Earlier this month, the House Committee on Transportation and Infrastructure, and the Senate Committee on Environment and Public Works held a joint hearing on the Environmental Protection Agency (EPA) and Army Corps of Engineers’ proposed rule defining “waters of the U.S.” under the Clean Water Act (CWA). This proposed rule is an attempt to define “the scope of waters protected under the CWA”—though it does nothing to clarify the definition of “waters of the U.S.” as numerous organizations, experts, states, and lawmakers alike have pointed out. They are concerned that the language in the proposed rule is too vague and could allow regulation by the EPA over almost any body of water.
More than 900,000 comments were submitted during the comment period that closed on November 14, 2014. Of nearly one million comments, only about 19,000 have been posted for the public to read. Daren Bakst, a Research Fellow in Agricultural Policy at The Heritage Foundation, stated in his comment that the “agencies claim they are seeking to provide clarity to the CWA. Unfortunately, the proposed rule creates more confusion.” Many of these comments express strong opposition from stakeholders, such as small business owners, farmers, counties, and nonprofit organizations who, along with 34 states, believe that the rule should be completely withdrawn or that the process of defining “waters of the U.S.” be started over entirely.
Regulatory uncertainty permeates the rule proposed by the EPA. As the first panel of witnesses in the hearing, Gina McCarthy, the EPA’s Administrator, and her counterpart Jo-Ellen Darcy of the Army Corps of Engineers, both repeatedly said that the proposed rule would expand exemptions and further narrow the jurisdiction of the CWA. Both witnesses assured lawmakers that agricultural ponds, ditches, and irrigated farmland would continue to be exempt under the CWA. However, when shown a picture of farmland that had an erosional feature running through it, neither witness could verify if that piece of land would be exempt under the language of the rule.
The agencies’ proposed rule uses terms, such as “significant” or “moderate to high water flow,” to help explain which types of waters would be covered under the law. However, these terms provide no clear meaning and leave the definitions of these terms open to the subjective interpretation of individual regulators. Representative Thomas Massie (R–KY) expressed his concern over the imprecise language when he questioned the science behind the proposed rule. Massie said, “You can’t do science without numbers, and you can’t do science without units. I’ve heard terms like flow, duration, wet, dry, intermittent.… [T]hese things have not been defined in the rule.” Such subjective terms would allow the EPA and Army Corps of Engineers to grant themselves unilateral jurisdiction over almost any body of water in the United States.
Scott Pruitt, the Attorney General of Oklahoma, said of the proposed rule during his testimony: “This rule smells like far more than mere clarification; indeed, it reeks of federal expansion, overreach, and interference with local land use decisions.” The implications of the proposed rule to clarify the definition of “waters of the U.S.” are clear. The language is vague and uncertain; the rule lends itself to misinterpretation and expansion of jurisdiction by the EPA. The proposed rule could be finalized as early as this spring, so Congress has little time to act. While a joint congressional hearing was important for addressing concerns, action must be taken to assure that this proposed rule does not go into effect—it should be withdrawn immediately.