U.S. Reviews Which Waters Are in Its Jurisdiction

May 7, 2012

The Obama administration is currently reviewing a controversial guidance document that it says will clarify what waters of the U.S. are under federal jurisdiction. The EPA says the proposal would restore federal protection to a small number of streams and wetlands that lost protection following two recent Supreme Court decisions. The administration says the proposal would also provide clarity to businesses and landowners subject to federal regulation.

NAR, along with many other regulated stakeholders, has contended that the proposal represents a far more vast and unconstitutional expansion of federal authority than supporters argue, potentially trampling property rights, instituting new permit procedures and regulations, and stifling economic recovery.

A bipartisan group of congressional leaders have filed legislation that would prohibit the administration from moving forward with this guidance.  House Transportation Chairman John Mica (R-Fla.) has introduced H.R. 4965 along with ranking member Nick Rahall (D-W.Va.), Water Resources Subcommittee Chairman Bob Gibbs (R-Ohio) and Agriculture Chairman Frank Lucas (R-Okla.) and ranking member Collin Peterson (D-Minn.).

The bill would prohibit U.S. EPA or the Army Corps of Engineers from finalizing the proposed guidance to regulators on how to interpret federal jurisdiction under the Clean Water Act. The legislation would also prohibit the guidance from being used as the basis for any decision or new regulation concerning the scope of the Clean Water Act. The legislation comes as part of a full-court press by congressional Republicans and some coal- and farm-state Democrats to stop the proposal from becoming agency policy.

Rep. Denny Rehburg (R-Mont.) proposed a similar blocking provision that House appropriators voted to include in their fiscal 2013 spending plan for the Energy Department and Army Corps of Engineers. The Mica bill also resembles Senate legislation (S. 2245) introduced last month by Sen. John Barrasso (R-Wyo.) and 30 of his Republican colleagues.