Water rule reveals changed realities

Definition of navigable much more understood today than when Congress wrote the Clean Water Act decades ago.

When all the rhetoric is put aside regarding the proposed waters of the U.S. rule, it really boils down to a deep tension between a 19th century concept of what is navigable and a 21st century understanding of ecological science, Tracy Mehan shared at a Farm Foundation Forum in Washington D.C. Sept. 17.

He explained that many of the interconnections in the environment weren’t known when navigability was written into the Clean Water Act in the 1970s. The touchstone of the issue is the idea of what constitutes a significant nexus.

Mehan, who currently serves as National Source Water Protection coordinator for the U.S. Endowment for Forestry and Communities, offered perspective as a regulator in the discussion as he previously spent time in the EPA “beast” as he called it during both Bush administrations. While serving in President George W. Bush administration, he was there when they began to explore the idea of providing an update to the Clean Water Act that has come about with several court rulings over the years and then later the administration decided to pass on any update after concerns arose.

In 2001, the Supreme Court in SWANCC v. U.S. Army Corps of Engineers held that the Corps lacked authority under the 1972 Clean Water Act to regulate wetlands isolated from navigable waters. The Court held that the CWA's jurisdiction is limited to non-navigable waters that have a significant nexus to navigable waters.

In 2006 another case – the Supreme Court in United States vs. Raponos - addressed the question of jurisdiction over tributary wetlands. Supreme Court Justice Anthony Kennedy offered a key opinion which concluded that CWA’s jurisdiction reached waters and wetlands with a significant nexus to actual navigable waters.

Although EPA hasn’t released their connectivity report which they said is the scientific basis for their proposed rule, Mehan said the rule and it’s interpretation of the significant nexus test offer a “golden opportunity to reclaim any perceived loss of jurisdictional reach” for EPA. He noted that in the 11 years since EPA decided to pass on its first attempt to update the rule, it has done a “massive amount of work” to flesh out the idea of a significant nexus.

That being said, he cautioned EPA would be “wise to not push the significant nexus to the ultimate level” of interpretation and rather draw some bright lines and come up with something that people impacted by the changes could live with including the farm sector and also homebuilders.

He said “EPA has a strong case on the science and law” to interpret that ruling as far as they want. However, Congress could come in and say the law is in over assertion of federal power and draw the line, rather than EPA, on where the jurisdiction stops. So far legislation on Capitol Hill only looks to stop EPA from moving forward on a law, not actually insisting on where the line should be drawn.

Comments matter

Mehan said people should not fall prey to the myth that EPA doesn’t listen to comments on proposed rules. Through his career he can say these rules do change over time and the agency is required to be responsive to comments received.

Over 200,000 comments have already been issued on the rule, with over half of those generated similar to a form letter pushed by the Natural Resources Defense Council. Agricultural groups are actively calling on their members to write comments and specifically outline concerns with the rule.

Mehan said EPA isn’t as familiar with agriculture and needs comments on the impact of the rules. “If you think a bright line needs to be drawn, document that with the best science you can.” He also said calls for all out rescinding the rule could be short-sighted and miss the opportunity to provide helpful comments.

Gene Schmidt, Indiana grain farmer and past president of the National Assn. of Conservation Districts, offered the perspective of farmers in the forum discussion. If the rulemaking process could further explain terminology and explain different definitions, it could somewhat minimize litigation and emphasis on specific terms in the future, he suggested.  

Schmidt said it’s important the rule provides a little bit of flexibility with that which can’t be controlled – Mother Nature.

The agency continues to defend “normal” farming practices, but Schmidt explained that normal flexes. The magnitude of major weather events has increased, so does that create a new normal?

He shared that nutrient management is a major point of contention, and application could come under further regulation under the proposed water rule expansion. But despite farmers using a prescribed nutrient plan for expected weather, if Mother Nature doesn’t bring enough rain in one year to soak up those nutrients, there’s nothing farmers can do to keep those nutrients from escaping if a major wet event comes through after the growing season, as an example.

Menah noted that the interpretive rule “is a can of worms” which exempts 56 Natural Resources and Conservation Services conservation practices. The concern of NRCS being dragged in as a secondary regulator is an important consideration and may result in the interpretive rule being pulled and re-proposed.  

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