Category: Newsletter

States Sue Obama Administration over Water Rule

The Swamp Stomp

Volume 15, Issue 31

Eighteen states sued the Obama administration on Monday June 29th in order to prevent a new regulation establishing federal authority over minor waterways, such as streams and wetlands.

The rule, a product of the Environmental Protection Agency (EPA), has proven to be one of the most controversial regulations passed by the Obama Administration. It redefines how the EPA enforces and regulates the water pollution protections delineated by the Clean Water Act.

The states leading the charge against the new regulation formed three separate groups to file lawsuits in different federal courts, based in Bismarck, North Dakota.; Columbus, Ohio; and Houston, Texas. The states argue that this regulation allows the EPA to overreach its jurisdiction, and violates the clear language used in the Clean Water Act that separated federal authority from that of states or private landowners over waterways.

The attorneys general for the states of Texas, Mississippi, and Louisiana asserted in their lawsuit that “the very structure of the Constitution, and therefore liberty itself, is threatened when administrative agencies attempt to assert independent sovereignty and lawmaking authority that is superior to the states, Congress, and the courts.”

Nebraska Attorney General Doug Peterson said in a statement about the lawsuit he filed with leaders in Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming that “the EPA has redefined ‘waters of the U.S.’ in order to gain greater authority and power over private land.”

Ohio Attorney General Mike DeWine also mirrored this idea when commenting on his lawsuit with Michigan. He said, “This rule clearly violates both the language and the spirit of the Clean Water Act, which recognizes the rights of states to serve as trustees of their natural resources. This is yet another example of the Obama administration overreaching its authority and unilaterally attempting to concentrate power in the hands of federal bureaucrats.”

These may be the first court challenges against the rule, but they will surely not be the last as farmers, developers, business groups, and many others also oppose the rule, which they claim gives the EPA power over almost any piece of land.

Obama’s administration finalized the rule last month in an attempt to regain jurisdiction after two different Supreme Court cases restricted federal regulations. While this rule increases the area covered by the Clean Water Act by about 3 percent, the area remains much smaller than during President Bill Clinton’s administration.

If a waterway is suspect to federal jurisdiction under this new rule, then landowners may need permits for anything that harms or pollutes it.

Gina McCarthy, EPA Administrator, claimed, “We’re finalizing a clean water rule to protect the streams and the wetlands that one in three Americans rely on for drinking water. And we’re doing that without creating any new permitting requirements and maintain all exemptions and exclusions.”

Brian Deese, a top advisor to President Obama, said when describing those in opposition to the rule that “the only people with reason to oppose the rule are polluters who want to threaten our clean water.”

The House has voted to overturn the rule, and the Senate Environment and Public Works Committee has passed a bill to overturn it while also giving the EPA specific instructions to re-write the rule.

Even now that the rule has been finalized by the Obama administration, the end to the battle over the EPA’s rule and the Clean Water Act seems far from close.

Groundwater Aquifers Reach Critical Levels

The Swamp Stomp

Volume 15, Issue 30

The top three stressed groundwater basins in the world are located in the Middle East, the region between India and Pakistan, and the Murzuk-Djado Basin in northern Africa respectively. Due to continued political unrest and several other human caused obstructions in these areas, a third of the world’s largest groundwater aquifers are depleting rapidly.

A pair of new studies conducted by the University of California at Irvine state that not only are water levels diminishing, but there is no way of knowing how much water actually remains in these mammoth aquifers. The studies on these aquifers—often referred to by water resources scientists as ‘Earth’s water savings accounts’—began due to California’s worst drought on record, whereby farmers in California’s Central Valley have consumed so much ground water that the state has actually sunk by a foot in some places.

The studies are the first to employ data obtained from NASA’s two Gravity Recovery and Climate Experiment satellites, otherwise known as GRACE. GRACE enables James Famiglietti, an author of both studies, to claim that men are using water that the Earth has stored for hundreds, if not thousands, of years, and not replenishing it fast enough.

Famiglietti, professor of Earth system science at the University of California, Irvine and senior water scientist at NASA’s Jet Propulsion Laboratory, asserts that the majority of the world’s groundwater accounts “are past sustainability tipping points.”

Both studies, published in the journal Water Resources Research, report on the necessity of discovering how much water is actually left in the world’s most valuable aquifers.

“The message we want to get out there is this is really unacceptable. We really better get on some kind of major exploration program,” Famiglietti said.  He also spoke of his fear over how people may react to the uncertainty of his findings. He said, “What I am afraid of is people will say, ‘oh, we don’t know how much water there is, and maybe we have a ton—but maybe we don’t. The signs of stress are all there.”

It is expected that both climate change and population growth will exacerbate the problem of groundwater depletion. National security experts have repeatedly warned that global warming may act as a threat multiplier and worsen any existing tensions.

Alexandra Richey, a graduate student at UC-Irvine who worked with Famiglietti on the studies, asked, “What happens when a highly stressed aquifer is located in a region with socioeconomic or political tensions that cant supplement declining water fast enough? We’re trying to raise red flags now to pinpoint where active management today could protect future lives and livelihoods.”

Richey then reiterated Famiglietti’s desire to discover exactly how much water remains in the worl’s largest groundwater aquifers. She said, “We don’t actually know how much is stored in each of these aquifers. Estimates of remaining storage might vary from decades to millennia. In a water-scarce society, we can no longer tolerate this level of uncertainty, especially since groundwater is disappearing so rapidly.”

Famiglietti, Richey, and the rest of their team are campaigning for a global expedition to directly measure the amount of water stored in the world’s groundwater aquifers, which would require drilling to reach bedrock in many cases.

“I believe we need to explore the world’s aquifers as if they had the same value as oil reserves,” Famiglietti said.

UW Researcher Discovers Groundwater Modeling Breakthrough

The Swamp Stomp

Volume 15, Issue 29

In 1931, Lorenzo Richards created an extremely complex equation to calculate how much water is absorbed into soil over time as rainfall hits the ground surface and filters down toward the water table. Until now, the Richards equation (RE), has been the only rigorous way to calculate the movement of water in the vadose zone, the unsaturated soil between the water table and the ground surface where most plant roots grow. Now, however, Fred Ogden, a University of Wyoming professor (UW), has developed a new equation to replace the unreliable RE.

After spending decades devoted to the task, Ogden, UW’s Cline Chair of Engineering, Environment, and Natural Resources in the Department of Civil and Architectural Engineering and Haub School of Environment and Natural Resources, and his team of collaborators published their paper, titled “A new general 1-D vadose zone flow solution method,” and introduced the world to his new equation.

Ogden and his team anticipate that their findings will greatly improve both the reliability and functionality of hundreds of important water models used by everyone from irrigators and city planners to climate scientists and botanists, as well as trigger a new flood in data collection.

“I honestly never thought I would be involved in a discovery in my field,” Ogden claimed.

RE has been so important over the last 64 years because calculating the movement of water in the vadose zone is critical for estimating return flows, aquifer recharge, managing irrigation, and predicting floods. The problem with RE, though, is that it is so complex that it is extremely difficult to solve, and in some cases even unsolvable. Therefore, while some high-powered computer models can handle the equation over small areas, simpler models or those covering much larger areas can only use approximations.

It is clear then why alternative methods have been pursued. It wasn’t until late last fall, however, that a new solution was found. Ogden then tested his solution with precipitation data from his field site in Panama.

Ogden said, “We ran eight months of Panama data with 263 centimeters of rain through our equation and Hydrus.” Hydrus is an existing supercomputer model that uses RE. The results of Ogden’s model only generated a 7 millimeter, or two tenths of 1 percent, difference from the Hydrus model.

“They were almost identical. That’s when I knew. I felt like the guy who discovered the gold nugget in the American River in California,” Ogden continued.

The equation is now the centerpiece for Ogden’s ADHydro model, a massive supercomputer model that’s first simulating the water supply effects of different climate and management scenarios throughout the entire upper Colorado River Basin. After that simulation is complete, Ogden hopes that other models will adopt his equation as well.

He claimed, “I think, for rigorous models, it’s going to become the standard. With help from mathematics and computer scientists, it will just get faster and better.”

The equation could prove even more important as technological advances call for new data collections. Ogden hopes that his discovery will bring soil science back into relevance for water managers and ultimately lead to new soil data collection.

Ogden asserted, “We now have a reliable way to couple groundwater to surface through the soil that people have been looking for since 1931.”

18 WOTUS State Lawsuits and Counting

The Swamp Stomp

Volume 15, Issue 28

Attorneys general from thirteen states filed a lawsuit on June 29, 2015 in response to EPA’s new rule defining the waters of the U.S. (WOTUS).  These include:  Alaska, Arkansas, Arizona, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming.  There suit asserts that the rule expands the scope of clean water regulations to lands that are dry much of the year and increases the federal government’s authority over land use.

The case was filed in the U.S. District Court for the District of North Dakota. South Dakota Attorney General Marty Jackley, who is joined in the lawsuit, observed that 35 states have filed comments in opposing the rule and several other attorneys general are considering filing challenges.

In separate filings Texas, Mississippi and Louisiana asked a federal court in Houston to declare unconstitutional the Clean Water Act rule expanding the definition of “waters of the United States,” calling it an “impermissible expansion of federal power over the states.”

In their complaint, the states contend the new definition of WOTUS violates provisions of the Clean Water Act (CWA), the National Environmental Policy Act (NEPA), and the United States Constitution.

The states assert that the EPA’s rule inappropriately expands federal authority by placing a majority of water and land resources management in the hands of the federal government. “Congress and the courts have repeatedly affirmed the states have primary responsibility for the protection of intrastate waters and land management,” Jackley said in his release.

The states argue that the burdens created by the new EPA requirements on waters and lands are harmful to the states and will negatively affect agriculture economic development.

The lawsuit seeks an order declaring the rule is unlawful and prohibiting the agencies from implementing it. Without such an order, the rule takes effect within 60 days.

Ohio Attorney General Mike DeWine is also suing the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers on the behalf of Ohio and Michigan.  He is also focusing on the issue of the states right to regulate interstate commerce waters.

Mr. DeWine stated, “This rule clearly violates both the language and spirit of the Clean Water Act, which recognizes the rights of states to serve as trustees of their natural resources.”

In their complaint, the states contend the new definition of WOTUS violates provisions of the Clean Water Act (CWA), the National Environmental Policy Act (NEPA), and the United States Constitution.

The states assert that the EPA’s rule inappropriately broadens federal authority by placing a majority of water and land resources management in the hands of the federal government. “Congress and the courts have repeatedly affirmed the states have primary responsibility for the protection of intrastate waters and land management,” Jackley said in his release. These states argue that the new requirements created by the new EPA on waters and lands are harmful to the states and will negatively affect agriculture economic development.

These lawsuits seek an order declaring the rule is unlawful and prohibiting the agencies from implementing it. Without such an order, the rule takes effect on August 28, 2015.

In response to these suits, EPA issued the following statement:

“While we can’t comment on the lawsuit, it’s important to remember that EPA and the U.S. Army Corps of Engineers finalized the Clean Water Rule because protection for many of the nation’s streams and wetlands had been confusing, complex, and time-consuming as the result of Supreme Court decisions in 2001 and 2006. In order to clearly protect the streams and wetlands that form the foundation of the nation’s water resources, the agencies developed a rule that ensures that waters protected under the Clean Water Act are more precisely defined, more predictably determined, and easier for businesses and industry to understand.

“One in three people get drinking water from streams that lacked clear protection before the Clean Water Rule. America’s cherished way of life depends on clean water, as healthy ecosystems provide wildlife habitat and places to fish, paddle, surf, and swim. Clean and reliable water is an economic driver, including for manufacturing, farming, tourism, recreation, and energy production. The health of our rivers, lakes, bays, and coastal waters are impacted by the streams and wetlands where they begin.

“In developing the rule, the agencies held more than 400 meetings with stakeholders across the country, reviewed over 1 million public comments, and listened carefully to perspectives from all sides. EPA and the Army also utilized the latest science, including a report summarizing more than 1,200 peer-reviewed, published scientific studies which showed that small streams and wetlands play an integral role in the health of larger downstream water bodies.”

Hundreds of Turtle Deaths Blamed on Water Toxins

The Swamp Stomp

Volume 15, Issue 27

In the last month, hundreds of small turtles have washed up dead along the eastern shore of Long Island. Scientists have begun to blame these deaths on waterborne toxins that have achieved unprecedented levels.

Thanks to necropsies performed on over 200 diamondback terrapins found dead on the island’s North Fork Point, scientists think saxitoxin, a biotoxin produced in algae blooms, is to blame. The levels of saxitoxin found in the water was over ten times normal amounts. The turtles absorb the poison by eating the shellfish that have collected the toxin. Paralysis and death occurs soon after.

Karen Testa, executive director of Turtle Rescue of the Hamptons, claimed, “We’re seeing bodies washing up in perfect condition. This has never happened before. It’s an alarming thing.”

She continued by claiming that all indicators point to saxitoxin. “There’s no other explanation for what’s causing the die-off of these poor animals.”

Christopher Gobler, a professor at Stony Brook University’s School of Marine and Atmospheric Science, has been studying the algae blooms that occur off of Long Island for over 20 years. While saxitoxin is normally detected in the region’s waters, he claims that levels have never been this high, and have never caused such a wildlife die-off.

State officials have labeled saxitoxin a “dangerous neurotoxin” that may damage or impair nerve tissue. Shellfish act as natural filters and absorb the toxins from the water. Other animals then experience paralysis when they feed on the shellfish.

These effects are not limited to sea animals. When humans ingest infected shellfish, they typically experience numbness and tightness in their faces, as well as a loss of coordination. Most humans recover in a matter of days, but in some rare cases, the poisoning has resulted in death.

Both county and state officials have advised people not to consume shellfish from the area, and have also advised against swimming in discolored water.

Adrienne Esposito, executive director of Citizen’s Campaign for the Environment, said, “This is a serious threat to public health. When you have a saxitoxin that can kill humans, you need to address the cause.”

While the exact cause to the high levels of saxitoxin currently present in Long Island waterways remains unknown, Gobler and Esposito both think that nitrogen in the water may be to blame. Leaking septic tanks and sewage can make its way into bays and increase nitrogen levels in the water. However, there is no indication of why levels of septic sewage entering bays should be any higher than normal.

Just Meyers, Suffolk County Assistant Deputy County Executive, claimed that the county has devised a plan to reduce nitrogen pollution. He hopes to acquire $400 million in state and federal grants to improve water infrastructure, as well as converting 360,000 homes from cesspools to municipal sewers.

The first step the making the waters safe for food sources for small turtles and humans is to discover why amounts of saxitoxin reached such high levels this year. If the cause remains uncertain, then other bodies of water become in danger of suffering from a similar fate.

2015 Waters of the US Final Rules

The Swamp Stomp

Volume 15, Issue 26

On Monday June 29, 2015 the final Waters of the US Rules were published in the Federal Register.  They become effective on August 28, 2015.  At that point they are the law of the land.

There has been much discussion about these new rules, their legitimacy and the need for them.  The major proponents argue that clean water is at risk without these rules.  The opponents argue that this rule is nothing more than a federal land grab.

The President through his agencies has argued that these rules are needed to clear up any confusion of what the federal government should and should not regulate.  The assumption is that an unregulated water is a dirty water.  Chief among the confused is the Supreme Court.   One of the major goals of this rule is to correct the SWANCC decision that limited federal jurisdiction over isolated waters.  However, with thousands of pages of documents used to develop this rule I doubt that this goal has been achieved.

fedRegWotUS

Are these rules good or bad?  At this point that is a matter for the courts to decide.  There are some highly political bills being floated around Congress.  However, they lack the support need to overturn the rules.  The main issue is that they would face a likely Presidential veto should they pass both chambers.

One of the more amusing aspects of the opposition is to threaten to take away funding for the implementation of the rule.  At issue is how does one fund a definition?  The rule is now published so there is no longer any issue of disseminating the information.  Perhaps the Agencies are not allowed to talk about 80 FR 37053 – 37127.  Can they still mention waters of the United States?  If so, which definition?  If they use the old one, are they breaking their own rule?  If so, can a third party bring suit against the Agencies for not following a published rule?  Are we the regulated, still bound by the new published rule even if the Agencies can’t implement it?

Politics aside, (good luck with that) these rules are real and there are some very significant changes.  What is unfortunate is that the Agency personnel will most likely be denied any training on these new rules.  That is something Congress can withhold.  This could prove problematic when it comes time to argue for or against jurisdiction of a water.  Lack of training often results in poor decisions.

There is also one other date in the rule that is significant.  The date for Judicial Review is July 1, 2015.  I believe that corresponds with the date the Supreme Court goes into recess.  If you will recall as established by Marbury v. Madison (1803) the Supreme Court has the responsibility to decide if any law rule or regulation is constitutional.  July 1, 2015 is the date that that review would begin.  Is it a coincidence that this rule came out during the Court’s summer recess?  The Supremes will not be back until October.

We have posted a full version of the new rules on our website.  You can see them here or download the full document here.

Have a great week!

–    Marc

Mississippi and Atchafalaya Rivers Dump Sediment into Louisiana Wetlands, Lakes, and Gulf

The Swamp Stomp

Volume 15, Issue 24

Images taken from NASA’s MODIS satellite clearly show that the rising Mississippi and Atchafalaya rivers are pouring an abundance of sediment into coastal wetlands, Lake Pontchartrain and other coastal lakes, and the Gulf of Mexico.

Having been washed into the Mississippi River by a combination of rainfall and melting snow at farmlands across the Midwest and Ohio Valley, sediment is gushing into southern Louisiana. Officials hope to construct a series of diversions along the Mississippi River in the coming years to collect the increased amount of sediment that is expected to continue its journey south in future spring floods. The sediment would then be used to create new wetlands in order to nourish the existing wetlands.

30 percent of the Mississippi River’s water is diverted into the Atchafalaya River at the Old River Control Structure above Baton Rouge. Satellite imagery displays that the sediment is entering the Gulf of Mexico, which is where the majority of sediment is lost, through the Atchafalaya River’s mouth below Morgan City and through the Wax Lake Outlet to the west. The wetlands off of Wax Lake have been expanding south for over 40 years due to similar springtime flooding.

sedimentmap

While water levels remain below the official 17-foot flood stage for the city, the water levels have been high enough to pour a constant stream on sediment-laden water into the Bonnet Carre Spillway in St. Charles Parish. From there the sediment is carried into Lake Pontchartrain where it mainly settles on the lake’s southern shore. Increased sediment is also noticeably visible in Lake Maurepas.

When the river grew to 12.5 feet in New Orleans, water began to escape through the long wooden slats in concrete bays in the spillway structure. As a result, sediment from the spillway became visible in Lake Borgne, the Mississippi Sound, and along the Chandeleur Islands after it traveled through the Rigolets and Chef Menteur passes at the eastern end of the lake.

The West Bank also acts as a deposit zone for some sediment flowing through the Davis Pond freshwater diversion into Lake Cataouatche before entering Lake Salvador and Barataria Bay. The most visible amount of sediment, however, are along the east and west sides of the southern end of the river in Plaquemines Parish, with a broad stream flowing towards the Gulf of Mexico.

Despite this immense increase in sediment, criticism from oyster growers and commercial fishers remain against the plans to build the necessary diversions.

In response to such criticisms, Garret Graves, chairman of Louisiana’s Coastal Master Plan, claimed, “People are out there making allegations that are not supported. . . We’re moving forward with the master plan. We’re moving forward with designing four of the largest diversions. And we’re building them.”

These diversions are expected to produce 300 square miles of new land by 2060, while other projects also in the master plan would create marshland using sediment collected from the Mississippi River. The master plan is still determining the best places to build projects that will allow the state to withstand water level heights in the coming century, but it seems apparent that these diversions are necessary to cope with the increased flooding expected in the coming years.

GOP Supports Obama’s Changes to Endangered Species Act

Swamp Stomp

Volume 15, Issue 23

President Obama has received rare support from Republicans, industry groups, and states for his changes to the Endangered Species Act. The joint rulemaking by the Fish and Wildlife Service (FWS) and National Marine Fisheries Service would make decisions regarding the Act more efficient, collaborative, and transparent to the public. Democrats also hope that the changes will help mitigate conservatives in Congress who have vowed to overhaul the ESA.

Despite the law preventing over 99 percent of listed species from going extinct over the last four decades, those who criticize the law in Congress claim that it has failed to recover all but roughly two percent of endangered species.

The new rule proposed on May 19, 2015, creates a higher standard for petitions filed under the law to list new species as threatened or endangered, to change the species’ status, to delist species, or to change the boundaries of critical habitat. This will allow the agencies to focus more attention on species that truly warrant action.

Previously, either agency had 90 days to decide whether any of the petitions received contained sufficient information to indicate that action—either listing or delisting—was necessary. If a decision was made in the affirmative, then an additional twelve months was allocated to decide whether or not to propose a listing rule.

However, the sheer volume of petitions submitted by environmental groups in recent years has exceeded FWS’s capacity to respond to them, and has often landed in the agency in court. In the four years before signing a sweeping legal agreement with two separate green groups in 2011, the agency received petitions for over 1,230 species—a number that is just shy of the total amount received in the last thirty years.

In attempts to do away with “mega-petitions,” such as the one submitted by the Center for Biological Diversity and other environmental groups in April 2010 that listed 404 species, this new rule limits petitions to just one species at a time. “Mega-petitions” were often vaguely written and difficult to follow. This new rule requires that all petitions be organized on a species-by-species basis, so that each species can be given the attention it deserves.

Furthermore, petitions must now contain clear documentation of the threats to wildlife. Relevant information includes the following:

  • Literature citations that are specific enough for the agencies to find the information, including by page and chapter.
  • Electronic or hard copies of any supporting materials such as publications, maps, reports and letters cited in the petition, or valid links to public websites where the information can be found.
  • Information demonstrating that the petitioned wildlife meets ESA’s definition of a “species.”
  • Information on current population status and trends and estimates of current population sizes and distributions, both in captivity and the wild, if available.

 

If a petition is missing any of this information, then FWS will be able to return the petition.

The new rule defines “substantial scientific or commercial information” as information that “a reasonable person conducting an impartial scientific review would conclude that the action proposed in the petition may be warranted.”

“For example, a petition that states only that a species is rare and thus should be listed, without other credible information regarding its status, does not provide substantial information,” it says.

The rule also states that for a failed petition to be resubmitted, it must contain new information in support of its claim. It says, “These changes would improve the quality of petitions through expanded content requirements and guidelines; and in doing so; better focus the Services’ energies on petitions that merit further analysis.”

Speaking about the rule, Ryan Yates, Chairman of the National Endangered Species Act Reform Coalition and Director of Congressional Relations at the American Farm Bureau, claimed, “While we are still reviewing the substance of the proposed rule, NESARC is pleased to see the Services recognize and take action to deter abusive petitioning practices. Requiring more detailed information as part of the submission of petitions and consultation with states will ensure that a more robust record is placed before the services.”

However, Rob Bishop, the House Natural Resources Committee Chairman, was more suspicious of the rule. He said, “The Obama administration admitted today that the process by which Endangered Species Act listing determinations are made is insufficient, and then asked the American people to trust them to fix the problem. I don’t buy it.”

Bishop’s concern was mirrored by Brian Seasholes, who directs the endangered species project at the libertarian Reason Foundation in Los Angeles. He said that the rule was “an extremely marginal step in the right direction. But the larger problem still remains that the Endangered Species Act harms conservation through its punitive approach.” He is concerned that the rule leaves federal wildlife managers with too much discretion, and fails to address the hundreds of species for which FWS is already issuing listing determinations.

While the step may not be all that is needed, it is an important step that all involved parties are happy to see be taken.

2015 Waters of the US Rule

The Swamp Stomp

Volume 15, Issue 22

On May 27, 2015 the US Environmental Protection Agency and the US Army Corps of Engineers (COE) released the official pre-publication of the new “waters of the US” rule. This rule will become effective 60 days from its publication in the Federal Register which is anticipated within a few days.

The new “waters” definition is a mere 9 pages long. The preamble and other related materials to be publish hover around 300 pages. The preamble provides further explanation of the rule in more technical detail.

In addition to the rule EPA and the COE have also published:

You have quite a bit of reading to do with well over 1,000 pages of reading material. To help you get started we have provided you with the basic “waters of the US” definition below. Over the next few weeks we will be diving into this and highlighting any salient points we think might help you get your head around this. We will also be offering a brand new webinar on July 9, 2015 on these new regulations.

To be clear, these regulations will become effective regardless of Congressional actions. The House Bill that passed and Senate Bill that’s still being kicked around would require the President’s approval to pass as an Act. He has clearly stated that he would veto any such legislation that would cross his desk. Consequently, there is nothing stopping this new regulation from being implemented in the next 60 days.

The new definition is as follows:

The term waters of the United States means:

(1) For purposes of the Clean Water Act, 33 U.S.C. 1251 et. seq. and its implementing regulations, subject to the exclusions in paragraph (2) of this section, the term ‘‘waters of the United States’’ means:
(i) All waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
(ii) All interstate waters, including interstate wetlands;

(iii) The territorial seas;

(iv) All impoundments of waters otherwise identified as waters of the United States under this section;
(v) All tributaries, as defined in paragraph (3)(iii) of this section, of waters identified in paragraphs (1)(i) through (iii) of this section;

(vi) All waters adjacent to a water identified in paragraphs (1)(i) through (v) of this section, including wetlands, ponds, lakes, oxbows, impoundments, and similar waters;
(vii) All waters in paragraphs (A) through (E) of this paragraph where they are determined, on a case-specific basis, to have a significant nexus to a water identified in paragraphs (1)(i) through (iii) of this section. The waters identified in each of paragraphs
(A) through (E) of this paragraph are similarly situated and shall be combined, for purposes of a significant nexus analysis, in the watershed that drains to the nearest water identified in paragraphs (1)(i) through (iii) of this section. Waters identified in this paragraph shall not be combined with waters identified in paragraph (1)(vi) of this section when performing a significant nexus analysis. If waters identified in this paragraph are also an adjacent water under paragraph (1)(vi), they are an adjacent water and no case-specific significant nexus analysis is required.
(A) Prairie potholes. Prairie potholes are a complex of glacially formed wetlands, usually occurring in depressions that lack permanent natural outlets, located in the upper Midwest.
(B) Carolina bays and Delmarva bays. Carolina bays and Delmarva bays are ponded, depressional wetlands that occur along the Atlantic coastal plain.
(C) Pocosins. Pocosins are evergreen shrub and tree dominated wetlands found predominantly along the Central Atlantic coastal plain.
(D) Western vernal pools. Western vernal pools are seasonal wetlands located in parts of California and associated with topographic depression, soils with poor drainage, mild, wet winters and hot, dry summers.
(E) Texas coastal prairie wetlands. Texas coastal prairie wetlands are freshwater wetlands that occur as a mosaic of depressions, ridges, intermound flats, and mima mound wetlands located along the Texas Gulf Coast.
(viii) All waters located within the 100-year floodplain of a water identified in (1)(i) through (iii) of this section and all waters located within 4,000 feet of the high tide line or ordinary high water mark of a water identified in paragraphs (1)(i) through (v) of this section where they are determined on a case-specific basis to have a significant nexus to a water identified in paragraphs (1)(i) through (iii) of this section. For waters determined to have a significant nexus, the entire water is a water of the United States if a portion is located within the 100-year floodplain of a water identified in (1)(i) through (iii) of this section or within 4,000 feet of the high tide line or ordinary high water mark. Waters identified in this paragraph shall not be combined with waters identified in paragraph (1)(vi) of this section when performing a significant nexus analysis. If waters identified in this paragraph are also an adjacent water under paragraph (1)(vi), they are an adjacent water and no case-specific significant nexus analysis is required.

(2) The following are not “waters of the United States” even where they otherwise meet the terms of paragraphs (1)(iv) through (viii) of this section.
(i) Waste treatment systems, including treatment ponds or lagoons designed to meet the
requirements of the Clean Water Act.
(ii) Prior converted cropland. Notwithstanding the determination of an area’s status as prior converted cropland by any other Federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA.
(iii) The following ditches:

(A) Ditches with ephemeral flow that are not a relocated tributary or excavated in a tributary.
(B) Ditches with intermittent flow that are not a relocated tributary, excavated in a tributary, or drain wetlands.
(C) Ditches that do not flow, either directly or through another water, into a water identified in paragraphs (1)(i) through (iii) of this section.
(iv) The following features:

(A) Artificially irrigated areas that would revert to dry land should application of water to that area cease;
(B) Artificial, constructed lakes and ponds created in dry land such as farm and stock watering ponds, irrigation ponds, settling basins, fields flooded for rice growing, log cleaning ponds, or cooling ponds;
(C) Artificial reflecting pools or swimming pools created in dry land;

(D) ) Small ornamental waters created in dry land;

(E) ) Water-filled depressions created in dry land incidental to mining or construction activity, including pits excavated for obtaining fill, sand, or gravel that fill with water;

(F) Erosional features, including gullies, rills, and other ephemeral features that do not meet the definition of tributary, non-wetland swales, and lawfully constructed grassed waterways; and
(G) ) Puddles.

(v) Groundwater, including groundwater drained through subsurface drainage systems.

(vi) Stormwater control features constructed to convey, treat, or store stormwater that are created in dry land.
(vii) Wastewater recycling structures constructed in dry land; detention and retention basins built for wastewater recycling; groundwater recharge basins; percolation ponds built for wastewater recycling; and water distributary structures built for wastewater recycling.

Regulatory Integrity Protection Act of 2015

The Swamp Stomp

Volume 15, Issue 20

On April 30, 2015 the US House of Representatives voted (241-181) to pass H.R. 1732 – Regulatory Integrity Protection Act of 2015.  This bill is now scheduled to move onto the Senate for a vote.  If they have the votes in the Senate it will move onto the President who as indicated that it will be vetoed.  To be frank this bill is entirely political and largely too little too late.  However there are some key points in this Bill that are worth discussing.

At the heart of the bill is the call for the complete cessation of rulemaking with regards to the definition of “waters of the US.” The Bill is broken down into three parts and is merely 12 pages long.  This is quite a relief as the Corps and EPA page count on the new “waters of the US” rule exceeds over 1,000 pages of text amongst a number of supporting documents.

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Section 1 is the title, “Regulatory Integrity Protection Act of 2015.”  It is a bill to, “To preserve existing rights and responsibilities with respect to waters of the United States, and for other purposes.”

Section 2 calls for the withdrawal of the existing prosed rule.  “Not later than 30 days after the date of enactment of this Act, the Secretary of the Army and the Administrator of the Environmental Protection Agency shall withdraw the proposed rule described in the notice of proposed rule published in the Federal Register entitled ‘‘Definition of ‘Waters of the United States’ Under the Clean Water Act’’ (79 Fed. Reg. 22188 (April 21, 2014)) and any final rule based on such proposed rule (including RIN 2040–AF30).”

The few news agencies that have even bothered to pick up this story seem to end at this section.  You can check out the cutting edge news from places like Greenhouse Management, Springfield News Leader, Real Estate Rama, and the Daily Signal.  This does not make the front page of the NY Times by any stretch.  However, the next section in the bill is extremely interesting and a bit disturbing and largely undiscussed.

Section 3 calls for the development of a new proposed rule by the EPA and the US Army Corps of Engineers.  It specifically requires that the Agencies consider public comments, review and economic analysis of the rules and incorporate the “scientific” analysis done by the EPA “Science” Advisory Board.

I use big quotes when describing this report as scientific.  No scientific study was conducted.  The report is merely a mediocre cut and paste job of selected papers written by others.

The Bill does add two new dimensions to the process that thus far have not happened.  It designates the States and local officials as stakeholders and requires that their input be considered.  Many States already have afforded “waters of the State” protection to non-Federal jurisdictional waters.  This new provision in the Bill alleviates that awkward aspect of the Clean Water Act that provides for the State to establish jurisdiction over waters (Section 404 (g) of the CWA).  The states would relinquish their role in establishing jurisdiction to the federal government by enjoining themselves in the new process as stakeholders.  This would be as opposed to the current situation wherein they  self govern.  So much for state’s rights.

The second and most significant point in the entire Bill is that the Agencies must consider the rulings of the Supreme Court when crafting the new rules.  To be even more frank, I cannot believe that such a provision would have to be added to a Bill.  If the government adopts rules that are inconsistent with the Supreme Court’s rulings it is by definition unconstitutional.  The Supreme Court has ruled that the US government does not have universal reach in what it claims to be “waters of the US.”  The 2001 SWANCC decision is at the heart of the EPA/Corps “waters of the US” rule.

In 2001, The Supreme Court confirmed that there are some waters that are beyond the reach of federal jurisdiction.  In the preamble of the proposed EPA/Corps rule, the Agencies state that it was always the position of Congress that all wetlands are jurisdictional.  However, in 2001 the Supreme Court ruled that this is not the case.  Is it appropriate for the Agencies to speak for Congress and defy the Supreme Court?

In the 2012 Sackett case, Supreme Court Justice Alito called out Congress to show some leadership and develop a reasonably clear rule defining “waters of the US.”   This latest Bill is a far cry from that.  It basically goes back to the same two Agencies and asks them to start the entire process again using the same data set and expecting a different result.  You may recall what Albert Einstein said about the definition of insanity.

“Insanity: doing the same thing over and over again and expecting different results.”

At the heart of this entire mess is a clear lack of leadership.  Our elected representatives need to step up and stop hiding behind the Agencies to solve this problem.  It is the job on Congress to establish the limit of Federal jurisdiction and not the Agencies.  The Executive branch administers the laws as passed by the Legislative branch.  In all fairness to the Executive branch, these “waters” rules are not clear and it is understandable why they would seek clarity.  However, designating a private landowner’s property as being “of the US” is perhaps something left to the democratic process rather than mandated by a Federal Agency.

The need for clear rules about what is subject to federal jurisdiction is needed.  Our current rules are confusing and seem to keep heading to court.  However, in my humble opinion these rules should come from the consent of the governed rather than being mandated by the government for our own good.  It was just a few years ago when our government suggested that pouring oil on a wetland was a good idea for the control of mosquitoes.    See if you can find a copy of the “Winged Scourge” which was a government produced public information movie.   It was the governed that stood against this practice and had it repealed.  In the end it is the wisdom of the people rather than the whims of politics that shape our laws.  Politics is about pleasing the masses to maintain power.  Wisdom is the recognition of truth.

Have a great week!

– Marc