A top Senate Republican committee chairman has called out Democratic vice presidential nominee Virginia Sen. Tim Kaine and 10 other lawmakers in letters sent in conjunction with a scathing report on the ways the government is already using a new regulation to take control of private property.
Senate committee staff published a report Tuesday detailing the ways the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers are already using the “concepts” in the so-called Clean Water Rule to bring more private property under federal control, despite a court injunction against its implementation.
“This new majority committee report demonstrates in detail that the EPA and the Army Corps of Engineers, under the Obama administration, are running rogue,” wrote Oklahoma Republican Sen. Jim Inhofe, the chairman of the Senate Committee on Environment and Public Works.
Along with the report, Inhofe sent letters to Kaine and 10 other Senate Democrats who pledged to introduce legislation to revise the EPA water regulation if it enforced “this rule in a way that erodes traditional exemptions,” according to a November 2015 letter.
Inhofe’s letter to Kaine puts pressure on the Democratic VP pick to support legislation to revise the Clean Water Rule, possibly contradicting the position of Democratic presidential nominee Hillary Clinton.
Clinton hasn’t explicitly taken a position on the Clean Water Rule, but she has generally embraced the Obama administration’s environmental regulations, and she made protecting drinking water in places like Flint, Michigan a major issue early on in her campaign.
“Case studies in this report show that the Obama administration is already asserting federal control over land and water based on the concepts they are trying to codify in the WOTUS rule, even though the courts have put that rule on hold,” Inhofe said.
“Congress shouldn’t wait on the Supreme Court to make the inevitable decision that this agency overreach is illegal,” Inhofe said. “This report should be evidence enough that it’s time for Democrats and Republicans to work together rein in EPA and the Corps.”
Inhofe’s report claims EPA and the Corps are already enforcing a rule changing the definition of “waters of the United States” (WOTUS) under the Clean Water Act to expand their regulatory authority, according to a copy obtained by The Daily Caller News Foundation.
“EPA and the Corps have and will continue to advance very broad claims of jurisdiction based on discretionary authority to define their own jurisdiction,” reads the report. “Landowners will not be able to rely on current statutory exemptions or the new regulatory exemptions because the agencies have narrowed the exemptions in practice and simply regulate under another name.”
EPA finalized the Clean Water Rule in 2015, and Obama administration officials said it was necessary to clarifying jurisdictional confusion and to protect water quality. EPA Administrator Gina McCarthy authored a blog post at the time assuring farmers that “planting, harvesting, and moving livestock across streams have long been exempt from Clean Water Act regulation; the Clean Water Rule doesn’t change that.”
“The final rule doesn’t create any new permitting requirements for agriculture, maintains all previous exemptions and exclusions, and even adds exclusions for features like artificial lakes and ponds, water-filled depressions from construction, and grass swales—all to make clear our goal is to stay out of agriculture’s way,” McCarthy wrote.
Despite McCarthy’s assurances, 32 states along with farm lobbies sued to have the Clean Water Rule struck down. A federal judge issued an injunction against implementing the rule in October 2015.
But Inhofe’s report provides a counterpoint to McCarthy’s claims the Clean Water Rule won’t infringe upon traditional exemptions to federal control. His report details how EPA and Corps regulators, for example, reclassify parcels of land to regulate them.
“Plowing to shallow depths is not exempt when the Corps calls the soil between furrows ‘mini mountain ranges,’ ‘uplands,’ and ‘dry land;’” the report reads. “Disking is regulated even though it is a type of plowing.”
“Changing from one agricultural commodity constitutes a new use that eliminates the exemption,” according to the report. “Puddles, tire ruts, sheet flow, and standing water all can be renamed ‘disturbed wetlands’ and regulated.”
Inhofe even cited a recent Supreme Court decision against the Corps to bolster his case.
The report argued Hawkes Co.’s , a North Dakota-based family business, legal victory against the Corps shows how the agency “is already implementing the WOTUS rule,” despite the injunction.
Chief Justice John Roberts ruled Hawkes Co. could immediately challenge a federal agency’s decision to prevent them from using their private property. Inhofe noted the Corps was blocking the company from harvesting peat based on “the functions listed in the WOTUS rule.”
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