Engage Now to Help Stop Finalization of EPA/Corps Clean Water Act Jurisdictional Guidance

 

BACKGROUND
The Environmental Protection Agency (EPA) / Army Corps of Engineers (Corps) are seeking to finalize guidance that would significantly broaden the scope of federal authority under the Clean Water Act (CWA) by expanding the definition of "waters of the United States."   The proposed guidance is now being considered for finalization by the White House Office of Management and Budget (OMB).
 
This guidance should be of keen interest to ARA and others within the agricultural community.  It evidences the agencies’ intent to move forward unilaterally to reverse decisions by the U.S. Supreme Court that set limits on the federal government's authority to regulate waters.  The guidance has broad implications, applying to all CWA programs, including Sections 404 (wetlands), 402 (NPDES), 311 (oil spills and SPCC plans), 401 (state water quality certifications) and 303 (water quality standards and TMDLs).
 
Legislation has been introduced which would stop EPA/Corps from either finalizing this guidance or using it as the basis for other regulatory actions:
House -- H.R. 4965 was recently introduced by a bipartisan group of sponsors [Representatives Mica (R-FL), Rahall (D-WV), Gibbs (R-OH), Lucas (R-OK), Peterson (D-MN), Noem (R-SD)]. See here.
Senate -- S. 2245 was introduced in late March, 2012 and now has 32 cosponsors. See here.
ARA CONCERNS
ARA opposes the EPA/Corps guidance for a number of reasons:
• It will greatly expand the number of activities pulled under EPA/U.S. Army Corps of Engineers CWA permit programs.
 
• Such action is legally suspect (only Congress can change "definitions" contained in a statute).
 
• It is a gross process violation; not only are the EPA/Corps moving forward unilaterally on an issue that only Congress can legitimately "fix," they are doing so without even going through a normal Administrative Procedures Act (APA)-compliant rule-making process.
 
• The guidance will cause real problems on the ground.  It will undermine the federal-state CWA partnership that has long existed, resulting in confusion and further delaying permitting processes.
 
• The guidance will be a substantial regulatory burden that will hamper economic activity, even as the nation continues its struggle to heal an anemic economy.  Based on EPA’s own assumptions, annual costs from implementation of the guidance are estimated to be between $87 million to $171 million. EPA’s economic analysis was limited to costs associated with Section 404 of the CWA.  However, as noted, the final guidance is to apply to all CWA programs, including Sections 303, 311, 401, 402 and 404.  By only looking at the implementation costs in the context of Section 404, EPA significantly underestimated the actual total cost of the guidance.  In addition to these substantial costs, the guidance also will impose new land use restrictions, permitting costs, and increased delays associated with increased federal jurisdiction, none of which is reflected in the EPA cost estimates.
CALL TO ACTION
ARA needs your help.
1. Click here to contact your Representatives and encourage them to cosponsor House Bill (H.R. 4965).
2.  Click here to contact your Senators and encourage them to cosponor Senate Bill (S. 2245).
3.  Send the attached Letter to the White House Office of Management and Budget (OMB).  Please print on company letterhead and enter the information requested in the highlighted fields.
 

The Agricultural Retailers Association (ARA) is a nonprofit trade association representing the interests of retailers across the United States on legislative and regulatory issues on Capitol Hill. As the political voice of agricultural retailers, ARA not only represents its membership but also educates members on the political process and important issues affecting the industry. For more information on ARA, visit: www.ARADC.org.
Agricultural Retailers Association - 1156 15th Street, NW - Suite 500 - Washington, DC 20005
Phone: (202) 457-0825  Fax: (202) 457-0864