Barrasso statement on Administration’s repeal of Clean Water Act Jurisdictional Guidance
Barrasso championed legislation to halt the Environmental Protection Agency’s draft Clean Water Act Jurisdictional Guidance.
by Wyoming Senator John Barrasso
September 18, 2013
WASHINGTON, D.C. – Today (Sept. 17, 2013), U.S. Senator John Barrasso (R-WY) issued the following statement after the Obama Administration announced it would repeal overreaching "guidance" to drastically expand water regulations under the Clean Water Act (CWA).
"The Obama Administration’s attempt to claim jurisdiction over all wet areas of a state through ‘guidance’ was an unprecedented power grab. While repealing this red tape ‘guidance’ appears to be good news for Americans and their private land rights, we all know this fight is far from over. We have absolutely zero guarantee that the Administration isn’t already working on another overreaching way to control more private lands across the country.
"I’m going to continue to fight to make sure the Administration doesn’t now try to use this same ‘guidance’ as the basis for a permanent rule. A bipartisan majority of the Senate voted against this approach in May of this year. When millions of Americans can’t find jobs, we can’t afford more Washington red tape that crushes agriculture, commercial and residential real estate development, electric transmission, transportation, energy development and mining jobs across the country."
On May 14th, the Senate voted on the "Preserve the Waters of the U.S." as an amendment to S. 601. While the amendment did not receive the 60 votes needed to pass, a bipartisan majority of 52 Senators voted to reject the CWA guidance.
In May 2011, the Environmental Protection Agency (EPA) and Army Corps of Engineers (Corps) issued draft guidance on "Identifying Waters Protected by the Clean Water Act." This guidance document, which was sent in final form to OMB on February 21, 2012, significantly changes and expands what features are considered protected under the Clean Water Act. It makes substantial additions, such as a first time inclusion of ditches, ground water, potholes, gutters and other water features that may flow, if at all, only after a heavy rainfall.
Senator Barrasso re-introduced the "Preserve the Waters of the U.S. Act" on May 22nd of this year. The bill prevents EPA and the Corps from using this guidance to change legal responsibilities under the Clean Water Act and prevents the EPA and the Corps from issuing similar guidance in the future. Barrasso first introduced the bill on March 28, 2012.
Some of the major problems associated with the EPA’s draft CWA Guidance:
• Regulation through Guidance: By issuing a guidance document as opposed to going through the rulemaking process, EPA and the Corps are bypassing the necessary public outreach required under the Administrative Procedures Act and failing to fully consider the legal, economic, and unforeseen consequences of their actions.
• Increasing Permits: EPA and the Corps affirm that this guidance would result in an increase in jurisdictional determinations which would result in an increased need for permits. In addition to more Corps §404 permits, State permitting authorities would be faced with more NPDES permits and more entities will be subject to CWA requirements.
• Applies to all CWA Programs: In addition to the Corps §404 dredge and fill permits, the guidance would have applied to all CWA programs including §303 water quality standards, §401 state water quality certifications, §311 Oil Pollution Act (including Spill Prevention, Control, and Countermeasure Plans), and §402 program (including National Pollutant Discharge Elimination System permits, pesticide general permit, and storm water).
• Negative Economic and Job Impacts: Additional regulatory costs associated with changes in jurisdiction and increases in permits would erect bureaucratic barriers to economic growth, negatively impacting farms, small businesses, commercial development, road construction and energy production, to name a few.
• Assault on Private Property Rights: Expanding federal control over intrastate waters would substantially interfere with the ability of individual landowners to use their property.
• Negative Impact on State on Local Governments: Changes to the "waters of the U.S." definition may have far-reaching effects and unintended consequences on a number of state and local programs. The guidance would have created significant unfunded mandates and preempted state and local authority.
• Conflicts with Supreme Court Rulings: The guidance would use an overly broad interpretation of the Rapanos decision. The effect is virtually all wet areas that connect in any way to navigable waters are jurisdictional. Both the plurality opinion and Kennedy rejected this assertion in Rapanos.