Fears of EPA ‘land grab’ create groundswell against water rule

Lawmakers are up in arms over an Environmental Protection Agency (EPA) proposal that they fear could give federal officials expansive new powers over private property and farmland.

The EPA is seeking to redefine what bodies of water fall under the agency’s jurisdiction for controlling pollution. The scope of the final Clean Water Act (CWA) rule is of critical importance, as any area covered would require a federal permit for certain activities.

{mosads}The rule is facing a groundswell of opposition from lawmakers, who fear the EPA is engaged in a “land grab” that could stop farmers and others from building fences, digging ditches or draining ponds.

More than 260 lawmakers, spanning both chambers and parties, have come out against the EPA’s action.

A group of 231 members of the House recently sent a letter to the EPA and the Army Corps asking them to withdraw the regulation. The group included almost the entire House Republican conference, as well as 19 Democrats.

“Although your agencies have maintained that the rule is narrow and clarifies CWA jurisdiction, it in face aggressively expands federal authority under the CWA while bypassing Congress and creating unnecessary ambiguity,” the lawmakers wrote.

The proposed rule is eight years in the making, and aims to clear up ambiguity in federal regulations that the EPA says was created by a series of Supreme Court decisions.  

The EPA says the new rule — dubbed “Waters of the United States,” or “WOTUS” — would not massively expand its authority, nor would it create powers over back yards, wet spots or puddles.

“It would reduce the scope of waters covered under the Clean Water Act compared to the existing regulations on the book,” EPA Deputy Administrator Bob Perciasepe recently told the House Transportation and Infrastructure Committee. “It would not assert jurisdiction over any type of waters not previously protected over the past 40 years.”

Those assurances haven’t won over lawmakers, who say the rule is exceptionally broad.

“The 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,” the House lawmakers wrote in their letter.

The Senate also has a significant faction fighting the EPA’s action. Thirty Republican senators signed onto a bill introduced this week that would prevent the EPA and the Army Corps from moving forward.

“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 Sen. Pat Roberts (R-Kan.), the bill’s main sponsor.

“This straightforward legislation prohibits the administrator of the Environmental Protection Agency and the secretary of the Army from finalizing the rule or trying a similar regulation in the future.”

At least four other Republican senators have directly asked the Obama administration to drop the rule.

On the other side of Capitol Hill, lawmakers are using the power of the purse to stop the EPA in its tracks.

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.

Both the Appropriations Committee and Rep. Ken Calvert (R-Calif.), chairman of the subcommittee that oversees funding for the EPA and the Interior Department, declined to discuss whether they would seek to block the rule as well.

The House has held a series of hearings on the water rule to highlight the fierce opposition from agriculture groups, the stone industry, developers and local governments.

The EPA, meanwhile, is trying to fight what it calls major misconceptions about the rule. EPA Administrator Gina McCarthy reached out specifically to the agriculture community with a piece in the Farm Journal.

“Our proposed rule will not add to or expand the scope of waters historically protected under the Clean Water Act,” she wrote. “It will not regulate groundwater or tile drainage systems; and it will not increase regulation of ditches (whether they are irrigation or drainage).”

EPA officials are planning to ramp up outreach to affected groups this summer to address their concerns and clarify what the rule would do, spokeswoman Liz Purchia said.

Environmental advocates are also lining up support.

“This rule is incredibly important for the conservation community and for protecting our nation’s rivers and streams,” said Joshua Saks, the National Wildlife Federation’s top lobbyist.

Saks characterized the Capitol Hill opposition as a “vocal minority,” and said the country supports clean water.

“We have great champions in Congress who are standing up on this as well,” he said.