|
North West MO | EPA and Army Corps Seek to Expand Clean Water Act Authority
By Ashley McDonald
NCBA Enviromental Counsel
Last Tuesday, the EPA continued their outright assault on jobs and private property rights with the release of their proposed rule on “waters of the United States” (WOTUS). The EPA and the Army Corps of Engineers will soon be taking public comments on this proposed regulation that they claim would simplify the Clean Water Act. Moreover, the EPA and the Corps claim this rule would not expand Federal authority over waters, but every land-use industry across the country disagrees. The vast majority of agricultural producers believe this proposal will drastically expand the activities that would be subject to the federal permitting scheme.
Traditionally, Federal authority over waters has been restricted to waters that were “navigable” under the Interstate Commerce powers given Congress in the Constitution, and those that were ecologically important to those navigable waters. However, this proposed rule by the EPA and the Corps fails to distinguish on the ground of navigability and instead claims federal jurisdiction over broad categories of waters by rule, with no analysis needed to determine whether the water has an important impact on traditionally navigable waters. This essentially obliterates the word “navigable” from the CWA.
These categories include all waters in a floodplain, all waters in a riparian area, all waters located “in the region” of another jurisdictional water, and all tributaries. Many of these terms, such as riparian area and floodplain are left to the regulators to use their “best professional judgment” to determine their size and scope. Essentially, all waters, no matter how small, could become a WOTUS.
For example, ditches are considered a jurisdictional tributary under the proposed regulation, unless they fit into one of two narrow excluded categories: (1) if the ditch is excavated wholly in uplands, drain only uplands, and has less than perennial flow; or (2) the ditch does not contribute flow, either directly or through another water, to a traditional navigable water, interstate water, the territorial seas or an impoundment of a jurisdictional water. What “through another water” means is anyone’s guess.
Therefore, producers will need to look at every segment of their ditch, determining drain and flow to the satisfaction of the regulator’s “best professional judgment” before they can be certain of permits that may be required to apply pesticides, fertilizers, allow cattle to graze, or undertake any activity that may be seen as a “discharge” near a drainage. And it is likely the producer will never be certain he has considered all the avenues that the regulators have to make something a WOTUS.
Far from creating certainty, this proposal makes determinations less clear and amounts only to a land grab by EPA and the Corps. Not only for agriculture, but for any industry that relies on land use, including energy companies, home builders, real estate developers, manufacturers, and even cities and counties with stormwater systems. Chairman of the House Committee on Appropriations, Rep. Hal Rogers (R-Ken.) recently said in his opening statement in the 2015 Budget Hearing on the EPA:
“I am also dismayed at this week’s news that despite years of concerns expressed by this Committee, the EPA and the Corps of Engineers are working to create new rules that will place strict new standards on thousands of miles of streams in this country. These are streams which flow seasonally or after heavy rains. By creating this new definition, the Administration is again striking at Kentucky’s economy and workforce, since every hollow and valley in my region has such a stream running through it. This means that no economic activity – no road construction, no coal mining – will occur without the say-so of a bureaucrat in Washington.”
Once the proposed rule is published in the Federal Register, it will be open for public comments for 90 days. NCBA will be submitting comments on behalf of our members and our state affiliates. We also hope you will take the time to submit comments. Currently, you can submit a letter to your representatives at BeefUSA.org.
| |
|
The government is trying to tell us what to do with our land once again!
