News Releases

  • Print

May 22, 2013 -

Senators Fight Against EPA Takeover of Private Water

Introduce legislation to halt EPA’s draft Clean Water Act Jurisdictional Guidance.

WASHINGTON, D.C. – Today, U.S. Senators John Barrasso (R-WY), David Vitter (R-LA), Mike Crapo (R-ID), Jeff Sessions (R-AL) and 23 other Senators re-introduced legislation to stop the Environmental Protection Agency (EPA) from taking over all private water in the United States.  The “Preserve the Waters of the U.S. Act” (S. 1006) prevents the EPA and the Army Corp of Engineers (Corps) from using their overreaching “guidance” to drastically expand water regulations under the Clean Water Act (CWA). 

“The EPA’s plan to keep tabs on every single body of water, including prairie pot holes and mudflats is outrageous,” said Barrasso. “Washington’s unprecedented power grab will have a huge impact on farmers, ranchers, and small businesses that need to put a shovel in the ground to make a living. Our bill will protect private landowners by preventing this extreme guidance from going forward.”

“This legislation will stop the EPA and Army Corps from using their deeply flawed Clean Water Act guidance to further increase the agencies’ regulatory overreach,” said Vitter. “Job-creating businesses and affected industries cannot continue bowing to each new whim of Washington’s far-left environmental agenda before there are serious economic impacts. My colleagues and I hope this bill will prevent future bad decisions like the outrageous EPA and Army Corps guidance.”

"Recent attempts by federal regulatory agencies to drastically increase the reach of the Clean Water Act by expanding the definition of navigable waters is unacceptable," Crapo said. "While Congress clearly intended to limit the scope of federal water quality regulations to rivers and tributaries that are indeed ‘navigable’, it has become necessary to reinforce this concept. And this legislation does just that."

“Under this legislation, EPA employees throughout the country would have the authority to make case-by-case determinations with virtually no jurisdictional limits whatsoever. This is unacceptable, bureaucratic overreach,” said Sessions. “Just last week, a clear majority of the Senate—52 members—voted to stop EPA from implementing this guidance document. That vote, which occurred in the context of an amendment to a water resources bill, was a very strong showing and should convince the Administration to cease its efforts to rewrite the Clean Water Act through agency guidance.”

On May 14th, the Senate voted on the “Preserve the Waters of the U.S.” as an amendment to S. 601.  Although the amendment did not receive the 60 votes needed to pass, it received 52 votes, which means a bipartisan majority of the Senate voted to reject the CWA guidance.

In addition to Senators John Barrasso (R-WY), David Vitter (R-LA), Mike Crapo (R-ID) and Jeff Sessions (R-AL), the legislation is co-sponsored by Senators John Cornyn (R-TX), Mike Enzi (R-WY), John McCain (R-AZ), Lisa Murkowski (R-AK), Jim Inhofe (R-OK), Orrin Hatch (R-UT), Dean Heller (R-NV), Mike Lee (R-UT), Pat Roberts (R-KA), Roger Wicker (R-MS), Jim Risch (R-ID), Chuck Grassley (R-IA), Roy Blunt (R-MO), Marco Rubio (R-FL), Dan Coats (R-IN), Richard Burr (R-NC), Tim Scott (R-SC), Jeff Flake (R-AZ), Deb Fischer (R-NE), Saxby Chambliss (R-GA), Johnny Isakson (R-GA), Ron Johnson (R-WI) and Tom Coburn (R-OK).


In May 2011, the Environmental Protection Agency (EPA) and Army Corps of Engineers (Corps) issued draft guidance on “Identifying Waters Protected by the Clean Water Act.”  This guidance document, which was sent in final form to OMB on February 21, 2012, significantly changes and expands what features are considered protected under the Clean Water Act.  It makes substantial additions, such as a first time inclusion of ditches, ground water, potholes, gutters and other water features that may flow, if at all, only after a heavy rainfall. 

Agriculture, commercial and residential real estate development, electric transmission, transportation, energy development and mining will all be affected and thousands of jobs will be lost.

The “Preserve the Waters of the U.S. Act” prevents EPA and the Corps from using this guidance to change legal responsibilities under the Clean Water Act and prevents the EPA and the Corps from issuing similar guidance in the future.

Some of the major problems associated with the EPA’s draft CWA Guidance:

Regulation through Guidance: By issuing a guidance document as opposed to going through the rulemaking process, EPA and the Corps are bypassing the necessary public outreach required under the Administrative Procedures Act and failing to fully consider the legal, economic, and unforeseen consequences of their actions.

Increasing Permits: EPA and the Corps affirm that this guidance will result in an increase in jurisdictional determinations which will result in an increased need for permits. In addition to more Corps §404 permits, State permitting authorities will be faced with more NPDES permits and more entities will be subject to CWA requirements.

Applies to all CWA Programs: In addition to the Corps §404 dredge and fill permits, the guidance applies to all CWA programs including §303 water quality standards, §401 state water quality certifications, §311 Oil Pollution Act (including Spill Prevention, Control, and Countermeasure Plans), and §402 program (including National Pollutant Discharge Elimination System permits, pesticide general permit, and storm water). 

Negative Economic and Job Impacts: Additional regulatory costs associated with changes in jurisdiction and increases in permits will erect bureaucratic barriers to economic growth, negatively impacting farms, small businesses, commercial development, road construction and energy production, to name a few.

Assault on Private Property Rights: Expanding federal control over intrastate waters will substantially interfere with the ability of individual landowners to use their property.

Negative Impact on State on Local Governments: Changes to the “waters of the U.S.” definition may have far-reaching effects and unintended consequences on a number of state and local programs. The guidance creates significant unfunded mandates and preempts state and local authority.

Conflicts with Supreme Court Rulings: The guidance uses an overly broad interpretation of the Rapanos decision. The effect is virtually all wet areas that connect in any way to navigable waters are jurisdictional. Both the plurality opinion and Kennedy rejected this assertion in Rapanos.