Western Business Roundtable

6/22/11

Roundtable Allies:

It is crunch time in the effort to push back on Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) attempts to unilaterally expand their authority to regulate activities under the Clean Water Act (CWA).

On May 2, 2011, the Agencies published their "Guidance Regarding Identification of Waters Protected by the Clean Water Act" (76 Fed. Reg. 24479, May 2, 2011), giving the public just 60 days to comment on it. The comment deadline is set for July 1, 2011.

It is clear that the Administration is intent on moving forward unilaterally to reverse decisions by the U.S. Supreme Court that set limits on the federal government’s authority to regulate waters. Such action is obviously legally suspect (only Congress can change "definitions" contained in a statute). It is also a gross process violation; not only are EPA/the Corps moving forward unilaterally on an issue that only Congress can legitimately "fix," they are doing so without even going through a normal notice-comment rule-making process. Finally, this guidance will cause real problems on the ground. The guidance would undermine the federal-state CWA partnership that has long existed, resulting in confusion and further delaying permitting processes.

Important to note: not only are EPA/the Corps seeking to broaden the categories of "waters" covered by regulation, they also apply the terms of the guidance to all programs authorized under the CWA (previous guidance documents applied only to the Section 404 program). The new approach would interpret the term “waters of the United States” to also cover other major CWA programs, including: the National Pollutant Discharge Elimination System (NPDES) permit program, state water quality certification process and water quality standards and total maximum daily load programs.

For more details on the guidance and its impacts, see the Issue Background section below.

Action Requests:

We need your help. Please assist by doing the following:

• File comments on behalf of your organization. Here is a set of model comments which might be helpful in that regard. See here.
   

• Please consider sending comments as an individual. The Roundtable has put together a grassroots campaign on the topic. Take 60 seconds and send a communication. Numbers matter! Access the grassroots campaign here.
  
  (We encourage you to pass the following link to the grassroots campaign along to other colleagues and allies: http://www.capwiz.com/americanenergy/issues/alert/?alertid=50820561&type=ML)

Thanks for your ongoing support of policies to strengthen the economy of the West.

Holly Propst
Executive Director / General Counsel
Western Business Roundtable
direct: 303-577-4610
holly@wbrt.org


 

ISSUE BACKGROUND:

The Waters Advocacy Coalition (WAC) -- of which the Roundtable is a member -- has been analyzing the implications of the proposed guidance. They are significant:

• EPA/Corps Guidance and related documents, see here.

• WAC analysis of the guidance, see here.

• Summary backgrounder, see here.