Last week, a letter—signed by 172 members of Congress—was sent to EPA Administrator Lisa Jackson and Assistant Secretary of the Army Jo-Ellen Darcy, expressing congressional concern that the EPA’s “Clean Water Protection Guidance” (written by the Environmental Protection Agency and the Army Corps of Engineers) was designed to circumvent proper regulatory processes while simultaneously expanding federal jurisdiction under the Clean Water Act (CWA). Although the guidance primarily describes how EPA and the Corps will identify waters subject to jurisdiction under the Clean Water Act (CWA), the fear is that “this ‘Guidance’ not only will change agency policy without following the proper, transparent rulemaking process but will reverse decisions by the United States Supreme Court that set limits on the Federal Government’s authority to regulate waters”.
“In light of the substantive changes in policy that the administration is considering with this guidance, we are extremely concerned that this guidance amounts to a de facto rule instead of mere advisory guidelines,” the lawmakers’ letter reads.
“Additionally, we fear that this guidance is an attempt to short-circuit the process for changing agency policy and the scope of Clean Water Act jurisdiction without following the proper, transparent rulemaking process that is dictated by the Administrative Procedures Act,” it continues.
The National Association of State Departments of Agriculture (NASDA) has also jumped on the bandwagon, sending a letter of its own—signed by 26 associations and agencies representing various agricultural and economic interests—stating that the guidance contains language that “strongly suggests that EPA and the Corps intend to expand their regulatory control to include most wet areas, including waters now considered entirely under state jurisdiction. This expansive federal approach signals a clear intent to restrict the use of private land and supersede the authority of state and local governments to make local land and water use decisions”.
The guidance was designed to clarify uncertainty—spawned by conflicting court decisions—over which waters fall under federal jurisdiction for the purposes of the CWA. Congressional lawmakers, on the other hand, see this as an expansion and obfuscation of process.
“This guidance clarifies and refines the agencies’ interpretation of the ‘significant nexus’ standard many water bodies must meet to be jurisdictional under the CWA that is more consistent with Justice Kennedy’s opinion and the science of aquatic ecosystems,” the guidance reads. According to the draft guidance, the EPA’s intent regarding the clarification was, “to provide further clarification of the waters that are subject to CWA jurisdiction, consistent with the Supreme Court’s decisions,” but to the members of Congress who signed on to the letter of April 14, this action by the EPA mounts to nothing short of a full-stretch power grab.
So what do you think? Is the EPA overextending its reach, and if so—to what end? Will this expansion of what is considered “water” for the purposes of CWA enforcement really unduly burden manufacturing and commerce (as the NASDA letter alleges) while simultaneously creating an environment where even flooding parking lots could be subject to federal oversight? In the face of debilitating budget cuts to all federal water programs, does it make any sense to consolidate and expand the EPA’s ability to enforce the CWA? And with our water supply facing a multitude of threats from a variety of sources, should we take the protection where we can get it?
The draft “Clean Water Act Protection Guidance” may be downloaded from the EPA’s website at www.epa.gov/owow_keep/wetlands/guidance/CWAwaters.html