Gary H. Baise
Gary H. Baise

If you missed parts one and two of this discussion about EPA Clean Water Act regulations, view EPA's Water Police, Part One: Coming to Your Farm? and Water Police, Part Two: EPA Proposal Won't Help Ag

EPA Administrator, Gina McCarthy, commenting on the new definition of what constitutes a water of the United States says, "To be clear: our proposal does not add to or expand the scope of waters historically protected under the Clean Water Act."

Well, as Ronald Reagan would say, let's examine how EPA defines a "tributary."  Then consider what Ms. McCarthy is saying.

Section F of the EPA and Corps of Engineers proposed definition document describes what EPA considers to be a tributary. The section declares "…[our] definition of "tributary" [is] supported by the scientific literature."  

The paragraph never discusses the legal basis for the agency's proposed definition of tributary. Moreover, EPA declares that all tributary waters "…have a 'significant nexus' to a traditional navigable water, interstate water, or territorial sea such that they are 'waters of the United States' without the need for a separate, case-specific significant nexus analysis." 

No expansion of jurisdiction here?

EPA says any water in the United States not specifically excluded, upland waters, will be automatically under EPA's expanded jurisdiction. And, as Ms. McCarthy says, this decision certainly cuts red tape and clears the way for EPA to do its job easier. 

EPA  describes and defines a' tributary' which is generally "presence of a bed and banks and ordinary high water mark which contributes flow, either directly or through another water…"

A water also can be a 'tributary' if "…there are one or more man-made breaks (such as bridges, culverts, pipes, or dams) or one or more natural breaks (such as wetlands at the head of or along the run of a stream, debris piles, boulder fields, or a stream that flows underground) so long as a bed and banks and an ordinary high water mark can be identified upstream of the break."

So, if EPA can make any connection, it can have jurisdiction over the water on your property.

It gets worse! EPA takes the position that a 'tributary' may be "…ephemeral, intermittent or perennial, but the tributary must drain, or be part of a network of tributaries that drain," into waters which are currently used, used in the past, or may be susceptible to use in interstate commerce in the future.

Now, do you believe Ms. McCarthy that there is no expansion of the definition? 

Powerful word

Using the term "ephemeral" gives EPA enormous regulatory power because ephemeral is defined as transitory, transient, fleeting, short lived, momentary, brief, and as Webster says, "lasting one day only."  Ms. McCarthy says she is not expanding the scope of the Clean Water Act

EPA can determine what is a 'tributary'  by using "…direct observation or U.S. Geological Survey maps, aerial photography or other reliable remote sensing information, or other appropriate information."

EPA and the Corps conclude all tributaries are waters of the United States. The agencies conclude that it is "…their scientific and technical expertise that tributaries…in a watershed are similarly situated and have a significant nexus alone or in combination with other tributaries because they significantly affect the chemical, physical, or biological integrity of traditional navigable waters, interstate waters, or the territorial seas."

As you can see, not a lot of water will escape this jurisdiction.

The EPA claims that tributaries significantly affect the physical integrity of the waters, the chemical integrity of the waters, and the biological integrity of the waters.  It says small, intermittent and ephemeral tributaries significantly affect the chemical, physical and biological integrity of waters as well and man-made or man altered tributaries also affect the integrity of waters.

EPA says that intermittent and ephemeral streams, when in a watershed and are considered in combination, have a "significant nexus" to traditional navigable waters and interstate waters. In fact, EPA claims the ephemeral tributary is an "essential components of the tributary network and have important effects on the chemical, physical and biological integrity…" Not much left that EPA cannot claim jurisdiction over when it comes to water coming off your property.

Ms. McCarthy's claim reminds me of another statement from this administration: "If you like your doctor, you can keep your doctor under my plan."

You get the point.

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.