EPA ‘Guidance’ Stirs Opposition

Posted by Chad Vorthmann on Apr 20, 2011 in EPA, Water | 2 comments

Industry is reacting swiftly to the Obama Administration’s proposed use of “interim guidance” to dictate enforcement of the Clean Water Act. The Administration’s formal guidance policy is a month late and changes to the quickly proposed “interim guidance” has industry in an uproar over what is seen as an expansion of regulatory power over water.

The agriculture, oil and homebuilding industries are coming out quickly and forcefully against the guidance. They say the proposal is not based on scientific necessity, but in response to failed attempts by the legislature to expand the scope of the Clean Water Act. Critics also say that the guidance circumvents proper regulatory processes and will only confuse an already complicated legal framework.

“The limits of Clean Water Act jurisdiction is a complicated and contentious issue that has been subject to decades of litigation,” the American Petroleum Institute (API) said in a memo its representatives delivered to the White House Office of Management and Budget. The proposed guidance is “not the correct approach and will lead to even further litigation and confusion,” it added.

The proposed guidance would expand the EPA’s interpretation of the scope of the legal definition of “Waters of the United States” to include vast areas of wetlands, rivers and streams not currently regulated under the Clean Water Act. It would also serve as a road map for EPA and the Corps to designate nearly all water bodies, and even some dry land, as subject to federal regulations that dictate land-use decisions.

Congress has taken up the call to help prevent the guidance document from becoming policy.  170 U.S. Representatives wrote a letter to EPA Administrator Lisa Jackson about their concerns over the draft guidance.

Lawmakers said the agencies are using a guidance document, rather than a legislative change or regulatory rulemaking process, to expand the scope of the law. Representatives told agency leaders that if the administration wants to change the CWA, it must propose legislative changes to Congress or notify the public about rule changes and seek comment, however they “cannot, through guidance, change the scope and meaning of the Clean Water Act or the statute’s implementing regulations.”