2011 Clean Water Act Guidance
Key Development: House Transportation Committee adopts bill to
prohibit EPA and Army Corps from finalizing guidance clarifying Clean Water Act
jurisdiction and from using that document to issue rules or decisions.
Potential Impact: The legislation, if enacted, would return EPA and
the Army Corps to using guidance issued by the two agencies under the Bush
What's Next: The bill heads to the House floor for a vote.
By Amena H. Saiyid
The House Transportation and Infrastructure Committee approved a bill June 7 that would
prohibit the Environmental Protection Agency and the U.S. Army Corps of
Engineers from finalizing and implementing 2011 guidance to clarify the scope of
Clean Water Act jurisdiction.
H.R. 4965 also would block the two agencies from using the guidance as the
basis for promulgating any rules or issuing any decisions.
The legislation was approved on a vote of 33-18.
The bill was introduced in April by Rep. John Mica (R-Fla.), chairman of the
House Transportation and Infrastructure Committee. It is co-sponsored by Reps.
Nick Rahall (D-W.Va.), the committee's ranking member; Bob Gibbs (R-Ohio),
chairman of the Transportation and Infrastructure Subcommittee on Water
Resources and Environment; Frank Lucas (R-Okla.), Agriculture Committee
chairman; and Collin Peterson (D-Minn.), committee ranking member (43 ER 1163,
Gibbs said the bill's purpose is to prevent the Obama administration from
“skirting” the law by issuing rules under the guise of guidance. He emphasized
that the bill would not result in “rollback of environmental protections.”
Gibbs offered an amendment to the bill that committee spokesman Justin Harclerode said would make clear that existing jurisdictional guidance dating to 2008 would not be affected by the prohibition.
The bill now heads to the House floor, where Harclerode expects a vote “soon” because it “jibes
with the leadership's views on EPA's aggressive regulatory agenda.”
H.R. 4965 represents a Republican attempt to curb what the party perceives as
an attempt by EPA and the corps to expand the scope of Clean Water Act
jurisdiction to a “splash outside a swimming pool,” according to Rep. Bill
Shuster (R-Pa.). In 2011, House Republicans attempted several times to attach
language to fiscal year 2011 and 2012 omnibus appropriations measures to block
the corps and EPA from moving forward with finalizing and implementing the Clean
Water Protection Guidance, which the agencies jointly proposed May 2011 (76 Fed.
Reg. 24,479; 42 ER 998, 5/6/11).
The committee's vote came a day after the House voted to block the Army Corps
from finalizing the guidance as part of the fiscal year 2013 energy-water
appropriations measure (see related story).
H.R. 4965 is similar to S. 2245, the Preserve the Waters of the United States
Act, which was introduced in the Senate on March 28 by Sens. John Barrasso
(R-Wyo.), James Inhofe (R-Okla.), Jeff Sessions (R-Ala.), and Dean Heller
The May 2011 proposed guidance, which the bill seeks to nullify, was intended
to clarify which waters are subject to Clean Water Act jurisdiction in response
to a previous guidance that attempted to interpret two recent U.S. Supreme Court
rulings regarding the extent of federally protected waters: Solid Waste
Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), 531
U.S. 159, 51 ERC 1838 (2001), and Rapanos v. United States, 547 U.S. 715,
62 ERC 1481 (2006).
Under the proposed guidance, federal jurisdiction and permitting requirements
would be expanded to include many intermittent and ephemeral streams and
wetlands not currently covered. But House Republicans, homebuilders, and the
agriculture community have viewed and condemned the guidance as another example
of the administration's regulatory overreach.
But Rep. Timothy Bishop (D-N.Y.), the water subcommittee's ranking member,
said the bill would tie the hands of EPA and the corps and make it difficult for
the two agencies to engage in any rulemaking to clarify the confusion that the
Supreme Court rulings have caused.
Bishop said he “strongly objected” to the bill because he said it would
create more confusion, increase litigation and costs for the regulated
community, and reinstate a Bush-era guidance on Clean Water Act jurisdiction
that the agricultural and developer lobby groups had deemed confusing and
Earthjustice, an environmental advocacy group, criticized the committee's
action. Joan Mulhern, the group's senior legislative counsel, said, “We continue
to see the House of Representatives shred our clean water protections and gut
the nation's premier anti-water pollution law, the 40-year-old Clean Water Act,
which protects our drinking water and lakes, rivers, and streams.”
Mulhern was particularly critical of Mica, who ruled that an amendment
offered by Del. Eleanor Holmes Norton (D-D.C.) was out of order. Norton's
amendment attempted to exclude drinking water sources from the bill's reach.
In ruling the amendment out of order, Mica said drinking water issues belong
to the House Energy and Commerce Committee, which has jurisdiction over the Safe
Drinking Water Act.
In contrast, Don Parrish, regulatory affairs director for the American Farm
Bureau Federation, welcomed the bill's adoption, saying that “EPA and the corps
need to realize that if they are going to make that dramatic a change then the
proper place is in Congress.”
H.R. 4965 is available at http://op.bna.com/env.nsf/r?Open=fwhe-8v2rgb.