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EPA accused of ‘land grab’

By Fritz Mayer
June 25, 2014

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.”