Our waters are their waters

Updated: The Obama administration on Wednesday asserted its authority over the nation's streams, wetlands and smaller waterways, moving forward with one of the most controversial environmental regulations in recent years in rules on the Waters of the United States (WOTUS) which Oklahoma Attorney General Pruitt promises to fight. U.S. Sen. Jim Inhofe (R-Okla.), chairman of the Senate Committee on Environmental and Public Works (EPW) released a response that asserts EPA Adm. Gina McCarthy and Assistant Secretary for the Army for Civil Works Jo-Ellen Darcy admitted the WOTUS rule is flawed, inconsistent, and ambiguous and promised to ameliorate and address the concerns of states, local governments and agriculture as the committee reviewed the rule in four subsequent hearings. "Despite their assurances, it appears that EPA and the U.S. Army Corps of Engineers have failed to keep their promises to Congress and the American people. In fact, instead of fixing the overreach in the proposed rule, remarkably, EPA has made it even broader.

"This makes it more important than ever for Congress to act. Last month, I stood with a bipartisan group of Senators to unveil S. 1140, the Federal Water Quality Protection Act, to rein in EPA’s attempt to use the Clean Water Act to expand federal control over land and water. "Sen. Dan Sullivan, Chairman of the Fisheries, Water, and Wildlife Subcommittee, held a legislative hearing on the bill last week that underscored the importance of keeping the focus of the Clean Water Act on clean water and called out EPA’s attempt to use the rule as a tool for habitat protection. The EPA has set themselves up to increase federal control over private lands, and I will not allow it. Our committee is planning for a markup on S. 1140 this summer, as we continue our work to halt EPA’s unprecedented land grab and refocus its job on protecting traditional navigable waters from pollution,” Senator Inhofe said. Expansion in the Final Rule: Under the final rule, EPA has decided that it can regulate isolated wetlands and ponds in farmer’s fields by designating them “regional treasures.”

Since the 2001 Supreme Court decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001), agencies such as the Fish and Wildlife Service have used conservation partnerships and land purchases to maintain isolated waters for bird habitat, including prairie potholes and playa lakes. However, in the final rule, EPA has decided that by declaring a farmer’s field a “regional water treasure” the federal government can put partnership and land purchases aside and simply regulate private property. Under the final rule, isolated bodies of water will be considered regulated “systems.” As a result, the final rule expands federal control over thousands of farmer’s fields in the Midwest and elsewhere.

In the 114th Congress, the EPW Committee has conducted five hearings on the proposed WOTUS rule, more than any other topic this Congress. The following is background on those hearings, as well as legislation and letters involving the rule: On February 4, the EPW Committee held a bicameral hearing with the U.S. House Committee on Transportation and Infrastructure that examined the impacts on state and local governments of a proposed rule to expand federal regulation of waters under the Clean Water Act. Witnesses in attendance included EPA Adm. Gina McCarthy and Assistant Secretary of the Army for Civil Work Jo-Ellen Darcy as well as local government leaders. Following the hearing Inhofe and House T&I Committee Chairman Bill Shuster called for the EPA to withdraw the proposed WOTUS rule. On March 14, the EPW Committee held a field hearing chaired by Sen. Deb Fischer (R-Neb.) in Lincoln, Nebraska. The hearing focused on the impact of the proposed WOTUS rule, which would expand federal regulation of water in Nebraska.

On April 6 and 8, Sen. Dan Sullivan, chairman of the EPW Subcommittee on Fisheries, Water, and Wildlife held two field hearings – one in Anchorage, Alaska and the other in Fairbanks, Alaska – to examine local impacts of EPA’s proposed WOTUS rule on state and local governments and stakeholders. On April 30, Inhofe joined Sens. John Barrasso (R-Wyo.), Joe Donnelly (D-Ind.), Heidi Heitkamp (D-N.D.), Pat Roberts (R-Kansas), Joe Manchin (D-W.Va.), Dan Sullivan (R-Alaska), Mike Rounds (R-S.D.), Deb Fischer (R-Neb.), Mitch McConnell (R-Ky.), Roy Blunt (R-Mo.), and Shelley Moore Capito (R-W.Va.) in introducing the Federal Water Quality Protection Act. The bipartisan legislation will ensure the protection of traditional navigable waters of the United States. It also protects farmers, ranchers and private landowners by directing the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers to issue a revised “Waters of the United States” (WOTUS) rule that does not include things such as isolated ponds, ditches, agriculture water, storm water, groundwater, floodwater, municipal water supply systems, wastewater management systems, and streams without enough flow to carry pollutants to navigable waters.

On May 19, the EPW Subcommittee on Fisheries, Water, and Wildlife held a legislative hearing on S.1140, the Federal Water Quality Protection Act. On May 22, Inhofe along with Sens. Dan Sullivan (R-Alaska) and Mike Rounds (R-S.D.) sent a letter to McCarthy to express concerns and demand answers regarding a recent New York Times article that reported that the EPA may have conducted an unprecedented and possibly illegal lobbying and marketing effort on behalf of the controversial WOTUS rule making. The Hill covers the WOTUS rule here writing in part: With the Wednesday action, the Obama administration is doubling down on an effort that has sustained repeated attacks from congressional Republicans hoping to overturn the regulations.

In doing so, the administration is fulfilling what it sees as a responsibility to protect the wetlands, headwaters and small water bodies that can carry pollution to the larger waterways, like bays and rivers, that are more clearly protected by the Clean Water Act. Officials said the rule was made necessary by a pair of Supreme Court decisions in the last decade that called into question Clean Water Act protections for some small tributaries, streams and wetlands that were previously covered. Brian Deese, Obama’s top environmental adviser, said the rule “is an important win for public health and for our economy,” and sought to paint its opponents as fighting clean water.

“The only people with reason to oppose the rule are polluters who want to threaten our clean water,” he said. “Our rivers, lakes, and drinking water can only be clean if the streams that flow into them are protected,” Margie Alt, executive director of Environment America, said in a statement. “That’s why today’s action is the biggest victory for clean water in a decade.” For more from The Hill on the WOTUS rule click here. Oklahoma Attorney General Scott Pruitt said "This is an egregious power grab by the EPA and an attempt to reach beyond the scope granted to it by Congress. This rule renders the smallest of streams and farm ponds subject to EPA jurisdiction. This means that the first stop for property owners is the EPA, which may deem the property owners’ waters subject to the EPA’s unpredictable and costly regulatory regime. It would be a terrible blow to the private property rights of Americans. The rule also displaces states from their historic regulatory role under the Clean Water Act. My office will pursue all available legal options to defend the interests of the state and all Oklahoma property owners.”

The final “waters of the United States” rule issued Wednesday redefines the meaning of “navigable” waters under the Clean Water Act so that EPA now has jurisdiction over not just navigable, interstate waters, but also any waters that the EPA determines – in its sole discretion – has a “significant nexus” to navigable, interstate waters.