WASHINGTON – Chairman Ron Johnson sent letters today to the administrator of the Environmental Protection Agency and to the U.S. Army Corps of Engineers’ commanding general and chief of engineers asking for details about the agencies’ consultations with states, the agencies’ outreach to the agricultural community, and the agencies’ evaluation of their legal authority as it pertains to the proposed “Waters of the United States” rule.
The EPA and the U.S. Army Corps of Engineers have proposed to expand their jurisdiction to regulate waters under the Clean Water Act to include, potentially, streams, ditches and man-made ponds. The proposal could lead agencies to demand to costly environmental assessments and federal permits from farmers before they’re allowed simply to till the soil or take part in conservation practices. The Wisconsin Farm Bureau Federation and the Wisconsin Potato and Vegetable Growers Association warn that the proposal would cost jobs and become an undue burden on agriculture.
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Text of the letters can be found below.
Via Electronic Submission
February 3, 2015
The Honorable Gina McCarthy
Administrator
Environmental Protection Agency
1200 Pennsylvania Ave. NW
Washington, DC 20460
Dear Administrator McCarthy:
I write to express my concern about the Environmental Protection Agency’s (EPA) and the U.S. Army Corps of Engineers’ (Corps) proposed “Waters of the United States” rule under the Clean Water Act. If finalized, I worry that the rule will not only expand the EPA’s and the Corps’ regulatory powers beyond a scope that Congress ever intended, but it will also force farmers and ranchers as well as state and local governments to bear the burden of additional compliance costs.
In the Clean Water Act, Congress authorized the EPA and the Corps to regulate the “navigable waters” of the United States. Current regulations limit this term to cover all waters that are used in interstate or foreign commerce; all interstate waters; all intrastate waters in which the use, degradation or destruction of the water could affect interstate or foreign commerce; the territorial seas; all impoundments and tributaries of those waters; and all wetlands adjacent to those waters. The EPA’s and the Corps’ proposed rule, however, significantly expands this authority. Under its proposed rule, the EPA and the Corps could claim jurisdiction over smaller bodies of water that form a “significant nexus” with other navigable bodies of water that are already covered by the Clean Water Act. According to the EPA and the Corps, a “significant nexus” is formed when a pool of water “significantly affects the chemical, physical, or biological integrity of other covered waters [specified in the Clean Water Act].”
Many stakeholders in the agriculture industry worry that the EPA’s and the Corps’ ambiguous definition of what constitutes a “significant nexus” could lead to confusion and expose farmers to litigation. According to recent reports, the proposed rule would give the EPA and the Corps the authority to “expand the scope of water protected under the [Clean Water Act] to include not only rivers and lakes but ditches, stream-beds and [man-made] ponds that only carry water when it rains.” As a result, farmers could end up having to “pay for costly environmental assessments and apply for federal permits allowing them to till soil, apply fertilizer or engage in some conservation practices.”
The threat of the EPA’s and the Corps’ increased regulatory overreach has already triggered trepidation from many agriculture industry representatives, including farming advocates from Wisconsin. According to the Green Bay Press Gazette, Duane Maatz, executive director of the Wisconsin Potato & Vegetable Growers Association, warned that the proposed regulation would “be hazardous to agriculture [and] … would cost jobs.” In addition, in its November 2014 comments on the proposed rule, the Wisconsin Farm Bureau Federation (WFBF) explained that the rule “was written without consultation of states that will be designated with enforcement authority. It lacks clarity regarding exemptions. It creates confusion by changing the scope of the definitions and terminologies found within the Clean Water Act.” Further, WFBF warned that the proposed rule disregards Congressional intent of the Clean Water Act and, if implemented, would result in an “undue burden on agriculture in Wisconsin.”
Additionally, the specific benefits of the proposed rule are unclear. In March 2014, the EPA and the Corps released its economic analysis of the “Waters of the United States” rule. Based on the agency’s and the Corps’ calculations, the total estimated cost of the proposed action ranged from $133.7 million to $231 million. However, according to Dr. David Sunding, a professor of agricultural and resource economics at the University of California, Berkeley, the EPA’s “entire analysis is fraught with uncertainty” and is not an accurate evaluation of the actual cost of implementing the rule. Furthermore, Dr. Sunding stated that “the errors, omissions, and lack of transparency in [the] EPA’s study are so severe [that it renders it] virtually meaningless.”
Given the criticism that surrounds the EPA’s and the Corps’ proposed “Waters of the United States” action as well as the growing concern that the rule will cost jobs and harm agriculture across the country, I ask that you please provide the following information and material:
- According to the Wisconsin Farm Bureau Federation (WFBF), the proposed “Waters of the United States” rule by the EPA and the Corps was “written without consultation of states that will be designated with enforcement authority.” Did the EPA consult with states that will be designated with enforcement authority while writing the proposed rule?
- When did the EPA’s consultation with states begin? Which EPA official(s) conducted this consultation?
- If the EPA did not consult with the states, why did the EPA not consult with the states before writing this rule?
- Please produce all documents and communications referring or relating to the EPA’s consultation with states that will be designated with enforcement authority.
- According to the WFBF, under the proposed rule many waters once regulated by the state of Wisconsin would fall under the jurisdiction of the EPA or the Corps.
- How many other states that already regulate bodies of water would be subject to the EPA’s jurisdiction if the proposed rule is finalized?
- Does the EPA believe that the proposed rule would be duplicative in those cases?
- Please produce all documents and communications referring or relating to the EPA’s deliberations for expanding its regulatory authority over waters that have traditionally been under state control.
- How is the proposed rule compatible with Congressional intent of the Federal Water Pollution Control Act of 1948 and subsequent Clean Water Act of 1972? Please produce all documents and communications referring or relating to the EPA’s evaluation of the Congressional intent of the Federal Water Pollution Control Act of 1948 and subsequent Clean Water Act of 1972.
- Many of the broadened definitions in the EPA’s and the Corps’ proposed rule (such as “tributary” and “adjacent wetlands”) have led to confusion within agriculture communities. What steps will the EPA take to ensure that farmers, ranchers, and small businesses understand the expanded definitions proposed by the EPA and the Corps? Please explain.
- Under the proposed rule, the EPA and the Corps would have jurisdiction to regulate ditches, farm ponds, dry stream beds, and ephemeral streams. Does the EPA believe that a farmer should face potential liability if he fails to secure a permit for a farm pond that forms on his property after a rainstorm? Please explain.
- In Rapanos v. United States, a plurality of the Supreme Court held that “the only plausible interpretation” of the phrase “waters of the United States” includes “only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes.’ The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.” Please explain the EPA’s legal justification for how the proposed rule comports with this Supreme Court guidance. Please produce all documents and communications referring or relating to the EPA’s evaluation of its legal authority to pursue this proposed rulemaking in light of Rapanos.
Please provide this material as soon as possible but no later than 5:00 p.m. on February 17, 2015.
The Committee on Homeland Security and Governmental Affairs is authorized by Rule XXV of the Standing Rules of the Senate to investigate “the efficiency, economy, and effectiveness of all agencies and departments of the Government.” Additionally, S. Res. 253 (113th Congress) authorizes the Committee to examine “the efficiency and economy of all branches and functions of Government with particular references to the operations and management of Federal regulatory policies and programs.” For purposes of this request, please refer to the definitions and instructions in the enclosure.
If you have any questions, please contact Scott Wittmann of the Committee staff at (202) 224-4751. Thank you for your attention to this important matter.
Sincerely,
Ron Johnson
Chairman
Via Electronic Submission
February 3, 2015
Lieutenant General Thomas P. Bostick
Commanding General and Chief of Engineers
U.S. Army Corps of Engineers
2600 Army Pentagon
Washington, DC 20310-2600
Dear Lieutenant General Bostick:
I write to express my concern about the Environmental Protection Agency’s (EPA) and the U.S. Army Corps of Engineers’ (Corps) proposed “Waters of the United States” rule under the Clean Water Act. If finalized, I worry that the rule will not only expand the EPA’s and the Corps’ regulatory powers beyond a scope that Congress ever intended, but it will also force farmers and ranchers as well as state and local governments to bear the burden of additional compliance costs.
In the Clean Water Act, Congress authorized the EPA and the Corps to regulate the “navigable waters” of the United States. Current regulations limit this term to cover all waters that are used in interstate or foreign commerce; all interstate waters; all intrastate waters in which the use, degradation or destruction of the water could affect interstate or foreign commerce; the territorial seas; all impoundments and tributaries of those waters; and all wetlands adjacent to those waters. The EPA’s and the Corps’ proposed rule, however, significantly expands this authority. Under its proposed rule, the EPA and the Corps could claim jurisdiction over smaller bodies of water that form a “significant nexus” with other navigable bodies of water that are already covered by the Clean Water Act. According to the EPA and the Corps, a “significant nexus” is formed when a pool of water “significantly affects the chemical, physical, or biological integrity of other covered waters [specified in the Clean Water Act].”
Many stakeholders in the agriculture industry worry that the EPA’s and the Corps’ ambiguous definition of what constitutes a “significant nexus” could lead to confusion and expose farmers to litigation. According to recent reports, the proposed rule would give the EPA and the Corps the authority to “expand the scope of water protected under the [Clean Water Act] to include not only rivers and lakes but ditches, stream-beds and [man-made] ponds that only carry water when it rains.” As a result, farmers could end up having to “pay for costly environmental assessments and apply for federal permits allowing them to till soil, apply fertilizer or engage in some conservation practices.”
The threat of the EPA’s and the Corps’ increased regulatory overreach has already triggered trepidation from many agriculture industry representatives, including farming advocates from Wisconsin. According to the Green Bay Press Gazette, Duane Maatz, executive director of the Wisconsin Potato & Vegetable Growers Association, warned that the proposed regulation would “be hazardous to agriculture [and] … would cost jobs.” In addition, in its November 2014 comments on the proposed rule, the Wisconsin Farm Bureau Federation (WFBF) explained that the rule “was written without consultation of states that will be designated with enforcement authority. It lacks clarity regarding exemptions. It creates confusion by changing the scope of the definitions and terminologies found within the Clean Water Act.” Further, WFBF warned that the proposed rule disregards Congressional intent of the Clean Water Act and, if implemented, would result in an “undue burden on agriculture in Wisconsin.”
Additionally, the specific benefits of the proposed rule are unclear. In March 2014, the EPA and the Corps released its economic analysis of the “Waters of the United States” rule. Based on the agency’s and the Corps’ calculations, the total estimated cost of the proposed action ranged from $133.7 million to $231 million. However, according to Dr. David Sunding, a professor of agricultural and resource economics at the University of California, Berkeley, the EPA’s “entire analysis is fraught with uncertainty” and is not an accurate evaluation of the actual cost of implementing the rule. Furthermore, Dr. Sunding stated that “the errors, omissions, and lack of transparency in [the] EPA’s study are so severe [that it renders it] virtually meaningless.”
Given the criticism that surrounds the EPA’s and the Corps’ proposed “Waters of the United States” action as well as the growing concern that the rule will cost jobs and harm agriculture across the country, I ask that you please provide the following information and material:
- According to the Wisconsin Farm Bureau Federation (WFBF), the proposed “Waters of the United States” rule by the EPA and the Corps was “written without consultation of states that will be designated with enforcement authority.” Did the Corps consult with states that will be designated with enforcement authority while writing the proposed rule?
- When did the Corps’ consultation with states begin? Which Corps official(s) conducted this consultation?
- If the Corps did not consult with the states, why did the Corps not consult with the states before writing this rule?
- Please produce all documents and communications referring or relating to the Corps’ consultation with states that will be designated with enforcement authority.
- According to the WFBF, under the proposed rule many waters once regulated by the state of Wisconsin would fall under the jurisdiction of the EPA or the Corps.
- How many other states that already regulate bodies of water would be subject to the Corps’ jurisdiction if the proposed rule is finalized?
- Does the Corps believe that the proposed rule would be duplicative in those cases?
- Please produce all documents and communications referring or relating to the Corps’ deliberations for expanding its regulatory authority over waters that have traditionally been under state control.
- How is the proposed rule compatible with Congressional intent of the Federal Water Pollution Control Act of 1948 and subsequent Clean Water Act of 1972? Please produce all documents and communications referring or relating to the Corps’ evaluation of the Congressional intent of the Federal Water Pollution Control Act of 1948 and subsequent Clean Water Act of 1972.
- Many of the broadened definitions in the EPA’s and the Corps’ proposed rule (such as “tributary” and “adjacent wetlands”) have led to confusion within agriculture communities. What steps will the Corps take to ensure that farmers, ranchers, and small businesses understand the expanded definitions proposed by the EPA and the Corps? Please explain.
- Under the proposed rule, the EPA and the Corps would have jurisdiction to regulate ditches, farm ponds, dry stream beds, and ephemeral streams. Does the Corps believe that a farmer should face potential liability if he fails to secure a permit for a farm pond that forms on his property after a rainstorm? Please explain.
- In Rapanos v. United States, a plurality of the Supreme Court held that “the only plausible interpretation” of the phrase “waters of the United States” includes “only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes.’ The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.” Please explain the Corps’ legal justification for how the proposed rule comports with this Supreme Court guidance. Please produce all documents and communications referring or relating to the Corps’ evaluation of its legal authority to pursue this proposed rulemaking in light of Rapanos.
Please provide this material as soon as possible but no later than 5:00 p.m. on February 17, 2015.
The Committee on Homeland Security and Governmental Affairs is authorized by Rule XXV of the Standing Rules of the Senate to investigate “the efficiency, economy, and effectiveness of all agencies and departments of the Government.” Additionally, S. Res. 253 (113th Congress) authorizes the Committee to examine “the efficiency and economy of all branches and functions of Government with particular references to the operations and management of Federal regulatory policies and programs.” For purposes of this request, please refer to the definitions and instructions in the enclosure.
If you have any questions, please contact Scott Wittmann of the Committee staff at (202) 224-4751. Thank you for your attention to this important matter.
Sincerely,
Ron Johnson
Chairman