by Todd Neeley, DTN Staff Reporter
OMAHA (DTN) — Depending on whom you ask, the Clean Water Act guidance rule currently under review will either expand the U.S. Environmental Protection Agency's reach into intermittent streams and other water bodies on farms and ranches, or it will narrow EPA's reach and lead to fewer water bodies being regulated.
Since the agency released the draft guidance proposal in 2011, EPA's own analysis concluded the guidance would bring more waters into the agency's jurisdiction — including waters not considered to be navigable, such as intermittent streams.
Last week, however, Nancy Stoner, EPA acting assistant administrator for water, wrote in a blog that the rule would lead to fewer waters regulated than before the U.S. Supreme Court ruled on the Rapanos case in 2006. In Rapanos v. United States, the Supreme Court clarified that the term “waters of the United States” includes only those waters that are permanent, standing or continuously flowing. The court ruled that all waters with a “significant nexus” to “navigable waters” are covered by the Clean Water Act.
“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,” Stoner wrote.
The debate on that point is ongoing.
The Supreme Court ruled in the 2006 Rapanos case that EPA needs to prove a “significant nexus” connecting intermittent streams and seasonal waters to more permanent waters. Through the rulemaking and ongoing review of scientific data on connectivity, EPA now is attempting to prove a scientific connection between such water bodies.
Agriculture and other interest groups have expressed concern that EPA would expand its reach onto U.S. farms and ranches. Hunting, fishing, wildlife and environmental groups say they believe the rule will lead to fewer water bodies covered, but support the measure because it takes a step to clarify EPA authority.
When EPA released draft guidance in 2011, the agency maintained that more water bodies would be regulated by the Clean Water Act. Part of the stated purpose of the guidance was to provide drinking water protection to many of the nearly 117 million Americans currently not protected by the law.
DTN's attempts to reach Stoner for comment were unsuccessful. However, EPA said in a statement that it stands by Stoner's comments.
“It (the proposed rule) would not expand federal jurisdiction or protect any new waters that have not historically been covered under the Clean Water Act during the past 40 years,” EPA said in a statement. “In fact, the proposed rule specifically takes into account the more narrow reading of Clean Water Act jurisdiction established by the Supreme Court and would protect fewer waters than were subject to the Clean Water Act prior to the Supreme Court cases.”
Jon Devine, senior attorney for the water program at the Natural Resources Defense Council, said he believes the rule would indeed protect fewer waters than before a 2001 Supreme Court decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers. In that case, the court ruled that EPA's and the Corps of Engineers' use of a migratory bird rule to interpret Clean Water Act authority on discharges into “isolated waters” including isolated wetlands, exceeded the authority granted by that section.
According to a 2004 Government Accountability Office report, in the agencies' migratory bird rule “nearly all waters and wetlands in the United States were potentially jurisdictional.”
“By contrast, the draft rule that is out there would not protect numerous waters,” Devine said. “Generally speaking, wetlands and other waters that are not tributaries or within the floodplain of tributaries — unless they could be shown to be significantly related to downstream protected waters.”
Hunting, fishing, wildlife and environmental groups have come out in support of the guidance rule.
“Before 2001, we had comprehensive protections,” Devine said. “Since then, in part because of the Supreme Court's decision, but primarily because of interpretations of the cases by the Bush administration and the lack of clear regulatory standards identifying protected waters, protections have been denied to whole classes of waterways, and many others have been subject to a time-consuming, resource-intensive and almost-impossible-to-enforce case-by-case analysis.”
The new rule would restore categorical protection to some waters including tributary streams and waters within the floodplains of tributaries, he said, while leaving other waters “more distant” from the tributary system still subject to case-by-case review.
“So, it gets us closer to the prior world, but not all the way there,” said NRDC's Devine. “And that's why we and others support it, even while we will push the agencies to protect more waters in the rule.”
GUIDANCE CONCERNS
Don Parrish, senior director of regulatory relations with the American Farm Bureau Federation, said during the Iowa Farm Bureau's annual meeting in Des Moines Wednesday, that EPA is not listening to the will of the people.
“The administration through regulation is trying to do what Congress did not do and what the courts have not done: redefine and expand what EPA can regulate more than the current 'navigable waters,'” he said.
Parrish said he believes the administration will try to finalize the rules before the president leaves office in 2016.
“It will be a nuclear war,” he said. “This is something farmers and towns need to get involved in now. You don't bring a knife to a gunfight. We need public opinion on our side. We need policymakers on our side. It's time to mobilize before the regulations get approved.”
Reed Hopper, a principal attorney in the Pacific Legal Foundation's environmental law practice group, said that despite what EPA officials have been saying, the agency will expand its jurisdiction.
“The EPA has no incentive to reduce the scope of the Clean Water Act and the proposed regulations do not do so,” he said.
EPA is attempting to “enlarge the scope of the Clean Water Act,” Hopper said, by eliminating some CWA exclusions including wetlands adjacent to wetlands.
It would also expand the definition of waters of the U.S. to include all waters within a floodplain, Hopper said, aggregating wetlands in the same watershed, aggregating other waters in the same landscape unit, and including more tributaries and some underground flows.
Hopper said the EPA rule does not provide “any clarification.”
“The terms used in the proposed regulations are every bit as ambiguous as the prior regulations which the GAO concluded in 2004 were intentionally left vague to allow regulators the ability to extend the reach of the act without challenge,” he said.
FURTHER ANALYSIS
In the past two years, a number of environmental law firms have evaluated what EPA's efforts would mean in real-life scenarios.
According to an analysis by Davis Graham and Stubbs law, an earlier draft of the EPA guidance said the proposal would “increase significantly” the number of waters subject to the Clean Water Act.
A subsequent proposal from EPA stated, “the extent of waters over which the agencies assert jurisdiction under the CWA will increase compared to the extent of waters over which jurisdiction has been asserted under existing guidance, though certainly not to the full extent that it was typically asserted prior to the Supreme Court decisions.”
The Graham and Stubbs analysis concluded, “Despite this change in language, the fact remains that the proposed guidance will significantly expand the scope of waters subject to CWA jurisdiction for all waters subject to any of the programs authorized under the CWA.”
EPA's own cost-benefit analysis said about 17{2ef9c3c98ecad0f5b6e710b70ac99d8dfa54665490ddf8739b8039687d59f9df} of the 1,211 waters reviewed would become jurisdictional.
“And EPA suggests that the percentage of waters subject to CWA jurisdiction could increase further,” Graham and Stubbs said.
VanNess Feldman, a law firm specializing in environmental and land issues, said in a September 2013 analysis, that EPA's draft is likely to expand the scope of the Clean Water Act.
“The draft study very clearly concludes that all streams, no matter their size, their flow rate, or how often they flow in a calendar year, are 'physically, chemically, and biologically connected to downstream rivers,'” VanNess Feldman said. “This conclusion is significant.”
DTN Special Correspondent Elizabeth Williams contributed to this story.
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