Unclear definition in new 'waters' rule

In 1972, the Clean Water Act (CWA) revolutionized how our country protects water. Since the law’s passage, environmental disasters that occurred prior to this legislation are a thing of the past. The CWA is complicated, but it makes our water safer and places necessary regulations to ensure this precious resource is not abused. This law created a partnership between the federal and state governments with specific limitations to enforce and implement the CWA. We must ensure that state’s continue to enforce the CWA rather than a ‘one-size fits all’ policy that would result from this power grab by the federal government and erode at state’s rights and sovereignty.

On April 21 of this year, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) published a proposed rule in the Federal Register that would redefine the scope of Federal jurisdiction under the CWA entitled, Definition of ‘Waters of the United States’ Under the Clean Water Act. In spite of the tremendous progress that has been made to protect the environment, this rule would establish the presumption that nearly all waters are jurisdictional and impose costly and time-consuming permitting requirements and possibly subject farmers and small businesses to citizen lawsuits.

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EPA claims that the new rule is needed to ‘clarify’ the scope of federal jurisdiction.  The agency also claims that no new waters would be under jurisdiction by the rulemaking and that normal farming activities would face no new regulatory burdens. However, after carefully evaluating the language in the rule and hearing from the regulated community, I am concerned that this appears to be a massive power grab by the federal government.

The focus of CWA was defined by Congress to be ‘navigable’ waters.  While only defined in the law as “waters of the United States,” multiple Supreme Court cases have determined that while the CWA applies to some non-navigable waters, the Court also clearly determined that not all waters are subject to federal jurisdiction.  My concern that remains unanswered by the EPA is precisely which waters does and does not this new rule designate as “waters of the United States.”  While it is true that clarity is needed, the only clear message in the rule is that potentially water or area that may be wet will now potentially be under the jurisdiction of the federal government.  In fact, the rule is so broad and so vague that the agency felt compelled to specifically exempt birdbaths and swimming pools for fear that the new definitions may trigger CWA enforcement.

It is hard to grasp the severe impact this rule would have if you do not deal with these types of regulations every day.  As a farmer, I understand the implications first-hand.  The new rule leaves the door open to interpret my farm’s grass waterways as jurisdictional, meaning any alterations to my land could trigger new permitting requirements, enforcement actions, and even lawsuits from environmentalists.  I do not believe this was the original intent of Congress in 1972.

Despite EPA’s assertion that their intent is merely to ‘clarify,’ I believe the new rule creates more questions than it does answers.  It is this uncertainty that will have the biggest impact on the economy and jobs.  Regulation of our nation’s waters must be done in manner in which business owners and individuals believe to be common sense, not harm their way of life and everyday business practices.

On March 5, Transportation and Infrastructure Chairman Bill Shuster (R-Pa.) and I sent a letter to President Obama explaining how this expansion would be harmful for Americans. On June 11, I held a hearing on the potential impacts of proposed changes to the CWA Jurisdictional Rule. This hearing was important because it brought to light the disturbing pattern of an imperial presidency that continues to bypass Congress to achieve their agenda. The administration’s attempt to broaden the scope of the Clean Water Act could have serious consequences for the country’s economy, states’ rights and local governments.

We all want clean water.  But the safety of the nation’s waters must be done in a manner that protects the environment responsibly and without unnecessary overreach from the federal government. This rule will have a devastating ripple effect on our economy if not carefully crafted. The draft rule misconstrues and manipulates the legal standards announced in the two Supreme Court holdings relevant to this rule, and there are substantial flaws in the economic and scientific foundations upon which the rule is based. I am pleased to hear that the agency has announced a 91-day extension to the public comment period for the proposed rule.  I am hopeful EPA listens to the concerns of the American people and abandons its attempts to redefine the law.

Gibbs has represented northeastern Ohio congressional districts since 2011. He is chairman of the Transportation and Infrastructure Committee's Subcommittee on Water Resources and Environment, and also sits on the Agriculture Committee..