Ag Policy Blog
Chris Clayton DTN Ag Policy Editor

Thursday 08/28/14

EPA Water Rule Starts in the Ephemeral Streams

EPA finds itself fighting a losing public-relations war against not just farm groups but also vocal Republican officials.

Nebraska Gov. Dave Heineman on Monday called EPA "the enemy of agriculture."

On Wednesday, U.S. House Science Committee Chairman Lamar Smith, R-Texas, went a little deeper, concluding that EPA maps of rivers and streams "show the EPA's plan to control a huge amount of private property across the country." Smith said EPA was engaging in a land grab.

At issue remains the proposed rule by EPA and the U.S. Army Corps of Engineers to redefine what "waters of the United States" means in the Clean Water Act.

What does it mean to have land next to a water body of the United States compared to not being adjacent to those waters? That's a big question considering how EPA and the Army Corps of Engineers classify and treat water "tributaries" if this proposed rule goes into effect.

EPA and the U.S. Army Corps of Engineers proposed in March to redefine "waters of the United States" under the Clean Water Act. According to the Federal Register posting, the definition used for waters of the United States includes: "Traditional navigable waters; interstate waters, including interstate wetlands; the territorial seas; impoundments of traditional navigable waters, interstate waters, including interstate wetlands, the territorial seas, and tributaries, as defined as such waters; tributaries, as defined, of traditional navigable waters, interstate waters, or the territorial seas; and adjacent waters, including adjacent wetlands."

The next line in the proposed rule posting adds, "Waters in these categories would be jurisdictional 'waters of the United States' by rule -- no additional analysis would be required."

All of the above would be waters of the U.S. under the Clean Water Act.

All perennial, intermittent and ephemeral streams would be part of the rule because they are considered tributaries that are "physically and chemically connected" downstream to traditional navigable waters. That's the case even though intermittent streams only flow part of the year and ephemeral streams only flow after heavy rainfalls.

The map cites the prevalence of intermittent and ephemeral streams across the country that would come under the scope of the rule. Out of 7,339,124 miles of streams across the country, 77%, or nearly 5.7 million miles, are considered either intermittent or ephemeral.

Federal court decisions going back more than a decade have determined that "even tributaries that flow intermittently are waters of the United States." Yet, the rule seems to go farther into ephemeral streams as well.

The rule states that farming, silviculture, ranching and other specified activities would keep their exemptions and not be required to get a permit for those activities.

Beyond the classification of tributaries in the rule, then there is another group of waterways that could be classified as waters of the United States if they are shown to have a "significant nexus." Effectively, the rule seeks to define what a "neighboring riparian area" means, as well as what is a floodplain, a tributary and a significant nexus.

After the attack by Smith and his committee's release of the maps, an EPA official on Thursday wrote a blog seeking to clarify some of the controversy over the maps and what they seem to show.

Tom Reynolds, associate administrator for External Affairs at EPA, explained that the Clean Water Act "has nothing to do with land use or private property rights, and our proposal does not do anything to change that. The idea that EPA can use the Clean Water Act to execute a land grab or intrude on private property rights is simply false."

That's a direct statement, but not exactly accurate. The archives are filled with articles of what landowners are not allowed to do on their land because of wetlands, pond restrictions, trees or drainage where EPA has come in and told farmers they have to stop what they are doing. Then there are the court cases over who needs a discharge permit and why. Every time we write one of these pieces we have to ask why is EPA going after this guy or trying to get some chicken farm to get a permit?

Reynolds goes on. He notes EPA is trying to get out its message about clean water and the role streams and wetlands "to our health, communities and economy. We’ve already worked to ditch many of the myths and misunderstandings in circulation relating to our effort to protect clean water." Following farm groups pushing #DitchtheRule, EPA came up with #DitchtheMyth. http://www2.epa.gov/…

Regarding the maps released by Smith's committee, EPA states the maps were created in 2005 -- that's the George W. Bush administration -- following Supreme Court cases on waters of the U.S. The maps were updated last year with information form the U.S. Geological Survey, but Reynolds states, "Simply put, these maps do not show the scope of waters historically covered under the Clean Water Act or proposed to be covered under EPA’s proposed rule. These maps show generally the location of many streams, wetlands, rivers, lakes and other water bodies. They serve as a tool for visualizing how water flows across our nation and in regions of the country."

Reynolds adds, "EPA has never and is not now relying on maps to determine jurisdiction under the Clean Water Act. The U.S. Army Corps of Engineers determines jurisdiction using detailed site specific information in response to requests. That work can be cumbersome and has resulted in lots of on the ground work, but it does not rely on maps. EPA’s proposal will not fully eliminate the need for these efforts, but it can reduce leg work, saving time and money by using science – not maps – to more clearly define the waters that are most important to protect."

That brings up an interesting point. Why aren't there maps to show what EPA or the Corps consider "waters of the United States?" The maps, created in this administration or the last, must have been done to reflect the scope of the Clean Water Act, the Supreme Court decisions and any changes to the proposed law. The maps seem to show a lot of potential ways and places to interpret or designate a regulated waterway of the United States somewhere.

Reynolds states the maps are tools but give a "false impression" of what is considered a waterway "when everyone knows that is clearly not the case."

Still, after staring at those maps for nearly nine years, EPA came out with a rule that seems to classify a lot of different types of water resources as waters of the U.S. Again, pointing to the map, 5.7 million miles of streams are either flow only part of the year or after a heavy rainfall.

Under the rule, these intermittent and ephemeral streams are waters of the U.S. -- no additional analysis would be required.

Follow me on Twitter @ChrisClaytonDTN

Posted at 5:27PM CDT 08/28/14 by Chris Clayton
Comments (4)
Does the definition also include, "Hydric soils"?
Posted by Bonnie Dukowitz at 8:28PM CDT 08/28/14
In its broadest sense, the EPA truly wants to regulate every inch of drainage in the country. Where I live, in water-rich Ohio, virtually every farm has a drainage ditch, creek, wash, or similar tributary. This would enable their long and onerous arm to reach into the farm operations of virtually every farm in my state. I hope Secretary Vilsack has some say in this. If not, virtually all of the drainage in the country will be regulated by the EPA. How glorious would that be? Secretary Vilsack, are you watching this debacle unfold?
Posted by tom vogel at 10:46AM CDT 08/31/14
Tying crop insurance to wetland compliance, new rules from EPA, just coincidence? I think not! The days of property rights, freedom and liberty on our own property are gone along with TRUE private property ownership. Govt agencies and employees running things without oversight or accountability. No trial by a jury of your peers but instead judgement by an activist/govt employee that don't even have to answer to congress. Not much freedom or liberty left. Some day they will combine Memorial Day and Independence Day so we morn the end of our independence. They can't even give us a credible map to say what they have jurisdiction over, that's because they want to protect their right to have jurisdiction over everything.
Posted by Unknown at 10:56AM CDT 08/31/14
Reynolds; "not intrude on private property rights". Are you kidding me?! Why do this "ruling" if that's the case? If its not raining, why carry an umbrella?
Posted by Curt Zingula at 7:14AM CDT 09/02/14
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