EPA's draft water rule called private property power grab

Nov 15, 2013

A recent draft rule proposed by the Enviromental Protection Agency (EPA) and the U.S. Army Corps of Engineers relating to the Clean Water Act has the cattle industry buzzing with concern, wondering what the agency has in its regulation coffers this time.

“The EPA’s draft water rule is a massive power grab of private property across the U.S. This could be the largest expansion of EPA regulatory authority ever. If the draft rule is approved, it would allow the EPA to regulate virtually every body of water in the United States, including private and public lakes, ponds and streams,” said Rep. Lamar Smith (R-TX).

But the draft, according to EPA, was written to clarify the jurisdiction of the Clean Water Act.

“The proposed rule will provide greater consistency, certainty and predictability nationwide by providing clarity in determining where the Clean Water Act applies,” EPA writes.

According to the agencies press release, the request for the clarification came from Congress, state and local officials, agriculture, environmental groups, and the public.

“These improvements are necessary to reduce costs and minimize delays in the permit process and protect waters that are vital to public health, the environment and economy. The process for making these improvements will be transparent, based on the best available science, consistent with the law, and include the opportunity for public input,” it claims.

Smith and Rep. Chris Stewart (R-UT) sent a letter to EPA Administrator Gina McCarthy expressing concern over the proposed rule, which they say would give the agency “unprecedented control over private property across the nation.”

Smith and Stewart believe the agency is engaging in a “rushed, politicized regulatory process” and called for the EPA’s independent science advisory board to review the science behind the proposal.

“In light of the significant implications this action would have on the economy, property rights and state sovereignty, this process must be given more thought and deliberation to allow for important, statutorily-required weighing of the scientific and technical underpinnings of the proposed regulatory changes,” the lawmakers wrote.

In September, the agency released a report from its science advisory board analyzing the relationships between smaller, isolated bodies of water and larger ones, and, according to the release, the draft rule is based off of it.

“This report, when finalized, will provide a scientific basis needed to clarify Clean Water Act jurisdiction including a description of the factors that influence connectivity and the mechanisms by which connected waters affect downstream waters. Any final regulatory action related to the jurisdiction of the Clean Water Act in a rulemaking will be based on the final version of this scientific assessment, which will reflect EPA’s consideration of all comments received from the public and the independent peer review,” EPA writes.

According to EPA, the proposed rule is limited to clarifying current uncertainty, in part because of recent Supreme Court decisions.

“EPA and the Corps are focusing on clarifying protection of the network of smaller waters that feed into larger ones, to keep downstream water safe from upstream pollutants. The agencies are also clarifying protection for wetlands that filter and trap pollution, store water, and help keep communities safe from floods. These improvements will additionally result in important economic benefits for the nation’s businesses, agriculture, energy producers, and others who depend on abundant and reliable sources of clean water.”

One recent case ruled in favor of Clean Water Act exemptions.

In October, Judge John Bailey in the U.S. District Court for the Northern District of West Virginia found that discharges from Lois Alt’s farm in Old Fields, WV, were covered by a Clean Water Act exemption for agricultural stormwater.

“Common sense and plain English lead to the inescapable conclusion that Ms. Alt’s poultry operation is ‘agricultural’ in nature,” Bailey wrote, “and that the precipitation-caused runoff from her farmyard is ‘stormwater.’” The outcome of the closely watched case left concentrated animal feeding operations (CAFOs) relieved and environmental groups frustrated.

EPA had claimed that the stormwater exemption did not apply to the Alt CAFO. The exemption, EPA argued, applied only to areas where manure, litter or process wastewater has specifically been applied in accordance with nutrient management practices; not to areas where they may have inadvertently accumulated during livestock operations.

According to EPA, all runoff from wastes generated in CAFO production areas require a permit. While EPA moved to dismiss the case at one point, the judge moved it forward to address the agencies’ oversight of CAFOs.

While the outcome was praised by ag groups, it may be one of the catalysts for EPA’s clarification plan.

“The outcome of this case will benefit thousands of livestock and poultry farmers who run their operations responsibly and who should not have to get a federal permit for ordinary rainwater from their farmyards,” Farm Bureau President Bob Stallman said, following the outcome.

In a statement, EPA said we “are reviewing the court’s decision.”

Despite concerns, EPA claims that the newly proposed rule does not change existing exemptions and exclusions that apply to agriculture.

“In fact, the proposed rule will enhance the ability of the Clean Water Act and USDA’s conservation programs to work in tandem to protect water quality and improve the environment by encouraging expanded participation in conservation programs by farmers and ranchers. It will do so by providing greater clarity on which waters are not subject to Clean Water Act jurisdiction and greater certainty on which activities do not require Clean Water Act permits,” the agency writes.

But agriculture supporters remain skeptical.

“This could be the largest expansion of EPA regulatory authority ever,” Smith said. “If the draft rule is approved, it would allow the EPA to regulate virtually every body of water in the United States, including private and public lakes, ponds and streams.”

“The EPA is rushing the approval process without thorough peer review of the supporting data. The proposed rule relies heavily on a draft report that has not yet been peer-reviewed or completed. Instead, the EPA submitted the proposed rule to the White House for approval on the same day that it provided the draft scientific assessment to its science advisory board for peer review.

This is a clear attempt to fast-track the approval process without independent review,” he added. — Traci Eatherton, WLJ Editor