The stage was set for Congressman Don Young to light into another Obama appointee. And not just any official: The head of the Environmental Protection Agency, which Young says runs roughshod over Alaska and the Constitution. She was there to discuss a question fundamental to the EPA mission: which waters can the EPA regulate under the Clean Water Act?
Alas, Representative Young is home with the flu. But this was a rare joint hearing, House and Senate. So Sen. Dan Sullivan was there to face Administrator McCarthy. He campaigned on his ability to take on the EPA.
Alaska’s also home to 63% of the water subject to clean water act jurisdiction and 65% of the nation’s wetlands,” Sullivan reminded her. “So as you can imagine, this is a very big deal to the people I represent.”
Sullivan read from a Supreme Court ruling that curtailed EPA’s reach. That case concerned the Clean Air Act, but Sullivan says it’s relevant to the new water rule, too.
“I think that’s exactly what’s happening here. A significant expansion of EPA jurisdiction over the U.S. economy, over certainly my state. And I don’t think the Congress has authorized that authority to the EPA,’ he said. “So I’ll just be a little bit frank: I don’t even think this is a close call.”
McCarthy answered with a version of a response she gave all day.
“I would say that I don’t think the agency is in anyway seeking congressional action or otherwise, to expand the jurisdiction of the Clean Water Act,” she said. “What we’re just trying to do here is to better define that in a way that everybody can be more sure of its implementation and we can save everybody time and resources.”
Throughout the hearing, Republicans said the rule would subject even farmer’s fields and small ditches to the Clean Water Act. McCarthy continued to insist the rule isn’t an expansion of the law but an attempt to expand exemptions to the law.
Sen. Barbara Boxer, a California Democrat, threw McCarthy a series of softballs.
“So isolated puddles are not regulated?” she asked. McCarthy said no, as she did to all of Boxer’s questions. “Isolated ponds, not connected to other waters, are those going to be regulated under your rule? …. Artificially irrigated areas, will they be regulated under your rule?
Ditto, McCarthy says, for reflecting ponds, summer pools and water-filled depressions at construction sites.
Rick Rogers followed the hearing from Anchorage. He’s the executive director of the Resource Development Council for Alaska, a business association with members from all of the state’s major industries. Rodgers says he remains convinced the rule is a threat to development, in part because it’s vaguely worded.
“From a legal perspective, it is not clear,” Rogers said. “It does not say what she purports it to say, and the rule itself does not provide the assurances that the administrator is working very hard to provide.”
The final rule isn’t out yet, and Rogers says it may improve with revision. McCarthy says she hopes to have it done this spring.