Cochran and Wicker: EPA & Army Corps Out of Bounds with Clean Water Act "Guidance"

Senators Cosponsor Bill to Block Bid to Expand Waters Subject to Clean Water Law

March 30, 2012

WASHINGTON, D.C. – U.S. Senators Thad Cochran (R-Miss.) and Roger Wicker (R-Miss.) today announced their support for legislation to stop an effort led by the Environmental Protection Agency to broaden the scope of protections under the Clean Water Act.

Cochran and Wicker are original cosponsors of the Preserve the Waters of the U.S. Act (S.2245).  This measure would prevent the EPA and Army Corps of Engineers from taking further action on a draft guidance document that would revise how federal agencies identify waters protected by the Clean Water Act.

The final version of the EPA-Army Corps of Engineers guidance document that was submitted to the Office of Management and Budget in February significantly changes and expands what water features—such as ditches—are considered protected under the Clean Water Act.

“The Environmental Protection Agency under this administration is once again charging forth with a plan that could have far reaching implications on individual property owners, businesses and local governments.  I have not been convinced that there is any need to expand the scope of the Clean Water Act and particularly not through the guise of a guidance document,” Cochran said.

“EPA’s attempt to classify small waterways and drainage ditches as ‘navigable waters’ is a blatant overreach to gain even more regulatory power,” said Wicker.  “These costly rules and regulations are a burden to family farms and other small businesses in Mississippi.”

S.2245 would prevent the EPA and Army Corps from using this guidance document to change legal responsibilities under the Clean Water Act, including using it as the basis for expanding regulations in the future.  The legislation was introduced by Senator John Barrasso (R-Wyo.) and is cosponsored by 29 Senators.

The Mississippi Senators are concerned that if allowed to stand, the guidance document could potentially subject anyone with a creek, ditch or pond on their property to EPA permitting requirements under the Clean Water Act.

Cochran and Wicker were also signatories to a letter last June that asked the two federal agencies to abandon work on the guidance document.   Signed by 41 Senators, the letter questioned the legality and necessity of the effort.  It questioned the necessity of the new federal guidance and contended that the new guidance has clear regulatory consequences that would shift the burden of proving jurisdictional status from the EPA and Army Corps to the regulated communities, local governments, businesses and landowners.

“This guidance has clear regulatory consequences and goes beyond being simply advisory guidelines.  The draft guidance will shift the burden of proving jurisdictional status of waters from the Agencies to the regulated communities, thus making the guidance binding and fundamentally changing the legal rights and responsibilities that they have.  When an agency acts to change the rights of an individual, we believe that the agency must go through the formal rulemaking process,” the Senators wrote in June 2011.