[Congressional Record Volume 157, Number 111 (Friday, July 22, 2011)]
[Senate]
[Pages S4844-S4845]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
CLEAN WATER ACT JURISDICTIONAL EXPANSION
Mr. BARRASSO. Mr. President, I rise today to submit for the Record an
article written by Bobbie Frank, executive director of the Wyoming
Association of Conservation Districts and published on July 16, 2011,
in the Wyoming Livestock Roundup. The article's title is ``Muddy
waters: EPA, Army Corps Seek to Define More Jurisdiction as Federal.''
I have concluded, just as this article has, that the Clean Water Act,
CWA, jurisdictional guidance being proposed by the Environmental
Protection Agency, EPA, allows the U.S. Army Corps of Engineers and EPA
to regulate waters now considered entirely under State jurisdiction.
This unprecedented exercise of power will allow EPA to trump States
rights, and vitiate the authority of State and local governments to
make local land and water use decisions. This is particularly troubling
when we have seen no evidence that the States are misusing or otherwise
failing to meet their responsibilities.
Enormous resources will be needed to expand the CWA Federal
regulatory program. Not only will there be a host of landowners and
project proponents who will now be subject to the CWA's mandates and
costs of obtaining permits, but an increase in the number of permits
needed will lead to longer permitting delays. Increased delays in
securing permits will impede a host of economic activities in Wyoming
and across the United States. Commercial and residential real estate
development, agriculture, ranching, electric transmission,
transportation, energy development, and mining will all be affected,
and thousands of jobs will be lost.
In May of this year, 19 Senators joined me in a letter to EPA
expressing our strong opposition to this guidance. I will continue to
fight to protect our States from this Washington power grab.
Mr. President, I ask unanimous consent to have printed in the Record
the article to which I referred.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Muddy Waters: EPA, Army Corps Seek to Define More Jurisdiction as
Federal
(By Bobbie Frank, Executive Director, Wyoming Association of
Conservation Districts)
The conservation districts in this state are definitely
committed to watershed health and water quality work, and
their commitment is evident through their actions:
conservation district employees who are several months
pregnant wade streams in the winter to collect water samples,
and retired conservation district supervisors volunteer their
time to help with water quality monitoring and implementing
water quality management practices.
Many landowners, community leaders and homeowners have and
continue to volunteer hundreds of hours working on watershed
plans, and then they work hard to implement those plans.
There is no shortage of dedicated and concerned citizens
working to maintain and improve the water quality of this
state, and every two years the Wyoming Association of
Conservation Districts (WACD) publishes its ``Watersheds
Progress Report'' to show all of the incredible efforts at
the local level across Wyoming. The 2009 edition is available
on our website.
Highlighting the dedication to water quality is important
to recognize, in the context of this discussion, because,
inevitably, when one starts debating the issue of regulatory
jurisdiction--federal versus state--if one leans toward less
federal intervention and regulation, then it is easy for
others to try to paint one as anti-clean water. As one
district supervisor put it, ``The only conservation that
matters is that which gets put on the ground.''
In April 2011 the Environmental Protection Agency (EPA)
published draft guidance that would replace previous agency
guidance issued in 2003 and 2008, detailing modifications to
which waters EPA and the Army Corps of Engineers (Corps)
would regulate under the Federal Water Pollution Control Act
(commonly referred to as the Clean Water Act). Who should
have the authority over water quality issues, the federal
government or the respective states, continues to be a hot
topic of debate. Key Supreme Court decisions have refined the
EPA's and the Corps' authority over the regulation of certain
types of waters.
In the past several years there have also been attempts in
Congress to advance legislation to redefine ``waters of the
United States.'' These bills would have resulted in a
definition that would have included a number of waters that
are currently not subject to federal regulation, or are in a
``gray'' area. These attempts did not move forward. As a
result, that which cannot be done through the appropriate
processes, i.e. legislation and/or rules, apparently will be
done through the development of ``guidance.''
The two primary decisions, the Solid Waste Agency of
Northern Cook County v. U.S. Army Corps of Engineers (SWANCC)
and Rapanos v. United States (Rapanos), resulted in
restricting federal authority over certain types of waters.
First, the SWANCC decision removed from federal regulation
isolated wetlands by nullifying the ``migratory bird rule.''
In a nutshell, the agencies, via regulation, exerted
jurisdiction over these types of isolated waters by arguing
that isolated wetlands will have waterfowl in them that would
fly to another state and land in another isolated wetland,
hence there was interstate commerce occurring on these waters
to render them under federal jurisdiction.
The other suit, Rapanos, resulted in what is argued by the
agencies to be a complicated and unmanageable approach to
determining jurisdiction. Many lauded the decision as a win
for reining in the heavy hand of the agencies. In Rapanos,
the court addressed CWA protections for wetlands adjacent to
non-navigable tributaries, and issued five opinions with no
single opinion commanding a majority of the court. The
plurality opinion, authored by Justice Scalia, stated that
``waters of the United States'' extended beyond traditional
navigable waters to include ``relatively permanent, standing
or flowing bodies of water.'' There is a lot more detail to
this opinion, but suffice it to say, the outcome was
additional limitations placed on federal jurisdiction.
A comparison of the December 2008 memorandum issued by EPA
and Corps guiding agency personnel on which waters would be
jurisdictional and this new proposed guidance, provides for
some significant changes in what waters would be regulated.
The agencies specifically state in the draft guidance:
``However, after careful review of these opinions, the
agencies concluded that previous guidance did not make full
use of the authority provided by the CWA to include waters
within the scope of the Act, as interpreted by the Court.''
The 2008 guidance established a ``significant nexus''
standard, whereby the agency would have to determine on a
fact-specific basis whether certain types of waters, such as
wetlands, tributaries or traditional navigable waters, fell
under federal jurisdiction. This significant nexus standard
would contemplate the flow functions of the tributary itself
and the functions performed by all wetlands adjacent to the
tributary to determine if they significantly affect the
chemical, physical and biological integrity of downstream
traditional navigable waters. The significant nexus also
included consideration of hydrologic and ecologic factors.
This 2011 draft guidance takes the same type of approach,
but expands on the significant nexus approach by establishing
that waters that are in ``close proximity'' or ``proximate
other waters'' to traditional navigable waters will also fall
under jurisdiction. Basically, the guidance establishes a
watershed approach to determining significance. In essence,
based on our analysis, most waters in a watershed draining to
a ``traditional navigable water'' or interstate water, would
ultimately meet the ``significant nexus'' test and be subject
to federal regulatory oversight.
There is a list of certain types of waters that would
``generally'' not fall under federal jurisdiction. Note the
term ``generally.'' There is a potential that some of the
specifically exempt waters, such as reflecting pools,
ornamental waters, gullies, etc., could also be
jurisdictional.
Also of import is the application of the above as it
pertains to the different provisions of the Clean Water Act.
The agencies acknowledge in the guidance that ``although
SWANCC and Rapanos specifically involved section 404 of the
CWA and discharges of dredged or fill material, the term
`waters of the United States' must be interpreted
consistently for all CWA provisions that use the term. These
provisions include the section 402 National Pollutant
Discharge Elimination System (NPDES) permit program, the
section 311 oil spill program, the water quality standards
and total maximum daily load
[[Page S4845]]
programs under section 303, and the section 401 State water
quality certification process.''
This issue is not about whether our water resources should
be protected or not, which is often the spin on this issue.
It is about whether the authority to regulate certain types
of waters should lie with the federal government or should be
retained by the states. WACD's comments reflect the opinion
that, on those waters falling outside of the traditional
``navigable,'' interstate waters' realm should be regulated
by the states. It has been our experience that those closest
to the issue are typically most knowledgeable and capable of
commonsense, cost effective approaches to resource protection
and management.
WACD and the conservation districts have a solid record of
projects that do successfully protect water quality in a
commonsense, cost effective approach that benefits all water
users and the state. The EPA's 2011 draft guidance document
hinders our ability to continue this mission by oftentimes
placing districts in a position of reacting to federally
driven requirements and priorities versus the highest
priority resource issues in our communities.
Thanks to Senator Barrasso for his diligent efforts on this
issue. We appreciate his work to ensure that the federal
agencies don't try to evade the appropriate processes and
expand their authorities.
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