Rep. Gibbs Says Congress Needs to Write Rule Clarifying Clean Water Act Jurisdiction

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By Amena H. Saiyid

Feb. 17 — Rep. Bob Gibbs (R-Ohio) acknowledged, in an on-camera interview with Bloomberg BNA, the need for a rule to clarify the Clean Water Act's jurisdiction over certain types of waters and wetlands to remove confusion and uncertainty.

“The thinking is that we do need to have a rule, but it has to be set by Congress, and really bring clarity and certainty to that process,” said Gibbs, who chairs the House Transportation and Infrastructure Subcommittee on Water Resources and the Environment. The subcommittee has oversight over the EPA Office of Water and the U.S. Army Corps of Engineers' civil works program.

Gibbs and Rep. Bill Shuster (R-Pa.), chairman of the House Transportation and Infrastructure Committee, are working together on a bill they say would address the shortcomings in the waters of the U.S. rule, which the EPA and the corps jointly proposed April 2014 to clarify the reach of the Clean Water Act. 

Gibbs said they would not craft a bill that would stop the rulemaking in its tracks though.

The two lawmakers successfully marshalled the Waters of the United States Regulatory Overreach Protection Act (H.R. 5078) through the House in the 113th Congress, which would have stopped the rulemaking altogether. The Senate, at the time controlled by the Democrats, never it took up.

The Republican leadership, however, has made it a priority to roll back the waters of the U.S. rule.

This time around, Gibbs said he and Shuster are in flux and working through the various concerns that the farmers, miners, road builders, and developers raised about the proposed rulemaking.

As an example of the concerns, Gibbs pointed to the case-by-case determination that the EPA and the corps are proposing to use to establish whether a significant nexus exists between headwaters and navigable waters. Establishing a significant nexus on the basis of biological, chemical and physical impacts to downstream navigable waters is “too subjective and opens the doors and causes too much uncertainty,” he said.

As a farmer, Gibbs also said he was concerned with the jurisdictional status of ditches with ephemeral flows, since the EPA and the corps are proposing to bring all ephemeral, perennial and intermittent streams under federal protection. He raised this issue with EPA Administrator Gina McCarthy at the joint hearing convened Feb. 4 by the House Transportation and Infrastructure and Senate Environment and Public Works committees. McCarthy said the agencies would clarify the jurisdictional status of ditches, ephemeral and otherwise in the final rule.

Gibbs said he knows ephemeral ditches already are regulated, but “I don't want the federal government coming in and telling me I need a Section 402 permit for this and a Section 404 permit for that.”

The EPA regulates polluted discharges to waters of the U.S. under Section 402 of the Clean Water Act. Dredging and filling of wetlands, streams and other waters is regulated under Section 404 permits that are issued by the corps, and overseen by the EPA. The EPA's oversight of Section 404 permits has been a source of concern for Gibbs who said he has introduced a legislation that would give the EPA 30 days to veto a permit only after the corps has finished processing the permit application, but not yet issued it.

At the Feb. 4 hearing, Rep. Peter DeFazio (D-Ore.), the ranking member on the House Transportation and Infrastructure Committee, urged the Republicans to allow the agencies to address the more than 1 million comments, and complete the rulemaking process. DeFazio said Congress has the authority to object to and halt the rulemaking once it becomes final.

Agencies or Congress?

William Sapp, senior attorney with the Southern Environmental Law Center, said Congress ought to let the agencies move forward with the rulemaking.

“That's the administrative process we have been adhering to up till now that allows for a lot of participation and involvement by the American public,” Sapp said. “The EPA and the corps have received nearly one million comments and they are going through the process of addressing those concerns.”

In response to Gibbs' assertion that Congress needs to write the waters of the U.S. rule for the agencies because the existing proposed rule, if and when made final, would increase bureaucracy, red tape, costs, and uncertainty among the regulated community, Sapp said “Congress set the stage for the rulemaking when it passed the Clean Water Act in 1972. The rulemaking addressing what waters are protected by the Clean Water Act was back in 1986. The solution for that is to let the rulemaking proceed.”

On the issue of the case-by-case significant nexus determinations, Sapp said the agencies took their direction from Justice Anthony Kennedy in the 2006 U.S. Supreme Court ruling in Rapanos v. United States, 547 U.S. 715, 62 ERC 1481 (2006). Kennedy's concurring opinion called upon the agencies to establish jurisdiction over waters by applying the significant nexus test on a case-by-case basis.

Sapp said he agreed with Gibbs that ephemerals already are regulated, but he added that “there is so much confusion over their status that the rule is needed to clarify that they are protected by the Clean Water Act.”

“Ephemerals are like capillaries in our body. Just because they are small doesn't mean they aren't important,” Sapp said.

The Southern Environmental Law Center has been urging the agencies to bring depressional wetlands, such as crater-like Carolina bays found on the Southeastern coastal plain, under federal protection as a separate category of waters of the United States.

To contact the reporter on this story: Amena H. Saiyid in Washington at

To contact the editor responsible for this story: Larry Pearl at

The on-camera interview with Rep. Bob Gibbs and Bloomberg BNA is available at