Floor Statement on Amendment to H.R. 1732, the Regulatory Integrity Protection Act
May 12, 2015
Mr. Chairman, despite nearly universal calls for increased clarity and certainty from certain stakeholders, my colleagues have made it a priority to halt the current clean water rulemaking and to force agencies to go back to the drawing board and start the process all over again, before the public will ever even see the final product.
After over a year of public outreach on a scale unprecedented in the history of the Clean Water Act, as well as countless congressional hearings, the agencies have submitted a revised clean water protection rule to the Office of Management and Budget for final interagency review, which is the last step before the revised final rule would be released to the general public later this spring.
This, in fact, is the basis of my amendment. You see, Mr. Chairman, to be fair, several of my constituents have expressed similar concerns with the substance of the proposed rule. In fact, Maryland farmers have visited with me on more than one occasion, and I have heard those concerns, and that is why I have pressed the agency witnesses who appeared before our subcommittees on several critical areas.
Indeed, in testimony to the Committee on Transportation and Infrastructure, the heads of both the Army Corps of Engineers and the Environmental Protection Agency have identified several specific areas where the proposed rulemaking may have lacked specificity and where the agencies have committed to clarifying changes in the final rule to address these areas.
For example, the American Farm Bureau and Maryland farmers expressed concern about the distinction between ephemeral – that is rain-dependent – streams, which are currently subject to the Clean Water Act, and erosional features, which are not. EPA has testified that the agencies expect the final rule to clarify the distinction between ephemeral streams and erosional features to ensure that the final rule does not inadvertently bring erosional features under the scope of the act.
Numerous groups, including the National Association of Counties, have expressed concern about the impact of the proposed rule on “ditches.” In response, the agencies testified that the proposed rule not only codified the current exemption for ditches but also “expanded the definition of ditches that would be exempt under the clean water rule to make it clearer, [including] ditches that basically drain dry along public lands and highways.” Further, the agencies committed to provide greater certainty in the final rule on what ditches are and are not protected by the act.
Other groups questioned whether the proposed clean water rule would capture municipal separate sanitary storm water sewer systems, that is, MS4s, or water reuse and recycling projects. The EPA Administrator testified before our committee that “EPA has not intended to capture features ..... that have already been captured in ..... MS4 permits, [and it] is our intent to continue to encourage and respect those decisions and to encourage water reuse and recycling, which very much is consistent with the Clean Water Act and our overall intent.”
Further, the Administrator testified that the EPA would make it very clear that these exclusions are articulated in the final rule, “so that people will see in writing what they have been asking us about.”
So my amendment simply addresses these concerns and claims. It says that if any of these claims prove to be true, then the Secretary and the Administrator are prohibited from issuing any final rule that would bring about these occurrences. Instead of using a legislative scalpel, my Republican colleagues have decided to use a meat cleaver. In my amendment, I have tried to address these concerns, and I have heard from my constituents and interested parties.
Under the amendment, the administration cannot expand the scope beyond those water bodies covered prior to the decisions of the U.S. Supreme Court in the two cases that have been mentioned before, and it cannot be inconsistent with either Justice Scalia’s or Justice Kennedy’s judicial opinions in Rapanos.
In addition to that, they can’t increase the regulation of ditches, they can’t eliminate any historical statutory or regulatory exemptions for agriculture, which do not exist under the 2003 and 2008 documents. There are questions about ditches under the 2003 and 2008 guidance, but they are interpreted differently in different parts of the country.
As a fallback and an assurance to the regulated committee, I urge my colleagues to support my amendment so that clear legislative restrictions on the final rulemaking addressing the range of concerns that have been expressed by stakeholders are included. It will ensure that the rule does not go further than the Supreme Court decision and does not exceed historical scope, while reaffirming longstanding and existing exclusions.
Both agencies have made it crystal clear in their testimony before our committee and other committees of the House and the Senate earlier this year in a joint hearing with the Senate that many of these concerns were unfounded or would be addressed in the final rule, and so what the amendment I am offering would do, it would be a backstop in the unlikely event that anyone would think differently about regulating streams, ditches, and farmland.
I would ask for support of my amendment under the rule. I yield back the balance of my time.
H.R. 1732, the Regulatory Integrity Protection Act passed the House by a vote 235-183 on May 12th, 2015. Congresswoman Edwards' Amendment failed by a vote of 167 - 248.
