Proposed EPA regulation changes cause for concern

Nov 29, 2013

A set of changes to the rules encompassed by the Clean Water Act (CWA) recently proposed by the U.S. Environmental Protection Agency (EPA) have caused significant concern among cattlemen’s organizations and western legislators, who fear an increasing encroachment of federal regulations into private property interests.

The agency is seeking to broaden the definition of “waters of the United States” and “navigable waters,” the terms used to describe waters over which it has jurisdictional control. The EPA maintains that the changes are necessary to clarify existing uncertainties in the law.

“Over the past decade, Supreme Court rulings have caused confusion about which streams and wetlands are protected from pollution and development under the Clean Water Act. As a result, members of Congress, state and local officials, industry, agriculture, environmental groups, and the public asked EPA and the Army Corps of Engineers to clarify jurisdiction of the Clean Water Act,” said EPA Deputy Administrator for Water Nancy Stoner.

“In response, we’ve developed a draft rule that takes into account the more narrow reading of the Clean Water Act jurisdiction established by the Supreme Court. This means that EPA’s jurisdiction will only include the protection of the same waters that have historically been covered under the Clean Water Act for the past 40 years. In fact, it will be a smaller set of waters than before the Supreme Court decision.”

Despite this assurance, critics of the rule argue that the proposed changes will drastically alter and expand the jurisdiction of the agency, and allow them unchecked control to dictate land use on private property.

Currently under review by the federal office of Management and Budget, the proposed rule is based upon a recently-released EPA report, entitled “Connectivity of Streams and Wetlands to Downstream Waters.” While public comment for the report has closed, the report is still under review by the EPA’s own science advisory board. Nevertheless, EPA is proceeding with the proposed rule change.

The rule, if enacted, claims EPA jurisdiction over all tributaries to the designated navigable waters and streams already covered under CWA protections. Additionally, all waters and wetlands within floodplains would fall under EPA jurisdiction, as would all waters that have a “significant nexus” to currently covered waters.

According to Tamara Thies, spokesperson on behalf of the National Cattlemen’s Beef Association, the proposed rule represents a gross overreach on behalf of the EPA. “This truly is a shocking expansion of federal jurisdiction over waters,” she says. “It is EPA’s attempt to control land use across the country.” While each of the changes proposed would expand the ability of the EPA to regulate water on private property, Thies indicates that the use of the term “significant nexus” is perhaps the most concerning. The term refers to waters that have a significant physical, chemical, or biological effect on a downstream navigable waterway. The term is most directly linked with a Supreme Court decision rendered in 2006, Rapanos v. United States.

The case, which began in the late 1980s, concerned a developer who was cited by the EPA for filling in a wetland on his property. He disagreed, arguing that EPA had no jurisdiction over wetlands not directly linked to navigable waters. Ultimately, the case reached the Supreme Court, which ruled 5 to 4 that isolated wetlands were not governed by the EPA. The majority, however, was split on one major point. Four of the five prevailing justices ruled that a wetland could fall under federal jurisdiction only if a continuous surface water connection existed between the wetland and navigable waters. In a concurrent opinion, however, Justice Anthony Kennedy held that a wetland could be considered under EPA jurisdiction if it bears a significant nexus to a navigable waterway. “Such a nexus exists,” he wrote, “where the wetland or water body, either alone or in combination with similarly situated lands in the area, significantly affect the physical, biological, or chemical integrity of the downstream navigable waterway.”

The rule proposed by the EPA, points out Thies, embraces this opinion, and uses the Connectivity report as a basis to claim a significant nexus exists on nearly any tributary to navigable waters. “What they really want to do is have jurisdiction over every tributary in the country,” she explains. “What they are saying is that even these little waters have a significant nexus to traditionally navigable waters, if you aggregate them.

They want to aggregate all of these little waters, and call it a significant nexus to larger waters. That would expand their jurisdiction to all these small waters that have never been considered navigable in the past.”

Additionally, says Thies, tributaries, as the EPA seeks to define them, will include most, if not all, irrigation ditches nationwide.

EPA has disagreed on this point, stating that exemptions exist for agricultural uses. However, in the preamble of the proposed rule, EPA has clearly stated that, in order for such exemptions to apply, the ditch in question must be constructed wholly in upland areas, drain only non-jurisdictional areas, and not contribute to a body of water that falls under EPA jurisdiction. Very few irrigation ditches, counters Thies, meet this criteria. While it does not expressly address ditches, the statement released by Stoner and the EPA does speak to expanded jurisdiction over tributary waters. “About 60 percent of stream miles in the U.S only flow seasonally or after rain, but have a huge impact on the downstream waters,” wrote Stoner. “Approximately 117 million people—one in three Americans—get drinking water from public systems that rely on these streams. These are the important waterways for which EPA is working to clarify protection.”

In addition to NCBA, nearly 30 members of the Senate and the House of Representatives have spoken out against the proposed rule. In a letter to the EPA written by the Western caucuses of both the House and Senate, legislators accuse the agency of trying to circumvent congress, pointing to the rejection of a bill in 2009 to remove the term “navigable waters” from the CWA. The rule change, they contend, is merely an attempt by the EPA to achieve the same goal via a different route, and against congressional intent. “We ask that you work with Congress to address these issues, keeping in mind the need to provide clean water for our environment and communities while also acknowledging the important role states play as a partner in achieving these goals,” stated the letter. “We also ask that you consider the economic impacts of your policies, knowing that your actions will have serious impacts on struggling families, seniors, low income households, and small business owners.”

The rule, if enacted, will likely be appealed, and the decision returned to the Supreme Court. While that process is underway, however, the effects of the rule could have serious consequences to farmers and ranchers nationwide. “If this goes forward, farmers and ranchers will not be able to do anything on their land without a permit,” says Thies. “It goes beyond wetlands and claims all wet areas. If there is a wet area on the ground, EPA wants jurisdiction over it.” — Jason Campbell, WLJ Correspondent