Allen backs repeal of EPA’s ‘Waters of US’

March 7, 2017

U.S. Rep. Rick Allen last week praised President Donald Trump’s executive order to reverse an EPA rule that defined the “Waters of the United States” for purposes of enforcing the Clean Water Act.

In fact, Allen had introduced legislation in February also aimed at repealing the rule.

Trump, Allen and other Republicans, as well as some farm and industry organizations, have criticized the Waters of the U.S., or WOTUS, rule, as extreme regulatory overreach. The Environmental Protection Agency and the U.S. Army Corps of Engineers, however, which promulgated the rule through the process of publication and comment in 2014, presented it as a needed definition to clarify which streams and other bodies of water are protected from pollution under the Clean Water Act.

In a recent interview, Allen, R-Ga., 12th District, told the Statesboro Herald that he does not wish to abolish the EPA or the Clean Water Act but wants the agency to focus on enforcing existing laws instead of writing new regulations.

“We have laws on the books, and the EPA needs to concentrate on enforcing those laws, but they have got to stop this overreach,” he said Feb. 24.

Allen noted that he had recently “dropped a bill” to repeal the Waters of the U.S. rulemaking effort.

Allen’s HR 1105

House Resolution 1105, which Allen introduced Feb. 16, would have blocked the rule by stating that it “shall have no force and effect.”

“Again, what you have is the regulatory branch of government, which is now the fourth branch of government, making laws,” Allen said. “They don’t have the authority. They’re not elected officials.”

This was during an interview at the Statesboro-Bulloch County Library. Some protesters gathered outside that day to demand that Allen hold a town hall meeting on various topics, and some held signs related to environmental issues.

So, the Statesboro Herald asked Allen whether he wants to do away with the EPA.

“No, the EPA needs to be there and enforce the current laws as the Congress intended those laws to be enforced,” he said.

“Oh, absolutely,” Allen answered when asked if that includes the Clean Water Act. “We want a clean environment.”

But some laws as passed by Congress require that regulatory agencies establish rules for enforcement. The Clean Water Act of 1972 lets the EPA and Army Corps of Engineers define which “waters of the United States” the law covers. However, it also refers to navigable waters.

In proposing the new, complicated definition in 2014 as part of what the EPA calls the Clean Water Rule, the agencies said it was needed to clarify their regulatory reach. One EPA document explaining the regulation says it would reduce the use of case-specific analysis to determine which bodies of water are protected.

“Previously, almost any water could be put through a lengthy case-specific analysis, even if it would not be subject to the Clean Water Act,” the EPA document states. “The rule significantly limits the use of case-specific analysis by creating clarity and certainty on protected waters and limiting the number of similarly situated water features.”

‘Ditches ... puddles’

In contrast, Allen called the regulation “the antithesis of limited government” in his Feb. 16 announcement of his repeal resolution.

“This rule grants the federal government regulatory power over virtually any place where water flows in the United States - ditches, ponds, man-made constructions - you name it,” he said in the release. “Not only would it expand the federal government’s authority and undermine the rights of states, local governments and landowners, but it would create more red tape, preventing economic growth and jobs particularly in the agriculture industry.

“The last thing Americans, especially farmers, need is the government attempting to regulate backyard streams and puddles on their land,” Allen continued.

He also referred to the EPA potentially being able to regulated “puddles” in the interview here and in a brief speech on the House floor the day he introduced the bill.

But the EPA’s own explanations of the rule say that it “defines and protects tributaries that impact the health of downstream waters” and clarifies how far safeguards extend to other waters near rivers and lakes.

Available at www.epa.gov, the agency’s explanatory document, “What the Clean Water Rule Does,” states that it “focuses on streams, not ditches” but acknowledges that some ditches would be protected.

The official explanation states: “The rule limits protection to ditches that are constructed out of streams or function like streams and can carry pollution downstream. So ditches that are not constructed in streams and that flow only when it rains are not covered.”

No puddles as such are mentioned, but several kinds of larger, natural wetland features are.

“The rule protects prairie potholes, Carolina and Delmarva bays, pocosins, western vernal pools in California, and Texas coastal prairie wetlands when they impact downstream waters,” the EPA document states.

Executive order

Trump signed an executive order Feb. 28 directing the EPA to eliminate the rule. In his remarks, the president also referred to puddles and ditches, saying, “In one case in Wyoming, a rancher was fined $37,000 a day by the EPA for digging a small watering hole for his cattle.” Trump also noted that the Clean Water Act states that the EPA can regulate “navigable waters.”

In a 2015 report, FactCheck.org stated that Andy Johnson, apparently the Wyoming farmer Trump mentioned, built a dam on a creek to create the watering hole and was given multiple warnings.

“I am glad to see President Trump taking action against the EPA’s harmful WOTUS rule,” Allen said in a statement released Wednesday. “WOTUS was yet another attempt to undermine the rights of states, local governments and landowners - and would particularly hurt those who feed and fuel our nation, America’s farmers.”

The EPA has now posted a statement prominently on its Clean Water Rule page noting Trump’s order and adding, “EPA and the Army intend to immediately implement the Executive Order and publish a Notice of Proposed Rulemaking to rescind or revise the rule.”

An earlier EPA statement acknowledges that the rule has been on hold since the 6th Circuit U.S. Court of Appeals issued a stay in October 2015.

Herald reporter Al Hackle may be reached at (912) 489-9458.