WASHINGTON, D.C. – Montana’s Congressman, Denny Rehberg, contacted the Environmental Protection Agency (EPA) and Army Corps of Engineers to express concern about a proposal to significantly increase the agencies’ jurisdiction under the Clean Water Act (CWA).

“We all want clean water, but replacing state control with federal regulations that don’t help our environment and damage our economy just doesn’t make any sense,” said Rehberg, a member of the Congressional Western Caucus.  “First, they expanded the Clean Air Act to regulate the harmful pollutants we naturally exhale, and now they want to expand the Clean Water Act to have a say in every puddle and pond in the West.  These policies aren’t good for Montana.  In fact, independent economists estimate that federal regulations result in a hidden tax of $1.75 trillion each year – money that should be used to create jobs.”

Originally enacted in 1948, the Clean Water Act created federal standards for controlling and mitigating pollution on ‘navigable’ waters within the United States.  For years, there have been efforts to remove the word ‘navigable’ from the Act, effectively making all Montana waters subject to federal control and regulation.

Despite strong public and congressional opposition – especially from Western states like Montana – the EPA has sent draft “Clean Water Protection Guidance” to the Office of Management and Budget for regulatory review.  Under the “guidance”, EPA and the Corps of Engineers can claim jurisdiction over any wetland or water body that they believe has a “significant nexus” to downstream navigable or interstate waters.

The Small Business Administration has reported that federal regulation costs $1.75 trillion in compliance each year – an expense incurred by mountains of red tape and paperwork that is passed on to consumers through higher prices and fewer jobs.

“The agencies cannot, through guidance, change the scope and meaning of the Clean Water Act or the statute’s implementing regulations,” said Rehberg in his letter.  “If the Administration seeks statutory changes to the Clean Water Act, a proposal must be submitted to Congress for legislative action.  If the Administration seeks to make regulatory changes, a notice and comment rulemaking is required.”

The letter is below:

Dear Administrator Jackson and Assistant Secretary Darcy:

In December 2010, the Environmental Protection Agency and Corps of Engineers (collectively, the “Agencies”) sent draft “Clean Water Protection Guidance” to the Office of Management and Budget for regulatory review.  The intent of the document is to describe how the Agencies will identify waters subject to jurisdiction under the Federal Water Pollution Control Act of 1972 (more commonly known as the “Clean Water Act”) and implement the U.S. Supreme Court’s decisions in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) and United States v. Rapanos (Rapanos) concerning the extent of waters covered by the Act.  Further, this document would supersede guidance that the Agencies previously issued in 2003 and 2008 on determining the scope of “waters of the United States” subject to Clean Water Act programs.

In our view, this “Guidance” goes beyond clarifying the scope of “waters of the United States” subject to Clean Water Act programs.  Rather, it is aimed, as even the Agencies acknowledge, at “increas[ing] significantly” the scope of the Clean Water Act’s jurisdiction over more waters and more provisions of the Clean Water Act as compared to practices under the currently applicable 2003 and 2008 guidance.  (“Guidance,” at 1.)

It appears that the Agencies intend to expand the applicability of this “Guidance” beyond section 404 to all other Clean Water Act provisions that use the term “waters of the United States,” including sections 402, 401, 311, and 303.  Moreover, the Agencies intend to “alleviate the need to develop extensive administrative records for certain jurisdictional determinations” (“Guidance,” at 1), thereby shifting the burden of proving the jurisdictional status of a “water” from the Agencies to the regulated community, and thus making the provisions of this “Guidance” binding on the regulated community.

In light of the substantive changes in policy that the Administration is considering with this “Guidance,” we are extremely concerned that this “Guidance” amounts to a de facto rule instead of mere advisory guidelines.  Additionally, we fear that this “Guidance” is an attempt to short-circuit the process for changing agency policy and the scope of Clean Water Act jurisdiction without following the proper, transparent rulemaking process that is dictated by the Administrative Procedure Act.

This “Guidance” would substantively change the Agencies’ policy on waters subject to jurisdiction under the Clean Water Act; undermine the regulated community’s rights and obligations under the Clean Water Act; and erode the Federal-State partnership that has long existed between the States and the Federal Government in implementing the Clean Water Act. By developing this “Guidance,” the Agencies have ignored calls from state agencies and environmental groups, among others, to proceed through the normal rulemaking procedures, and have avoided consulting with the States, which are the Agencies’ partners in implementing the Clean Water Act. 
 
The Agencies cannot, through guidance, change the scope and meaning of the Clean Water Act or the statute’s implementing regulations.  If the Administration seeks statutory changes to the Clean Water Act, a proposal must be submitted to Congress for legislative action.  If the Administration seeks to make regulatory changes, a notice and comment rulemaking is required.
 
We are very concerned by the action contemplated by the Agencies, and we strongly urge you to reconsider the proposed “Guidance.”

Thank you for your attention to this matter.

Sincerely,