Tag: wous

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.

Similarly Situated Waters

Swamp Stomp

Volume 14, Issue 17

One of the major tenets of the new EPA waters of the US regulations is the concept of Bright Line Rules. Bright Line Rules are a clearly defined rule or standard, generally used in law, composed of objective factors which leave little or no room for varying interpretation. The purpose of a bright-line rule is to produce predictable and consistent results in its application.

Some legal scholars, such as Supreme Court Justice Antonin Scalia, have expressed a strong preference for bright-line rules, critics often argue that bright-line rules are overly-simplistic and can lead to harsh and unjust results. Supreme Court Justice Stephen Breyer noted that there are circumstances in which the application of bright-line rules would be inappropriate, stating that “no single set of legal rules can ever capture the ever changing complexity of human life.” Over the course of the last three decades, many bright-line rules previously established in U.S. jurisprudence have been replaced with balancing tests.

The concept of similarly situated waters is a bright line rule. The EPA is attempting to designate these waters based upon their occurrence in a specific ecoregion. There are two documents you need to look at to understand this idea. The first one is found on page 29 of the newly published proposed rules (EPA-HQ-OW-2011-0880) and Map A also published (EPA-HQ-OW-2011-0880-0002) and included in the Federal Register docket.

This is from the rules:

The agencies would consider the ‘‘other waters’’ in a single point of entry watershed in these identified ecoregions as similarly situated for purposes of aggregation for a significant nexus analysis. The agencies expect that this approach would lead to all similarly situated other waters within single point of entry watersheds within an ecoregion being found jurisdictional through case specific analysis of significant nexus. Alternately, the agencies could determine that the similarly situated waters within each ecoregion have a significant nexus and are jurisdictional by rule and therefore do not require a case-specific significant nexus analysis.

These ecoregions are defined as, “an ecoregion is an area within the United States that includes generally similar ecosystems and that has similar types, qualities, and quantities of environmental resources. (J.M. Omernik, ‘‘Perspectives on the Nature and Definition of Ecological Regions,’’ Environmental Management 34(Supplement 1):S27–S38 (2004)). Ecoregions cover relatively large areas of land or water, and contain characteristic, geographically distinct assemblages of natural communities and species. The biodiversity of flora, fauna and ecosystems that characterize an ecoregion tends to be distinct from that of other ecoregions.”

The EPA has identified vast areas of the US as similarly situated and has depicted them on the map below.

EPA-HQ-OW-2011-0880-0002

The significance of this mapping is that any wetland or water found within these ecoregions would be considered similarly situated and therefore jurisdictional by default. There would be no need for a significant nexus determination.

I think it is kind of funny that the Keystone XL pipeline R-O-W more or less corresponds to one of these Bright Line Rule areas. Coincidence?

Have a great week!

Marc