Congress is out to stop EPA and the Army Corps of Engineers from issuing their final guidance on the scope of the agencies’ regulatory authority under Section 404 of the Clean Water Act.
Sen. John Barrasso (R-Wyo.) and 30 other senators are co-sponsoring the “Preserve the Waters of the U.S. Act” (S. 2245), which Barrasso said would “prevent the EPA and the [Corps] from using their overreaching ‘guidance’ to change legal responsibilities under the [CWA]” (press release).
The guidance is currently in draft form. It’s unclear whether the agencies will issue a final version this year.
Sen. James Inhofe (R-Okla.), a co-sponsor and the chairman of the Senate Environment and Public Works Committee, said the guidance would result in “an increase in Army Corps jurisdictional determinations of as much as 17 percent,” but also would change the way states and individual citizens deal with the Clean Water Act.
“These kinds of changes, and passing along more unfunded mandates to state and local governments, should never be done via a guidance document,” Inhofe said. “I call on my colleagues from both the Senate and the House to join us in stopping EPA and the Army Corps from making these unprecedented regulatory changes through a guidance document. I look forward to swift action on this bill.”
All of the bill’s co-sponsors are Republicans. Environmentalists had been working in recent weeks on Capitol Hill to urge Democrats not to sign on.
In addition to Inhofe and Barrasso, co-sponsors of the bill include Sens. Jeff Sessions (Ala.), Dean Heller (Nev.), Mitch McConnell (Ky.), Mike Enzi (Wyo.), David Vitter (La.), John Boozman (Ark.), Mike Crapo (Idaho), Pat Roberts (Kansas), John Thune (S.D.), Roger Wicker (Miss.), Jim Risch (Idaho), John Cornyn (Texas), Richard Lugar (Ind.), Chuck Grassley (Iowa), Tom Coburn (Okla.), Roy Blunt (Mo.), Marco Rubio (Fla.), Jon Kyl (Ariz.), Pat Toomey (Pa.), Dan Coats (Ind.), Rand Paul (Ky.), Mike Johanns (Neb.), Saxby Chambliss (Ga.), John Hoeven (N.D.), Jerry Moran (Kansas), Johnny Isakson (Ga.), Ron Johnson (Wis.). Jerry Moran (Kansas) and Thad Cochran (Miss.).
Speaking of “navigable waters,” here’s an interesting opinion from the Second Circuit Court of Appeals finding that the Federal Power Act does not pre-empt regulation of navigable waterways (Niagara Mohawk Power Corp. v. Hudson River-Black River Regulating Dist., 10-4402).
The FPA “does not supplant the hydropower-licensing powers of state actors except in those areas where state and federal agencies both attempt to make a final decision on ‘the same issue’ — that is, where a state-federal conflict arises,” the court said. (Opinion from ESWR site)
Niagara Mohawk, doing business as National Grid, challenged the Hudson River-Black River Regulating District’s authority to levy assessments against it “for benefits that its property along the Hudson River receives from a dam and reservoir that the District operates,” the court noted.
But the lands at issue are not involved in the production of hydropower.
“In the present case, the district’s assessment powers over vacant, non-licensee, non-hydropower plots of land does [sic] not overlap FERC’s powers in any way. Thus, while the FPA does indeed preempt some state and local laws, its scope is far narrower than National Grid suggests, and does not affect the district’s challenged assessments,” the court said in its March 7 opinion.
Here’s more from the opinion:
National Grid argues that the FPA “wholly pre-empted regulation of navigable waterways in the United States, except with respect to State regulation of irrigation or municipal uses” or, in the alternative, “all matters regarding navigable waterways,” and that, because the District is a FERC licensee, the FPA limits the District’s “assessments for matters other than irrigation and municipal purposes . . . to ‘headwater benefit assessments, as determined by FERC.’” Because the FPA does not contain express preemption language, and because the District’s actions fall within the powers traditionally exercised by states, we begin with a strong presumption against finding that the District’s powers are federally preempted, see Clarkstown, 612 F.3d at 104 – a presumption that National Grid fails to overcome.
. . .
The Supreme Court recognized in First Iowa [Hydro-Elec. Coop. v. FERC, 328 U.S. 152, 171 (1946)] that the FPA “was distinctly an effort to provide federal control over and give federal encouragement to water power development.” Id. at 180 n.23 (emphasis added). The case concerned a hydroelectric project that, unlike National Grid’s vacant parcels of land, was “clearly within the jurisdiction of [FERC] under the Federal Power Act.” Id. at 163. And although the Court described the FPA as an “enactment of a complete scheme of national regulation which would promote the comprehensive development of the water resources of the nation,” id. at 180, the context of the controversy makes clear that the “water resources” in question are hydroelectric power resources. Nothing in the opinion suggests that Congress intended to federalize anything more than the licensing of hydropower projects; the opinion does not indicate that the FPA, as National Grid contends, renders state actors powerless to engage in other forms of regulation of navigable waters, including assessing vacant, non-FERC-licensed, non-hydropower parcels within their jurisdiction for benefits from water-control projects not related to power production.
On the contrary, the Court noted that the FPA recognizes “a separation of those subjects which remain under the jurisdiction of the states from those subjects which the Constitution delegates to the United States and over which Congress vests the Federal Power Commission [FERC’s predecessor] with authority to act.”