Capito quizzes EPA chief about stream rule

U.S. Senator Shelly Moore Capito raised questions Wednesday during a Congressional hearing about how far new rules proposed by the federal Environmental Protection Agency would go to extend authority for regulating the Clean Water Act.

The EPA’s proposed Waters of the United States rule would extend the agency’s authority to essentially all bodies of water without regard to size or frequency. Capito feared the inclusion of ephemeral streams, those which are only present following heavy rain, could leave the entire state of West Virginia vulnerable to more intensified regulation by the agency.

“If you bring these so called ‘ephemeral waters’ into the rule I think it really brings a lot of confusion and uncertainty,” Capito told federal EPA administrator Gina McCarthy during the hearing. “This is unacceptable in a state like West Virginia. You can’t let the whim of a particular Corps or EPA employee decide which private property is now federally regulated.”

McCarthy claimed most ephemeral streams are already governed by the rule and she wanted to clarify in the code and offer more certainty based on science.

“You have my absolute word that we are going to try to narrow what we are claiming jurisdiction over,” McCarthy said. “So that we’re consistent with the law and with the science and we’re as clear as possible about what’s in and what’s out.”

Capito raised even more questions and suggested even the most common “West Virginia gully” could become a protected stream under the rule. Capito worried the potential far-reaching impact could impede small and medium sized businesses in West Virginia.

“The last thing a small manufacturer needs is to get caught up in a bureaucratic maze of ‘Am I registered? or Am I not?'” Capito said. “The trust factor here with your agency is not as good in our state as I”m sure we would all like it to be.”

“We will resolve this and make more certainty,” vowed McCarthy during the hearing. “The last thing a small business needs to do is ask questions about their obligation when we could have spoken more clearly in the rule to tell them what our obligation was.”

Capito and others expressed fear the new rules pose great danger to future projects of farming, highway, and road construction activities in West Virginia. She added furthermore the state’s oil and natural gas industries could be subject to another severe blow from the EPA because the agency would have more latitude for denying underground or surface mine permits.