Recent Clean Water Act guidance document is ‘informal and ambiguous’

New guidelines released by the U.S. Army Corps of Engineers push the jurisdiction of the Clean Water Act (CWA) farther than it’s ever been before, but not quite as far as those proposed by Congress last year.
The guidelines, of which the Environmental Protection Agency (EPA) is also a part, are known as the “Draft Guidance on Identifying Waters Protected by the Clean Water Act.” The notice of their release was published in the May 2 edition of the Federal Register.
“From what I understand, they go as far as they think they can get by with,” says Wyoming Stock Growers Association Executive Vice President Jim Magagna. “They go in the direction that Congress tried before with the Clean Water Restoration Act, and they would basically try to incorporate every type of body of water they could.”
The U.S. Cattlemen’s Association (USCA) cautions that the guidelines would broaden the overall scope of regulatory targets under the Clean Water Act, allowing for an increased number of waterways to fall within the jurisdiction of the EPA and the U.S. Army Corps of Engineers.
The guidelines expand coverage of the CWA to bodies of water that have a “significant nexus” to traditional navigable waters or interstate waters already covered by the law. These include tributaries to traditional navigable waters or interstate waters, wetlands that are adjacent to such jurisdictional tributaries and “other waters” within close physical proximity to waters already covered by the law, and which affect the chemical, physical or biological integrity of traditional navigable waters or interstate waters, as well as “other waters” physically separated from tributaries or waterways subject to the law.
The 39-page document also focuses on “innovative partnerships” in which the Obama administration hopes to engage with state, local and tribal governments, as well as the private sector, to enhance water quality. USCA says this will encompass water quality standards and maximum daily load programs governing discharges into water bodies, likely expanding the application of the law’s water-related permitting requirements.
Prior to release of the guidelines, in a bipartisan fashion, Rep. Frank Lucas (R-OK), chairman of the U.S. House Committee on Agriculture, joined 169 of his Democrat and Republican colleagues in sending a letter to the EPA and Army Corps of Engineers expressing concerns with moving forward with the new guidance.
“While the agencies may claim the guidance is legally nonbinding, the truth is the administration has defined regulatory terms that will ultimately lead to over-regulation and intrusion into individual and states’ rights,” said the congressmen.  
“Once again, the EPA is trying to broaden its jurisdiction without authority to do so,” they continued. “Changes to the regulatory scheme of the Clean Water Act should be done through notice and rulemaking or legislative action. Issuing a guidance document is informal and ambiguous. If this is important to the administration, we urge it to reconsider this approach and move forward with a transparent rulemaking process.”
USCA leadership says the proposed guidelines should be a cause for immediate concern by livestock producers across the country because they would “increase compared to current practice” the number of waters identified as being protected under the law and build a foundation to expand federal jurisdiction over a wide variety of waterways that could potentially include ditches and stock ponds.
“Protecting the health of our waterways is important to all of us, farmers and ranchers included. However, these new guidelines are an onerous approach to that goal and they underscore the federal government’s escalating overreach into our daily operations,” comments USCA President Jon Wooster. “The broad nature of these guidelines imposes more government regulation and intervention into ranching and farming businesses, and leaves producers vulnerable to additional permitting costs and requirements as well as litigation. USCA opposes these guidelines and will work to expand opposition among policy-makers.”
Comments on the guidelines will be accepted through July 1.
Christy Martinez is managing editor of the Wyoming Livestock Roundup and can be reached at christy@wylr.net.