December 2013 Articles

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Clean Water Act

Clean Water Act Source: www.fbactinsider.org Issue Background
The Success of the Clean Water Act (CWA) over the last 40 years is largely due to the partnership the Act established between the federal government and the states, a partnership that limits federal regulatory power to “navigable waters” rather than all waters. This limitation also provides states with the primary authority to determine water quality goals and implementation measures for achieving those goals. Importantly, the CWA reserves regulation of “nonpoint” sources – such as agriculture – to the states. This system of cooperative federalism allows states to weigh the costs and benefits of land use and economic growth decisions and environmental concerns, and establish policy that effectively balances these sometimes competing priorities.
EPA is now attempting to do by regulation what was not authorized by Congressional legislation. In 2011, EPA sought public comments on a controversial regulatory “Guidance” document. This proposed regulation will include the controversial language expanding EPA’s regulation to all waters expanding EPA’s authority to regulate any or all waters found within a state – no matter how small, dry or seemingly unconnected to any federal interest.
EPA’s draft report falls far short on science
Source www.fbactinsider.org
Nov. 18, 2013—A draft report EPA is using to set the stage to expand its regulatory reach and erase the word “navigable” from the Clean Water Act provides no scientific support to make distinctions between significant and insignificant connections of streams and wetlands to downstream water, the American Farm Bureau Federation and 35 other organizations said in comments recently submitted to the agency.
“Merely because a connection can be identified does not mean it is significant to downstream water quality or ecosystem health,” wrote the groups, which identified themselves as the Waters Advocacy Coalition.
The report, Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence, also lacks the identification of any method, formula or standard for determining if a connection significantly influences the integrity of downstream waters.
“Without providing such metrics to define whether connections are significant, the synthesis report provides no scientific basis to conclude which connections are significant and which are non-significant, and thereby provides no scientific basis for a rulemaking,” the groups said.
Further, the report makes sweeping assertions that all connections are equal, regardless of the kind, size, or frequency. It does not “account for site specificity, regional variability or temporal variability” or address whether these factors of variability have any relevance on the effect of the connection on the integrity of downstream waters.
“Perhaps most importantly, the synthesis report totally fails to explain which types of connections or how many connections of what frequency, magnitude, and duration are needed to significantly affect the flow, ecology and water quality of downstream waters,” the groups said.
The groups noted that previous Supreme Court rulings have clarified that to regulate additional water bodies, EPA must show a significant hydrologic connection to navigable waters.
“The U.S. Supreme Court has examined the meaning of the scope of ‘navigable waters’ under the CWA three times,” the groups said.
The coalition also took issue with EPA’s approach to the rulemaking, saying that the agency should have held off on sending its proposed rule to the Office of Management and Budget until after the agency’s Scientific Advisory Board had reviewed the report on which the rule relies.
“Sending a proposed rule to OMB for interagency review before the SAB completes its peer review of the synthesis report demonstrates that the agencies are not properly taking the science into account and that the outcomes have been pre-determined. Any proper rulemaking should begin with an agency collecting, developing, and then appropriately evaluating the relevant science,” the groups wrote.
In the same vein, EPA should provide the SAB with the proposed rule to help the panelists understand the implications of the report.
If EPA succeeds in gaining authority over every drop of water and the land it settles on, environmental activists will no doubt seize the opportunity to target litigation at farmers and ranchers or the agency to force the regulation of farmland and ranchland, according to Don Parrish, AFBF water quality specialist.
Also, there’s a good chance that many things farmers and ranchers currently do on the landscape will start to look like point-source activities from a legal and regulatory perspective. Farmers and ranchers will have to brace for citizen litigation that will demand new permits for activities like spreading manure or applying crop protection chemicals.
“At $30,000 to well over $100,000 for some permits, these requirements sometimes force growers to avoid farming otherwise productive acreage just so they don’t trigger federal permit and extremely costly mitigation requirements,” according to Parrish. “But in most parts of the country, it would be just about impossible to farm around every wet spot that EPA wants to regulate.”
Farmers and ranchers aren’t the only ones concerned about the draft report and the agency’s effort to greatly expand federal Clean Water Act jurisdiction. Last week, Sen. David Vitter (R-La.) and Reps. Bob Goodlatte (R-Va.) and Spencer Bachus (R-Ala.) urged OMB to send back to EPA the agency’s draft CWA rule until the connectivity report has been fully reviewed and is given legitimate time for public input and scrutiny.
“Given that EPA has already decided the final ‘waters of the United States’ rule will be based on the Connectivity Report, one would think the report’s validity and scientific merit are foregone conclusions. In reality, however, EPA has committed to relying on a report whose legitimacy is far from certain. For one, the report is still in draft form and was only recently disseminated to the public for review and input,” the lawmakers wrote in a letter.