The EPA’s and Army Corps of Engineers’ shift toward writing a formal regulation clarifying their Clean Water Act jurisdiction is likely to draw further criticism from members of Congress who fear a heavy-handed regulatory hand on environmental issues — particularly if it looks anything like the enforcement guidance that was previously issued.
The Obama administration joined the fray created by the Supreme Court decisions when the two agencies issued guidance in 2011 that expanded the definition of water bodies subject to regulation. Republicans and some Democrats criticized the move, arguing that it would let the agencies evade more formal rule-making and public comment procedures since such guidance is not legally binding.
The EPA did solicit comments on the 2011 guidance, which would have outlined the legal basis for the agencies to regulate waters not previously covered, and it was always expected to launch a formal rule-making process to clarify the extent of its authority under the statute.
But a final version of the joint guidance, intended to serve as a precursor to help field officials carry out their duties, sat at the Office of Management and Budget for more than 18 months with no action.
“We believe that rule-making was essential to provide the kind of clarity that everybody is looking for,” EPA Administrator Gina McCarthy said. “It was an overwhelming judgment by the comments that came in on the guidance document that EPA had been pursuing.”
The EPA will withdraw the joint guidance from interagency review, a spokeswoman said. But attorney Deidre G. Duncan said some field agents have been relying on “the theories and the policies that were espoused under” that document to make decisions since it came out of agency headquarters so long ago, while others apply interpretations of the various Supreme Court decisions.
“They’re just all over the map,” Duncan said.
Once the proposed rule surfaces, interested lawmakers will likely pore over the details to ensure that the earlier guidance did not prejudge the agencies’ regulatory approach determining which waters must be regulated.
“I’m going to continue to fight to make sure the administration doesn’t now try to use this same ‘guidance’ as the basis for a permanent rule,” Sen. John Barrasso, R-Wyo., said in a statement.
Vice President Joe Biden waits to conduct a mock swearing-in ceremony with Sen. Brian Schatz, D-Hawaii, in the Capitol's Old Senate Chamber, December 2, 2014. Schatz was sworn in to serve the remainder of his term since he was appointed to the seat after Sen. Daniel Inouye, D-Hawaii, passed away.