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Congress, American Farm Bureau warn of overreach on wetlands

Todd Neeley, DTN

OMAHA (DTN) – Despite a suggestion by federal lawmakers that it should be done through an act of Congress, the Environmental Protection Agency Wednesday, April 27, issued a proposed clean water protection guidance that is expected to expand the number of U.S. water bodies subject to the Clean Water Act.

EPA Administrator Lisa Jackson said during a conference call with reporters that EPA opened a 60-day public comment period on a proposed guideline that would be designed for EPA and the U.S. Army Corps of Engineers field workers to determine which waters are in EPA’s jurisdiction.

U.S. Agriculture Secretary Tom Vilsack said the EPA guidance proposal would maintain exemptions for existing agriculture and forestry practices.

“Today, 117 million Americans get drinking water that lacks clear protection from pollution,” Jackson said. “The guidance we released today will help. It will provide a consistency and predictability.”

The proposed guidelines have come about as a result of a 2006 ruling by the U.S. Supreme Court.

In the case Rapanos v. United States, the court overruled federal attempts to use the Clean Water Act to assert control of wetlands on private property.

Although the ruling articulated two tests for federal jurisdiction of wetlands, the majority opinion reaffirmed that the Clean Water Act covers only navigable waters and property with significant connections to them – or a “significant nexus” as defined by Justice Anthony M. Kennedy in his opinion.

In the opinion, Kennedy defines significant nexus as water that “either alone or in combination with similarly situated lands in the region, affect[s] the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable’ in a fashion that is not ‘speculative’ or insignificant.”

Jackson said the proposal would give EPA and the Corps guidance to look at the issue on a case-by-case basis.

“The goal is to provide clarity on what wetlands are covered, what constitutes a ‘significant nexus’ to navigable waters,” she said. “We can’t protect waters if all tributaries are unprotected. There will be some expansion to some waters that are connected. There will be some increase in jurisdiction, but I don’t think it will be a lot. The goal here is to protect water quality. The belief is there’s a lot of uncertainty out there where this guidance can clarify.”

On April 14, a group of 170 members of Congress sent a letter to Jackson and Assistant Secretary of the Army for Civil Works Jo-Ellen Darcy, expressing concern that the proposed guidance would allow EPA to expand its control of more U.S. waters.

“In light of the substantive changes in policy that the administration is considering with this ‘guidance,’ we are extremely concerned that this ‘guidance’ amounts to a de facto rule instead of mere advisory guidelines,” the letter said. “Additionally, we fear that this ‘guidance’ is an attempt to short-circuit the process for changing agency policy and the scope of Clean Water Act jurisdiction without following the proper, transparent rulemaking process that is dictated by the Administrative Procedure Act.”

Don Parrish, senior director of regulatory relations for the American Farm Bureau Federation, said the proposed guidance does anything but follow the Rapanos ruling to the letter.

“They (EPA) are basically expanding their reach into areas,” he said. “They will erect barriers. What they’re doing is coming out with their own definition of significant nexus, and doing it in a way that all waters are significant.”

Though Jackson described the proposed guideline as “non-binding,” Parrish said it contains language that would suggest otherwise.

“This is a guidance document containing regulatory definitions,” he said. “They’re going to use this to bind the public and make regulatory decisions. It is going to increase the footprint of federal regulations.”

Parrish said U.S. farmers should be concerned because expanding jurisdictional waters could affect their everyday lives when it comes to everything from installing irrigations systems to acquiring permits to build houses.

Sen. Barbara Boxer, D-CA, chairman of the environment and public works committee, applauded the administration’s efforts.

“The Obama Administration took an important step today toward restoring environmental safeguards that have protected Americans from dangerous pollution for more than 30 years,” she said in a statement. “This guidance reaffirms certain Clean Water Act protections for America’s rivers, streams, and wetlands, and it will help keep our waterways and drinking water sources safe for children and families for decades to come.”

Ducks Unlimited, the Izaak Walton League of America, the National Wildlife Federation, Trout Unlimited and the Theodore Roosevelt Conservation Partnership, said in a joint statement that the proposal would be a step toward protecting critical habitat for fish and wildlife, controlling flooding and protecting drinking water.

“The importance of this guidance cannot be overstated,” said Steve Moyer, vice president of government relations for Trout Unlimited. “Restoring these lost protections means more habitat in the long run for all the fish and wildlife that sportsmen love to pursue.”

The proposed EPA guidance (PDF) can be found at: http://water.epa.gov/lawsregs/guidance/wetlands/upload/wous_guidance_4-2011.pdf.


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