Will EPA regulate all water?

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The U.S. Environmental Protection Agency is pushing to control the waters of the United States. And at least one political leader is pushing back.

"To let EPA begin to regulate all waters of the United States would have devastating impacts on rural towns, farmers and local governments," says Congressman Mike Simpson, R-Idaho.  His proposed legislation, called the Defense of Environment and Property Act of 2013, is an effort to stop EPA from regulating virtually all water bodies in the U.S.

He will likely fail.

On January 27, I wrote about a term you will see frequently, called "Connectivity". As I predicted, this 331-page report serves as justification for EPA to regulate virtually all waters in the U.S. "consistent with science" it claims.

EPA claims it is merely clarifying three U.S. Supreme Court wetland cases.  In one lower court case EPA claimed jurisdiction over standing water in an Illinois corn field by claiming migratory birds using the water gave it jurisdiction over the land.( I tried this case, Hoffman Homes, Inc v. EPA  and EPA lost.)

 EPA did not give up. It pursued its migratory bird jurisdiction argument all the way to the Supreme Court in SWANCC v U.S, Corps of Engineers.  EPA and the Corps were told they did not have jurisdiction if migratory birds flew over or used water in isolated puddles on fields.  In June 2006, the U.S. Supreme Court again addressed the scope of Clean Water Act (CWA) protection for wetlands adjacent to tributaries of traditional navigable waters in Rapanos v United States.

There were separate opinions issued by 5 justices in the majority. It is interesting to note, given EPA's power grab, that it virtually ignores the plurality opinion (four Justices) by Justice Scalia. He wrote that "Waters of the United States extend beyond traditional navigable waters to include relatively permanent, standing or flowing bodies of water."  He  said the phrase "relatively permanent includes seasonal rivers, but not streams whose flow is coming and going at intervals…broken, fitful…or existing only, for no longer than, a day."

Justice Scalia and three of his colleagues concluded that only wetlands with a continuous surface connection to other waters of the United States are protected by the CWA.

Justice Kennedy, in a separate concurring opinion, wrote that waters of the United States includes "waters…that possess a significant nexus to waters that are or were navigable in fact or that could reasonably be so made."  He said wetlands have a significant nexus where they "…either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as navigable."

Tax dollars at work
EPA loves this description, which allows it to spend millions of your tax dollars on studies establishing a "significant nexus." Most of you cannot afford to do these studies to defend yourself.

Justice Alito has said that "The reach of the Clean Water Act is notoriously unclear. Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands covered by the [CWA]."

EPA, relying on its Connectivity report, claims that tributaries and their adjacent waters play an important role in protecting the chemical, physical, and biological integrity of traditional navigable waters because these tributaries and adjacent waters have hydrological and ecological connections to and interact with those waters. (You can see where this is going).

The EPA summary on "significant nexus" relies on Justice Kennedy's expansive, inexact and unmanageable, definition of water and property that can be regulated by EPA.

EPA's new proposed draft  definition to regulate water states "On a case-specific basis, other waters, including wetlands, provided that those waters alone, or in combination with other similarly situated waters, including wetlands, located in the same region, have a significant nexus to a water identified in paragraphs (1) through (3) of this section."

EPA will determine the nexus of water on your property to a water of the state or the United States, "consistent with the science."

EPA's paragraph 1 says "All waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide."

For agriculture, EPA does exclude specified waters from its jurisdiction such as prior converted cropland, irrigated upland areas, artificial lakes or ponds, diking dry land for stock watering, depressions created by construction activity, groundwater channeled through subsurface drainage systems and non-wetland swales and puddles.

What waters EPA will potentially regulate? The courts will eventually tell us.

Gary H. Baise is a principal at OFW Law (Olsson Frank Weeda Terman Matz P.C.). This article first appeared in Farm Futures magazine. The opinions presented here are expressly those of the author. For more information, go to www.OFWlaw.com.


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Tonia    
Waterloo, IA  |  February, 27, 2014 at 09:31 AM

This is a very scary thought. It puts an awful lot of power in the hands of an agency that's not really answerable to anyone. I hope someone manages to derail this rule before it becomes the law of the land.

Jim T    
Waterloo, iowa  |  February, 27, 2014 at 11:30 AM

What is even more scarier is the DNR ALLOWING CAFO owners to pollute our clean air and water, and ignore complaints , in Iowa this is your real problem DNR is known to ignore spills and do cover ups Only after a lot of outside investigation and pressure did they find and fine Monroe Brandstad The American people were fed long before we had CAFO's Now these CAFO's pollute the air and water. Any industry is Subjected to rules and regulations Why should a corporate farmer, who dodges taxes with the construction of these add to the w2 wage earners net earnings and quality if environment CAFO's. Are poison Look at the studies and talk to. I

Thom Katt    
Midwest  |  February, 27, 2014 at 11:51 AM

Kind of lost it with the cut and paste there at the end. Didn't you, Jim T. Do you want to give it a re-try to post coherent sentences? Or have you done enough trolling for one day?

Him t    
Waterloo iowa  |  February, 27, 2014 at 11:52 AM

What I meant was add to the w2 wage earners deductions even more. These CAFO OWNERS need to pay a / dollar per head charge for them to be regulated and controlled. You destroy our water supply and who will pay the cost to clean it up That's right the tax payer Not the cafo operator who saved 250,000 or more in tax savings to build this POS THAT devalues neighboring properties , air quality, evens spent outside in summer are no different than living at a rendering works . PUTRID ON A GOOD DAY Stop then NOW M AND OUR GOVENOR BRANSTAD PROMOTES IT ALL

    
February, 27, 2014 at 11:55 AM

No cut and paste Just the facts Please show us where this was cut n pasted from. Put u can copy and paste REAL FACTS WITH REAL NAMES. Can you?

Jim R    
February, 27, 2014 at 12:01 PM

I wrote my submission with a smart phone It did auto spell. I will re write my whole article and proof read. Lol coherent Get a life mr perfect, u r far from it MORON

Jim R    
Waterloo  |  February, 27, 2014 at 12:01 PM

I wrote my submission with a smart phone It did auto spell. I will re write my whole article and proof read. Lol coherent Get a life mr perfect, u r far from it MORON

Jim t    
Waterloo. Iowa  |  February, 28, 2014 at 05:23 PM

Please show me where my comments were cut and pasted from. TRUTH SPEAKS LOUD and CLEAR. Nothing was cut or pasted. I have all the facts from DNR EPA. And other groups that back up my claim. Apparently you ran away and hid. Cowards always do. Or are you just INCOHERENT? Point Made

Jim t    
Waterloo. Iowa  |  February, 28, 2014 at 05:32 PM

Please show me where my comments were cut and pasted from. TRUTH SPEAKS LOUD and CLEAR. Nothing was cut or pasted. I have all the facts from DNR EPA. And other groups that back up my claim. Apparently you ran away and hid. Cowards always do. Or are you just INCOHERENT? Point Made


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