WASHINGTON, March 28, 2014 – House Appropriations Committee Chairman Harold Rogers, R-Ky., said Thursday that he would move to block funding to implement EPA’s proposed rule on determining which bodies of water and wetland are protected under the Clean Water Act (CWA).

“That would be the first step,” Rogers told Agri-Pulse. “I’m sure there will be lawsuits from about 1,500 people against this rule. It’s that significant.”

Rogers was speaking outside of a hearing of his committee’s Subcommittee on Interior, Environment, and Related Agencies, which was held to discuss the administration’s fiscal year 2015 budget request with EPA Administrator Gina McCarthy.

“I am [upset] not just at the rule, but what they’ve been doing to destroy the economy of this country,” Rogers said. “There is general concern in the agriculture community.”

During the hearing, which was more focused on the proposed rule than budget numbers, Rogers heavily criticized the EPA plan.

“This is the biggest land grab in the history of any governmental agency and in the history of mankind really,” Rogers said. “The Supreme Court has stricken down several EPA overreaches and this one is ripe for the picking.”

The 371-page EPA proposal, which aims to clarify the long-contested definition of “Waters of the United States,” would cover almost all seasonal and rain-dependent streams, while preserving CWA exemptions and exclusions for agriculture.

Some lawmakers and agricultural groups are calling it a massive government overreach that would give EPA authority over questionably defined bodies of water on private lands. Other lawmakers and environmentalists have said the proposal would help protect water quality, improving fishing and recreation.

Rogers told McCarthy the rule would give EPA authority over “so-called streams that have not seen water in a thousand years.” The chairman said, under the rule, the permit process to build on private land with bodies of water would be increasingly burdensome.

McCarthy told Rogers the rule would not impact the permit process and may actually decrease the amount of time it takes to get a permit. “We’re not expanding the types of waters that we have been historically regulating,” McCarthy said.

The administrator said the rule seeks to better clarify waters that are jurisdictional under CWA and to better define navigable waters. “The reason we’re doing this is there is tremendous uncertainty,” McCarthy said. “There is concern in the agriculture community that we haven’t properly identified agricultural practices that were and are exempt under the law.”

Subcommittee ranking member Jim Moran, D-Va., told lawmakers that many organizations, such as Trout Unlimited, support the proposed rule, which he said would lead to “more fishable and swimmable” water bodies. “Some say [the rule] doesn’t go far enough,” Moran said. The lawmaker said the rule would provide several exemptions to farmers.

The proposal, which would apply to all CWA programs, does not protect any new types of waters that have not historically been covered under the CWA and is consistent with the Supreme Court’s more narrow reading of CWA jurisdiction, the EPA and the Army Corps said. Determining CWA protection for streams and wetlands became confusing and complex, the agencies said, following Supreme Court decisions in 2001 and 2006, prompting requests for clarification from lawmakers, industry, agriculture and environmental groups. 

In addition to preserving the CWA agriculture exemptions, the EPA and the Army Corps said they have coordinated with USDA to develop an “interpretive rule” to ensure that 56 specific conservation practices that protect or improve water quality will not be subject to dredged or fill permitting requirements set out in Section 404 of the CWA. The proposed rule will be open for public comment for 90 days from publication in the Federal Register. The interpretive rule for agricultural activities is effective immediately, the agencies said.

Reaction to the proposed rule in the Senate so far has been mixed and not neatly along party lines. Sen. Thad Cochran, R.-Miss., the Senate Agriculture Committee’s ranking member, did not immediately voice opposition to the rule, but did note that he was “suspect of the impact and objectives of this rulemaking.”

Sen. Mary Landrieu, D-La., chair of the Senate Energy and Natural Resources Committee, said the proposed rule “represents another example of this agency overreaching and stepping outside of its bounds without thought to the economic consequences of its actions.” 

Sen. Barbara Boxer, D-Calif., chairman of the Senate Committee on Environment and Public Works, supports the proposed rule. “Communities and businesses depend on a safe water supply, and the proposed rule will provide the consistency and predictability that is needed to safeguard the nation’s water resources,” Boxer said.

After the hearing, McCarthy declined to speak to reporters.

The proposed rule can be viewed here.


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