EPA looks to expand scope of CWA

EPA looks to expand scope of CWA

Farm ditches, tile drainage, field filter strips and even low-lying areas of farmland could come under EPA's jurisdiction.

THE Environmental Protection Agency looks to vastly expand its definition of waters that fall under the Clean Water Act (CWA), according to a leaked draft document of a proposed rule.

The draft regulation would bring under CWA jurisdiction man-altered and manmade water bodies, including farm ditches, tile drainage and field filter strips. Even wetlands that are "many miles away" from a jurisdictional water could be regulated.

Michael Formica, National Pork Producers Council chief environmental council, said if the released document becomes law, it would cover all sorts of ephemeral streams. This could include any fields with a low point that, at any particular time, have water flowing through them, regardless of how often that water flows.

If the draft rule becomes final in its current form, EPA and the Army Corps of Engineers will have jurisdiction over large tracts of state and private lands, and CWA permits would be required for a host of activities on them.

Formica explained that if a field is determined to be a channel for water flow, farmers would need to get a permit to not only apply pesticides and fertilizers to that field but also even to plant seed. It would affect the current agricultural stormwater exemption of concentrated animal feeding operations as well, he added.

Agricultural groups contend that the Supreme Court has, in several instances, limited the jurisdiction of EPA and the Corps under CWA, ruling that it cannot be based on a mere connection to a navigable water or extend to waters far removed from navigable waters. EPA must show a hydrologic connection to navigable waters.

Formica said because of the diversity within the agriculture industry, it is "impossible to do a one-size-fits-all" approach to what constitutes a waterway.

This process first started as a guidance, but after criticism, EPA Administrator Gina McCarthy proceeded with a rule-making process that would allow for comments on the rule.

Formica challenged those who would be affected to pay attention to the rule if it proceeds.

"If agriculture makes a case, EPA could withdraw or take no action. The more farmers get involved and engaged in this process, the chances are better of creating results we can live with," he explained.


Report comments

In September, EPA issued a science report, "Connectivity of Streams & Wetlands to Downstream Waters: A Review & Synthesis of the Scientific Evidence," that examines the connection between various streams and wetlands relative to federally regulated waters of the U.S.

When finalized, EPA hopes the report will provide the scientific basis for expanding its jurisdiction over the nation's waterways and wetlands under CWA and laid out in the leaked draft mentioned.

The Waters Advocacy Coalition submitted comments to EPA on the report. These comments will be provided to an independent scientific advisory board panel for its consideration in advance of a mid-December meeting.

The comments outline what the coalition — made up of a cross-section of the nation's construction, housing, mining, agriculture, manufacturing and energy sectors — sees as problematic due to a lack of scientific basis in the report's justification of what constitutes a waterway.

Specifically, the coalition stated that the synthesis report assumes, with little scientific support, that all waterway connections — no matter the kind, size or frequency — should be considered equal. It also does not account for factors of variability in connectivity, such as climate, stream size, habitat, watershed characteristics, frequency and duration of flow or proximity to navigable waters.

The coalition wrote that EPA and the Corps are already using the "synthesis report to justify their proposed rule on the scope of their CWA authority, yet the report does not address the fundamental question central to that jurisdiction (namely, what connections between water bodies are significant?) and is not yet final."

"As a result, the agencies should ask the correct questions first, evaluate the relevant science (and) then prepare a proposed rule in keeping with the best-known science. Instead, the agencies' rule-making approach is premature and does not take into account the independent scientific and technical input of the (scientific advisory board) on the connectivity of waters," the comments said.

Volume:85 Issue:47

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