If adopted, the rule will impact local governments and public agencies.

In response to the Environmental Protection Agency’s recently announced proposed rule related to the Clean Water Act and the definition of “Waters of the United States,” Best Best & Krieger LLP Attorney Andre Monette was asked to testify before a senate subcommittee. The hearing, titled “Solving the Problem of Polluted Transportation Infrastructure Stormwater Runoff,” was conducted on May 13 by the Senate Committee on Environment and Public Works’ Subcommittee on Water and Wildlife. Andre’s written testimony is available in its entirety here.

The hearing is important to local governments and public agencies because the EPA’s proposed rule, if adopted, will greatly expand the jurisdictional reach of the Clean Water Act. While the EPA claims the rule will not broaden coverage of the Clean Water Act, or protect and expand jurisdiction, witnesses in the hearing made it clear that the EPA has a history of overreaching and tying up the limited funds and resources of local governments.

It is true that construction of roads and other infrastructure creates impervious surfaces that contribute to stormwater runoff, but Congress has already created guidelines for the EPA and other federal agencies to abide by. A one-size-fits-all approach, controlled at the federal level, neglects states’ and local governments’ ability to regulate on a case-by-case, site-by-site basis. Andre and other witnesses urged the Subcommittee to consider that management practices need to conform to the unique hydrological variations across the country, which are best administered at the state and local level.

A significant topic at the hearing was municipal stormwater systems, which may be categorized as Waters of the United States if the EPA’s rule is adopted. This would force these systems to adhere to fishing and swimming compliance standards, which Sen. Deb Fischer (R-Nebraska) quickly dismissed as nonsensical.

The environmental impacts of stormwater runoff are significant; however it is in the public interest, both environmentally and economically, to manage and regulate these issues as new infrastructure is planned and constructed — not through retroactive regulations and mandates from the federal government. The Obama Administration’s recent reauthorization of the Federal Surface Transportation Law, appropriating more than $300 billion in transportation and infrastructure funding, will certainly continue to fuel this debate. Witnesses testifying before the Subcommittee reiterated that cooperative federalist regulations will best serve the interests of both the environment and economy of localities across the nation.