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Halting EPA's 'Waters of the US' Rule

By Judith Pannebaker BCC Editor

Science, Space and Technology Committee Chairman Lamar Smith voted last week in favor of the "Regulatory Integrity Protection Act of 2015" - HR 1732 - a bill he cosponsored that would force the Environmental Protection Agency (EPA) to withdraw its controversial "Waters of the US" rule.
If signed into law, HR 1732 would allow the EPA to propose a new rule only after the agency engages with stakeholders on the rule's impacts.
"The EPA's 'Waters of the US' rule is a massive power grab of private property. Farmers and landowners are right to be concerned," Smith said. "I'm not convinced anyone in the EPA has even been on a farm or ranch before. That mindset worries me."
He continued, "The rule is written so broadly it could allow the EPA to regulate virtually every body of water in the United States, including private and public lakes, ponds and streams."
After noting, "The EPA needs to take a step back, engage with stakeholders and be open and transparent about its intentions," Smith added, "The 'Regulatory Integrity Protection Act' will force the EPA to hit the reset button on this far-reaching rule."
More than 200 local residents recently joined Smith for a regulation roundtable discussion in Kerrville, which focused on reining in the EPA's overreach on rules like Waters of the US. At that time, Smith said, "We all want clean air and water, not the EPA overreaching and expanding its authority with unconstitutional and unprecedented regulations."
Describing the Waters of the US as an example of "over-regulation," he postulated that it could ultimately lead to federal control of ponds in backyards and other private property. "The EPA is on a regulation rampage. It needs to be reined in, but it's up to the American people to speak out," Smith said. "If the voice of the people is loud enough, it will stop anything."
As an example, Smith cited a February decision by administrators with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to reverse their attempts to ban the 5.56 M855 "green tip" ammo used by AR-15 owners.
The ATF announced to the public via Twitter, "You spoke, we listened." Reportedly the "vast majority" of over 80,000 people who had written to the agency were "critical" of the ban.
Roundtable panelist Gordon Sauer, vice chairman of the Tax and Legislation Committee of the Texas and Southwestern Cattle Raisers Association - as well as a private property rights advocate - noted that in 1972 the Clean Water Act gave the EPA authority over all the navigable waters in the United States. "All other regulating was left to the individual states. Now 'navigable waters' has been redefined to include ponds, streams and ditches. The federal government wants to control every drop of surface water in the country."
In addition to the Regulatory Integrity Protection Act, another piece of legislation to rein in the EPA would be the "Secret Science Reform Act of 2015" - HR 1030 - which would prohibit the EPA from "proposing, finalizing or disseminating regulations or assessments based upon science that is not transparent or reproducible." Sponsored by Smith, this resolution passed in the House on March 18, and goes to the Senate next for consideration.
Smith has sent several letters to EPA Administrator Gina McCarthy questioning the agency's rushed process and lack of transparency in pushing the unpopular Waters of the US rule on the American people.
Last summer, Smith's Science Committee investigated the EPA's creation of detailed maps showing waters and wetlands for all 50 states. The maps, which were created in 2013 shortly after EPA proposed its Waters of the US rule, had never been made public.
Although the EPA has claimed the maps have not yet been used to regulate, they failed to explain why the agency used taxpayer money to create them in the first place. Serious questions remain regarding the EPA's underlying motivations for creating such highly detailed maps, Smith said.
When an EPA representative appeared before the Science, Space, and Technology Committee, Smith asked him if it were true that 95 percent of the land west of the Mississippi River would fall under EPA jurisdiction. "No, you're wrong," the man replied, "Only 90 percent would." It was during this hearing that the existence of the comprehensive maps of the entire United States came to light, according to Smith.
Another wrinkle has surfaced in Smith's continued scrutiny of the EPA. Last week, he contacted the EPA, the Department of Energy (DOE) and a former EPA employee, Michael Goo, demanding documents related to the use of private email and text messages to avoid federal transparency requirements. One email obtained by the Science Committee sent from the Sierra Club to Goo's private email account stated: "[a]ttached is a memo I didn't want to send in public."
Referencing the email, Smith said, "For two years, [Goo's] communications with the Sierra Club and other outside groups were hidden from Congressional inquiries and Freedom of Information Act (FOIA) requests - potentially violating the Federal Records Act."
Additionally, news reports have also highlighted Goo's efforts to skirt transparency by arranging meetings "at the Starbucks in the JW Marriott hotel on Pennsylvania Avenue, close to the EPA." Off-premises meetings prevents participants from signing in at the EPA building and creating public records.
Smith gave the agencies and Goo until May 21 to respond to his queries.
Meanwhile, HR 1732 was approved by a House vote of 261 to 155. A bipartisan group of senators introduced similar legislation last month that would force the EPA to rewrite the rule by the end of next year.
Examples of the controversial EPA maps are available at http://science.house.gov/epa-maps-state-2013#overlay-context.