Hats Off to OWRB/JDStrong on Federalism!

For those of you who missed the hearing last week (11Jun2014), JD Strong did a terrific job asserting the need to give a stronger role for states in federal water policy decisions. This has been a consistent theme in ICWP comments to various federal agencies, and JD presented it clearly.
The House Transportation & Infrastructure Subcommittee topic was “Potential Impacts of Proposed Changes in the Clean water Act Jurisdictional Rule,” and their treatment of the federal witnesses was pretty tough (although it could have been much more acrimonious).
Subcommittee Chairman Gibbs said he has “serious concerns” about both the substance of the proposed rule and the process the federal agencies used to design it, and claimed that much of the CWA benefits since 1972 are the result of partnership between state and federal agencies and the recognition that not all water bodies need to be subject to federal regulation to assure their protection. The record was left open for 30days so that ICWP and others can add their views.
Following the testimony and questioning of Bob Perciasepe and Jo-Ellen Darcy, JD lead the second panel of witnesses and really pressed the federal agencies to recognize the states as “whole and equal partners” in the conservation and use of our water resources, and in the implementation of the CWA. He made the case that EPA and the Corps should have included state agencies in the development of the proposed, not just in the public comment process, and that the proposed rule would be much less confusing if they had. He disagreed with the agencies’ characterization of the proposed rule as “clarification,” saying that they are only moving a “fuzzy” line from where it was to somewhere else! This line, as JD points out, should clearly tell all of us where federal jurisdiction ends and the states’ jurisdiction begins, and has significant implications for the relationship between the national government and the states.
From our experience with the ACWI (and the Federal Advisory Committee Act), it seems easy to imagine the federal agencies’ fears about how cumbersome the discussion/negotiation with 50 states might be and how difficult it may be to limit those pre-decisional consultations to just the states (leaving out many other significant interests and experts). That doesn’t mean we shouldn’t try! If the partnership that Congress says it wants between the states and federal agencies is as important as we think, perhaps we should work on those ideas. If it is too difficult to include the states in the early drafting process, perhaps there are ways to make the delegation to states for implementation of the 404 permitting program more attractive.
Mark Pifher also made very constructive comments, and the hearing video and witness statements are still posted on the Subcommittee website (http://transportation.house.gov/calendar/eventsingle.aspx?EventID=378392).
What do you think? We thrive on your ideas!