Swamp Stomp
Volume 14, Issue 18
On May 1, 2014, 231 lawmakers led by U.S. Representatives Chris Collins (R-NY) and Kurt Schrader (D-Ore.), in the U.S. House of Representatives sent a letter to the EPA and U.S. Army Corp of Engineers to retract its proposed rule to expand federal control under the Clean Water Act. They have citied technical, legal and economic concerns regarding the new rules that have been published in the Federal Register.
Congress is most concerned with the legal position that the EPA and the Corps have taken by more or less basing the entire rule revision on Justice Kennedy’s lone opinion in the Rapanos case. The letter states, “Contrary to your agencies’ claims, this would directly contract prior U.S. Supreme Court decisions, which imposed limits on the extent of federal CWA authority,” the lawmakers stated in the letter. It went on to say that “Based on a legally and scientifically unsound view of the “significant nexus” concept espoused by Justice Kennedy, the rule would places features such as ditches, ephemeral drainages, ponds (natural or manmade), prairie potholes, seeps, flood plains, and other occasionally or seasonally wet areas under federal control.”
The letter also raised concerns with the economic analysis on which the proposed rule is based. In the agency’s analysis, it was determined that the proposed rule would result in a 2.7 percent increase in jurisdictional determinations and would impact an additional 1,332 acres nationwide under Section 404. They applied that 2.7 percent increase across other EPA permitting programs. The agencies determined that the draft proposed rule would result in costs between $133 million and $231 million annually. Based on this, the agencies have said the rule would not have a significant economic impact. The lawmakers disagree, saying errors in the analysis “call into question the veracity of any of the conclusions in the economic analysis.”
House Natural Resources Chairman Doc Hastings (R-Wash.) says the proposal is a massive power grab that must be stopped. “Under this plan, there’d be no body of water in America – including mud puddles and canals – that wouldn’t be at risk from job-destroying federal regulation,” he says.”
Read the full letter here.
To date the EPA has received more than 61,000 comments on the new rules. Your comments and suggestions are needed. So far a total of 789 comments have been published. Many support the new rules and a few do not. If you have any opinion on these new rules, please provide you comments by going to regulations.gov and searching for EPA-HQ-OW-2011-0880. From there you can see the entire docket and submit your comments.
Comments are due by July 21, 2014. If EPA and the Corps finalize these rules it is expected that they will be in force by the fall of this year.