The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers is currently involved in a rulemaking process regarding further expansion of the definition of ‘Waters of the United States’ under the Clean Water Act (CWA). If adopted, this rule would have far-reaching detrimental implications to real estate development, agriculture, energy production and economic development of all types in Georgia and across the country. The Council for Quality Growth and a coalition of Georgia interests are part of a Clean Water Act Stakeholders Group that is developing a comprehensive response to the proposed rule which will clearly show and articulate the impact the proposed rule would have on our state economy and water resource management. In conjunction with these stakeholders and partners, we will be submitting formal comments to the EPA. The current comment period has been extended to October 20,2014.
As a response to this overreaching proposal an important U.S. House Resolution that seeks to preserve the federal-state partnership currently in place regarding regulations under the CWA and to prohibit the EPA and Army Corps of Engineers from implementing this proposed rule passed out of the House of Representatives on Tuesday, September 9th.
H.R. 5078, otherwise known as the “Waters of the United States Regulatory Overreach Protection Act of 2014”, was introduced by Representative Steve Southerland [R-FL-2] in August. The bill passed out of the House with a vote of 262-152; the resolution had substantial bipartisan support, with over 35 Democratic Congressmen voting in favor of the bill.
The resolution is designed to stop the EPA and the U.S. Army Corps of Engineers from expanding their definition of ‘Waters of the United States’ and require both agencies to consult with relevant state and local governments to establish improved standards to identify these ‘waters’. As the bill summary describes, the legislation:
“[-] Prohibits the U.S. Army Corps of Engineers and the Environmental Protection Agency (EPA) from:
- developing, finalizing, adopting, implementing, applying, administering, or enforcing the proposed rule entitled, “Definition of ‘Waters of the United States’ Under the Clean Water Act,” issued on April 21, 2014, or the proposed guidance entitled, “Guidance on Identifying Waters Protected By the Clean Water Act,” dated February 17, 2012; or
- using the proposed rule or proposed guidance, any successor document, or any substantially similar proposed rule or guidance as the basis for any rulemaking or decision regarding the scope or enforcement of the Federal Water Pollution Control Act (commonly known as the Clean Water Act).
[-] Requires the Army Corps and the EPA to withdraw the interpretive rule entitled, “Notice of Availability Regarding the Exemption from Permitting Under Section 404(f)(1)(A) of the Clean Water Act to Certain Agricultural Conservation Practices,” issued on April 21, 2014.
[-] Requires the Army Corps and the EPA to consult with relevant state and local officials to develop recommendations for a regulatory proposal that would identify the scope of waters covered under the Clean Water Act and the scope of waters not covered.”
To view the full text of H.R. 5078, click HERE.
Ever since the Clean Water Act was passed in 1972, the federal government has partnered closely with state governments to regulate pollution and water quality. In fact the Clean Water Act bill text explicitly states that: “It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources, and to consult with the [EPA] Administrator in the exercise of his authority under this Act.”
The Supreme Court has twice reaffirmed this federal-state partnership and established that there are limits to federal jurisdiction over waters. However, certain policies that have recently been proposed by the EPA and the Army Corps of Engineers are seeking to expand federal jurisdiction and control over these waters. In April of this year, both the Corps and the EPA proposed a rule called “Definition of ‘Waters of the United States’ Under the Clean Water Act”; the rule would significantly broaden the scope of federal jurisdiction under the Clean Water Act programs, decreasing the influence and authority of states in determining pollution and water regulation policies and increasing the amount of federal authority in this area.
The House Transportation and Infrastructure Committee clearly highlighted just how much this proposed rule would expand federal jurisdiction, as well as the consequences that would result. According to a Committee report: “The Administration’s push to unilaterally broaden the scope of the CWA and the federal government’s reach into Americans’ everyday lives threatens to undermine the federal-state partnership and erode state authority by granting sweeping new federal jurisdiction to waters never intended for regulation under the Clean Water Act, including ditches, man-made ponds, floodplains, riparian areas, and seasonally-wet areas.
This expansion of federal regulatory power also could have serious consequences for the Nation’s economy, threaten jobs, invite costly litigation, and significantly restrict the ability of landowners to make decisions about their property and the rights of state and local governments to plan for their own development.”
To read the full report by the House Transportation and Infrastructure Committee on H.R. 5078, click HERE.
Various groups and state representatives, in Georgia and in other states, have vehemently opposed the EPA and Corps’ proposed rule, and have called for federal action. In a resolution calling for action at the state and federal level against the proposed rule, the Southern States Energy Board stated, among other points that, the rule “could significantly increase the cost and regulatory requirements for state and local government and ultimately the costs for state and local residents and businesses”. The document – sponsored by Georgia State Representative Lynn Smith, along with representatives from several other states – also noted that the scientific analysis on which the proposed rule is based is still under review, and that the EPA and Corps’ economic impact analysis was incomplete. In light of these significant problems with the rule, the Southern States Energy Board encouraged several steps to stop the EPA and Army Corps of Engineers. H.R. 5078 addresses several of the action items.
To see the Southern States Energy Board’s resolution, click HERE.
H.R. 5078 seeks to stop this federal expansion through the EPA rules. Its passage is significant it that it shows that legislators in Washington are aware that the federal government is seeking to take regulatory authority away from the states and that they are beginning to mobilize in response to this threat. This also holds true for members of the Georgia delegation in Congress. Among the 120 co-sponsors of H.R. 5078, four Congressmen – Doug Collins [R-9], Tom Graves [R-14], Lynn Westmoreland [R-3] and Phil Gingrey [R-11] were from Georgia. Furthermore, 12 Georgia Congressman voted in favor of this bill.
The Council will continue to monitor developments regarding the proposed EPA rule and this bill as it progresses through the Senate, and will keep members abreast of new information. We would like to thank our Congressional delegation that supported this important resolution in the House, and extend our support and assistance to continue in these efforts to maintain state and local control on this issue.