questions no later than June 15th:

1) The draft guidance appears to present a broad interpretation of Supreme Court Justice Anthony Kennedy's "significant nexus" test for determining federal regulatory jurisdiction over wetlands by expanding this test to give EPA and the Corps jurisdiction over any type of water body that has a connection to a navigable water body. Is this an accurate description? If not, please explain why not.

2) The guidance states that "A hydrologic connection is not necessary to establish a significant nexus, because in some cases the lack of a hydrologic connection would be a sign of the water's function in relationship to the traditional navigable water or interstate water, such as retention of flood waters or pollutants that would otherwise flow downstream to the traditional navigable water or interstate water." Please explain in more detail how there can be a significant nexus with a navigable water body without there being a hydrological connection to that water body?

3) What wet areas of a State do not have a hydrological connection to larger, navigable water bodies under federal jurisdiction? Please be specific to the classification of water body that would not have a hydrological connection to navigable waters that are covered by the Clean Water Act?

4) The draft guidance allows the agencies to "aggregate" the contributions of "similarly situated" waters within an entire watershed when making a significant nexus determination, thereby making it far easier to determine that a waterbody has a significant nexus to a traditional navigable water or interstate water. Because the agencies have historically looked solely at the waterbody in question when making jurisdictional decisions, haven't they now effectively expanded their scope of review to include the overall watershed which may or may not reflect the actual functions of the singular water on the traditional navigable water? Please explain how the aggregation is expected to work and how this does not overstep your CWA authority.

5) In the summary of key points contained within the draft guidance it states "the following aquatic areas are "generally not protected' by the CWA." Please explain the term "generally" in terms landowners can understand and describe when the features listed in this list are waters of the U.S.?

6) Your agency states in the proposed guidance that "Although guidance does not have the force of law, it is frequently used by Federal agencies to explain and clarify their understandings of existing requirements." In addition, the draft guidance states "Each jurisdictional determination, however, will be made on a case-by-case basis considering the facts and circumstances of the case and consistent with applicable statutes, regulations, and case law." Although your agency states this guidance will not have the
force of law, it appears it will have an impact on agency decisions that are made on the ground, such as permitting decisions. Is that correct? Please explain in more detail how this guidance will have an impact on decision making on the ground? Likewise, please elaborate and describe a scenario under which an applicant would not have to rely on the guidance, yet be free of legal consequences.

7) Applying for a Clean Water Act permit can cost thousands of dollars for an applicant. First, if a landowner disagrees with a jurisdictional determination under this new guidance, can a landowner challenge that determination? Second, if a permit is denied to a farmer, rancher, small business owner or other entity, in whole or in part as a result of this guidance, will the applicant be able to challenge the agency's decision? If so, please describe the process for an appeal. Can the mere assertion of jurisdiction be challenged or would the applicant be required to go through the entire permitting process before a challenge to the scope of jurisdiction to be raised?

8) The draft guidance states, "However, it is not the agencies' intention that previously issued jurisdictional determinations be re-opened as a result of this guidance." Despite agency intention, could previous jurisdictional determinations be challenged in court as a result of this guidance? Will agency officials in the field be prevented from retroactively modifying previous jurisdictional determinations under this draft guidance? Please provide the section of the guidance, or other agency document, that clarifies this point.

Congress and the American people have made their voices heard on this issue in the last election. We urge you to reject this economically devastating course of action.

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