Rep. Rick Allen, R-Georgia, was one of the 70 co-sponsors of a U.S. House resolution to block expanded federal Clean Water Act jurisdiction over small streams.
If necessary, he says, he will help stop funding that the Environmental Protection Agency and the U.S. Army Corps of Engineers would need to act under their new Waters of the United States rule.
“The bottom line is, if not stopped, the administration’s flawed rule – and this is called the WOTUS rule – would give the federal government regulatory authority over virtually any place where water flows in the United States, and that can include a puddle,” Allen said in a phone interview last week.
The EPA and the Corps of Engineers proposed the new rule in April 2014 and then received public comments. As finalized May 27, the rule will take effect within 60 days unless withdrawn. It seeks to define the “Waters of the United States” on which the two agencies can apply existing regulations.
“If you look at the rule, basically they can stop a farmer from planting, they can stop a builder from building, they can stop the city of Statesboro from building a park for the people,” Allen said.
His position closely mirrors that of the Georgia Farm Bureau, which describes the rule as an overreach that would extend EPA authority to farm ponds and become a form of land use regulation.
But the environmental advocacy group Environment Georgia, on the other hand, says that the rule clarifies the jurisdiction previously given the agencies under the Clean Water Act in the 1970s, but which had been eroded by more recent Supreme Court decisions.
Environment Georgia estimated that the rule would extend federal protection to almost 40,000 miles of streams in Georgia.
The law as established by Congress, Allen observed, limits the federal agencies’ authority to navigable waters.
The agencies’ new rule, at www2.epa.gov/cleanwaterrule, also recognizes this. But in addition to “traditional navigable waters,” interstate waters and territorial seas, the definition specifically includes tributaries and “adjacent waters” and, in certain specific cases, other areas with a “significant nexus” to larger streams or the coast.
A countermeasure, proposed as the Regulatory Integrity Protection Act of 2015, passed the House 261-155 on May 12 and awaits action in the Senate. As House Resolution 1732, it can be viewed at www.congress.gov.
Allen, the first-term congressman from the 12th District, was among 68 Republicans who sponsored the resolution, which also had two Democratic sponsors. Of the representatives who voted in favor, 24 were Democrats and 237 Republicans.
If the act becomes law, it would then require that the current rule be withdrawn within 30 days. The act would not bar the EPA and the Corps of Engineers from regulating the smaller streams. But it would require them to take into consideration the received public comments and the advice and recommendations of state and local governments.
“I have talked to farmers in the district at length about this because of their concern, and no one has consulted them,” Allen said. “I mean, there were over a million comments from farmers and businesses during the comment period in dealing with this rule, and they didn’t address one comment. What does that tell you?”
With President Barack Obama wielding veto power, the odds appear to be against the proposed act. But with Republicans now holding majorities in both the Senate and the House, they are also attempting to block funding for the agencies to enforce their rule.
Allen, while involved in the appropriations process last week, spoke of a possible funding amendment.
“I can assure you, if there’s not an amendment to defund this rule, I will provide it,” he said.
Georgia Farm Bureau
The Georgia Farm Bureau campaigned against the rule last year, using the slogan, “Ditch the Rule.” The organization considers the fight far from over, GFB Legislative Director Jon Huffmaster said this week.
“In the name of keeping water clean, it’s land use regulation, is what it turns out to be, because their rule says anything with a bed, a bank and a high water mark” counts as a stream and can be regulated, Huffmaster said.
Indeed, “bed and banks and ordinary high water mark” appears in the definition of a tributary.
“So if you have anything on your property that has a bed, a bank and a water mark, then it is considered as a tributary of a navigable waterway, and the EPA is being disingenuous in the things they say about it,” Huffmaster said.
Besides explaining things the rule does, the EPA’s website includes a linked page asserting that the rule does not do certain thing.
“The rule does not protect any new types of waters, regulate most ditches, apply to groundwater, create any new permitting requirements for agriculture, or address land use or private property rights,” says the introductory passage.
But despite the EPA’s assertions that farm ponds will be exempted, most Georgia farm ponds could be regulated because they have inlets and outlets, Huffmaster said.
“We’re asking Congress to do whatever it takes to get EPA and the Corps to back off of this infringement on private property rights,” he said.
In contrast, Environment Georgia Director Jennette Gayer also used the word “disingenuous” when interviewed, but applied it to efforts to require a new review process and more public input. The EPA already extended the comment period, which followed a long scientific review, she noted.
“It feels very much like any effort to say that we need to redo this or take a step back is sort of an effort to undo the whole process,” Gayer said.
Several challenges brought by developers resulted in Supreme Court decisions, around the year 2000, that left loopholes in how the Clean Water Act was applied, she said. Before then, according to Gayer, the jurisdiction had for decades covered smaller streams, as the new rule seeks to re-establish.
“This rule, if anything, is restoring protections,” she said.
The EPA did extensive scientific work, she said, to show how rivers and other large streams are affected by what happens to their tributaries.
“Overall, I think the bottom line for us is, if you want clean rivers, you need clean tributaries,” Gayer said.
Al Hackle may be reached at (912) 489-9458.