Washington, D.C. – The Committee on Science, Space, and Technology today held a hearing to examine the Environmental Protection Agency’s (EPA) proposed rule that expands the agency’s jurisdiction over “waters of the United States” regulated under the Clean Water Act. Members on both sides of the aisle expressed concerns to EPA Deputy Administrator Robert Perciasepe about the broad scope of the rule, which gives the EPA more control over Americans’ property.

Chairman Lamar Smith (R-Texas): “The EPA’s rule is so vague that it does little more than extend an open invitation to trial lawyers and government drones. The American people are tired of an Administration that makes promises with its fingers crossed behind its back. Before the EPA invades the back yards of Americans, they should tell them what they are really doing. When Congress enacted the Clean Water Act, it was about water, not land.  But the EPA’s re-writing of the law is a terrifying expansion of federal control over the lands owned by the American people. The EPA is on a regulation rampage, and this new water rule proves it.”

Despite the stated intent to provide more clarity, the rule does not clearly define what is or is not considered “water.”  Instead, the rule gives the EPA power to evaluate what may be regulated on a case-by-case basis. According to the EPA, 59% of the “streams” the agency may claim to regulate are not always wet.  The EPA states that these places often only become wet after rain events and in some cases are so tiny or temporary that they don’t even appear on maps. 

In response to questions from members on both sides of the aisle, Deputy Administrator Perciasepe conceded that the definition of “water” under the rule is not clear and has been the source of many concerns raised by agricultural producers, manufacturing industries and landowners.  He further said that EPA should continue to work to clarify the definition of “water” under the rule.

The EPA’s website states that “streams” that could be covered by this rule include “a drizzle of snowmelt that runs down a mountainside crease, a small spring-fed pond, or a depression in the ground that fills with water after every rain and overflows into the creek below.”

When asked about the potential for EPA to claim jurisdiction over large landmasses, especially in the western U.S., Deputy Administrator Perciasepe admitted that EPA could claim jurisdiction over nearly all of land in western states if water is running over it at the time. According to the Congressional Research Service, penalties for violations under the Clean Water Act can be as much as $25,000 per day.

Members also raised concerns about the EPA intercepting questions about this rule from the Science Committee to EPA’s independent Science Advisory Board (SAB). The SAB was established to provide scientific advice to both the EPA and Congress.  However, Deputy Administrator Perciasepe claimed that the SAB’s independent experts answer to the EPA alone.

For additional information about today’s hearing, including witness testimony, visit the Science, Space, and Technology Committee website.