A proposal released this spring to clarify which waters in the United States fall under the protections of the Clean Water Act is a hot-button issue among industry firms, lawmakers and environmental advocates, and on Feb. 4, U.S. lawmakers took the unusual step of holding a bicameral joint committee hearing to take a closer look at EPA’s proposed rule.

Construction industry groups have consistently argued that a rule proposed by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers last April would significantly expand the scope of federal authority over various bodies of water in the U.S.

Some have suggested that roadside ditches, and small pools of water created by a construction site, would, as a result of this rule, fall under the jurisdiction of the Clean Water Act and all its permitting and other requirements.

But EPA insists that the “waters of the U.S.” rule is not an expansion of federal authority at all but instead is simply trying to provide clarity in light of some confusing Supreme Court decisions. The agency says that in some cases, the rule actually reduces federal jurisdiction.  Environmental and public health advocates have praised the proposal, saying that it will protect the nation’s waters as well as provide more protections for water supplies around the country.  

The Feb. 4 hearing was widely attended, with the chairs and ranking members of both the Senate Environment and Public Works Committee, and the House Transportation and Infrastructure Committee present, plus a good showing from lawmakers from both sides of the aisle.

The Environment and Public Works Chairman, James Inhofe (R-Okla.), got things started by saying, “If this rule is finalized without change, few water bodies, and indeed few areas of land, will escape the grip of the federal government.” Inhofe and a few others called for EPA and the Corps to withdraw the proposal.

But Democrat Barbara Boxer (Calif.), now ranking member on the committee, said, “There has been a lot of misinformation about the rule.” She added that that misinformation has led different groups to oppose “some mythical rule” that simply wouldn’t do what they think it would.

In response to Boxer’s questions, EPA Administrator Gina McCarthy said that isolated puddles, artificially irrigated areas, groundwater, and water-filled impressions incidental to a construction site all would not be covered.

But House Transportation Committee Chairman Bill Shuster (R-Pa.) pulled out photos to show specific examples of some agricultural areas where constituents have been required to obtain federal permits.

Jo-Ellen Darcy, assistant secretary of the Army, civil works, said that those particular examples were most likely permitted under the existing rules, established by the Bush administration in 2003 and 2008. Under the proposed rule, those areas would not require a permit, she said.

Shuster countered that while regulators in Washington may have specific intentions about what waters fall under the CWA’s jurisdiction, state and local permitting authorities may not interpret EPA’s rules the same way.

He added that while EPA may indeed be seeking to add clarity to a pretty murky process, congressional action is what is really needed. He, along with others, hope to introduce legislation soon that would ensure that roadside ditches don’t end up needing a federal permit.