Incorporating Environmental Justice into all Regulatory Efforts

The Swamp Stomp

Volume 16, Issue 28

Historically was limited to NEPA type projects funded by the US government.  However, under NEPA Environmental Justice (EJ) can be brought in as part of any federal environmental government action.  This includes Nationwide permits.  The title of the press release sort of gives away the intent.  Focus on the word “all.”  The following is from the EPA press release.

Jun 7, 2016
Incorporating Environmental Justice into all Regulatory Efforts

By Charles Lee and Kelly Maguire

Today marks an important moment in environmental justice history. The U.S. Environmental Protection Agency issued its first-ever Technical Guidance for Assessing Environmental Justice in Regulatory Analysis (EJ Technical Guidance).  This guidance represents a significant step towards ensuring the impacts of EPA regulations on vulnerable populations are understood and considered in the decision-making process.

spraydriftThe EJ Technical Guidance improves our ability to perform some of the most important work we do. Better integrating environmental justice in EPA’s core regulatory function is essential to ensure that all Americans, regardless of their race, ethnicity, or income level, have access to clean water, clean air, and healthy communities. Technical guidance, reinforced by the meaningful involvement of the public and key stakeholders, helps to ensure that all communities are protected from pollution as the result of EPA rules.

So how does it work? The EJ Technical Guidance equips EPA rule writers with key analytic principles and definitions, best practices, and technical questions to consider potential impacts on communities with environmental justice concerns. Each component helps us take complex issues and think about them in a consistent, step-by-step approach, while ensuring that sound science is the foundation of EPA’s decision-making process.

In fact, the Science Advisory Board (SAB) states “the [EJ Technical Guidance] represents major philosophical and communication steps for the agency and EJ communities with a major goal of the guidance being to incorporate EJ analysis into the framework of regulatory analysis.”  For the first time, EPA analysts will have a coherent set of methods to use when assessing potential environmental justice concerns in national rules.

Pages-from-EJTG_5-6-16_v4-232x300The finalization of the EJ Technical Guidance realizes the last commitment made under Plan EJ 2014, and sets the stage to deliver on key aspects of the draft EJ 2020 Action Agenda, EPA’s next environmental justice strategic plan for 2016-2020.  Through EJ 2020, EPA will use the EJ Technical Guidance to ensure that environmental justice is appropriately analyzed, considered and addressed in EPA rules with potential EJ concerns. This will be accomplished by implementing guidance, training, monitoring, evaluation and community involvement, including periodic assessments of how EPA is conducting EJ analyses. A hallmark of EJ 2020’s approach will be continuous learning and improvement. However, we know we still have much work to do, including development of advanced methods and guidance for analyzing cumulative risks and impacts.

We are excited about this step in the long journey towards ensuring environmental justice for all communities. We fully agree with the Administrator, when she emphasized that “by improving our ability to conduct strong, consistent analysis of environmental justice in regulatory actions, the EJ Technical Guidance marks a major milestone in our continued efforts to ensure environmental justice is considered in all aspects of the agency’s work.  Looking ahead, it offers an important advance that will bring better protection to America’s vulnerable populations for years to come.”

You can find more about this new policy by going to the EPA EJ site.

MT Man Convicted of Clean Water Act Violations and Destruction of US Property

The Swamp Stomp

Volume 16, Issue 16

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MISSOULA – On April 7, 2016 a federal Montana jury found Mr. Joseph David Robertson, 77, guilty on two counts of unauthorized discharge of pollutants into waters of the United States and one count of injury or depredation of United States property.  He now faces up to 15 years in prison and a $250,000 fine.  The sentencing phase is pending.  Mr. Robertson was indicted by a grand jury in May of 2015 as a result of illegal ponds he built on two parcels of land near Basin, Montana, one on Beaverhead-Deerlodge National Forest land and the other on adjacent private property.  The ponds resulted in the discharge of dredged and fill material into a tributary stream and adjacent wetlands and caused widespread damage to both properties.

At trial, the government introduced evidence that in October of 2013, a United States Forest Service (USFS) Special Agent visited the National Forest property to determine whether Mr. Robertson had complied with previously issued conditions of probation for misdemeanor violations of USFS regulations.  The Agent testified at trial that during the site visit, she observed multiple ponds dug into an existing stream on both USFS and adjacent private property.

Mr. Robertson lives on the White Pine Lode patented mining claim that he owns. In 2013 and 2014, he dug ponds that discharged dredged and fill materials into an adjacent tributary of Cataract Creek and into nearby wetlands. A U.S. Forest Service agent discovered the ponds when she went to the property to see whether Mr. Robertson had complied with a judge’s previous order to remove structures he had built on federal lands without permission.

Mr. Robertson dug the ponds to protect his property from fire and to water his horses, his federal public defender said in court filings. Mr. Robertson acknowledged at the time that he didn’t have a permit to do the work, but he said a Montana Fish, Wildlife and Parks official had given him permission to dig.

Cataract Creek flows into the Boulder River, which empties into the Jefferson River. The U.S. Army Corps of Engineers sent Robertson a notice in 2014 that he was discharging pollutants without a permit, but Mr. Robertson’s wife threw the certified mail notice into the trash at the post office, federal prosecutors said.

The U.S. Attorney’s Office filed a criminal indictment against Mr. Robertson in May 2015, charging him with unauthorized discharge of pollutants into U.S. waters and malicious mischief for injuring the property of the United States. Government officials estimated it will cost nearly $70,000 to repair the damage, and that the value of the wetlands lost in the 1.2-acre area is estimated between $25,000 and $40,000 per acre.

During a subsequent site visit in November of 2013, Mr. Robertson admitted to Environmental Protection Agency (EPA) and USFS Criminal Special Agents that he had performed the work on the National Forest property using an excavator.  State and federal officials visited the site again in May of 2014, and observed that Mr. Robertson had done additional work.  The site was now approximately 1.2 acres in size, and extended beyond the National Forest property to a private property that he did not own.  The work consisted of nine ponds of varying sizes, including some as large as approximately 4900 square feet that were placed directly in the stream and wetlands area.  Unconsolidated dredged material from the ponds had been used to create the berms and had been placed in and around the stream and wetlands.  Mr. Robertson admitted that he had completed the additional work.  Additional investigation revealed that Mr. Robertson continued to construct ponds on the USFS property after May of 2014, despite being told repeatedly that he had no legal right to do so.

One of the central legal issues at trial was whether the waters polluted by Mr. Robertson were “waters of the United States” for purposes of the Clean Water Act.  The United States introduced evidence and expert testimony from the Army Corps of Engineers and the EPA that the stream and wetlands had a significant nexus to traditional navigable waters, and therefore were “waters of the United States.”  Fishery biologists from the Montana Fish, Wildlife and Parks (FWP) and the USFS testified that this headwater and wetland complex provided critical support to trout in downstream rivers and fisheries, including the Boulder and Jefferson Rivers.

“This verdict sends a message that the United States will not stand by and allow streams and wetlands of the United States to be polluted, or National Forest lands to be injured,” said United States Attorney for the District of Montana Mike Cotter.  “Clean and healthy waterways are a critical resource for all forms of life and are a Montana value.  It is imperative that we protect this increasingly scarce resource.  The collaborative efforts of multiple state and federal agencies in cases like this help ensure that individuals who seek to degrade it will be held accountable.”

“Rivers, streams and wetlands provide essential habitat for fish and wildlife which must be protected, and EPA and its law enforcement partners are committed to protecting these invaluable natural assets as well as the communities around them,” said Jeffrey Martinez, Special Agent in Charge of EPA’s criminal enforcement program in Montana.  “The defendant’s illegal activity took place not only on public land but also on private property he didn’t own.  Today’s guilty verdict demonstrates that polluters will be held accountable for their actions.”

The case was prosecuted by Assistant U.S. Attorney Bryan Whittaker and Special Assistant U.S. Attorney Eric Nelson from the United States Environmental Protection Agency.  This case was investigated by multiple state and federal agencies including the United States Forest Service, the Environmental Protection Agency Criminal Investigation Division, the Army Corps of Engineers, and the Jefferson County Sheriff’s Office.    Other agencies that assisted the investigation included Montana Fish, Wildlife and Parks and the Jefferson Valley Conservation District.

Sources:

https://www.justice.gov/usao-mt/pr/basin-man-convicted-clean-water-act-violations-and-destruction-us-property

http://www.washingtontimes.com/news/2015/oct/6/trial-underway-for-man-charged-with-breaking-clean/

Regulatory Integrity Protection Act of 2015

The Swamp Stomp

Volume 15, Issue 20

On April 30, 2015 the US House of Representatives voted (241-181) to pass H.R. 1732 – Regulatory Integrity Protection Act of 2015.  This bill is now scheduled to move onto the Senate for a vote.  If they have the votes in the Senate it will move onto the President who as indicated that it will be vetoed.  To be frank this bill is entirely political and largely too little too late.  However there are some key points in this Bill that are worth discussing.

At the heart of the bill is the call for the complete cessation of rulemaking with regards to the definition of “waters of the US.” The Bill is broken down into three parts and is merely 12 pages long.  This is quite a relief as the Corps and EPA page count on the new “waters of the US” rule exceeds over 1,000 pages of text amongst a number of supporting documents.

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Section 1 is the title, “Regulatory Integrity Protection Act of 2015.”  It is a bill to, “To preserve existing rights and responsibilities with respect to waters of the United States, and for other purposes.”

Section 2 calls for the withdrawal of the existing prosed rule.  “Not later than 30 days after the date of enactment of this Act, the Secretary of the Army and the Administrator of the Environmental Protection Agency shall withdraw the proposed rule described in the notice of proposed rule published in the Federal Register entitled ‘‘Definition of ‘Waters of the United States’ Under the Clean Water Act’’ (79 Fed. Reg. 22188 (April 21, 2014)) and any final rule based on such proposed rule (including RIN 2040–AF30).”

The few news agencies that have even bothered to pick up this story seem to end at this section.  You can check out the cutting edge news from places like Greenhouse Management, Springfield News Leader, Real Estate Rama, and the Daily Signal.  This does not make the front page of the NY Times by any stretch.  However, the next section in the bill is extremely interesting and a bit disturbing and largely undiscussed.

Section 3 calls for the development of a new proposed rule by the EPA and the US Army Corps of Engineers.  It specifically requires that the Agencies consider public comments, review and economic analysis of the rules and incorporate the “scientific” analysis done by the EPA “Science” Advisory Board.

I use big quotes when describing this report as scientific.  No scientific study was conducted.  The report is merely a mediocre cut and paste job of selected papers written by others.

The Bill does add two new dimensions to the process that thus far have not happened.  It designates the States and local officials as stakeholders and requires that their input be considered.  Many States already have afforded “waters of the State” protection to non-Federal jurisdictional waters.  This new provision in the Bill alleviates that awkward aspect of the Clean Water Act that provides for the State to establish jurisdiction over waters (Section 404 (g) of the CWA).  The states would relinquish their role in establishing jurisdiction to the federal government by enjoining themselves in the new process as stakeholders.  This would be as opposed to the current situation wherein they  self govern.  So much for state’s rights.

The second and most significant point in the entire Bill is that the Agencies must consider the rulings of the Supreme Court when crafting the new rules.  To be even more frank, I cannot believe that such a provision would have to be added to a Bill.  If the government adopts rules that are inconsistent with the Supreme Court’s rulings it is by definition unconstitutional.  The Supreme Court has ruled that the US government does not have universal reach in what it claims to be “waters of the US.”  The 2001 SWANCC decision is at the heart of the EPA/Corps “waters of the US” rule.

In 2001, The Supreme Court confirmed that there are some waters that are beyond the reach of federal jurisdiction.  In the preamble of the proposed EPA/Corps rule, the Agencies state that it was always the position of Congress that all wetlands are jurisdictional.  However, in 2001 the Supreme Court ruled that this is not the case.  Is it appropriate for the Agencies to speak for Congress and defy the Supreme Court?

In the 2012 Sackett case, Supreme Court Justice Alito called out Congress to show some leadership and develop a reasonably clear rule defining “waters of the US.”   This latest Bill is a far cry from that.  It basically goes back to the same two Agencies and asks them to start the entire process again using the same data set and expecting a different result.  You may recall what Albert Einstein said about the definition of insanity.

“Insanity: doing the same thing over and over again and expecting different results.”

At the heart of this entire mess is a clear lack of leadership.  Our elected representatives need to step up and stop hiding behind the Agencies to solve this problem.  It is the job on Congress to establish the limit of Federal jurisdiction and not the Agencies.  The Executive branch administers the laws as passed by the Legislative branch.  In all fairness to the Executive branch, these “waters” rules are not clear and it is understandable why they would seek clarity.  However, designating a private landowner’s property as being “of the US” is perhaps something left to the democratic process rather than mandated by a Federal Agency.

The need for clear rules about what is subject to federal jurisdiction is needed.  Our current rules are confusing and seem to keep heading to court.  However, in my humble opinion these rules should come from the consent of the governed rather than being mandated by the government for our own good.  It was just a few years ago when our government suggested that pouring oil on a wetland was a good idea for the control of mosquitoes.    See if you can find a copy of the “Winged Scourge” which was a government produced public information movie.   It was the governed that stood against this practice and had it repealed.  In the end it is the wisdom of the people rather than the whims of politics that shape our laws.  Politics is about pleasing the masses to maintain power.  Wisdom is the recognition of truth.

Have a great week!

– Marc

 

EPA Admit “Waters of the U.S.” Could Have Been Handled Better

Swamp Stomp

Volume 15, Issue 15

During the National Farmers Union convention in Wichita on March 16, 2015, U.S. Environmental Protection Agency Administrator Gina McCarthy expressed regret about how the EPA handled the controversial “Waters of the U.S.” rules.

Following U.S. Department of Agriculture Secretary Tom Vilsack, McCarthy spent the majority of her 30-minute speech claiming that she wished her agency had done a better job of explaining how EPA defined which bodies of water were regulated under the Clean Water Act.

McCarthy asserted, “I’m really concerned that we weren’t crystal clear out of the gate, not just about what we intended to do but about what we intended not to do, because it left all kinds of room for people to wonder not just what the words said but what we are trying to accomplish.”

Despite her regret over how the effects of rule were communicated, however, McCarthy is adamant that the EPA’s end goal will be met and the final rule be issued.  She said that the rule is currently on its way to the Office of Management and Budget and is expected to be issued this spring.

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After recent U.S. Supreme Court rulings, EPA is currently rewriting the rule, but McCarthy remains adamant that the need for the rule is clear. However, she did attempt to clarify what the rule would and would not intend to do. She provided the following assurances:

  • In response to numerous criticisms, McCarthy assured the public that EPA would not regulate puddles, land, or Fourth of July fireworks.
  • Addressing the worry that regulating “tributaries” could mean just about anything, McCarthy stated that EPA has established clearer definitions.
  • The rule does not include erosional features.
  • McCarthy claimed that roadside and irrigational ditches are not included, but ditches that are natural and constructed streams that can carry pollution downstream and act like tributaries are included.
  • Waters initially labeled as “other waters”—a term McCarthy conceded was too ill-defined—are in the process of being more narrowly stated by officials using their “best judgment.” However, the results of clarifying vague terms with even vaguer qualifications will most likely do little to quell concerns.

The main message of McCarthy’s speech was that farming and ranching should remain unaffected by the rule. “The exclusions and exemptions for agriculture . . . this rule we will not touch,” she said.

During Vilsack’s address, farm productivity was a major talking point. Farmers today are 12 times more productive then they were in 1950. Subsequently, Americans only spend 10 percent of their income on food, 15 to 20 percent less than many of the other countries in the world.

Vilsack also raised many concerns, including how to best introduce the next generation of farmer to the profession, labeling country origin of beef and pork in supermarkets, and how to best develop tools and support conservation and local agriculture, such as farmers markets.

“This isn’t just about farming. This isn’t just about agriculture. This is about rural life and maintaining the value system alive and well in the rural communities.”

While Vilsack is not forwardly addressing the “Waters of the U.S.” rule, he is assisting McCarthy paint an image of what the rule intends to do. The ambiguity of McCarthy’s speech did little to rid farmers and ranchers of their concerns, and her acknowledgment that the rule was not communicated as well as it could have been is somewhat diminished by “clarifying” points with terms that themselves are ambiguous.

 

“Waters of the U.S.” Public Hearing Held

Swamp Stomp

Volume 15, Issue 13

On March 17, 2015, Republican Glen Thompson, Chairman of the House Agriculture Committee’s Conservation and Forestry Subcommittee, held a public hearing in order to examine the definition of the proposed “Waters of the United States” rule and its impact on rural America.

Legislated in 1972, the Clean Water Act (CWA) initiated a federal-state government partnership that was intended to more appropriately regulate and manage the nation’s water by means of various pollution and control programs. The CWA asserts that it is the “policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of State to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources, and to consult with the [EPA] Administrator in the exercise of his authority under this Act.”

During the hearing, several members of the House Committee on Agriculture claimed that by proposing the “Waters of the U.S.” rule, the Administration has acted on its own, without any input from either states or stakeholders, in order to widen the federal jurisdiction granted under the CWA, which, subsequently, threatens the livelihood of farmers, ranchers, and rural America.

Chairman Thompson said, “Despite strong bipartisan opposition from Congress and the public, the Obama Administration has acted to expand its federal authority. The EPA’s proposed rule could have serious consequences for our nation and prove to be a severe detriment to our economy, with a particularly strong impact in rural counties. Hasty movement from the EPA will only invite costly litigation, burden states and counties with compliance costs, and create obstacles to building and replacing our national infrastructure.”

Thompson continued, “Rather than strengthening the law, this rule creates more confusion. These actions highlight a disturbing pattern of an Administration that is out of touch with farmers, ranchers, and rural land owners. The testimony received today further outlines the need for the EPA to either pull the rule and move for further consultation with states, countries, and stakeholders, or re-purpose the rule and allow a new round of public comment. There is too much on the line to continue down the current path.”

Republican Kenneth Michael Conway, Chairman of the House Agriculture Committee, also spoke at the hearing. He asserted, “I strongly support legislation to block the “Waters of the United States” rule and hope we can put legislation to this effect on the president’s desk, whether as a stand-alone bill, as part of a larger measure, or both. The better route, of course is for EPA and the Corps to pull this regulation, work with state and local stakeholders to develop new and proper set of recommendations, and submit these recommendations to Congress for consideration and approval.”

The witness list at the hearing was comprised of two panels. The first panel included the Honorable Jeff M. Witte, the Honorable Robert ‘Pete’ Smeltz, Mr. Joseph S. Fox, and the Honorable Martha Clark Mettler. The second panel consisted of Ms. Ellen Steen, Mr. Jonathan Gledhill, Mr. Russ Biggica, Mr. Sledge Taylor, and Mr. Steve Foglesong.

The Administration will issue a final regulation this spring without any additional time for public review and comment, despite receiving over one million comments prior to the public comment deadline last autumn. EPA officials claim that changes will be made to the regulation to reflect comments, but without granting themselves and additional time to review the proposal before it would go into effect, there is increasing concern over what actions EPA may take.

EPA Sets Aside $1 million for Wetland Restoration and Protection

Swamp Stomp

Volume 15, Issue 9

In order to strengthen the ability of both states and tribes to better protect and restore wetlands, the U.S. Environmental Protection Agency will distribute $1 million in grants. The National Wetland Program Development Grants aim to provide interstate agencies, intertribal consortia, and non-profit organizations with funding so that they may both cultivate and refine already existing state, tribal, and local wetland programs.

Ken Kopocis, the Deputy Assistant Administrator for Water at EPA, stated, “Wetlands are part of the foundation of our nation’s water resources and are vital to the health of waterways and communities that are downstream. Wetlands feed downstream waters, trap floodwaters, recharge groundwater supplies, remove pollution, and provide fish and wildlife habitats. Wetlands are also economic drivers because of their key role in fishing, hunting, agriculture, and recreation.”

The EPA announced six proposals that are being awarded. All of the proposed projects must demonstrate how they will promote healthy communities and ecosystems, and must be linked to environmental results. The selected proposals are as follows:

  • Leveraging Hazard Mitigation Buyouts (acquisition of flood prone areas) to Protect and Restore Wetlands and Improve Watershed Health – This project will see the Environmental Law Institute and the University of North Carolina investigate and map hazard mitigation buyouts in three states in order to analyze any possible wetland habitat and flood mitigation benefits of acquired properties. The two institutions will then make recommendations that they think will assist wetland programs across the country enhance collaboration with hazard mitigation planners and emergency managers. They will also leverage hazard mitigation buyouts in order to restore, maintain, and connect acquired properties so that wetland and wildlife habitats are provided, and community resilience is improved.

 

  • Improving InLieu Fee Mitigation Practice Through Training – For this program, the Environmental Law Institute will design and host a conference and a series of webinars committed to focusing on the needs of state, tribal, and local governments that are seeking approval for, administering, or overseeing In-Lieu Fee compensatory wetland mitigation programs.

 

  • Creation of an Online Academy to Advance the Use of Living Shorelines – Restore America’s Estuaries and its partners will construct and operate a “Living Shoreline Academy” devoted to promoting the use of natural protection methods so that the degradation of fringing shorelines and fish habitats that surround our nation’s estuaries may be reduced.

 

  • Development of a Stewardship Calculator for Wetland Mitigation Banking – The Nature Conservancy and its partners will assemble a small group of national experts in order to establish a Wetland Stewardship Calculator, accompanying handbook, and web-based application. Such resources can be used by states, tribes, local governments, and land trusts to successfully enable long-term stewardship of wetland protection sites.

 

  • Creating New Access to High Quality Wetland Training for State and Tribal Wetland Program Field Professionals – The Association of State Wetland Managers and its partners will apply themselves to presenting state, tribal, and wetland professionals with training opportunities and resources. Doing such will increase the ability of these professionals to implement wetland programs. ASWM will gather a Working Group to identify both national and regional wetland training needs, as well as assisting in the development of the other products of this project.

 

  • Raising the Bar on Wetland Restoration Success Nationwide – This program will see the Association of State Wetlands Managers work on several interrelated projects. These projects include developing a national strategy for improving wetland restoration success, pursing strategies to improve permit applications, and a review of voluntary restoration projects. ASWM will also attempt to create a series of written and web-based resources on the best management approaches for wetland restoration.

 

For more information on the grants or these projects, please visit: http://water.epa.gov/type/wetlands/initiative_index.cfm

GOP Lawmakers Encourage EPA to Rethink Clean Water Rule

Swamp Stomp

Volume 15, Issue 8

The Republican controlled Congress is expected to place a significant dent in President Barack Obama’s environmental agenda this year, and plans to begin with the “Waters of the U.S.” rule proposed by the Environmental Protection Agency and the Army Corps of Engineers. On February 4, 2015, GOP lawmakers advised top environmental officials that they ought to abandon their proposal to define what is and is not considered a body of water by federal law.

The Republican majority that now controls both the House of Representatives and the Senate demonstrated its intent to derail the project in an unusual joint hearing between the Senate Environment and Public Works Committee and the House Transportation and Infrastructure Committee.

During the hearing, Republicans expressed indignation at what they referred to as a “power grab,” while Democrats retorted with claims that opposition to the rule is based upon a tower of misconceptions.

Democratic Senator Barbara Boxer of California asserted, “I’m confused because I think people are arguing against some mythical rule.” Then later when responding to the claim that the government was seeking to regulate tiny and inconsequential bodies of water, she claimed, “We don’t want to regulate a puddle. That’s ridiculous.”

The EPA and the Army Corps of Engineers first proposed the rule in order to simplify and clarify the meaning of the 1972 Clean Water Act. The Act covers rivers, lakes, and year-round wetlands, but there has been longstanding confusion over whether waterways such as streams that dry up for part of the year and wetlands that are only wet during springtime are included.

The rule is of the greatest importance to farmers, developers, and other landowners, because the Clean Water Act requires the use of permits for developing or discharging into waters included under the Act. As a result, farmers and officials in many states have vigorously opposed the rule ever since it was announced in 2014.

The EPA and the Army Corps of Engineers received over 1 million comments from the public about the proposal. This number reflects how widespread the issue has become, as well as the growing interest in the highly technical federal proposal.

Despite the opposition, both the EPA and the Army Corps of Engineers hope to finalize the rule this spring.

Congressional Republicans, however, plan to resist the establishment of such a rule. They have asserted that they will introduce new legislation to prevent the administration from finalizing the rule. If such legislation is passed, then a potential veto showdown with the president may materialize.

The Republican Representative Bill Shuster of Pennsylvania claimed, “If this rule goes into effect, it will open the door for the federal government to regulate just about any place where water collects—and in some cases regulate land-use activities.” The rule, he said, would be an “end run around Congress—another example of overreach by this administration.”

EPA Administrator Gina McCarthy has been extremely vocal in defending the rule, and was called upon during the hearing to do so again. She said, “The proposal was not an attempt to expand the federal government’s jurisdiction, but instead to merely clarify it. And the proposal is just that—a proposal; federal officials are reviewing all those comments that have come in and will respond to the widespread concerns that have been expressed.”

EPA and Army Corps of Engineers Withdraw Interpretive Waters of the U.S. Rule

Swamp Stomp

Volume 15, Issue 7

On January 29th, 2015, the EPA and Army Corps of Engineers announced a memorandum of understanding to withdraw the Interpretive Waters of the U.S. Rule. The “U.S. Environmental Protection Agency and U.S. Department of the Army Interpretive Rule Regarding the Applicability of Clean Water Act Section 404(f)(1)(A)” originally outlined which conservation activities provide farmers an exemption from Clean Water Act permitting.

In the “Cromnibus” funding legislation that was passed in December 2014, Congress requested that the EPA and Army Corps of Engineers officially withdraw the IR due to “over burdensome” regulations on farming and ranching. Congress concluded that the rule not only created uncertainty instead of clarity, but also threatened fines of up to $37,500 per day.

Some members of Congress spoke in opposition to the rule before the legislation was passed requesting that the rule be withdrawn. Last October, Republican members of the Senate Ag Committee advised that the IR would move the NRCS into an enforcement role instead of creating a trusted source for conservation assistance.

The senators claimed, “This unique relationship is built on voluntary conservation programs and a mutual commitment to protecting natural resources and keeping land in agriculture. Bringing USDA into the Clean Water Act permitting process would profoundly shift the nature of this successful approach by dismantling a longstanding partnership between the Federal government and agriculture community.”

The rule offered 56 “normal farming and ranching” exemptions under Natural Resources Conservation Service regulations. However, most farm groups opposed the rule. The opponents to the rule argued that using these practices as CWA exemptions would alter farmer-NRCS interaction and dispirit environment best practices.

Robert Bonnie, the Under Secretary for the Natural Resources and Environment at the USDA, however, claimed that any practices implemented by the rule would be voluntary, and are designed to assist farmers avoid the time and cost of permitting.

Bonnie’s claim was refuted by the Senior Director of Regulatory Relations at the American Farm Bureau Federation, Don Parrish. He said, “I heard Mr. Bonnie say that the only way to be in compliance with the Clean Water Act is if you do these 56 practices the way NRCS standards say you have to do them—and they are very prescriptive, they use a lot of ‘shalls’—if a farmer builds a fence that does not comply with NRCS’ standards, the cloud then is that he’s violated the Clean Water Act.”

On February 2, 2015, Jamie Jonker, vice president for sustainability and scientific affairs for the National Milk Producers Federation, stated, “Our concern with the initial proposal from last year is that it could have altered the longstanding and productive relationship between farmers and the USDA’s Natural Resources Conservation Service, in a way that would have made it harder for farmers to implement water conservation measures.”

The official IR withdrawal notice was put into effect on January 29, 2015. The Waters of the U.S. proposal, however, remains in consideration by the EPA and the Army Corps of Engineers. The final comment period on the full “Waters of the U.S.” proposal closed November 14, 2014.

The memorandum withdrawing the Interpretive Rule can be found here: http://www2.epa.gov/uswaters/memorandum-withdrawing-interpretive-rule

The Finalized Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence Report Released

Swamp Stomp

Volume 15, Issue 4

The Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence report serves as the scientific basis for the new Waters of the U.S. rules. Now final, the 408 page scientific report can be used to inform future policy and regulatory decisions, including the proposed Clean Water Rule being developed by EPA’s Office of Water and the U.S. Army Corps of Engineers.  The significance of this release is that this report was the final item that needed to be in place before the proposed Waters of the US rules (WoUS) could be implemented.  What remains is the final publication of the WoUS rules in the Federal Register.  This is expected soon.  Once that happens the new WoUS rules will be the “law of the land.”

According the EPA, the report summarizes “the current scientific understanding about the connectivity and mechanisms by which streams and wetlands, singly or in aggregate, affect the physical, chemical, and biological integrity of downstream waters.” More specifically, however, the report focuses on “shallow subsurface connections by which small or temporary streams, nontidal wetlands, and open waters affect larger waters such as rivers, lakes, reservoirs, and estuaries.” It is able to do so by addressing the following three questions pertaining to connectivity:

  • What are the physical, chemical, and biological connections to, and effects of, ephemeral, intermittent, and perennial stream on downstream waters?
  • What are the physical, chemical, and biological connections to, and effects of, riparian or floodplain wetlands and open waters on downstream waters?
  • What are the physical, chemical, and biological connections to, and the effects of, wetlands and open waters in non-floodplain settings on downstream waters?

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In order to answer these questions, the EPA reviewed over 1,200 peer-reviewed publications in scientific literature. Subsequently, the final report lists the following five major conclusions:

  • The scientific literature unequivocally demonstrates that streams, regardless of their size or frequency of flow, are connected to downstream waters and strongly influence their function.
  • The scientific literature clearly shows that wetlands and open waters in riparian areas (transitional areas between terrestrial and aquatic ecosystems) and floodplains are physically, chemically, and biologically integrated with rivers via functions that improve downstream water quality. These systems act as effective buffers to protect downstream waters from pollution and are essential components of river food webs.
  • There is ample evidence that many wetlands and open waters located outside of riparian areas and floodplains, even when lacking surface water connections, provide physical, chemical, and biological functions that could affect the integrity of downstream waters. Some potential benefits of these wetlands are due to their isolation rather than their connectivity.
  • Variations in the degree of connectivity are determined by the physical, chemical, and biological environment, and by human activities. These variations support a range of stream and wetland functions that affect the integrity and sustainability of downstream waters.
  • The literature strongly supports the conclusion that the incremental contributions of individual streams and wetlands are cumulative across entire watersheds, and their effects on downstream waters should be evaluated within the context of other streams and wetlands in that watershed.

A major sticking point regarding the definition of wetlands was brought up in the public comments to this report.  Namely, the use of the 1979, US Fish and Wildlife’s one parameter approach to identifying wetlands.  There were many who questioned the wisdom for using this method as opposed to the US Army Corps Federal 3 parameter definition.  The EPA has decided to stick with the 1979 definition and only requires the presence of soil, vegetation OR hydrology to define a wetland for the purposes of its study.  This report is enjoined in the proposed WoUS rules by reference and as such its recommendations carry forward into the new rules.  Consequently, one could extrapolate that a wetland need only meet one criteria to be deemed jurisdictional.  It remains to be seen if this will carry forward into the new rules.

This report is one of the last steps before the EPA and U.S. Army Corps of Engineers will implement new rules for the “waters of the U.S.” under the Clean Water Act. Now that the report has been finalized, we can expect to see the new rules published in their final form very soon.

The full report can be found on EPA’s website at: http://ofmpub.epa.gov/eims/eimscomm.getfile?p_download_id=521415

 

EPA Fights to Overturn Federal Sanction

Swamp Stomp

Volume 14, Issue 52

The Environmental Protection Agency (EPA) hopes the federal appeals court will overturn a court order that forces the agency into a decision regarding whether or not federal regulations are needed to curb the flow of pollutants into the Mississippi River. As it stands, the accumulation of pollutants entering the river creates a low-oxygen “dead zone” along the coast of Louisiana each spring.

A hearing was held on December 4, 2014 before the 5th Circuit Court of Appeals, whereby federal attorneys argued that setting priorities for water quality falls under the EPA’s responsibility, not that of the court.

In 2013 U.S. District Judge Jay Zainey ruled that the EPA needed to make a “necessary determination” on whether federal intervention was imperative to the prevention of pollutants running into the Mississippi.  A delay to the order was granted by the 5th Circuit, allowing time for the Agency to appeal the decision.

Zainey’s ruling came as good news to the several environmental groups that have accused the EPA of taking more than their fair share of time addressing the problem, such as The Gulf Restoration Network, a conservation group based in New Orleans, and the Natural Resources Defense Council. In 2008, the EPA was asked by these groups to draft new regulations that would reduce the flow of Nitrogen and Phosphorus running into the river from certain sources, including farms and sewage treatment plants. The request was denied.

The added amounts of Nitrogen and Phosphorus into the water stream acts as a stimulant to the algae that are present. Toxic algae blooms subsequently grow, sink to the ocean floor, decompose, and consume all the oxygen in the water. The infected area effectively becomes a “dead zone;” any fish, worms, clams, or other oxygen reliant organisms in the range suffocate and die.

According to estimates from the National Oceanic and Atmospheric Administration, the added nutrients entering the Mississippi River result in a gulf dead zone that in 2013 covered at least 5,800 square miles—roughly the size of Connecticut.

The EPA argued that states are responsible under the Clean Water Act for regulating water quality, so any regulation is outside their jurisdiction. However, the aforementioned environmental groups think federal intervention is necessary due to how states have handled the issue—or as it may be, not handled the issue.

Ann Alexander, an attorney with the Natural Resources Defense Council, claimed at the December hearing that if individual states fail to act, then federal law requires the EPA to take action. She added, “On this particular issue, it has been an entire decade of relentless avoidance of the problem.”

If the EPA’s appeal to overturn Zainey’s order fails, then they have 180 days to formally decide whether it will create regulations to limit nutrient pollution. The Agency may act in either the affirmative or the negative, however, it must provide both a clear legal and scientific explanation for their decision.

If a decision is not arrived at during that time, the EPA is responsible for providing both an explanation as to why no decision was able to be made, and a projected timeline as to when a decision can be made. In such an event, the Agency will seek clarification on what are acceptable reasons for being unable to produce a decision.

In the order, Zainey, who was appointed to the bench by President George W. Bush, asserted that the EPA’s decision does not have to be made solely on environmental factors, but can take into account any influential aspects.

The Panel of 5th Circuit Judges, which includes Judge Edith Brown Clement—appointed by President George W. Bush—Judge Patrick E. Higginbotham—appointed by President Ronald Reagan—and Judge Stephen A. Higginson—appointed by President Barack Obama—is expected to reach a decision in the coming months.