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Monday, September 1, 2014

Regulations expanded in CWA proposal

by Traci Eatherton, WLJ Managing Editor

The Republican chairman of the House Science Committee sent a scathing letter to the Environmental Protection Agency (EPA) last week, following the release of maps the he says reveal a plan by the agency to “control a huge amount of private property across the country.”

But the EPA claims the maps, released last Wednesday by House Science Committee Chairman Rep. Lamar Smith (R-TX) are simply the locations of U.S. water resources and not connected to any plan they have regarding “navigable” waters.

Late last year, a draft rule proposed by the EPA and the U.S. Army Corps of Engineer to change the Clean Water Act (CWA) by dramatically expanding the EPA’s regulatory authority to include water on private property, set the ag industry on a mission to “ditch the rule.”

EPA only has authority to regulate “navigable waters” under the CWA. The new regulations proposed by the EPA and the Army Corps of Engineers would expand the EPA’s regulatory authority by claiming that “navigable waters” includes solitary ponds on private property and even what the EPA’s own proposal refers to as “ditches.”

After multiple requests, the House Committee on Science, Space, and Technology released the maps of waters and wetlands that the EPA had yet to make public. According to Smith, the maps appear to detail the extent of the “Waters of the United States” (WOTUS) proposal that would change CWA.

“Given the astonishing picture they paint, I understand the EPA’s desire to minimize the importance of these maps,” said Smith in a letter to EPA Administrator Gina McCarthy. “But EPA’s posturing cannot explain away the alarming content of these documents. While you claim that EPA has not yet used these maps to regulate Americans, you provided no explanation for why the agency used taxpayer resources to have these materials created.”

According to Smith, the maps were created in 2013, shortly after the agency proposed its contentious rule. Knowledge of the maps came as the committee was doing research in preparation for a hearing on WOTUS. The maps were kept hidden while the agencies marched forward with rulemaking that fundamentally redefines private property rights, said Smith.

In a letter to Smith, EPA Administrator Nancy Stoner downplayed the maps.

“I wish to be clear that EPA is not aware of maps prepared by any agency, including the EPA, of waters that are currently jurisdictional under the CWA or that would be jurisdictional under the proposed rule,” Stoner wrote.

In addition to the debate surrounding the maps, the contradictions and concerns have ag groups searching for the transparency EPA claims to have.

“It is deplorable that EPA, which claims to be providing transparency in rulemakings, would intentionally keep from the American public, a taxpayer-funded visual representation of the reach of their proposed rule,” said Ashley McDonald, National Cattlemen’s Beef Association (NCBA) Environmental Counsel. “Unfortunately, it is just another blatant contradiction to the claims of transparency this administration insists they maintain.”

These maps are very similar to the maps produced by NCBA and other agricultural groups, which also showcase the EPA’s extensive attempt to control land across the country. These maps show individual states facing upwards of 100,000 additional stream miles that could be regulated under the proposed regulation.

“This is the smoking gun for agriculture,” said Mc- Donald. “These maps show that EPA knew exactly what they were doing and knew exactly how expansive their proposal was before they published it.”

Texas Attorney General Greg Abbott said the EPA’s Clean Water Act authority extends to stock tanks, small ponds and even dry ditches.

“The EPA has no authority to regulate dry ditches and stock tanks on private property—but that is exactly what the Obama administration is trying to achieve under new rules proposed by the EPA and the Corps of Engineers. First, the EPA has attempted to regulate ‘emissions’ from schools, churches and apartment buildings, and now they are claiming they can micromanage dry ditches on private property,” Abbott said.

Abbott submitted comments to the EPA and the Corps of Engineers opposing the proposed regulations and explaining that the EPA is attempting to regulate private property that clearly falls outside the agency’s jurisdiction. Read Texas Attorney General Abbott’s letter to the EPA at http://tinyurl.com/abbottletter.

American Farm Bureau’s (AFB) Senior Director of Regulatory Relations, Don Parrish, said AFB is working on its own set of interactive maps, expected to be available after Labor Day, which will allow farmers in 15 states to see how their farms could potentially be affected by EPA’s proposed rule.

“Farm Bureau is working to have maps available so that farmers can have an interactive opportunity to drill down in these 15 states and maybe even find their farms, and to see the extent the U.S. Geological Survey has information with regard to everything from permanent streams to streams that may only flow as a result of a rainfall event,” Parish said.

“But one of the things I want members as they go onto these websites to take a look at these maps to remember: those maps, as extensive as they are, are not going to be representative of the regulatory footprint the EPA is proposing.

I think by as much as a 70 percent increase, those maps could be significantly larger because EPA is proposing an extremely broad regulatory footprint,” Parish added.

But the rule, 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 wrote following the release of the rule.

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.

Last 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.

EPA’s overreach continues to be a hot topic at summer conventions and meetings across the states, and the release of the maps added another piece.

“Whatever the map says today, it is probably not going to get smaller. And if it changes, it is likely to get larger,” Iowa Congressman Steve King told reporters at the Farm Progress Show.

To submit comments to the EPA to “Ditch the Rule” simply go to http://tinyurl.com/wotus-comments, fill in your contact information and click submit to pull up prepopulated comments that can be personalized with your thoughts or sent as is. — Traci Eatherton, WLJ Editor

 
 


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