STRAIGHT FROM THE HORSES MOUTH

Duane A. Lienemann

     I have been watching closely the saga of the continued attempts of a governmental agency to garner even more control of something that is critical to Nebraska. There has been litigation, studies and even Supreme Court decisions on the evolution of the Clean Water Act, originally passed in 1972, ironically during my first year as a teacher. Approved by Congress on the heels of the National Environmental Policy Act of 1969 and the Clean Air Act amendments of 1970, the Clean Water Act received overwhelming support. The Clean Water Act marked its 41st anniversary this past month hailing the law's bipartisan passage, which has been used as a symbol of a long-lost period of unity around combating ecological problems. Unfortunately today it seems that this has become more of an ideology and perhaps a grab of power at the expense of agriculture and other critical businesses.  There is evidence that more of this is coming, or at least it appears that another thrust to change the Clean Water Act (CWA) to hand over more power to the EPA is happening. Why do I say that? 
     Recently the EPA issued a report which implies that, because nearly all water is in some way connected, EPA’s authority under the Clean Water Act (CWA) is virtually limitless.  The report thus disguises what is nothing more than a policy preference as a claim that is justified by science and the law.  According to the American Farm Bureau, such a position is contrary to law and utterly unfounded.  The impact of this interpretation, if rolled into federal regulation as the farm organization anticipates, is more permits, more permit requirements, government and environmental group scrutiny of more of the things we do in agriculture such as fertilizer and pesticide applications.  The increased threat of litigation against farmers and ranchers will uniquely impact Nebraska with our reliance on available irrigation resources. CWA jurisdiction also triggers other federal requirements, such as enforcement under the Endangered Species Act, National Environmental Policy Act and National Historic Preservation Act. Combined, the requirements farmers and ranchers could be subject to would lower land values and create numerous new barriers on the everyday activities of farmers and ranchers.
     Under the Clean Water Restoration Act, the EPA is in control of all “navigable waters.” On the surface, the term “navigable waters” would seem to provide some measure of protection to the public from invasive EPA enforcement by placing some reasonable limitations on the EPA’s regulatory power. Unfortunately, this is proving not to be the case. There is high concern that the EPA is again using the pretext of natural resource management to seize more regulatory power through their report: “Connectivity of Streams & Wetlands to Downstream Waters: A Review & Synthesis of the Scientific Evidence.” Contrary to being a "scientific" document (http://water.epa.gov/lawsregs/guidance/wetlands/CWAwaters.cfm) this report appears to be driven by policy and ideology considerations to expand EPA authority to all waters.  This not only conflicts with the Congressional intent provided in the existing Clean Water Act, but also against two U.S. Supreme Court decisions which states that any rule defining the reach of the CWA must include limits on federal jurisdiction, and cannot include waters that are not navigable or that do not have a “significant nexus” to navigable waters.  
     The report issued by the EPA essentially does the opposite. It concludes that nearly all wetlands, open waters (irrigation reuse pits), and streams (channels/ditches), regardless of size or how frequently they flow, are connected and thus would fall under the federal government’s regulatory jurisdiction. Yet this report does not even attempt to address the important question of what is significant and what is not. The draft report appears to be nothing more than a rather basic compilation of articles that describe how water flows downhill, which we all learned in school.  The draft report shows only that low spots and channels on the landscape might be connected to downstream waters at some unknown, elementary level.  None of the conclusions found in the literature review show whether these connections are "significant" or how the existence of connections might support regulatory or policy decisions related to navigable waters (i.e. "significant nexus").  
     Another concern is that the report expands the definition of stream to include the presence of connections, but cannot differentiate or characterize the difference between something that is truly an aquatic stream from a common ditch, gully, swale or erosion channel that remains dry most of the year.  That is problematic, because while it is well understood that connectivity exists (i.e. water flows downhill),  one would think that science should be used to determine, objectively and quantitatively, whether a connection is a stream, a navigable water, a common ditch, an erosion feature or something else altogether.  From a legal standpoint, there is virtually no justification for concluding that such connections are "significant."
     It seems that the EPA is trying to initiate a “sweeping reinterpretation” of its jurisdiction in this potential new rule. It appears that the regulation to expand the EPA’s oversight would give it unprecedented control over private property across the nation and in light of the significant implications this action would have on the economy, property rights, and state sovereignty, this process must be given more thought and deliberation to allow for important, statutorily-required, weighing of the scientific and technical underpinnings of the proposed regulatory changes. The EPA has yet to unveil their plans from this study to the public, but the never-ceasing vigilance it takes to keep their regulatory agenda in check truly boggles the mind. The EPA's independent Science Advisory Board is soliciting public comment and will hold a public peer review meeting later this year. I encourage you to study what is going on and if applicable, voice your opinion.

The preceding information comes from the research and personal observations of the writer which may or may not reflect the views of UNL or UNL Extension. For more further information on these or other topics contact D. A. Lienemann, UNL Extension Educator for Webster County in Red Cloud, (402) 746-3417 or email to: dlienemann2@unl.edu or go to the website at: http://www.webster.unl.edu/home