EPA, Corps Making an End-Run Around Congress

Jordan Dux, Nebraska Farm Bureau national affairs coordinator, is today’s Farm Bureau Blogger.

The EPA and Army Corps of Engineers released a draft “guidance document”  April 27 that looks amazingly like the Clean Water Restoration Act, which Congress failed to pass last years. Looks very much like the two federal agencies are trying to use regulation to accomplish what Congress said “no thanks” to.

The “Clean Water Restoration Act” proposed a big-time expansion of the federal government’s power to regulate waters and extended its reach on private property as well. As proposed in the bill and now in the draft guidance doc, nearly every body of water — farm ponds, ditches, mud puddles and more — could now be under the regulatory jurisdiction of the federal government. 

EPA says the new guidance is designed in part to eliminate uncertainty caused by 2001 and 2006 Supreme Court decisions that narrowed significantly the types of rivers and streams subject to the Clean Water Act.

However, the new doc further confuses understanding of which waterways are subject to CWA. Administration officials said it would help restore federal protections for waterways by clarifying that small streams and streams that flow only part of the year are subject to regulation if they have a “physical, chemical or biological connection to larger bodies of water downstream and could affect the integrity of those downstream waters.”

Got that?

Businesses and homeowners would have to get permits (which could run into thousands of dollars) just in case a chemical would run off a field or construction site into a free-flowing waterway or waters that connect to conventional rivers or streams.

 EPA is claiming that the proposal does not change existing agricultural exemptions and it specifically exempts artificial lakes and ponds and artificially irrigated areas and many agricultural and roadside ditches from CWA requirements. But, EPA did not explain which ag activities, exactly, would be exempted.

So the key to EPA’s statement is what it did not say. EPA and the Corps now get to decide what is considered a “normal farming practice.” If they decide that a practice will “convert” or change the “reach” of a water body, they can “recapture” the practice and regulate it.

This could mean that runoff from a typical pesticide application could now fall under Clean Water Act regulations. Already farmers in California are being asked to get a CWA permit for something as simple as switching a field from pasture to cropland.

If the draft guidance is approved, it will affect consumers on multiple levels. The cost of nearly everything will go up: as their cost of doing business goes up, manufacturers, etc. will likely pass their increased cost on to consumers. (Farmers, up course, do not have that option.) Simple things like building a home will cost more because of the expensive permits necessary to comply with this new guidance.

The government is taking public comments on the proposed guidance through July1. You can comment here.

Jordan Dux

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