Baise: Is EPA telling the truth About Clean Water Act jurisdiction?

Resize text          Printer-friendly version of this article Printer-friendly version of this article

"All governments lie." Journalist I. F. Stone is credited with this simple statement.

Remember when EPA Administrator Gina McCarthy, describing EPA's 370-page definition of what constitutes waters of the United States said, "To be clear: our proposal does not add to expand the scope of waters historically protected under the Clean Water Act."  

Do Mr. Stone's words apply to EPA and its Administrator?  You decide.

The Congressional Research Service, in a report prepared for members of congress on May 28, 2014, states "Proposed changes [by EPA] would increase the asserted scope of CWA jurisdiction, in part as a result of expressly declaring some types of waters categorically jurisdictional (such as all waters adjacent to a jurisdictional water) and also by application of definitions, which would give larger regulatory context to some types of waters, such as tributaries."

So, is the EPA Administrator a fool or a knave?

The CRS report goes on to say in its summary section that "…17% {of new waters} would be categorically jurisdictional under changes in the proposal."

The summary quotes the agencies saying, "EPA and the Corps of Engineers, also estimate that 3% of U.S. waters will additionally be subject to CWA jurisdiction…"  (Now do you believe Ms. McCarthy was telling the truth to farmers?)

As Cornelius Tacitus in approximately 55 A.D. said "The more corrupt the republic, the more numerous the laws." EPA's definition supports this old quote.

On page 4 of the CRS report, there is a discussion of EPA's expanded jurisdiction using the term "other waters".  Under EPA's 2003 and 2008 guidance, "other waters" required a "…case by case evaluation to determine if a significant nexus exists…"

EPA, in its proposed rule, claims "other waters" including wetlands, that are adjacent to a jurisdictional water are categorically {automatically} jurisdictional."

So, Ms. McCarthy, your proposal does not add or expand the scope of waters? 

EPA and the Corps of Engineers are asking for public comment on whether certain types of "other waters" should automatically be jurisdictional and thus regulated by EPA. The agencies appear to want jurisdiction over "…prairie potholes, western vernal pools, Carolina Delmarva bays, pocosins,(upland swamp), Texas coastal prairie wetlands and perhaps other categories of waters…"  

No expansion of EPA jurisdiction here?

Ms. McCarthy is really disingenuous, and I dare say dishonest when she says "Our proposal does not add to or expand the scope of waters historically protected under the Clean Water Act."

On page 6, notwithstanding Ms. McCarthy's statement, the Congressional Research Service staff says "The agencies acknowledge that the proposed rule would increase the categorical assertion of CWA jurisdiction, when compared to …current practices under the existing regulations…" 

If there are no changes, as Ms. McCarthy alleges, in expanding the scope of waters alleged by EPA, then one is puzzled as to why the CRS staff says there will be additional permit application expenses for "…stormwater permitting for construction and development activities, and permitting of pesticide discharges and confined feeding operations…for discharges to waters that would now be determined jurisdictional…"

As producers, I did not realize we needed permits for pesticide discharges when spraying our crops.

CRS estimates that new incremental costs associated with permitting will add $162 million to $279 million per year. Again, Ms. McCarthy says there is no addition or expansion of EPA's scope of waters.

Your decision.  Is EPA lying to you?

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.


Prev 1 2 Next All

View All Blogs »


Comments (1) Leave a comment 

Name
e-Mail (required)
Location

Comment:

characters left

michael    
kansas  |  June, 25, 2014 at 10:14 AM

Thanks for exposing these lies and the liars telling them. Lies so massive, injurious and blatant that anyone else would be immediately fired for telling them. Unfortunately, I doubt whether the wider public will ever see or hear this and so the outrage will be limited to those here and who are immediately and directly affected. Of course, almost everyone will be harmed in some way by these actions, but the costs will be hidden... and the EPA/Administration is fully aware of this. I would be wonderful if these facts could find a larger audience and I hope everyone who sees it passes it on. Thanks again.


WinPig.Net

WinPig.Net is the newest management system from AgroSoft. This new program retains the user-friendliness of its predecessor while adding ... Read More

View all Products in this segment

View All Buyers Guides

Feedback Form
Generate Leads