Tag: EPA

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 In–Lieu 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.

EPA Public Comments Close on 11/14/14

Swamp Stomp

Volume 14, Issue 45

Pubic comments on the proposed “Waters of the US” regulations close on November 14, 2014.  That is if they do not extend them once again.  I very much encourage you to submit your comments before then.  Many of our readers already have done so as evidenced by the over 250,000 comments submitted to date.

You can submit your comments online by going to:  http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OW-2011-0880-0001

If you do comment, I would encourage you to post your comment tracking number in the comments section of this post.  My comment comment tracking number is 1jy-8fd2-fndk.  I have posted my full comment below.

My main concern is not that the definition needs to be revamped.  Rather, it is more focused on the way it is being done.  I am very concerned that the vast majority of water resource and wetland professionals have been left out of this discussion.  The regulations have been drafted by a very select group of mostly academics including at least one foreign national from Canada.  There are virtually no professionals involved.

I do not believe that this new definition is a matter of the “right thing to do.”  It is more a matter of is it the legal thing to do.  Does the President have the right to act alone and promulgate a regulation that expands the  reach of government into private landownership?  I believe that is a matter for our representative and elected officials in Congress to take up.

What do you think?

– Marc

Environmental Protection Agency

Water Docket

Mail Code 2822T

1200 Pennsylvania Avenue, NW

Washington, DC 20460

Re: Comments on the U.S. Environmental Protection Agency’s and U.S. Army Corps of

Engineers’ Proposed Rule to Define “Waters of the United States” Under the Clean

Water Act,

Docket ID No. EPA-HW-OW-2011-0880

To whom it may concern:

I would like to offer my comments on the proposed “Waters of the US” (2011-EPA-OW-0880) as advertised the Federal Register on April 21, 2014.

My chief comment relates to the overall stated premise of these new rules. The proposed rules are concerned with the perceived issue that the existing rules do not adequately represent the intent of Congress (ergo the people) when they passed the Clean Water Act in 1972. Currently, it is the Agencies’ stated belief that the intent of Congress was to claim jurisdictional authority over nearly every body of water in the United States including wetlands and non-wetlands.

In 2001 The Supreme Court ruled in Solid Waste Agency of Northern Cook County v. Army Corps of Engineers (SWANCC) that Congress did not have unlimited authority to regulate all bodies of water. This was emphasized on isolated wetlands associated with the SWANCC site. These wetland areas lacked the required commerce connection to downstream waters. The Clean Water Act is limited in jurisdiction to only those waters that have a potential to affect interstate or international commerce. Article 1, Section 8 of the US Constitution limits the role of the Federal government in this matter to only those areas that could affect commerce.

The proposed rules seem to ignore the SWANCC ruling of the Supreme Court. In fact, it is the stated intention of this rule to reverse the Courts decision.

Under the Constitution, it is the role of the executive branch to administer the laws that are passed by Congress. It is acknowledged that many aspects of the Clean Water Act are purposely left to the discretion of the executive branch to interpret these laws by promulgating regulations such as this proposed rule. However, the Executive branch does not have the authority to expand the regulations beyond what the laws allows. Similarly, it is the role of the Judicial Branch to reign in Congress and the President should they pass a law that is beyond what the Constitution allows as was done with the SWANCC case.

The White House Office of Management and Budget (OMB) report referenced in the proposed rule states that there is a minimal expansion of Federal jurisdiction over what is currently called “Waters of the US”. The report estimates that the expansion is only about 3%. While this may seem small on a relative scale it represents a land area roughly the size of the State of Arizona. This is in fact a rather large expansion of the Federal Governments reach into private land ownership. I am very concerned with the concept that the Executive Branch can expand the Federal Governments land holdings without the consent of the other two branches of government and the people.

Much of the proposed rule is based upon a misinterpretation of Supreme Court Justice Kennedy’s lone opinion in the 2006 John A. Rapanos, et ux., et al., Petitioners v. United States; June Carabell, et al., Petitioners v. United States Army Corps of Engineers, et al. case. The concept of significant nexus is central to his opinion. However the proposed rule offers no further insight into what constitutes “significant.”

The proposed rule does by way of reference to the EPA Science Advisory Board (SAB) Connectivity Report delve into the concept of “nexus.” The SAB report ostensibly argues that all bodies of water are connected to all other bodies of water. At a very fundamental level this is true. However, the SAB report does not address the concept of which of these connections or nexus are “significant” as described by Justice Kennedy. If it is assume that all waters are connected and that there is no procedure to distinguish these connections as significant, then are we to assume that all connected water bodies are considered ““Waters of the US?”

It is clear in the opinions of the Supreme Court Justices that there is a difference between jurisdictional and non-jurisdictional waters. What is not clear, and in fact these proposed regulations make it much less clear, what exactly is a ““Waters of the US.”

Furthermore, I draw your attention to the 199 additional documents posted to the Regulation.gov docket folder in the last two weeks. They in fact have not been posted and the public is greeted with this 12 page notice:

Additional Supporting Materials for Docket EPA-HQ-OW-2011-0880

EPA will be adding the following documents to the docket. Copyrighted material is publicly available only in hard copy. Publicly available docket materials are available electronically at http://www.regulations.gov or in hard copy at the Water Docket, EPA Docket Center, EPA West, Room 3334, 1301 Constitution Avenue, NW, Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is 202–566–1744, and the telephone number for the Water Docket is 202–566–2426.

To what purpose do these documents serve? Why at this juncture are the Agencies concerned with copyright issues? It does beg the question of whether these copyright issue were addressed in the SAB report. Perhaps this should be disclosed.

How does this serve the public trust when the vast majority of these documents are only available by taking a trip to Washington, D.C. If the agencies feel that these documents are necessary to support their case for further regulations, then they should resolve the stated copyright concerns and publish them on the website in their entirety.   Otherwise these 199 documents should be removed from the docket.

I disagree that there is a regulatory need to update the definition of what is a waters of the United States. What is needed and was voiced by Justice Alito in the Sackett v. Environmental Protection Agency case is for Congress to more narrowly define what is meant by a “Waters of the US” by amending the Clean Water Act.   This would afford the public through its elected representatives in Congress to express its concerns and support for what should be regulated as a “Waters of the US” and what should not. This current proposed regulation dictates to the public what is and is not jurisdictional without the consent of the governed. With over a quarter- million public comments already submitted, it is clear that this is a matter for the people to decide, not a single branch of the government.

Thank you for your consideration.

Sincerely,

Marc Seelinger, PWS

EPA Wants Water Professionals to Support New Wetland Rules

The Swamp Stomp

Volume 14, Issue 42

Speaking at the Water Environment Federation Technical Exhibition and Conference at the Ernest N. Morial Convention Center in New Orleans, Gina McCarthy, Environmental Protection Agency (EPA) Administrator, requested that wastewater professionals begin to back the agencies proposed Waters of the U.S. rule. The controversial rule attempts to redefine which bodies of water fall under the Clean Water Act, and, subsequently, the EPA’s jurisdiction.  If the rule is passed then wetlands, streams, and various watersheds would become subject to federal regulations.

McCarthy, however, holds the opinion that in order to maintain safe water supplies in the U.S., then new regulations of wetlands and runoff entering streams and rivers are necessary. Therefore, in an attempt to establish supporting evidence, she requested that water professionals back the rule. She said, “As water managers, as regulators, as technicians, help us explain what this rule is and isn’t.”

McCarthy then cited the August shutdown of the water supply in Toledo, Ohio, as proof for why new regulations ought to be implemented. The shutdown occurred due to a toxic algae bloom—created by added nutrients running into the city’s water supply—infecting Lake Erie. Subsequently, the water was forced to be shut down for two days.

Such an event, McCarthy said, “is what one would call a wake-up call.” She continued, “It’s 2014, folks, 2014, in the most prosperous nation on earth. Yet for two full days, thousands of families couldn’t access life’s most basic necessity.”

Furthermore, McCarthy approached the issue from an economic standpoint. Since the implementation of the Clean Water Act in 1972, the nation’s economy tripled, which, she claims, “goes to show that having environmental protection does not stifle economic growth.” Correlation, however, does not prove causation, so the implication that EPA regulations provide a positive effect of the nation’s economy remains unsubstantiated.

If the Waters of the U.S. rule is passed, then 60 percent of the nation’s streams and wetlands will be subject to the Clean Water Act. McCarthy believes that this will make it easier to maintain healthy water supplies for drinking water. She said, “These streams and wetlands filter pollution, they reduce runoff, they recharge our groundwater supplies. How critical is that in areas of continued or historic droughts?”

“And we know our iconic water bodies like Boston Harbor, like the Chesapeake Bay, like the Great Lakes as a whole, like the Mississippi, like the Missouri, they rely on clean streams and they rely on wetlands to feed into those water supplies, in order to maintain them as viable opportunities for clean drinking water,” she continued.

Climate change, according to McCarthy, also plays a significant role in water quality. She said that the warmer temperatures on Lake Erie this year—possibly resulting from global warming—exacerbated the toxic algae bloom.

Due to the sea levels possibly rising because of global warming, she said, “If we don’t act by 2050, more than $100 billion worth of coastal property could be submerged.” She continued, “But we don’t need to wait until 2050, folks, we know it’s happening today. We’ve already heard about the drought in California that’s historic, that is challenging that great state to find a way to protect their economic growth opportunities, and frankly, to find a way to continue to have their faucets continue to have clean water when they turn them on.”

As the debate over the Waters of the U.S. rule continues, the EPA is reaching for more controversial topics—such as global warming—to justify their claims, depending on economic correlation rather than economic causation to demonstrate economic benefits, and is pleading that wastewater professionals begin to back their proposal.

EPA’s Proposal to Define its Jurisdiction over Bodies of Water

Swamp Stomp

Volume 14, Issue 39

EPA’s Proposal to Define its Jurisdiction over Bodies of Water

In March, the Environmental Protection Agency (EPA) proposed that a rule be implemented to establish more clearly which bodies of water—for example, wetlands and streams—actually fall under the Clean Water Act, and, subsequently, under their own authority. The proposal became a controversial topic that forced Gina McCarthy, the EPA Administer, to claim that the rule does not significantly expand the EPA’s current authority to those bodies of water that lay outside of the agency’s jurisdiction.

Such a statement only added to the debate, however. Republicans argue that the rule grants the EPA too broad a reign, and that inconsequential bodies of water will become subject to federal regulation. Pennsylvania Representative Lou Barletta asserted, “I have heard from many of my constituents that this rule would force them to prove that large mud puddles and ditches on their property are not federally regulated waters…sometimes, a mud puddle is just a mud puddle.” Perhaps the regulation of inconsequential bodies of water is exactly what McCarthy meant to allude to when she said that the new rule would not “significantly” expand the EPA’s authority.

Democrats, however, appear somewhat split on the issue. The larger percentage of Democrats dismiss the Republican concern as excessive use of hyperbole. Oregon Representative Peter DeFazio, the top Democrat on the House Natural Resource Committee, claimed that if such concerns were taken seriously, then not only have we “departed from reality,” but have also returned to “the earlier era of the 2003 and 2008 guidance.” Other Democrats, however, such as West Virginia Representative Nick Rahall—the top Democrat on the House Transportation Committee—agreed with the Republicans that such a rule may result in federal overreach. He stated, “The only certainty that these regulations provide is the sure knowledge that under them, anyone undertaking any activity so much as a ditch in the United States will have to deal with the bureaucracy known as the EPA.”

This debate remains far from over, however. In early September, the House passed legislation that would prevent the EPA from implementing their proposed rule with a vote of 262 to 152. The bill would block the EPA from using their proposal in any way regarding the Clean Water Act.

Obama’s administration, however, “strongly opposes” the bill, and will advise that President Obama veto’s the bill if it reaches his desk. The Obama administration is allegedly only interested in protecting the waterways from pollution. They claimed that “clarifying the scope of the Clean Water Act helps to protect clean water, safeguard public health, and strengthen the economy.” They continued by asserting that the bill not only “would derail current efforts to clarify the scope of the Clean Water Act, hamstring future regulatory efforts, and create significant ambiguity regarding existing regulations and guidance,” but would also “sow more confusion and invite more conflict at a time when our communities and businesses need clarity and certainty around clean water regulation.”

This debate is set to continue, and with the threat of a presidential veto looming overhead, it may prove to be a significant issue in upcoming elections.