Thompson: WOTUS Rule Undermines Federal-State Partnership

November 24, 2014
PA Delegation Submits Letter to Federal Agencies, Outlining Concerns with Proposed Waters Rule


"Mr. Speaker, Friday November 14 was the closing of the public comment period for the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers’ proposed “waters of the United States” (WOTUS) rule under the Clean Water Act (CWA), which would dramatically expand the scope of federal authority over water and land uses across the United States.  

Enacted in 1972, the Clean Water Act was created as a partnership between the states and the federal EPA, in order to better manage identified pollution sources, through a range of pollution control programs.

This new proposed prosed rule is a direct threat to this long-standing federalist approach created by the law, which has been long supported by Republicans and Democrats alike for over 4 decades.

It’s through this federalist model, which enables regulators at the federal, state and local levels to provide adequate flexibility to address water quality while accounting for local and regional variations and conditions, that Pennsylvania has demonstrated a track record of success in improving and protecting the ecological health of its waters.

Unfortunately, the proposed rule would dramatically expands federal authority -  to the detriment of our economy and at the expense of existing state-federal partnerships that have been effective in protecting and improving the biological integrity of our watershed and waterways.  

For this reason I along with Senator Pat Toomey and eight additional Members of the Pennsylvania Delegation in the U.S. House of Representatives voiced our strong opposition to this flawed policy.

In comments submitted Friday to the Agencies, we outlined concerns specific to our home state and those of our constituents -  including private landowners, counties, municipalities, farmers, foresters, among so many others who will be negatively impacted if this rule is allowed to be fully implemented.

Mr. Speaker, there is widespread agreement that the Clean Water Act has been a beneficial tool for the management and health of our nation’s watersheds and water quality.  

While Congressional intent of the CWA has been limited to “navigable waters,” the extent of the law’s jurisdiction has been the subject of much litigation and regulatory action.  

Complicating the issue further are Supreme Court decisions that have not adequately described the scope of federal authority under the law, resulting at times in conflict.

While the existing law and the Supreme Court have left uncertainty regarding what constitutes a "water of the United States," previous holdings have made clear that the federal government’s authority is not limitless.  

Unfortunately, the proposed rule assumes just that – unlimited federal authority.

Mr. Speaker, the reason this is so concerning, is that so many of these issues are best regulated at the state level, in a manner that recognizes regional differences in geography, climate, geology, soils, hydrology and rainfall, among other variables.

Rather than strengthen the law, the rule creates more confusion - confusion that will most certainly delay permitting and will undermine strong water quality programs that exist in Pennsylvania and other states.  

Moreover, this type of uncertainty is susceptible to inconsistent interpretation and application, which holds the potential for substantial implementation costs across various CWA programs, and will likely invite more enforcement actions and certainly third party litigation.  
In addition to jeopardizing existing water quality control programs, the economic impact of the proposed rule will be far-reaching.

Activities that drive economic development in Pennsylvania, such as highway and road construction, pipeline projects, energy production, infrastructure projects, farming, flood control, and public works projects, will all be subject to federal permitting if this proposal is finalized.  

For example, the rule would make most ditches into “tributaries.”  Routine maintenance activities in ditches and on-site ponds and impoundments could trigger permits that can cost $100,000 or more.
These permitting requirements would likely trigger additional environmental reviews which would add years to the completion time for ordinary projects – which means more costs for landowners and more regulatory burdens upon the states, all with no guarantee or measurable benefit to our waters.

Mr. Speaker, we all agree that managing the nation’s water is critically important; but in this case, the federal government has failed to recognize the fundamental role that states play in meeting our shared goals of clean watersheds and water resources.  

Mr. Speaker it’s time for EPA and the Corps to vacate this proposal, get back to the drawing board, and fix the fundamental flaws within this rule.  The American people – including my constituents in Pennsylvania – deserve as much.

I yield back.