The Environmental Protection Agency has insisted that it has no plans to regulate puddles, ditches and permafrost in the name of the Clean Water Act, but that’s not what Senate Republicans have found.
The Senate Environment and Public Works Committee issued a report Tuesday listing cases in which the administration has tried to expand its regulatory authority over “navigable waters,” including standing water in roadside potholes and tire ruts.
Sen. James Inhofe, the Oklahoma Republican who chairs the committee, forwarded the report to the panel’s 11 Democrats with a letter asking them to help counter the administration’s efforts to expand the reach of the Waters of the U.S. [WOTUS] rule.
“This new majority committee report demonstrates in detail that the EPA and the Army Corps of Engineers, under the Obama administration, are running rogue,” Mr. Inhofe said in a statement.
A federal court placed a stay Oct. 9 on the WOTUS rule pending the outcome of a lawsuit filed by 32 states, but Mr. Inhofe warned that the Obama administration is attempting to accomplish the same goals by regulatory fiat.
“Case studies in this report show that the Obama administration is already asserting federal control over land and water based on the concepts that they are trying to codify in the WOTUS rule, even though the courts have put that rule on hold,” Mr. Inhofe said. “Congress shouldn’t wait on the Supreme Court to make the inevitable decision that this agency overreach is illegal.”
He called for Democrats and Republicans to “work together to rein in the EPA and the Corps,” saying that 69 members of the Senate, a veto-proof majority, have expressed concerns on the record about the rule’s potential impact on farmers, ranchers, water utility companies, local governments and contractors.
The EPA has disputed the claim that the rule would turn pits and potholes into regulated waterways, insisting that normal farming activity would still be exempt and that the rule would not expand nor add to the scope of waters currently protected.
“We will protect clean water without getting in the way of farming and ranching,” said EPA Administrator Gina McCarthy in an April 6 post. “Normal agriculture practices like plowing, planting, and harvesting a field have always been exempt from Clean Water Act regulation; this rule won’t change that at all.”
But the 38-page report, which draws from a May 24 Senate subcommittee hearing, cites examples of federal agencies trying to exert regulatory authority over farming and ranching operations, even though both were exempted by Congress from the Clean Water Act’s permitting requirements.
In one well-publicized case, the Duarte Nursery in California’s Central Valley ran afoul of the corps after the agency determined that the furrows created by plowing the soil resulted in “small mountain ranges” that changed the character of a “wetlands.”
Another California farmer was targeted by federal regulators in 2014 for using a plowing process called disking, something he had done for 15 years, even though disking is listed by the corps as a normal farming procedure.
The EPA settled a case earlier this year against a Wyoming rancher who was challenged for creating a stock pond on his property, while the corps confronted in 2015 a landowner who had switched from growing alfalfa to planting an orchard, saying the farming exemption no longer applied because the move constituted a land-use change.
“With unfettered discretion to identify the scope of their own jurisdiction, the Corps can ignore its own regulations and add new conditions on statutory exemptions,” the report said.
The document also alleges that agencies have renamed bodies of water such as puddles, pits and ditches as “disturbed wetlands,” allowing them to be regulated.
In a letter last year to Ms. McCarthy, Democrats said that it was premature to take legislative action until the litigation had been resolved, but also reserved the right to “support efforts in the future to revise the rule” if the agency erodes “traditional exemptions.”
Mr. Inhofe said those conditions have been met, arguing there is no “certainty or clarity regarding CWA jurisdiction.”
• Valerie Richardson can be reached at vrichardson@washingtontimes.com.
Please read our comment policy before commenting.