Lawmakers voted Tuesday on a measure that would halt the Environmental Protection Agency’s (EPA) efforts to establish greater federal authority over land and water. The Federal Water Quality Protection Act, cosponsored by Utah Sen. Orrin Hatch, directs the EPA and the Army Corps of Engineers to withdraw the flawed rule and issue a revised proposal.
“If the EPA gets its way, federal bureaucrats would expand their regulatory authority to nearly every stream and pond in the United States,” said Orrin Hatch, R-Utah. “States like Utah are best positioned to manage our own water resources. The last thing we need is another top-down Washington approach seeking to micromanage state responsibilities.”
In June, the EPA and the Army Corps of Engineers issued a final “Waters of the United States” (WOTUS) rule that expanded the scope of federal authority over land and water at the expense of Utahns. The Clean Water Act, which the administration has claimed is the basis for the rule, added federal protections for navigable waterways and left most bodies of water to be managed by the states. But critics have called the latest EPA rule a “massive land grab” that will expose Utah farmers, ranchers, home owners, and businesses to significant compliance costs and new fines. According to the U.S. Chamber of Commerce, WOTUS would require Utah farmers, ranchers, and other business to obtain federal permits at a median cost of $155,000.
The rule allows the federal government to regulate any water discharge that eventually drains into the Colorado River, the Green River, the Virgin River, the Paria River, or other qualifying water body, affecting everything from desert washes to small ponds and irrigation ditches on Utah’s family farms and ranches.
The U.S. Chamber of Commerce, which described the rule as “significant jurisdictional overreach,” catalogued problems the rule posed to business.Retailers who salt a parking lot in the winter to keep customers from slipping on the ice might need a federal permit. Wood product manufacturers and other makers of building materials that produce dust and dirt that washes into ditches next to their plants would be forced to apply for a federal permit to clean those ditches while doing nothing to improve water quality. The raw materials for sand, stone, and gravel are often located near water, and their availability could be constrained by the rule. Finally,WOTUS would make maintaining the ditches along 140,000 miles of track running across the country a federal issue.
In a statement, the Utah Farm Bureau Federation praised Senator Hatch’s effort to “stop this regulatory overreach” and noted that the rule “provides no clarity, no certainty and Farm Bureau sees no limits to the power the agency is seeking!”
“It creates tremendous uncertainty for farmers and ranchers across Utah and the nation as the Obama Administration seeks to expand federal jurisdiction over the states and private property rights. It is clear under the SWANCC and Rapanos decisions, Congress and the U.S. Supreme Court have set limits on EPA regulation. Foremost, Utah Farm Bureau is concerned with the expansive definition of ‘tributary’ including landscape features that will ultimately bring farmer’s irrigation ditches and Utah’s many dry gullies that flow only during occasional rains under the new WOTUS definition and EPA regulation.”
The American Farm Bureau Association also criticized the rule and supports the Senate’s Federal Water Quality Protection Act: “It addresses critical concerns we have with EPA’s ‘waters of the U.S.’ proposed rule. There can be no question that the rule poses a serious threat to farmers, ranchers and private landowners. The proposal, if finalized, would allow EPA to regulate well beyond the limits authorized by Congress and affirmed by the Supreme Court.”
The Senate measure also includes a provision that requires the EPA and the Army Corps to work closely with states and local governments to develop a new rule. The U.S. Conference of Mayors praised the provision as “consistent with our belief that states and localities should be consulted in meaningful ways on rules before they are formally proposed, especially if the rule will have a significant impact on capital costs, operations and mandates for the people we serve as required under federal law.”
Science Behind WOTUS Is Disputed by Members of the Army Corps of Engineers
Officials in the Army Corps of Engineers have actually challenged the administration’s characterization of the rule as “a joint effort of the EPA and the Corps.” Major General John Peabody, Deputy Commanding General for Civil and Emergency Operations, has written multiple public letters disavowing the rule, stating that the administration “shall not idenfiy the Corps as author, co-author, or substantive contributor,” that it should not be referenced as an involved agency, and asked that its logo be removed from any documents.
General Peabody also argued that Corps data, used by EPA, “has been selectively applied out of context, and mixes terminology and disparate data sets.” EPA documents related to the rule “contain numerous inappropriate assumptions with no connection to the data provided, misapplied data, analytical deficiencies and logical inconsistencies.”
Internal Army Corps of Engineer memos also suggest that certain provisions in the rule, including the 1500 ft. limitation and the 4000 ft. bright line rule, are not “based on any science or law and are thus legally vulnerable.”
Officials in the Army Corps of Engineers Questioned the Legality of the Rule
A federal district court has already enjoined the rule and raised numerous constitutional questions. The Army Corp of Engineers now joins it in raising legal questions about the internal processes related to its development. According to General Peabody:
“The draft final rule continues to depart significantly from the version provided for public comments, and that the corps recommendations relation to our serious concerns have gone unaddressed. Specifically, the current draft final rule contradicts long-standing and well-established legal principles undergirding CWA 404 regulations and regulatory practices, especially the decisive Rapanos Supreme Court decision. The rule’s contradictions with legal principles generate multiple legal and technical consequences that in the view of the Corps would be fatal to the rule in its current form.”