States claim they deserved ‘special consideration’ for WOTUS rule

By Annie Snider | 04/15/2015 07:02 AM EDT

With the House Transportation and Infrastructure Committee scheduled to mark up a measure to kill the Obama administration’s controversial water rule this morning, another panel yesterday highlighted concerns from state and local officials in the West about the regulation.

With the House Transportation and Infrastructure Committee scheduled to mark up a measure to kill the Obama administration’s controversial water rule this morning, another panel yesterday highlighted concerns from state and local officials in the West about the regulation.

While states have differing views on the "Waters of the United States" proposal, Western Governors’ Association Executive Director James Ogsbury told the House Natural Resources Subcommittee on Water, Power and Oceans that none of his members felt adequately consulted by U.S. EPA and the Army Corps of Engineers before they proposed the rule last year.

"We do believe that consultation with states was inadequate, that states really should be treated more as authentic and equal partners in development of the proposal that so directly impacts state authority," Ogsbury said. "The governors recognize that they are more than stakeholders, that they have regulatory authorities, constitutional responsibilities and delegated responsibilities that deserve special consideration."


Worries that on-the-ground officials and other key stakeholders were not properly consulted by the federal agencies as they developed the rule have been a key sticking point for lawmakers, especially moderate Democrats who hold the swing votes in the Senate.

Critics of the rule have crafted their legislative strategy around these concerns, with the bill being marked up today requiring EPA and the Army Corps to withdraw the current rule and instead initiate a major consultation process with state and local stakeholders (E&E Daily, April 14).

Obama administration officials have been trying to combat the worries, emphasizing the hundreds of meetings that they have held with stakeholders and the special outreach they have done with state and local officials since the water rule was proposed last year.

But many groups still have concerns, and Republican lawmakers have put them under the spotlight at four hearings so far this year, including a rare joint hearing of the House Transportation and Infrastructure Committee and the Senate Environment and Public Works Committee in February. Three of those hearings, including yesterday’s, have been with panels that do not have jurisdiction over the issue.

Water, Power and Oceans Subcommittee Chairman John Fleming (R-La.) yesterday argued that jurisdiction over the Clean Water Act was beside the point, since he said that entities his subpanel does have jurisdiction over would be affected by the rule.

Fleming and other Republicans cast the Waters of the U.S. rule as one in a series of overreaching proposals from Washington, D.C., that would impinge on states’ authority over water rights.

"This administration has pushed the envelope with proposals aimed at superceding historical state and local water actions," Fleming said. "It has a history of rolling out ill-conceived and ill-informed Washington-D.C.-knows-best proposals in recent years, only to stand down later after hearing backlash from the public."

‘Anxiety’ over Forest Service rule

Another proposal that drew flak from Fleming and others: the Forest Service’s so-called groundwater directive, which the agency said was aimed at allowing it to better manage and analyze potential impacts to groundwater resources from surface activity on national forestlands, such as mines and oil and gas wells.

The proposal touched off a firestorm of criticism. Forest Service Chief Tom Tidwell put the brakes on the directive in February and sent the agency back to the drawing board to coordinate more closely with states to devise a new plan for managing groundwater.

Testifying at the hearing yesterday, Deputy Forest Service Chief Leslie Weldon confirmed that the directive has been withdrawn and the agency is working on a new one aimed at improving its stewardship of water resources.

"We haven’t set a time frame, but at this point, we have stopped with the current proposal, and we won’t move forward with another one until we have done the job of that close collaboration and co-development with the states, so that when we get to that point of issuing a new proposal or internal guidance, it will be one that comes with that strong support," she said.

That was enough to draw a cheer from full House Natural Resources Chairman Rob Bishop (R-Utah).

"The Forest Service’s decision to pull the plug on the current Groundwater Directive is long overdue, and will finally put an end to the needless anxiety that this proposal caused," Bishop said in a statement. "There was absolutely no justification for the Directive, and until that justification is made, there will be no Directive. State water management is primarily under the purview of the states and that’s precisely where it should stay."

But the subpanel’s top Democrat, Rep. Jared Huffman of California, argued that the concerns being raised by Republicans over the groundwater directive, the Waters of the U.S. proposal and others were unreasonable.

"This approach is premised on a straw man argument that the Obama administration is somehow bent on a radical, power-hungry quest to illegally assert authority over virtually every drop of water in the country," he said. "That is nonsense."

Huffman and other supporters argue that the administration’s water proposals, particularly the Waters of the U.S. rule, are important for protecting the country’s vital water resources.