GOP accuses EPA of 'unprecedented' power grab with proposed water rule

July 7, 2010: An Environmental Protection Agency worker looks at oil from the Deepwater Horizon spill which seeped into a marsh in Waveland, Mississippi. (Reuters)

Two Republican lawmakers on the House Science Committee are accusing the Environmental Protection Agency of pushing through a rule that could potentially expand the agency’s regulatory authority over streams, wetlands and other bodies under the Clean Water Act.

Reps. Lamar Smith, R-Texas, and Chris Stewart, R-Utah, on Friday sent a letter to EPA Administrator Gina McCarthy expressing concern over the proposed draft rule, which they say would give the agency “unprecedented control over private property across the nation.”

The rule, which aims to clarify the agency's regulatory jurisdiction over different types of water bodies, was sent to the Office of Management and Budget in September for review. The agency has said the scope of the proposal is limited to clearing up confusion caused by Supreme Court decisions involving the Clean Water Act.

The lawmakers claimed the agency is engaging in a "rushed, politicized regulatory process" and called for the EPA's independent science advisory board to review the science underlying the proposal.

"In light of the significant implications this action would have on the economy, property rights and state sovereignty, this process must be given more thought and deliberation to allow for important, statutorily-required, weighing of the scientific and technical underpinnings of the proposed regulatory changes," the lawmakers wrote.

In September, the agency released a report from its science advisory board analyzing the relationships between smaller, isolated bodies of water and larger ones. The report, which served as the basis for the proposal, concluded that streams and wetlands have important effects on downstream waters.

The EPA plans to accept public comments on the draft rule before finalizing it, but the agency has not indicated whether it will comply with the lawmakers' request to allow for an independent review of the science underpinning the rule.

“Any attempt to issue a proposed rule before completing an independent examination by the agency’s own science advisors would be to put the cart before the horse,” Smith and Stewart wrote.

In January, EPA critics and officials in Virginia scored a key victory in their legal battle with the agency over its attempt to regulate stormwater runoff that some described as a land takeover.

In the Virginia case, a federal judge ruled in favor of the state Department of Transportation and the Fairfax County Board of Supervisors, which challenged EPA's restrictions on the flow of stormwater into a Fairfax County creek.

U.S. District Judge Liam O'Grady in Alexandria agreed with Attorney General Ken Cuccinelli, who argued that the EPA was trying to regulate water itself as a pollutant. In his ruling, O'Grady said: "Stormwater runoff is not a pollutant, so EPA is not authorized to regulate it."

The EPA contended that water itself can be regulated as a pollutant if there's too much of it. The agency says heavy runoff is having a negative impact on Accotink Creek and that it has the regulatory authority to remedy the situation.

The Associated Press contributed to this report.