The House Transportation and Infrastructure Committee held a mark up on the Waters of the United States Regulatory Overreach Protection Act (HR 5078) and the Regulatory Certainty Act (HR4854) this week. Key to understanding the intent of these bills is knowing the language of Washington DC pretext. “Overreach” is the favored buzzword used by some to describe anything the Administration wants to do to protect public health and the environment. “Certainty” means allowing the polluters to do anything they want while absolving them from regulation.
Congress passed the Clean Water Act in 1972. Over more than forty years, that law has safeguarded our nation’s rivers, streams, lakes and wetlands. The law’s purpose is to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters”. And it has worked. The Clean Water Act only applies to “waters of the United States” (WOTUS).
Recently, the Environmental Protection Agency (EPA) refined WOTUS in response to recent Supreme Court decisions calling for some clarity. No sooner had EPA released their new WOTUS definition than the agency’s harshest critics started spreading disinformation. All of a sudden, we began hearing that EPA plans to regulate puddles, ditches, ponds on farms, or cows walking across a wet field. None of this is true.
Creating Confusion out of Certainty
The committee also debated the Regulatory Certainty Act (HR 4854), a bill that narrows EPA’s Clean Water Act (CWA) authority. Section 404c of the CWA allows the EPA to deny a permit to fill rivers, lakes, and streams with toxic mine waste whenever EPA determines those waste discharges would have an unacceptable adverse impact on fisheries.
For instance, EPA’s watershed assessment of the proposed Pebble Mine in Bristol Bay Alaska concluded that the mine could destroy up to 94 miles of salmon supporting streams. Congress intended EPA to use their 404c authority to deny permits in these kinds of especially egregious cases.
Just in case you were looking for regulatory certainty, you can rest easy. Since the 1972 passage of the Clean Water Act, EPA has approved roughly 99.9999% of the approximately 2.5 million 404c permit applications. In only 13 cases- spanning more than 40 years- has EPA denied a 404c permit. Doesn’t get more certain than that. Those seeking regulatory certainty should be careful what they ask for. Using their 404c authority, we hope EPA will soon tell the industry they certainly can’t mine Bristol Bay.