EPA accused of ‘land grab’

Posted 8/21/12

REGION — Intermittent, seasonal or ephemeral streams are a common sight in the Upper Delaware River Valley. During snowmelt in the spring, or after a heavy downpour, streams spill down the …

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EPA accused of ‘land grab’

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REGION — Intermittent, seasonal or ephemeral streams are a common sight in the Upper Delaware River Valley. During snowmelt in the spring, or after a heavy downpour, streams spill down the hillsides, over the roads and ultimately into larger streams, rivers or lakes. The question at the center of a new rule proposed by the federal Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (ACE) is whether those intermittent waterways, and many others, should be protected from pollution under the Clean Water Act.

It’s a question that has percolated from Washington, DC down to the local level where officials such as those in Damascus Township have taken a position on the matter. At the June township meeting, it was said that the rule would possibly place “ponds and puddles” under the jurisdiction of the EPA, creating planning, zoning and property sale headaches; the supervisors voted to oppose the current language of the rule.

The matter dates to the adoption of the updated Clean Water Act (CWA) in 1972, and whether the words “navigable waters,” are more important that “waters of the United States,” in relation to interpreting the act.

For decades the act was thought to cover just about all waters, including intermittent streams and waters that were isolated and not connected to navigable waters. According to a report from the Sierra Club, however, in 2001, in Solid Waste Agency of Northern Cook County (SWANCC) v. Army Corps of Engineers, “the Supreme Court of the United States (SCOTUS) rejected the government’s interpretation that the Clean Water Act covered an ‘isolated’ Illinois water body. The Corps had argued that waters serving as migratory bird habitat could be protected under the law, but the court held that Congress did not clearly express to safeguard such water bodies.”

Further, “In 2006, the SCOTUS decided Rapanos v. U.S., a case in which a variety of industry groups argued that the law does not fully protect non-navigable tributaries and their adjacent wetlands. The result was a messy split decision; its various opinions suggested different tests and have led to significant debate about what the law now requires. Justice Kennedy, who provided the swing vote, would require the agencies to show a physical, biological, or chemical linkage—a “significant nexus”—between a water body and a traditionally navigable one to protect it.”

Those decisions had a direct impact on the way the act was enforced. Another report called “Courting Disaster,” a publication of Earthjustice, Environment America, Clean Water Action and the National Wildlife Federation, lists more than 30 case studies where, according to the authors, the act has been misapplied since 2001.

The report shows incidents where there are interpretations that seem to be wanting, for instance a creek in which water flows, or could flow, into a reservoir is determined to be not protected by the act; and a lake on which people water ski is determined to be not navigable because it is “isolated.”

EPA says that in the wake of the court decisions, it has received numerous requests for a rulemaking that would clarify which waters are protected and which are not. In a press release about the rule EPA said, “The proposed rule clarifies protection for streams and wetlands. It does not protect any new types of waters that have not historically been covered under the Clean Water Act and is consistent with the Supreme Court’s more narrow reading of Clean Water Act jurisdiction.”

EPA said the proposed protections of upstream creeks and headwaters are essential for protecting the drinking water supplies of millions of residents. At the same time, it said that there are exemptions carved out for agriculture.

Many Washington lawmakers are not buying the EPA line. Most Republican members of the House of Representatives, and 19 Democrats, signed a letter urging that the rule be abandoned, and the house appropriations committee has passed a bill that would block EPA and ACE from spending any money to enforce the rule.

In the Senate, Republican Pat Roberts also introduced legislation to block the rule. He wrote, “If finalized, the rule would represent a massive land grab by the federal government, since few water bodies would escape the agencies’ broad definition of ‘waters of the United States.’ The proposal effectively eliminates the CWA’s ‘navigable waters’ provision, which Congress included to guarantee limits to federal authority.”

The environmental groups on the other hand wrote, “Congress defined ‘navigable waters’ broadly to mean the ‘waters of the United States.’”

EPA notes, “Forty years ago, two-thirds of America’s lakes, rivers and coastal waters were unsafe for fishing and swimming. Because of the Clean Water Act, that number has been cut in half. However, one-third of the nation’s waters still do not meet standards.”

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