by Todd Neeley, DTN Staff Reporter
OMAHA (DTN) — The EPA sent a final Clean Water Act guidance document to the Office of Management and Budget last week, and an official with the American Farm Bureau Federation said there is concern it will allow EPA and the U.S. Army Corps of Engineers to expand the definition of waters of the U.S. under the jurisdiction of Environmental Protection Agency.
In May 2011 EPA issued draft guidance for identifying waters protected by the Clean Water Act to include ditches and other ephemeral features that may flow after rain events — something the agency said it wouldn’t do following a U.S. Supreme Court ruling in 2008.
Don Parrish, senior director of regulatory relations with the AFBF said it would be the first time EPA has included ditches and other upland drainage features, subjecting farmers to an increasing threat of CWA violations.
“We’re really concerned,” he said. “If you look at existing regulation, this expands the program significantly more than that. If there is water when it rains, they’re going to regulate that. If you look at the landscape, the Clean Water Act is used for federal land use.”
Parrish said the U.S. Supreme Court set a precedent that defines “navigable waters” as waters traditionally used in interstate commerce.
“We see this as breathtaking in what” EPA is doing, he said.
“In 1972 Congress said there was a limit to federal jurisdiction of waters. These guys are trying to erase that with the guidance document, whether it’s a land grab or a water grab. I believe it’s both. Every component of the Clean Water Act will apply to this. EPA is using the Clean Water Act as a surrogate to land use.”
DTN attempts to reach EPA for comment were unsuccessful.
RAPPANOS CASE
In 2008 the Supreme Court ruled in Rappanos v. the United States that EPA’s regulatory authority should extend only to “relatively permanent, standing or continuously flowing bodies of water” connected to traditional navigable waters, and to “wetlands with a continuous surface connection to” such relatively permanent waters.
EPA issued a memo following that ruling outlining how the agency would respond, (PDF) http://1.usa.gov/….
The only waters EPA said it would not exert jurisdiction over were swales or erosion features and ditches — include roadside ditches — “excavated wholly in and draining only uplands and that do not carry a relatively permanent flow of water.”
When EPA announced the proposed guidance document in 2011, it maintained that agriculture would keep existing exemptions from the Clean Water Act.
Those include agricultural storm water discharges and return flows from irrigated agriculture; ongoing agricultural, silvicultural and ranching activities; activities related to construction and maintenance of irrigation ditches, and maintenance of drainage ditches; and activities associated with construction or maintenance of farm, forest and temporary mining roads.
WATER COALITION CONCERNS
Parrish said there is concern about the guidance because it would allow the agencies to regulate all linear features that contain standing water regardless of the frequency or duration of flow.
In a memo sent to members of Congress, the Water Advocacy Coalition, which includes more than 30 agriculture industry organizations, state departments of agriculture, petroleum and business interests including AFBF, said the guidance document would hurt the nation’s economy.
“Expanding the federal regulatory footprint of the entire CWA in this manner will blur the distinction between regulating water and land use, erect significant barriers to economic activity, and have significant economic implications across the nation’s entire economy,” WAC said in the memo.
To illustrate the reach of the EPA guidance document, the group offered specific regional examples of what the guidance would mean in terms of controlling land.
WAC cites an area of northern Kentucky that covers 48 square miles, about 30,720 acres. The region includes 47 miles of year-round flow and 96 miles of seasonal flow streams.
“Under the current regulatory regime, most of the perennial streams and some, but not all, of the intermittent streams would be jurisdictional,” the memo said.
View EPA’s guidance document here, http://1.usa.gov/…
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Posted with DTN Permission by Haylie Shipp
