Stop EPA from Expnding Clean Water Act Jurisdiction
In April 2011, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) released draft guidance to clarify jurisdiction of waters of the U.S. under the Clean Water Act. EPA and USACE have now submitted a final version of this guidance to the Office of Management and Budget for federal interagency review. The guidance significantly expands the scope of waters to be regulated by EPA and USACE, despite the United States Supreme Court decisions that narrowed the agencies’ authority. The guidance is inconsistent, not only with the procedural requirements of the Administrative Procedure Act, but also with the scope of the agencies’ authority under the Clean Water Act and Commerce Clause of the U.S. Constitution.
Guidance Circumvents the Established Legislative and Regulatory Processes. Previous Congresses have considered, and rejected, legislation that amends the Clean Water Act to expand federal jurisdiction as the guidance does. It is inappropriate for the EPA and USACE to implement such a significant change to the Clean Water Act through guidance. The process has allowed for none of the safeguards built into the Administrative Procedures Act or mandatory steps to ensure that the agencies adopt the least burdensome alternative for small business under requirements of the Regulatory Flexibility Act (RFA) and the Small Business Regulatory Enforcement Fairness Act (SBREFA). The agencies’ determination that compliance with the RFA and SBREFA is not required is simply wrong.
Guidance Removes States from the Regulatory Process. The final guidance federalizes nearly all of the jurisdiction over wetlands, ignoring the leading role that states and localities have traditionally played in the regulation of land and water use. The Clean Water Act intended to establish that there are waters subject to the exclusive regulatory jurisdiction of the states. In 1972, the Clean Water Act established federal jurisdiction over “navigable waters of the united states” and since that time environmental groups have attempted to expand jurisdiction of the federal government to all waters and wet areas.
Expanding Jurisdiction Causes Delays and Increases Construction Costs. Expanding federal authority over water and land use would delay or stop construction projects nationwide and slow economic growth. The federal permitting process would increase the cost of, and delay necessary improvements to, the public and private infrastructure that forms the foundation of our nation’s economy, such as highways, bridges, mass transit, airports, flood control, navigation, schools, and drinking and waste water facilities. EPA’s economic analysis was limited to costs associated with section 404 of the Clean Water Act and fails to consider the full costs of implementing the Guidance. The cost of implementing the Final Guidance will impact all programs, including 303, 311, 401, 402, and 404, which means EPA has significantly underestimated the costs.
A Backlog of Pending Clean Water Act Permit Requests Already Exists. The current backlog of pending requests for necessary permits is between 15,000 and 20,000, and, on average, an individual permit takes 2-3 years to receive, further adding to cost overruns and time delays at a time when the construction industry is in its worst condition since the great depression and margins are as thin as they have been in modern times.
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