An overwhelming 231 members of Congress from both sides of the aisle led by Reps. Chris Collins (R., N.Y) and Kurt Schrader (D., Ore.) sent a letter to Environmental Protection Agency Administrator Gina McCarthy and Secretary of the Army John McHugh, urging their agencies to withdraw a proposed navigable waters rule.
On March 25, 2014, the EPA and U.S. Army Corps of Engineers proposed a rule that would assert Clean Water Act jurisdiction over nearly all areas that connected to navigable waters. As written, the rule aggressively expands federal authority under the Clean Water Act while bypassing Congress and creating unnecessary ambiguity, the members said.
The letter says that the rule is flawed in a number of ways, and the most problematic are concerns that the significant expansion of areas defined as “waters of the U.S.” effectively removes the word “navigable” from the definition.
The members added, that rather than providing clarity and making identifying covered waters “less complicated and more efficient,” the rule instead creates more confusion and will inevitably cause unnecessary litigation. “For example, the rule heavily relies on undefined or vague concepts such as ‘riparian areas,’ ‘landscape unit,’ ‘floodplain,’ ‘ordinary high water mark’ as determined by the agencies’ ‘best professional judgment’ and ’aggregation,’ the members wrote.
The letter also outlines concerns with the agency’s economic analysis which vastly underreports potential costs to landowners who “often at no fault of their own – do not seek a jurisdictional determination, but rather later learn from your agencies that their property is subject to the CWA.”
The scientific report was also neither peer-reviewed nor finalized. “The science should always come before a rulemaking, especially in this instance where the scientific and legal concepts are inextricably linked,” the letter stated.
“I am extremely concerned by the EPA and U.S. Army Corps of Engineers’ recent assertion that ditches, prairie potholes, and seasonally wet areas should be under the federal government’s control,” said Rep. Kristi Noem (R., S.D.), who signed onto the letter. “The proposed rule was built on an incomplete scientific study and a flawed economic analysis, which is why we have asked the EPA to withdraw the rule.”