NEWS
Senators Question EPA
Todd Neeley DTN Staff Reporter
Mon Apr 21, 2014 10:52 AM CDT
(Page 1 of 2)

OMAHA (DTN) -- A group of U.S. senators said in a letter to President Barack Obama on Wednesday that the proposed Clean Water Act rule violates a presidential promise to "cut red tape" and the agency is trying to "obtain de facto land use authority."

A group of senators wrote a letter to the president complaining that EPA is overstepping it authority in writing rules for the Clean Water Act (DTN file photo by Greg Horstmeier)

The senators' response comes after EPA Administrator Gina McCarthy told agriculture journalists in Washington, D.C., this week that the agency isn't making a "land grab" and that the agency is trying to forge better relationships with the agriculture community.

EPA announced the rule in recent weeks and is expected to post it to the federal register for a 90-day public comment period in the coming weeks. Federal lawmakers have asked EPA to provide a 180-day comment period.

Agriculture groups have come out in opposition to the rule, out of fear that its inclusion of tributaries and intermittent streams in the Clean Water Act will give EPA more control of U.S. farmland by requiring farmers and ranchers to seek more federal permits for doing work affecting waters of the U.S.

Republican lawmakers on the Senate Environment and Public Works Committee led by Sen. David Vitter of Louisiana, wrote in a letter to the president Wednesday that they are "deeply concerned that the agencies are attempting to obtain de facto land use authority over the property of families, neighborhoods and communities throughout the United States."

The provisions in the more than 300-page rule "demonstrate that EPA and the Corps (U.S. Army Corps of Engineers) are unwilling to accept the meaningful limits Congress placed on the agencies' authority under the CWA, limits the Supreme Court has repeatedly recognized," the senators wrote.

The limits include the "categorical regulation of irrigation and storm water ditches, unlimited aggregation approach, and broad adjacency definition.

"The proposed rule would also have EPA and the Corps making case-by-case jurisdictional determinations based on the 'significant nexus' test, even as they ominously assert that a 'hydrologic connection is not necessary to establish a significant nexus,'" the letter said.

"Equally important, we believe EPA and the Corps should immediately cease in their proclamations that the agencies' proposal is a justified response to various calls for a CWA rulemaking. In fact, EPA and the Corps are using rulemaking requests as an excuse to pursue a rushed, predetermined agenda, as opposed to engaging in a deliberative, fair and transparent regulatory process."

The senators said EPA and the Corps chose to release their proposed rule despite "failing to 1) sufficiently consult with affected states; 2) allow for completion of the science advisory board review of the so-called 'connectivity report;' and 3) conduct a statutorily-required small business analysis and outreach pursuant to the Regulatory Flexibility Act (RFA), among other mandatory procedures.

"EPA and the Corps' decision to proceed despite the numerous concerns identified by lawmakers and stakeholders is incredibly disappointing. The scope of CWA jurisdiction is one of the most important regulatory issues facing landowners, businesses, and municipalities today.

"Although EPA and the Corps may have a role in clarifying and limiting CWA jurisdiction, unfortunately the agencies' rule proposal was a significant step in the wrong direction. The decision to move forward with this proposal is a clear breach of your promise to cut through red tape.

"In light of other recent CWA-permitting decisions that have occurred during your administration, moving forward with the proposed rule will exponentially frustrate economic activity and further undermine notions of certainty in the federal permitting process."

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