EPA Local Government Advisory Committee Workgroup

On July 10th, Stephen James attended a meeting of EPA’s Local Government Advisory Committee and its “Protecting America’s Waters Workshop” in Atlanta, Georgia.  The workshop was convened to get input on the proposed rule to assist the Committee in providing recommendations to EPA Administrator Gina McCarthy regarding the impact on local governments. 

The 28-member Committee is a federally chartered body made up of local elected officials from around the country, and is chaired by Florida’s own Susan Hann, the City Manager of Palm Bay (Brevard County) and a professional engineer by trade.  Also in attendance were EPA’s Deputy Associate Administrator Mark Rupp and Region 4 Administrator Heather McTeer Toney, representatives from the U.S. Army Corps of Engineers, aides representing members of Georgia’s congressional delegation including U.S. Senator Johnny Isakson, and the Mayor of the City of Atlanta, Kasim Reed.

The workshop commenced with a presentation about the proposed rule by Ellen Gilinsky, EPA’s Senior Policy Advisor in the Office of Water.  Ms. Gilinsky stated that the rule was developed in response to requests by Congress, industry, agriculture, hunters and fishermen, local governments and the environmental community to reduce confusion and inconsistencies, and to interpret court decisions.  The objective of the rule, she said, was “to restore and maintain the chemical, physical and biological integrity of the nation’s waters.”  Ms. Gilinsky also stated that the proposed rule did not intend to expand federal jurisdiction but to clarify those waters that are subject to federal jurisdiction.   She said that despite concerns to the contrary, the rule would not protect new “types” of waters; would not remove any exemptions; would not regulate groundwater; would not expand regulation of ditches (as all ditches are currently subject to federal jurisdiction); and would not affect farming rights.   

Finally, Ms. Gilinsky stated that the proposed rule would result in a benefit of $388-$514 million by reducing flooding, filtering pollution, increasing habitat and recharge, and supporting fishing and hunting.  By contrast, the “cost” associated with the proposed rule was estimated at $162-$278 million for compliance and mitigation requirements.  According to the EPA, over 415,000 comments have been received thus far. 

After the presentation, a number of interested parties were invited to address the Committee.  In addition to the Florida Association of Counties, those providing public comments included: the Tennessee Department of Agriculture; Georgia’s Departments of Public Works and Agriculture; Savannah Solid Waste Department; Jefferson County (Alabama) Solid Waste Department; the Association of County Commissioners of Georgia; the Florida Stormwater Association; and Palm Beach County (Florida).   There were other stakeholder representatives present, including Florida’s Department of Environmental Protection and Department of Agriculture and Consumer Services, although they did not provide public comment.   All of the comments expressed opposition and concern with the proposed rule, with some recommending the rule be withdrawn it its entirety. 

On behalf the Florida Association of Counties, Mr. James summarized Florida’s geology and topography and noted the unique nature of the state with regard to its coastline, elevation; percentage of land covered by water, and underground aquifer system.  Mr. James expressed concern with the expansion of federal jurisdiction; the aggregation of otherwise isolated waters; the use of groundwater for connectivity and nexus (although theoretically exempt); the inclusion of man-made and man-altered structures and ditches; the inclusion of water bodies with perennial, intermittent and ephemeral flow; the subjective nature of case-by-case determinations; and the increase in cumbersome, time-consuming and expensive permitting processes.  Mr. James then cited specific language in the proposed rule to demonstrate these concerns including extremely broad definitions of terms such as: “similarly situated”; “in the same region”; “significant nexus”; tributary”; “riparian area”; flood plain”; and “neighboring.”

At the conclusion of the workshop, the presenters were all thanked for their comments, and ensured that the comments would all be conveyed to Administrator McCarthy.  Indeed, Chair Hann, Regional Administrator McTeer Toney, and Ms. Gilinsky each stated that they had taken copious notes for that very purpose.    We were advised that the Science Advisory Board should present its findings on the rule later this summer and that nothing will be finalized until then.   We were also encouraged by the closing statement that “no draft proposal ever looks like the final.”   With that being said, we all understand that our work is just beginning. 


Proposed Legislation

H.R. 5078 – Southerland

Late last week, Congressman Steve Southerland introduced legislation that would prohibit the EPA and Army Corps of Engineers from expanding their regulatory authority over Waters of the U.S.   The bill, entitled, “Waters of the United States Regulatory Overreach Protection Act” (H.R. 5078), would not only prohibit finalization of the proposed rule, but also any guidance document intended to implement changes to federal jurisdiction under the Clean Water Act.   The bill would also direct the EPA to consult with states and local governments in developing a consensus-based rule that would be released for public comment and submitted to the Congress. 

In a statement released to the media, Congressman Southerland stated, “This bipartisan legislation provides a safeguard against the federal government’s overreach into regulatory decisions best made by officials at the state and local levels,” said Southerland. “By getting Washington out of the way, we’re also providing our farmers, manufacturers, transportation builders, and construction industries with the certainty they need to grow America’s economy, free from new regulatory burdens imposed by the EPA and other D.C. bureaucrats.”

 H.R. 5034 - Graves

Another bill filed by Congressman Sam Graves (Missouri), would prevent the EPA from moving forward on any proposed rules until it completes a review of all existing regulations.  Under the legislation entitled “Stop the EPA Act” (H.R. 5034), all new regulations with an annual impact of $50 million or more must be approved by Congress.  Rules would only be exempt from the congressional approval process if the president issues an executive order showing they are necessary for national security reasons to halt an imminent threat or to implement a trade agreement.

In a statement, Congressman Graves said that “Administrator McCarthy and the EPA will soon find out that Washington bureaucrats are becoming far too aggressive in attacking our way of life.  My legislation will give the American people a voice in the regulator’s room when the President and the EPA try and go around Congress.  When the EPA says that property owners, farmers, and livestock producers must stomach higher costs, longer delays, and bigger headaches, it’s up to Congress to put up a roadblock.  We need a government that will act as a partner with every day Missourians, not an enemy.  Administrator McCarthy should be apologizing to Missourians.  EPA aggression has reached an all-time high, and now it must be stopped.”