August 2014

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August 2014 | Construction Equipment Distribution | www.cedmag.com | 59 View from the Hill Expansive EPA, Corps Proposal Threatens Jobs and Growth The dubious methodology behind waterways rulemaking raises suspicion and ire. On April 21 of this year, the EPA and Army Corps of Engineers published a proposed rule in the Federal Register that, according to the agencies, would "clarify" the scope of federal jurisdic- tion under the Clean Water Act. After reviewing the proposed rule, I have serious concerns about the rule and the process the agencies are following to develop it. Since 1972, the Clean Water Act has been instrumental in dramatically improving the quality of the nation's waters. Fundamental to that progress has been the federal-state partnership, which recognizes that not all waters need to be subject to federal jurisdiction, and the states should have the primary responsibility of regulating waters within their individual boundaries. However, I am concerned this rule will undermine that federal-state part- nership and erode state authority by granting sweeping new federal juris- diction to waters never intended for regulation under the Clean Water Act, including ditches, man-made ponds, floodplains, riparian areas, and season- ally-wet areas. In promoting this rule, the agencies are implying to the public that massive amounts of wetlands and stream miles are not being protected by the states, and that this rule, which will essentially federalize all waters, is needed to save them. However, nothing is further from the truth. States care about and are protective of their waters. The agencies had an opportunity to develop clear and reasonable bright line rules on what is jurisdictional versus not, but they instead chose to write many of the provisions in the proposed rule vaguely, in order to give federal regulators substantial discre- tion to claim federal jurisdiction over most any water or wet area. This is dangerous because this vagueness will leave the regulated community without any clarity and certainty as to their regulatory status and will leave them exposed to citizen suits. In addition, since many of these jurisdictional deci- sions will be made on a case-by-case basis, this will give the federal regula- tors free rein to "find" jurisdiction. This rule, in essence, will establish a presumption that all waters are juris- dictional and will shift the burden of proving otherwise to property owners and others in the regulated community. This rule will set a very high bar for the regulated community to overcome. Nevertheless, the agencies continue to claim that no new waters would be covered by the rulemaking. The agencies cannot, through guid- ance or a rule, change the scope and meaning of the Clean Water Act, as they are trying to do here. I also am troubled about the sequence and timing of the actions the agencies have been taking. First, instead of initiating a rule- making process by soliciting input from, and developing consensus with, the general public, scientific communities, and federal and state resource agen- cies on how to identify the appropriate scope of jurisdiction, the agencies rushed ahead on their own to develop draft "guidance" that would, by the agencies' own admission, "increase significantly" the scope of the Clean Water Act's jurisdiction over more waters and more provisions of the Act. Then, after facing substantial bipar- tisan opposition to the expansive new guidance, the agencies proceeded ahead – again on their own – with a rulemaking that is simply based on that expansive guidance. And, to hide the inadequacies of the rulemaking process that the agen- cies have embarked on, EPA decided to develop a so-called "scientific" study that is supposed to provide a basis for determining the reach of federal juris- diction under the Clean Water Act. But I see recurring evidence of flaws, omissions, deceit, and skipped scientific protocols in the process – for example, instead of waiting till the science study was completed, the agencies wrote the rule long before the study's report has been peer reviewed and finalized. It's all very troubling because this rule, if not carefully crafted, will have sweeping economic and regulatory implica- tions for the entire nation. It has the potential to adversely impact nearly all sectors of the economy, threatening jobs, increasing compliance costs, restricting the rights of landowners, inviting costly litigation, and under- mining the ability of states and local governments to make decisions about their lands and waters. I look forward to working with construction equipment distributors in Ohio and across the country to ensure rulemakings don't hinder job creation and economic growth. CONGRESSMAN BOB GIBBS (R-OHIO) is in his second term and currently repre- sents Ohio's seventh congressional district. He is chairman of the Transportation & Infrastructure Committee's Water Resources & Environment Subcommittee, and also sits on the Agriculture Committee. BY CONGRESSMAN BOB GIBBS (R-OHIO)

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