Lawmakers tell EPA to ditch ‘Waters of the U.S.’ rule through legislation, letters

 

 

June 23, 2014-With the introduction of legislation in the Senate last week, more than 260 representatives and senators have come out against EPA's proposed rule which   could ultimately lead to the unlawful expansion of federal regulation to cover routine farming and ranching practices as well as other common private land uses, such as building homes.

Led by Sen. Pat Roberts (R-Kan.), a group of 30 senators has introduced Farm Bureau-supported legislation to stop EPA from taking over all private and state water in the United States. The Protecting Water and Property Rights Act of 2014 prohibits the EPA administrator and the secretary of the Army from finalizing the "Waters of the U.S." rule or trying a similar regulation in the future.

"After already calling on the EPA and Army Corps to withdraw the proposed rule, I want to make sure that the expansion of regulatory jurisdiction over 'Waters of the United States' is shelved for good," said Roberts in introducing the legislation.

In May, the Senate Western and Congressional Western caucuses sent a joint letter to EPA Administrator Gina McCarthy. In the letter, the caucuses pointed out the significant costs of the proposed rule for farmers, ranchers, homeowners and businesses.  The costs would come in the form of additional permit application expenses, mitigation requirements and environmental analysis-and this presumes the agencies would issue a requested permit in the first place. Violating these requirements could cost individual landowners thousands of dollars per day.

"The threat of ruinous penalties for alleged noncompliance with the CWA is also likely to become more common given the proposed rule's expansive approach. For example, the EPA's disputed classification of a small, local creek as a 'water of the United States' could cost as much as $187,500 per day in civil penalties for Wyoming resident Andrew Johnson. Similar uncertainty established under the proposed rule will ensure that expanding federal control over intrastate waters will substantially interfere with the ability of individual landowners to use their property," wrote the caucuses, which are led by Senate Western Caucus Chairman John Barrasso (R-Wyo.) and Congressional Western Caucus co-chairs Steve Pearce (R-N.M.) and Cynthia Lummis (R-Wyo.).

On the House side, also in May, more than 231 representatives sent a letter to EPA and the Army Corps urging them to withdraw the regulation. 

"The rule is flawed in a number of ways," the Republican and Democratic lawmakers wrote. "The most problematic of these flaws concerns the significant expansion of areas defined as 'waters of the U.S.' by effectively removing the word 'navigable' from the definition of the CWA. Based on a legally and scientifically unsound view of the 'significant nexus' concept espoused by Justice Kennedy, the [proposed] rule would place features such as ditches, ephemeral drainages, ponds (natural or man-made), prairie potholes, seeps, flood plains, and other occasionally or seasonally wet areas under federal control."

Supreme Court Justice Anthony Kennedy used the term "significant nexus" in his concurring opinion to Rapanos v. United States. 

More recently, the House Appropriations Committee passed a bill on June 18 that funds the Energy Department and the Army Corps, and included a provision that would prohibit the Army Corps from working on the water rule.

To help Farm Bureau members and others express the need for EPA to "Ditch the Rule," Farm Bureau has launched a website at ditchtherule.fb.org. Focused on topics and analysis related to the "waters of the U.S." proposed rule, the easy-to-navigate site includes several sections: Take Action, Go Social, Find Answers and Get Resources. Visitors may also sign up to learn more, comment on the proposed rule and send tweets using the hashtag #DitchTheRule. 

 

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