[Congressional Record (Bound Edition), Volume 157 (2011), Part 8]
[Senate]
[Pages 11803-11804]
[From the U.S. 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 11804]]

      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.

                          ____________________