Leaders of the House Transportation and Infrastructure Committee and the Agriculture Committee introduced H.R. 4965, a bill to prohibit the Administration from finalizing or implementing guidance which would significantly broaden the scope of federal jurisdiction under the Clean Water Act (CWA).

The bill, introduced on April 27, would require a formal rulemaking for any attempt to change the definition of “waters of the United States” under the CWA. Statutory changes to the CWA must be submitted to Congress for legislative action and regulatory changes require a notice and comment rulemaking, according to the Administrative Procedure Act.

(For more, see: Bill curbs EPA power under Clean Water Act)

The guidance, developed jointly by EPA and the Army Corps of Engineers, was sent to the White House for final review in February over industry, Congressional, and states’ objections. The document is intended to clarify legal uncertainty, stemming from competing Supreme Court opinions, on when marginal waters are subject to regulation under the law.

A key component of the new policy is that small streams and wetlands can be considered together, or in the aggregate, in determining whether they play a significant role in a watershed’s health. The logic is that even though damaging or polluting a small tributary stream may have little effect on the overall health of a large waterway, the damaging or polluting of all streams would have an impact. Therefore, even small tributary streams and wetlands should be afforded protection based on the value that others like them lend to the total watershed.

Opposition to a draft version of the document has been intense. Industry groups and other critics charged that key provisions in the guidance are at odds with past Supreme Court precedent and the CWA. State and local governments charged that the guidance could impose huge new unfunded mandates, undermining a host of local water quality control programs. In Congress, lawmakers unsuccessfully pushed amendments to various EPA spending bills seeking to block the guidance.

Earlier, it was thought that EPA intended to issue the guidance as interim. EPA, however, stated that "it is a final guidance," not interim. If finalized, the policy could have broad implications in stream and wetland protection and on the agriculture, homebuilding, mining and oil industries, all of which have cited the fragile economic recovery in pressing the White House to exercise regulatory restraint.

The House press release is at http://agriculture.house.gov/press/PRArticle.aspx?NewsID=1577.