Federal Bill Aims to Restrict Clean Water Act Jurisdiction

On Friday, April 27, 2012, leaders from the House Transportation and Infrastructure Committee and Agriculture Committee introduced H.R. 4965, a bill aimed at countering a February 2012 Guidance Memorandum concerning Clean Water Act jurisdiction written by the U.S. Environmental Protection Agency (EPA).  The guidance memo was sent for review to the Office of Management and Budget and is an update to the May 2011 EPA Draft Guidance on Identifying Waters Protected by Clean Water Act.

The sponsor of H.R. 4965, Transportation and Infrastructure Chair John Mica (R-FL), stated that the bill aims to prohibit finalization or implementation of the EPA and U.S. Army Corps of Engineers guidance, believing that the guidance would significantly broaden the scope of federal jurisdiction under the federal Clean Water Act.

“The new authorities granted in this guidance would allow the EPA and the Corps of Engineers the authority to regulate almost any body of water in the U.S.,” said Agriculture Committee Chairman Frank Lucas (R-OK).  “That means farm ponds, stock tanks, and seasonal runoff ditches could conceivably be included under new regulations.  The economic impact on farmers, ranchers, and rural communities would be devastating.  This legislation allows us to restore and protect our natural resources by working together and balancing state and federal authority.”

In fact, the bill is already seeing bipartisan support.  “I believe in protecting our waterways, and that the Clean Water Act is the law of the land,” said Agriculture Committee Ranking Member Collin Peterson (D-MN).  “This policy is too important to be done administratively and should go through a formal process, that’s why I am joining my colleagues on both sides of the aisle and supporting this bill.  I was opposed to this Clean Water Act expansion when the Bush Administration tried it and now when the current Administration is trying it.  We should not be regulating every puddle, pond and ditch.  We need to provide certainty in our permitting process so agriculture and businesses can predict and plan for the future.”

Since the U.S. Supreme Court decision in Sackett v EPA, the jurisdiction of the federal agencies under the Clean Water Act has come under renewed fire.  The holding in that case was that the property owners could bring a civil action under the federal Administrative Procedure Act to challenge the issuance of the EPA’s administrative compliance order.  The property owners bought a vacant parcel in Idaho with the plan to build a single-family home.  Their lot was less than a single acre (.63), bordered by other residential properties, and 500 feet from the water. As they were laying gravel and grading the property, EPA officials declared the location a “wetland without a federal permit.” Essentially, EPA issued a compliance order directing the property owners to restore the site to its previous condition.  Prior to the decision by the Supreme Court, the property owners were told they could not challenge the wetland determination by the EPA.

A similar bill was filed with the U.S. Senate just days after the Sackett opinion was issued.  S.R. 2245 similarly seeks to prevent the EPA and the Army Corps from issuing their “Final Guidance on Identifying Waters Protected by the Clean Water Act”.

No timeline for review of the guidance memo by the Office of Management and Budget has been provided.

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