September 17, 2014
Dear Senator:
On September 9, 2014, the House of Representatives passed H.R. 5078 with a strong, bipartisan vote. The Waters Advocacy Coalition (WAC) respectfully requests that the Senate move quickly to consider H.R. 5078, the Waters of the United States Regulatory Overreach Protection Act of 2014. Senate action on the bill will send a strong message to the Environmental Protection Agency (EPA) and the U.S. Corps of Engineers (Corps) that they need to go back to the drawing board, using a balanced approach to develop a consensus report to Congress that can yield a proposal that will maintain environmental safeguards and simultaneously protect business and landowners from unnecessary regulation.
Clarity on what is a “water of the United States” (WOTUS) has been elusive, but the current rule proposed by EPA and the Corps to define WOTUS is inconsistent with Supreme Court rulings and will expand federal jurisdiction and increase regulatory uncertainty. The proposed rule is, indeed, unacceptable to a broad range of stakeholders, including the bipartisan Western Governors Association, local elected officials represented by the National Association of Counties and, unanimously, by the National Association of State Departments of Agriculture.
To highlight one concern, while the agencies assert that they are not expanding federal jurisdiction, the evidence suggests otherwise. The proposed rule explicitly states that the agencies intend to treat all perennial, intermittent, and ephemeral streams as per se jurisdictional (no case-specific analysis), and the preamble indicates that the agencies will identify tributaries using U.S. Geological Survey (USGS) maps and other appropriate information.(1) Recent USGS maps prepared for EPA show a total of approximately 8.1 million miles of perennial, intermittent, and ephemeral streams across the 50 states(2), and that is before all ditches are included that could be per se jurisdictional under the proposed rule. However, EPA’s latest National Water Quality Inventory Report to Congress estimates only 3.5 million miles of regulable streams nationwide(3). The inventory report is based on the CWA section 305(b) reports, wherein the States report on the quality of all navigable waters, defined as WOTUS, within their borders. The comparison represents a 131% increase in potentially regulable stream miles under the proposed rule. The numbers simply do not add up.
It is imperative that the agencies withdraw the proposed rule and develop a consensus-based substitute that is consistent with congressional intent and Supreme Court precedent. H.R. 5078 will help accomplish this objective. WAC is a coalition representing the nation’s construction, real estate, mining, agriculture, transportation, forestry, manufacturing, and energy sectors, as well as wildlife conservation and recreation interests. Thank you for giving consideration to our views.
Sincerely,
Agricultural Retailers Association
American Exploration & Mining Association
American Farm Bureau Federation
American Forest & Paper Association
American Petroleum Institute
American Public Power Association
American Road & Transportation Builders Association
American Society of Golf Course Architects
Associated Builders and Contractors
The Associated General Contractors of America
Association of American Railroads
Club Managers Association of America
Corn Refiners Association
CropLife America
Edison Electric Institute
Federal Forest Resources Coalition
The Fertilizer Institute
Foundation for Environmental and Economic Progress (FEEP)
Golf Course Builders Association of America
Golf Course Superintendents Association of America
The Independent Petroleum Association of America (IPAA)
Industrial Minerals Association – North America
Interstate Natural Gas Association of America (INGAA)
Irrigation Association
Leading Builders of America
NAIOP, the Commercial Real Estate Development Association
National Association of Home Builders
National Association of Manufacturers
National Association of REALTORS®
National Association of State Departments of Agriculture
National Cattlemen's Beef Association
National Club Association
National Cotton Council
National Council of Farmer Cooperatives
National Golf Course Owners Association of America
National Industrial Sand Association
National Mining Association
National Multifamily Housing Council
National Oilseed Processors Association
National Pork Producers Council (NPPC)
National Rural Electric Cooperative Association
National Stone, Sand and Gravel Association (NSSGA)
Portland Cement Association
Public Lands Council
Responsible Industry for a Sound Environment (RISE)
Southern Crop Production Association
Southeastern Lumber Manufacturers Association
Texas Wildlife Association
Treated Wood Council
United Egg Producers
U.S. Chamber of Commerce
1 79 Fed. Reg. at 22,202 (April 21, 2014).
2 http://science.house.gov/epa-maps-state-2013#overlay-context
3 U.S. Environmental Protection Agency, Office of Water, National Water Quality Inventory: Report to Congress
(January 2009),
https://water.epa.gov/lawsregs/guidance/cwa/305b/upload/2009_01_22_305b_2004report_2004_305Breport.pdf