EPA Administrator Gina McCarthy faced some tough questions during a House Science, Space and Technology Committee hearing about the agency’s draft rule to expand the jurisdiction of the Clean Water Act (CWA) and the alleged use of undisclosed data to justify the rule.
On Sept. 17, EPA sent a draft rule to the Office of Management & Budget seeking interagency review and approval. The proposed rule redefines “waters of the United States” under the CWA and could vastly expand the EPA’s authority over America’s waterways. On the same day, the EPA submitted a draft scientific assessment to its Scientific Advisory Board (SAB) for peer review. However, according to OMB’s own guidelines, the study must be fully and openly peer-reviewed before interagency review of the draft rule.
The draft rule has been highly criticized by Congressional Republicans as a vast expansion of the CWA jurisdiction and a “power grab” by EPA. Committee Chairman Smith (R-TX) said that if the rule was approved, “it would allow the EPA to regulate virtually every body of water in the United States, including private and public lakes, pond, and streams.”
The draft rule would assert CWA jurisdiction over all natural and artificial tributary streams, lakes, ponds and wetlands in floodplains and riparian areas that affect the chemical, physical and biological integrity of larger downstream navigable waters.
In the rule, EPA and the Corps of Engineers (Corps) plan to make fairly subtle, but significant changes to the current definitions which describe the jurisdictional “waters of the US.” The rule would both change the definition of “waters of the US” itself and, for the first time, define some of the key terms used to describe those waters. First, all waters (not just wetlands) adjacent to jurisdictional waters would themselves be jurisdictional; under the current rule, only adjacent wetlands are jurisdictional. The second, and perhaps more significant change, is that the new definition would include the “significant nexus” test described in the ’06 Supreme Court decision in Rapanos v. United States. The new significant nexus test would specifically state that a particular water or wetland can have a significant nexus – and therefore be jurisdictional – even if it is not significant in and of itself. Instead, significance can be shown if the particular water or wetland is significant in combination with other similarly situated waters and wetlands in the same region.
The other major change is that the rule would define for the first time several critical terms, including tributary, neighboring, floodplain and riparian area. The definitions of tributary and neighboring are particularly important because they also increase the scope of waters that are jurisdictional on their face.
Agricultural groups have been closely monitoring the rule. If the draft rule becomes final in its current form, EPA and the Corps could potentially have jurisdiction over large tracts of state and private lands, and CWA permits would be required for a host of activities including farming.
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