Partisan Fight Brews Over EPA’s New Clean Water Act Guidance

WASHINGTON, DC, April 27, 2011 (ENS) – The Obama administration issued a draft clean water guidance today that provides what the administration calls “clearer, more predictable guidelines for determining which water bodies are protected from pollution under the Clean Water Act.”

But Republicans in both the House and the Senate today accused the EPA of “expansion” of its regulatory authority under the Clean Water Act.

U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers developed the draft guidance for determining whether a waterway, water body, or wetland is protected by the Clean Water Act.

Over the past decade, interpretations of U.S. Supreme Court rulings removed some waters from federal protection, and caused confusion about which waters and wetlands are protected under the Clean Water Act. As a result, said the EPA, “important waters now lack clear protection under the law, and businesses and regulators face uncertainty and delay.”

Michigan wetland (Photo by David Allen)

The draft guidance reaffirms protections for small streams that feed into larger streams, rivers, bays and coastal waters.

It reaffirms protection for wetlands that filter pollution and help protect communities from flooding. Discharging pollution into protected waters such as dumping sewage, contaminants, or industrial pollution, or filling protected waters and wetlands by building a housing development or a parking lot require permits which are issued by the two federal agencies.

The EPA said, “This guidance will keep safe the streams and wetlands that affect the quality of the water used for drinking, swimming, fishing, farming, manufacturing, tourism and other activities essential to the American economy and quality of life. It also will provide regulatory clarity, predictability, consistency and transparency.”

The two Supreme Court rulings at issue turn on the definition of “navigable waters” which are entitled to federal protection.

The first is Solid Waste Agency of Northern Cook County v. Corps of Engineers (SWANCC) in 2001 and the second is Rapanos et ux., et al. v. United States in 2006.

In SWANCC, the Supreme Court ruled that non-navigable, isolated, intrastate waters do not fall under the jurisdiction of the Clean Water Act.

In Rapanos, five of the nine Supreme Court justices agreed to void lower court rulings against the plaintiffs, who wanted to fill their wetlands to build a shopping mall and condos.

But the Supreme Court was split over other issues in the Rapanos case, with four conservative justices favoring a more restrictive reading of the term “navigable waters” than the four more liberal justices, and one justice not fully joining either position.

EPA Administrator Lisa Jackson said today, “After four decades of progress on clean water, there is still work to be done to address unfinished business and tackle new threats to our waters. American families and businesses are counting on us to maintain and improve the rivers, lakes, streams and other waters that support thousands of communities and millions of jobs across the country.”

“The Army is very proud of our ecosystem restoration efforts across the Nation,” said Assistant Secretary of the Army for Civil Works Jo-Ellen Darcy. “The proposed joint EPA and Army guidance will clarify Clean Water Act jurisdiction and help the Corps and its partner agencies protect important aquatic resources and watersheds that communities rely on for their quality of life and essential services.”

Congressional Republicans accused the EPA of “expansion” of its regulatory authority under the Clean Water Act, repeating their earlier complaints about the EPA’s regulatory expansion of the Clean Air Act to cover greenhouse gas emissions.

Senator James Inhofe, an Oklahoma Republican who is Ranking Member of the Senate Committee on Environment and Public Works, issued the following statement in response to EPA’s release of permitting guidance covering jurisdictional waters under the Clean Water Act.

“EPA’s interpretation of the Clean Water Act, as reflected in this guidance document, knows no bounds, as the agency sees nearly every body of water in the United States, no matter how insignificant, as potentially falling within its reach,” Sen. Inhofe said.

Wetland Lantana, Lake Worth, Florida (Photo by M. Bjerano)

“The agency’s claims of innocence about its regulatory expansion ring hollow once one wades through the guidance document’s assertions of what is considered ‘jurisdictional.’ One is hard pressed to conjure just what is not included in EPA’s ambit. It’s long past time for EPA to follow the Supreme Court’s rulings that circumscribe its water permitting authority.

“This guidance document further shifts the balance of regulatory authority away from states to the federal bureaucracy. EPA should instead follow the Clean Water Act, which gives states primary authority over controlling water pollution within their borders. States have the experience and the competence to do exactly that.

“Given how broadly this guidance reaches throughout the economy, potentially affecting farmers, homebuilders, energy producers, and thousands of small businesses, I believe Congress should vote on the issue of how far federal authority should extend over the nation’s waters.”

House Republicans called the draft guidance “a dramatic federal jurisdiction grab and expansion of the Clean Water Act.”

Republican Congressmen John Mica of Florida, who chairs the Transportation and Infrastructure Committee, and Bob Gibbs of Ohio, who chairs the Water Resources and Environment Subcommittee are spearheading the opposition in the House.

“The effect of the guidance will be to reverse decisions by the United States Supreme Court that recognized limits to the federal government’s regulatory authority, and to undermine the long-standing federal-state partnership in the regulation of waters,” Gibbs and Mica said in a joint statement today.

“Through this guidance, the administration is clearly attempting to redefine wetlands, expand the federal government’s authority over states and private individuals, and enact its economically stifling agenda,” said Mica.

Gibbs and 168 other House Republicans and Democrats recently wrote to EPA and the Army Corps to express their concerns that the agencies are circumventing the proper regulatory process in order to push through this expansion of federal jurisdiction.

“After our letter exposed the Obama administration’s attempt to sidestep transparency, I am extremely disappointed to learn that almost half of the House of the Representatives’ request that they reconsider this so-called ‘guidance document’ was totally ignored,” said Gibbs, who promised to hold Congressional hearings on the issue.

The draft guidance is open for 60 days of public comment to all allow all stakeholders to provide input and feedback before it is finalized.

Click here to read the draft guidance and accompanying documents.

Click here for previous ENS coverage of the Rapanos case: Rapanos Will Pay for Clean Water Act Violations.

Copyright Environment News Service (ENS) 2011. All rights reserved.