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Crapo: Administrationâ??s New Effort to Wield Authority Over Water Unacceptable

Proposed rule would infringe on private property rights

Washington, D.C. - Idaho Senator Mike Crapo is objecting to a proposed rule recently issued by the U.S. Environmental Protection Agency(EPA) and the U.S. Army Corps of Engineers to drastically expand the definition of waters regulated under the federal Clean Water Act (CWA).  The "Waters of the United States" rule would outline a significant expansion of federal authority, permitting the government to exert more control over private landowners by deeming portions of their land as "jurisdictional".  Crapo, a member of the U.S. Senate Environment and Public Works Committee (EPW), joined all other EPW Committee Republicans today in writing to the Administration to bar the blatant power grab by the agency.

"What is most problematic is that the rule is not aimed at industry or business, large and small, but at individual citizens as well," said Crapo.  "Decisions with regard to allocation, management and the use of water are uniquely state issues that the federal government should not continue to interfere with.  The EPA's efforts to, yet again, wield authority over water outside the legal scope of the CWA is an obvious overreach and must be stopped."

Crapo was joined on the letter by Ranking Member of the EPW Committee, Senator David Vitter (R-Louisiana).  Other signers of the letter include Senators John Barrasso (R-Wyoming), James Inhofe (R-Oklahoma), Jeff Sessions (R-Alabama), Roger Wicker (R-Mississippi), John Boozman (R-Arkansas) and Deb Fisher (R-Nebraska).

The full text of the letter can be found below, and a signed copy can be found here.


April 9, 2014

The Honorable Barack Obama
President of the United States
The White House
1600 Pennsylvania Avenue, NW
Washington, DC 20500

Dear President Obama,

As members of the Senate Environment and Public Works Committee, we write in response to the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers' (Corps) release of their proposed rule which would expand federal jurisdiction under the Clean Water Act (CWA). After an initial review of the proposed rule, we are deeply concerned that the agencies are attempting to obtain de facto land use authority over the property of families, neighborhoods and communities throughout the United States. Several provisions within the proposed rule demonstrate that EPA and the Corps are unwilling to accept the meaningful limits Congress placed on the agencies' authority under the CWA, limits the Supreme Court has repeatedly recognized. These include the proposed rule's categorical regulation of irrigation and stormwater ditches, unlimited aggregation approach, and broad adjacency definition. The proposed rule would also have EPA and the Corps making case-by-case jurisdictional determinations based on the "significant nexus" test, even as they ominously assert that a "hydrologic connection is not necessary to establish a significant nexus."[1]

Equally important, we believe EPA and the Corps should immediately cease in their proclamations that the agencies' proposal is a justified response to various calls for a CWA rulemaking.[2] In fact, EPA and the Corps are using rulemaking requests as an excuse to pursue a rushed, predetermined agenda, as opposed to engaging in a deliberative, fair, and transparent regulatory process. EPA and the Corps chose to release their proposed rule despite failing to 1) sufficiently consult with affected states; 2) allow for completion of the Science Advisory Board review of the so-called "Connectivity Report"; and 3) conduct a statutorily-required small business analysis and outreach pursuant to the Regulatory Flexibility Act (RFA), among other mandatory procedures. EPA and the Corps' decision to proceed despite the numerous concerns identified by lawmakers and stakeholders is incredibly disappointing.

The scope of CWA jurisdiction is one of the most important regulatory issues facing landowners, businesses, and municipalities today. Although EPA and the Corps may have a role in clarifying and limiting CWA jurisdiction, unfortunately the agencies' rule proposal was a significant step in the wrong direction. The decision to move forward with this proposal is a clear breach of your promise to cut through red tape.[3] In light of other recent CWA permitting decisions that have occurred during your administration, moving forward with the proposed rule will exponentially frustrate economic activity and further undermine notions of certainty in the federal permitting process.