Bill seeks to halt EPA efforts to expand CWA regulation

Legislation designed to halt the U.S. Environmental Protection Agency’s (EPA) and the Army Corps of Engineers’ attempts to expand federal power under the Clean Water Act (CWA) was introduced on April 27. The legislation would require a formal rulemaking for any attempt to change the definition of “waters of the United States” and increase the federal government’s power under the CWA.

Leaders of the House Transportation and Infrastructure Committee and the Agriculture Committee introduced H.R. 4965, a bill to prohibit implementing the EPA/Corps CWA “guidance” to significantly broaden the scope of federal jurisdiction. The bill was introduced by U.S. Reps. John Mica (R-Fla.), Nick Rahall (D-W.V.), Frank Lucas (R-Okla.), Collin Peterson (D-Minn.) and Bob Gibbs (R-Ohio).

This legislation is almost identical to a Senate bill, the Preserve the Waters of the United States Act,  introduced in late March 2012 by U.S. Sens. John Barrasso (R-Wyo.), Dean Heller (R-Nev.) Jim Inhofe (R-Okla.) and Jeff Sessions (R-Ala.). 

The document triggering the legislation was draft CWA jurisdictional guidance, proposed by EPA and the Corps in April 2011 and expected to be finalized soon. In February, EPA and the Corps sent a final guidance document, titled “Guidance on Identifying Waters Protected by the Clean Water Act” to the Office of Management and Budget for regulatory review.  

Critics say the guidance essentially attempts to give EPA and the Corps jurisdiction over all types of waters, including occasionally wet areas and land use decisions not previously subject to federal regulation. 

Nebraska cattle producer and National Cattlemen’s Beef Association (NCBA) president J.D. Alexander said the legislation would stop EPA’s intentional avoidance of the rulemaking process and Congress. He said EPA is moving forward despite three Supreme Court rulings and a letter from 170 members of Congress opposing the guidance.

“The problem with EPA is accountability,” he said. “This administration has made clear its preference to use guidance documents as opposed to going through the rulemaking process. This allows the activists-turned-government officials to avoid public scrutiny and bypass the consideration of legal, economic and unintended consequences. This is a clear violation of the Administrative Procedures Act.”

Statutory changes to the CWA must be submitted to Congress for legislative action, and regulatory changes require a notice and comment rulemaking, according to the Administrative Procedure Act.