ACR190

A Concurrent Resolution urging the United States Environmental Protection Agency and the United States Army Corps of Engineers to withdraw their proposed rule to redefine “the waters of the United States” under the Clean Water Act.

Whereas, The Clean Water Act (CWA), first passed in 1972 and substantially amended in 1977 and 1987, regulates discharges of pollutants into United States waters and establishes quality standards for surface waters; and

Whereas, The provisions of the CWA apply to all “navigable waters,” which is defined in the law to mean “the waters of the United States, including the territorial seas”; and

Whereas, Under the CWA, the United States Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (Corps) have authority to define “the waters of the United States,” and, thus, have authority to determine which bodies of water fall under CWA jurisdiction; and

Whereas, If the EPA and the Corps determine that a body of water falls under CWA jurisdiction, discharges into that body of water may be subject to multiple, costly regulatory requirements, imposed by the agencies, such as quality standards, discharge limitations, and permits, the costs of which are born by the regulated entity; and

Whereas, The EPA and the Corps have attempted to define “the waters of the United States” on several occasions, but in subsequent legal challenges, the United States Supreme Court has interpreted that term narrowly and, thus, limited the scope of CWA jurisdiction; and

Whereas, On April 21, 2014, the EPA and the Corps, in an effort to clarify the scope of CWA jurisdiction, proposed a new definition of “the waters of the United States,” which significantly expands the waters regulated under the CWA; and

Whereas, Under the proposed rule, certain waters would categorically be considered “the waters of the United States,” such as waters susceptible to interstate commerce; interstate waters; the territorial seas; certain impoundments and tributaries; and all waters, including wetlands, adjacent to these bodies – a proposal more expansive than current rules; and

Whereas, In addition, a greater number of “other waters,” such as headwaters, intrastate lakes, mudflats, prairie potholes, and playa lakes, would require a case-by-case analysis to determine whether they qualify as “the waters of the United States,” and are, thus, subject to EPA and Corps regulation; and

Whereas, The agencies have added definitions of several key terms, such as “tributary,” “significant nexus,” and “floodplain,” which could potentially enable broader assertion of EPA and Corps authority than is consistent with the CWA law; and

Whereas, Two hundred and thirty one members of Congress, including members of both political parties, signed a letter to the Administrator of the EPA and the Secretary of the Department of the Army asserting that the new rule aggressively expands federal authority under the CWA while bypassing Congress and creating unnecessary ambiguity; and

Whereas, State and local governments, advocacy groups, and think tanks have echoed these concerns, stating that broader CWA jurisdiction could impose expensive and time-consuming requirements on businesses, individuals, and governments, result in job losses, and impede economic growth; and

Whereas, According to an EPA economic analysis, under the new rule, approximately three percent of United States waters would additionally be subject to CWA jurisdiction, and costs to regulated entities and the federal, state, and local governments could reach $278 million per year, with landowners and development companies bearing the brunt of these costs; and

Whereas, An independent review of the EPA’s economic analysis, conducted by the Brattle Group, a consulting firm, found that the cost of the new rule may actually be significantly higher than anticipated because the EPA’s economic analysis relies on a flawed methodology; and

Whereas, Compounding these problems, the EPA’s scientific study of the new rule, “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence,” has neither been peer-reviewed nor finalized, leaving interested parties with inadequate time to assess the scientific impacts of the new rule; now, therefore,

Be It Resolved by the General Assembly of the State of New Jersey (the Senate concurring):

1. The Legislature of the State of New Jersey urges the United States Environmental Protection Agency and the United States Army Corps of Engineers to withdraw their proposed rule to redefine “the waters of the United States” under the Clean Water Act, and calls for further legal, economic, and scientific review of any changes to the definition.

2. Copies of this resolution, as filed with the Secretary of State, shall be transmitted by the Clerk of the General Assembly or the Secretary of the Senate to the Administrator of the United States Environmental Protection Agency, the Secretary of the United States Department of the Army, the members of the New Jersey Congressional delegation, the Governor of New Jersey, and the Commissioner of the New Jersey Department of Environmental Protection.

STATEMENT

This resolution would urge the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) to withdraw their proposed rule to redefine “the waters of the United States” under the Clean Water Act.

The Clean Water Act (CWA) regulates discharges of pollutants into U.S. waters and establishes quality standards for surface waters. The provisions of the CWA apply to all “navigable waters,” which is defined in the law to mean “the waters of the United States, including the territorial seas.” Under the CWA, the EPA and the Corps have authority to define “the waters of the United States,” and, thus, have authority to determine which bodies of water fall under CWA jurisdiction. If the EPA and the Corps determine that a body of water falls under CWA jurisdiction, discharges into that body may be subject to multiple, costly regulatory requirements imposed by the agencies, the costs of which are born by the regulated entity.

On April 21, 2014, the EPA and the Corps proposed a new definition of “the waters of the United States,” which significantly expands the waters regulated under the CWA. Under the proposed rule, certain waters would categorically be considered “the waters of the United States,” a proposal more expansive than under current rules. In addition, a greater number of “other waters” would require a case-by-case analysis to determine whether they qualify as “the waters of the United States,” and are, thus, subject to EPA and Corps regulation. Finally, the agencies have added definitions of several key terms, which could potentially enable broader assertion of EPA and Corps authority than is consistent with the CWA law.

Members of Congress, State and local governments, advocacy groups, and think tanks have all expressed concern that the new rule would significantly expand federal authority, create ambiguity, and impose significant costs on businesses, individuals, and governments. An EPA economic analysis of the new rule projects that three percent of U.S. waters would additionally be subject to CWA jurisdiction, and costs to regulated entities the governments could reach $279 million per year. An independent review of the analysis found that the cost of the new rule may be significantly higher than anticipated because the EPA’s economic analysis was flawed. Compounding these problems, the EPA’s scientific study of the new rule has neither been peer-reviewed nor finalized.

For these reasons, the Legislature also calls for further legal, economic, and scientific review of any changes to the definition of “the waters of the United States.”