U.S. Representative Kristi Noem today joined more than three dozen Members of Congress from Western United States in writing a letter to EPA Administrator Gina McCarthy, a move that further increases pressure on the EPA to withdraw a controversial proposed navigable waters rule.  The proposed rule would expand the federal government’s control over small and seasonal bodies of water.  Today’s letter was signed by Members of Congress from both the House and Senate, including South Dakota Senator John Thune.

“The EPA’s recent assertion that ditches, prairie potholes, and seasonally wet areas should be under the federal government’s control has alarmed many producers and landowners in South Dakota – and rightfully so,” said Rep. Noem.  “This new rule could have a devastating impact on rural America and put significant reporting and regulatory burdens on land that has never been under the federal government’s jurisdiction.  I strongly urge the EPA to reconsider the economic, social and practical implications of such an aggressive expansion of federal power.”

On March 25, 2014, the EPA and U.S. Army Corps of Engineers proposed a rule that would assert Clean Water Act jurisdiction over nearly all areas that connected to navigable waters.  As written, the rule aggressively expands federal authority under the Clean Water Act while bypassing Congress and creating unnecessary ambiguity.  Noem signed a similar letter with 231 Members of the House of Representatives last week. 

Noem has long fought against onerous federal regulations and has been successful in getting overzealous regulations withdrawn:

  • Rep. Noem challenged OSHA when they tried to regulate small family farms.  OSHA reversed course. (Click for more information)
  • Rep. Noem introduced legislation that passed in the House to prevent the EPA from further regulating dust that is often kicked up in normal farming activities.  The EPA decided not to pursue further regulations. (Click for more information)
  • Rep. Noem fought the Department of Labor when they wanted to change child labor rules that could have banned kids from certain farm chores in some cases.  The Department of Labor rescinded the rule. (Click for more information)

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The Honorable Gina McCarthy

Administrator

Environmental Protection Agency

1200 Pennsylvania Avenue, N.W.

Washington, DC  20460

Dear Administrator McCarthy,

As members of the Senate and Congressional Western Caucuses, we are contacting you regarding our opposition to the Environmental Protection Agency’s (EPA) efforts to significantly expand federal regulatory authority under the Clean Water Act.

We have reviewed the proposed rule that you signed on March 25th and have concluded that the rule provides essentially no limit to Clean Water Act jurisdiction.  This is despite the Supreme Court consistently recognizing that Congress limited the authority of the EPA and the Army Corps of Engineers under the CWA.  

There has been strong opposition to EPA’s approach due to the devastating economic impacts that a federal takeover of state waters would have.  Additional and substantial regulatory costs associated with changes in jurisdiction and increased permitting requirements will result in  bureaucratic barriers to economic growth, negatively impacting farms, small businesses, commercial development, road construction and energy production, to name a few.

The threat of ruinous penalties for alleged noncompliance with the Clean Water Act is also likely to become more common given the proposed rule’s expansive approach.  For example, the EPA’s disputed classification of a small, local creek as a “water of the United States” could cost as much as $187,500 per day in civil penalties for Wyoming resident Andrew Johnson.  Similar uncertainty established under the proposed rule will ensure that expanding federal control over intrastate waters will substantially interfere with the ability of individual landowners to use their property.

We share the concerns expressed by the Western Governors Association regarding the lack of meaningful state consultation in crafting this rule.  The Western Governors stated that they – 

“expressed concern to the Environmental Protection Agency and U.S. Army Corps of Engineers that a proposed rule clarifying protections under the Clean Water Act for streams and wetlands was developed without sufficient consultation with states and could impinge on state authority.”

We fail to understand why the EPA has not adequately consulted our Governors about a rule that has such a significant impact on the economy of our states.  For example, rural states in the West have sizeable ranching and farming operations that will be seriously impacted by this rule.  Despite the claim that the Army Corps will exempt 53 farming practices as established by the Natural Resource Conservation Service, the list of 53 does not cover all existing agricultural practices.  There are a number of farming and ranching practices, such as the application of pesticides, that are not covered on this list that occur every day in the West without penalty.  Under this new proposed rule, it appears those farmers and ranchers will need to get a permit or be penalized if they continue to use those non-covered practices in new federal waters. 

Congress has demonstrated strong opposition to past efforts to have the federal government control all wet areas of the states.  During the recent consideration of the Water Resources Development Act (WRDA), a bipartisan group of Senators voted 52 to 44 to reject the EPA’s Clean Water Act Jurisdiction Guidance, which would have also resulted in effectively unlimited jurisdiction over intrastate water bodies.  Efforts to pass legislation to have the federal government control all non-navigable waters have also failed in past Congresses.

We urge you to change course by committing to operating under the limits established by Congress, recognizing the states’ primary role in regulating and protecting their streams, ponds, wetlands and other bodies of water.  We also again ask that you consider the economic impacts of your policies knowing that your actions will have serious impacts on struggling families, seniors, low-income households and small business owners.

Sincerely,

/s/

KRISTI NOEM

Member of Congress

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