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Muddying The Waters

As we all realized on April 21, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers posted their proposed definition for “waters of the U.S.” protected under the Clean Water Act (CWA) in the Federal Register, and that triggered a 90-day public comment period.

EPA Administrator Gina McCarthy said during a Senate Appropriations Subcommittee hearing that current exemptions for the CWA permitting for normal farming, ranching and agricultural practices are kept intact in the proposal.  

She added, “If a farmer was not legally required to have a permit before, this rule does not change that status. The proposal does not add or expand the scope of waters protected under the CWA.”  

Well, after those words, the fight was on by those in the farming and ranching industry, along with local governments and the nation’s business community. According to the EPA, the proposed definition of waters of the U.S. would increase predictability and consistency for CWA programs, and as a lot of folks see it – that’s right – we know we would go out of business instead of just “maybe.”

At the same time, 231 U.S. Representatives sent a letter to the EPA and Corp of Engineers asking them to back off this proposed rule to expand federal control under the CWA.  They said the proposed rule would redefine waters of the U.S. under the CWA based on a narrow opinion by Justice Anthony Kennedy in a 2006 Supreme Court decision that said an isolated water, like a stock pond or a ditch, doesn’t have to have a surface water connection to a downstream navigable water to be considered a “waters of the United States.”

Justice Antonin Scalia wrote the plurality opinion on the case, and his opinion differed from Kennedy’s by saying that waters of the U.S. include only those relatively permanent, standing or continuously flowing bodies of water like streams, rivers and lakes. Justice Scalia specifically noted that waters of the U.S. do not include channels that only hold water periodically and are only wetlands with a continuous surface connection to bodies of water that are waters of the U.S.

The EPA and Corps chose to base the final rule on the Kennedy opinion. That was a concern that the Congressmen raised in their letter, which read, “Contrary to your agencies’ claims this would directly contract prior U.S. Supreme Court decisions which imposed limits on the extent of federal CWA authority. Based on legally and scientifically unsound view of the significant nexus concept espoused by Justice Kennedy, the rule would place features such as ditches, ephemeral drainages, ponds, natural and manmade, seeps, prairie potholes, flood plains and other occasionally or seasonally wet areas under federal control.”

There lies the fight. Congressman Chris Collins (R-N.Y.) said, “Enough is enough with regard to federal overreach on U.S. farms and ranches. When the bureaucrats at the EPA decide to call a divot in the ground that fills with rain a navigable waterway under the CWA, we know that our federal government has run amuck.”

Well, our government has run amuck, and we shouldn’t like it – that is all the reason to get your comments in before the Oct. 20 deadline. This deadline extension gives us a valuable opportunity so take advantage of it. If you’re wondering just how to submit your comments, read more in this week’s Roundup.