One sign of how misguided the proposed regulation redefining “waters of the United States” is that approximately 900,000 people submitted comments in the rule-making record. At least some of those were activists who applauded the extraordinary power grab by the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) to regulate puddles and hundreds of millions of acres of land where water may sometimes flow.
But most Americans don’t write to agency bureaucrats to say “please subject my land to extremely expensive, confusing, and subjective regulatory restrictions.” Instead, many thousands raised legal objections or expressed grave concerns about the impact of the rule.
The public can’t evaluate most comments to the controversial draft rule, however, because EPA and the Corps have claimed that “only” 19,353 of them are substantive enough to merit placing on their rulemaking website. Even if that is right, it is hard to believe that the agencies can seriously consider and fairly address even 19,353 “substantive” comments in the few months that would allow a final rule to be issued this spring. Some comments contain over 100 pages of technical and hydrological information. The Pacific Legal Foundation, among others, pointed out in its comments opposing the rule how the agencies’ interpretation of their jurisdiction violates the Clean Water Act and would be unconstitutional even if the Act did authorize it.
Such procedural concerns, including a lack of meaningful consultation with state and local officials, as well as the agencies’ substantive overreach will be examined this Wednesday at a rare, joint hearing of the House Transportation and Infrastructure Committee and the Senate Environmental and Public Works Committee. The House Transportation Committee conducted three previous hearings on the controversial draft rule. The joint hearing on February 4 will pay special attention to the concerns raised by state and local officials.
That focus will help highlight that the proposed rule is not just horrible for farmers, ranchers, and rural residents — who have borne the brunt of the current rule’s overreach, but for urban and suburban residents as well.
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