41 U.S. Senators Standing up against the EPA & The Clean Water Act

From Senator Thad Cochran --

COCHRAN JOINS CHALLENGE TO EPA & ARMY CORPS
NEW GUIDANCE ON CLEAN WATER ACT JURISDICTION

Group of Senators Ask Agencies to Abandon Proposed “Clarifications” on Water Regulations

WASHINGTON, D.C. – U.S. Senator Thad Cochran (R-Miss.) is among 41 U.S. Senators who have asked two federal agencies to abandon a regulatory guidance effort that would change rights of communities, farmers and others who are subject to the Clean Water Act.

Cochran has signed a letter authored by Senator James Inhofe (R-Okla.) that asks the Environmental Protection Agency and Army Corps of Engineers to take no further action on an interim draft guidance document on identifying waters protected by the Clean Water Act.  The letter questions the legality and necessity for change, and takes issue with the prospect of the guidance being used as “the first step toward a formal rulemaking in the future.”

The interim draft guidance notice (EPA-HQ-OW-2011-0409) was published in the Federal Register on May 2.  Public comments on the document are being accepted until July 31.

“The Clean Water Act has a proper role in protecting our waters, but the draft guidance offered by the Environmental Protection Agency and the Army Corps amounts to a slippery slope into a regulatory swamp,” Cochran said.  “The guidance document should be pulled and thoroughly reconsidered based on the many serious questions being raised about the legal authority behind it, as well as the potential ramifications for those who will be regulated.”

The detailed letter to EPA Administrator Lisa Jackson and Assistant Secretary of the Army for Civil Works Jo-Ellen Darcy questions the necessity of the new federal guidance because there have not been new legislative changes or court decisions altering the jurisdiction of the Clean Water Act since the last official guidance was implemented several years ago.

Led by Inhofe, who is the ranking Republican on the Senate Environment and Public Works Committee, the Senators contend that the new guidance has clear regulatory consequences and will shift the burden of proving jurisdictional status from the EPA and Army Corps to the regulated communities. 

“While we question seriously the need for this new guidance and believe that the Agencies lack the authority to rewrite their jurisdictional limitations in this manner, one thing is clear:  it is fundamentally unfair to the States and the regulated community (including our nation’s farmers and other property owners) to subject lands and waters under their control to a change in their legal status of this magnitude via a ‘guidance document,’” the Senators wrote.

The Senators go on to argue that the draft interim guidance will substantively change how the EPA and Army Corps of Engineers decide which waters are subject to federal jurisdiction and will impact the regulated community’s rights and obligations under the Clean Water Act.

“This guidance has clear regulatory consequences and goes beyond being simply advisory guidelines.  The draft guidance will shift the burden of proving jurisdictional status of waters from the Agencies to the regulated communities, thus making the guidance binding and fundamentally changing the legal rights and responsibilities that they have.  When an agency acts to change the rights of an individual, we believe that the agency must go through the formal rulemaking process,” the Senators wrote.  “We respectfully request you abandon any further action on this guidance document.”

Links:

• Federal Register Notice:  http://water.epa.gov/lawsregs/guidance/wetlands/upload/signed_epa-hq-ow-2011-0409_frn.pdf 
• Proposed Guidance Document:  http://water.epa.gov/lawsregs/guidance/wetlands/upload/wous_guidance_4-2011.pdf
• EPA Clean Water Act:  http://water.epa.gov/lawsregs/guidance/wetlands/CWAwaters.cfm

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