February 2, 2015

Joint congressional hearing on “waters of the United States” rule seeks PLF input

By Todd F. Gaziano Chief of Legal Policy and Strategic Research, and Director, Center for the Separation of Powers

watersOn Wednesday, February 4, a rare joint hearing of the House Transportation and Infrastructure Committee and the Senate Environmental and Public Works Committee will examine a controversial draft rule by the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps). That rule would expand the agencies’ jurisdiction over thousands of streams and hundreds of millions of acres of land where water may sometimes flow. The comment period for the misguided regulation redefining the “waters of the United States” closed last November, and there is concern that the EPA and Corps could try to issue a final rule this spring without seriously addressing the hundreds of thousands of adverse comments on it.

PLF principal attorney M. Reed Hopper has been asked to submit testimony to the joint House Senate hearing on Wednesday. Hopper is among 900,000 individuals who submitted comments in the rulemaking proceeding. His comments opposing the rule describe it as the greatest power grab in American history and explain how the agencies’ interpretation of their jurisdiction violates the Clean Water Act and would be unconstitutional even if the Act did authorize it. Hopper is also the PLF attorney who argued for John Rapanos in the Supreme Court case of Rapanos v. United States, on which EPA claims its proposed rule is based.

The House Transportation Committee conducted three hearings on the draft rule last year. The joint hearing on Wednesday will focus on the rule’s impact on state and local governments. That focus will help show that the proposed rule is not just costly and horrible for farmers, ranchers, and rural residents. Under the proposed rule, urban and suburban citizens and their local governments will also be subject to increased federal micromanagement and costly mandates.

The draft rule’s coverage of storm drains and roadside ditches is a good example of how the federal agencies will impact more than rural interests. Under the draft rule, the agencies purport to exclude only those storm drains and “ditches that are excavated wholly in uplands, drain only in uplands, and have less than perennial flow” or “that do not contribute flow, either directly or through another water, to a traditional navigable water, interstate water, the territorial seas, or impoundment.” (79 Fed. Reg. 22218.)  Few if any ditches satisfy those conditions.

Almost all county roadside ditches would be covered, and municipal utility officials have previously testified that storm drainage systems that have been exempted from the most expensive (section 404) permitting regime are not excluded under the draft rule.

We’ll be watching to see if Congress and the states prevail upon the EPA and Corps to reconsider their flawed rule. If not, PLF would look to file suit again to stop an illegal and unconstitutional assertion of power.

 

 

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