Prepared Floor Statement of Senator Chuck Grassley of Iowa
On the Proposed Waters of the United States Rule
Tuesday, January 13, 2015
Video can be found here.
Last Spring, the EPA and the Army Corps of Engineers published a proposed rule to define the “Waters of the United States”. This is part of a long history of attempts to determine the scope of the federal government’s jurisdiction under the Clean Water Act. The latest proposal has generated no shortage of rhetoric from those concerned about the rule as well as those defending the rule. However, you would be hard pressed to call it a true debate. Rather than making a serious attempt to address the numerous legitimate concerns with the rule, the EPA and their allies in the professional advocacy community have attempted to push a narrative that tries to portray critics of the rule as misinformed, nutty, or in favor of water pollution. They claim that the rule simply clarifies the jurisdiction of federal agencies, but doesn’t expand it a bit. The EPA also promises it won’t interfere with farmers’ routine use of their own land. Given its history of ignorance and indifference toward the needs of rural America, it’s no wonder EPA’s assurances are met with skepticism. The EPA will have another chance to consider the concerns of farmers and many other Americans as it reviews the formal comments it collected before issuing a final rule. Still, given the fact that EPA officials, starting with Administrator McCarthy, went out of their way to be dismissive of legitimate criticisms even while the comment period was still open, I am not holding my breath hoping for a change of heart.
First, it is important to understand that this debate is not about whether we should have clean water protections, but which level of government is in the best position to manage which bodies of water. Despite what some interest groups would have you believe, no one is arguing that farmers should be allowed to dump pollutants in a waterway. There is also no question that there is an important role for the federal Clean Water Act to protect interstate bodies of water. However, the Clean Water Act itself clearly states, “It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources, and to consult with the Administrator in the exercise of his authority under this chapter.” The complicated federal clean water permitting process is appropriate if a factory is looking to discharge waste into a river, but does it make sense to require a farmer to apply for a federal permit to build a fence on his own land? There is clearly a limit to where federal regulation is appropriate, effective, and legal. In fact, expanding the cumbersome federal permitting process to cover lands that it was not designed for would actually be counterproductive in Iowa. Forcing farmers to file for a federal permit would add significant red tape for Iowa farmers as they make routine decisions about how best to use their land. That ironically could delay or deter farmers from undertaking projects to improve water quality. Having to constantly apply for federal permits just to farm their land would be unnecessarily burdensome to farmers, a waste of federal resources, and an intrusion into state and local land use regulations.
But what about the EPA’s assertion that its proposed rule simply clarifies its existing jurisdiction or restores it to what it used to be? The fact is that EPA has attempted in the past to claim nearly unlimited jurisdiction, well beyond what the law says and well beyond even an expansive reading of the federal government’s constitutional authority to regulate interstate commerce. However, those attempts were repeatedly struck down by the Supreme Court. Supreme Court decisions in 2001 and 2006 made clear that the federal government does not have unlimited authority over all bodies of water, but left the precise division between federal and state or local jurisdiction somewhat unclear. In response, the U.S. Army Corps of Engineers and the EPA issued guidance in December 2008 in an attempt to comply with the Supreme Court rulings, but did not engage in any formal rulemaking. Significantly, legislation was routinely proposed in Congress by those who wanted to push aside the Supreme Court rulings and give the EPA unlimited jurisdiction, but it never garnered enough support. While legislation would not have resolved the constitutional limitations to EPA’s authority, it is important to note that Congress passed on several opportunities to amend the Clean Water Act to expand federal jurisdiction.
Nevertheless, in April 2011, the Obama administration proposed to replace the existing guidance with revised guidance that provided a very expansive reading of federal authority, leaving very little land under state and local control. This unilateral reassertion of expansive authority, in defiance of the other two branches of government, was made even more egregious by being proposed through guidance outside the formal rulemaking process. Fortunately, the outcry from the public and Congress against this power grab caused the Administration to scrap the guidance and pursue a formal rule with public comment.
I do believe that we need clarity about what is, and is not covered by the Clean Water Act permitting process and that a formal rule with public comments is the best route. However, the proposed rule that was formally published in April 2014 once again asserted an extremely expansive view of federal authority. This would increase the federal government’s jurisdiction to regulate waters that had previously been the sole jurisdiction of states and local governments. Moreover, rather than clarifying points of uncertainty remaining from the original guidance, court decisions, and precedents, the proposed rule would create a whole new definition of the waters of the United States that opens up new areas of uncertainty and confusion. Rather than fixing the problem, this rule would make it much worse. It would lead to another round of court cases and overwhelm the federal agencies with requests for jurisdictional determinations, diverting scarce federal resources away from enforcement in more critical areas.
The EPA and the Corps should withdraw the proposed rule and work collaboratively with the states and other stakeholders to craft a sensible rule that will ensure clean water and provide much needed clarity about the scope of federal Clean Water Act jurisdiction.