GOP Lawmakers Encourage EPA to Rethink Clean Water Rule

Swamp Stomp

Volume 15, Issue 8

The Republican controlled Congress is expected to place a significant dent in President Barack Obama’s environmental agenda this year, and plans to begin with the “Waters of the U.S.” rule proposed by the Environmental Protection Agency and the Army Corps of Engineers. On February 4, 2015, GOP lawmakers advised top environmental officials that they ought to abandon their proposal to define what is and is not considered a body of water by federal law.

The Republican majority that now controls both the House of Representatives and the Senate demonstrated its intent to derail the project in an unusual joint hearing between the Senate Environment and Public Works Committee and the House Transportation and Infrastructure Committee.

During the hearing, Republicans expressed indignation at what they referred to as a “power grab,” while Democrats retorted with claims that opposition to the rule is based upon a tower of misconceptions.

Democratic Senator Barbara Boxer of California asserted, “I’m confused because I think people are arguing against some mythical rule.” Then later when responding to the claim that the government was seeking to regulate tiny and inconsequential bodies of water, she claimed, “We don’t want to regulate a puddle. That’s ridiculous.”

The EPA and the Army Corps of Engineers first proposed the rule in order to simplify and clarify the meaning of the 1972 Clean Water Act. The Act covers rivers, lakes, and year-round wetlands, but there has been longstanding confusion over whether waterways such as streams that dry up for part of the year and wetlands that are only wet during springtime are included.

The rule is of the greatest importance to farmers, developers, and other landowners, because the Clean Water Act requires the use of permits for developing or discharging into waters included under the Act. As a result, farmers and officials in many states have vigorously opposed the rule ever since it was announced in 2014.

The EPA and the Army Corps of Engineers received over 1 million comments from the public about the proposal. This number reflects how widespread the issue has become, as well as the growing interest in the highly technical federal proposal.

Despite the opposition, both the EPA and the Army Corps of Engineers hope to finalize the rule this spring.

Congressional Republicans, however, plan to resist the establishment of such a rule. They have asserted that they will introduce new legislation to prevent the administration from finalizing the rule. If such legislation is passed, then a potential veto showdown with the president may materialize.

The Republican Representative Bill Shuster of Pennsylvania claimed, “If this rule goes into effect, it will open the door for the federal government to regulate just about any place where water collects—and in some cases regulate land-use activities.” The rule, he said, would be an “end run around Congress—another example of overreach by this administration.”

EPA Administrator Gina McCarthy has been extremely vocal in defending the rule, and was called upon during the hearing to do so again. She said, “The proposal was not an attempt to expand the federal government’s jurisdiction, but instead to merely clarify it. And the proposal is just that—a proposal; federal officials are reviewing all those comments that have come in and will respond to the widespread concerns that have been expressed.”

EPA and Army Corps of Engineers Withdraw Interpretive Waters of the U.S. Rule

Swamp Stomp

Volume 15, Issue 7

On January 29th, 2015, the EPA and Army Corps of Engineers announced a memorandum of understanding to withdraw the Interpretive Waters of the U.S. Rule. The “U.S. Environmental Protection Agency and U.S. Department of the Army Interpretive Rule Regarding the Applicability of Clean Water Act Section 404(f)(1)(A)” originally outlined which conservation activities provide farmers an exemption from Clean Water Act permitting.

In the “Cromnibus” funding legislation that was passed in December 2014, Congress requested that the EPA and Army Corps of Engineers officially withdraw the IR due to “over burdensome” regulations on farming and ranching. Congress concluded that the rule not only created uncertainty instead of clarity, but also threatened fines of up to $37,500 per day.

Some members of Congress spoke in opposition to the rule before the legislation was passed requesting that the rule be withdrawn. Last October, Republican members of the Senate Ag Committee advised that the IR would move the NRCS into an enforcement role instead of creating a trusted source for conservation assistance.

The senators claimed, “This unique relationship is built on voluntary conservation programs and a mutual commitment to protecting natural resources and keeping land in agriculture. Bringing USDA into the Clean Water Act permitting process would profoundly shift the nature of this successful approach by dismantling a longstanding partnership between the Federal government and agriculture community.”

The rule offered 56 “normal farming and ranching” exemptions under Natural Resources Conservation Service regulations. However, most farm groups opposed the rule. The opponents to the rule argued that using these practices as CWA exemptions would alter farmer-NRCS interaction and dispirit environment best practices.

Robert Bonnie, the Under Secretary for the Natural Resources and Environment at the USDA, however, claimed that any practices implemented by the rule would be voluntary, and are designed to assist farmers avoid the time and cost of permitting.

Bonnie’s claim was refuted by the Senior Director of Regulatory Relations at the American Farm Bureau Federation, Don Parrish. He said, “I heard Mr. Bonnie say that the only way to be in compliance with the Clean Water Act is if you do these 56 practices the way NRCS standards say you have to do them—and they are very prescriptive, they use a lot of ‘shalls’—if a farmer builds a fence that does not comply with NRCS’ standards, the cloud then is that he’s violated the Clean Water Act.”

On February 2, 2015, Jamie Jonker, vice president for sustainability and scientific affairs for the National Milk Producers Federation, stated, “Our concern with the initial proposal from last year is that it could have altered the longstanding and productive relationship between farmers and the USDA’s Natural Resources Conservation Service, in a way that would have made it harder for farmers to implement water conservation measures.”

The official IR withdrawal notice was put into effect on January 29, 2015. The Waters of the U.S. proposal, however, remains in consideration by the EPA and the Army Corps of Engineers. The final comment period on the full “Waters of the U.S.” proposal closed November 14, 2014.

The memorandum withdrawing the Interpretive Rule can be found here: http://www2.epa.gov/uswaters/memorandum-withdrawing-interpretive-rule

The Finalized Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence Report Released

Swamp Stomp

Volume 15, Issue 4

The Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence report serves as the scientific basis for the new Waters of the U.S. rules. Now final, the 408 page scientific report can be used to inform future policy and regulatory decisions, including the proposed Clean Water Rule being developed by EPA’s Office of Water and the U.S. Army Corps of Engineers.  The significance of this release is that this report was the final item that needed to be in place before the proposed Waters of the US rules (WoUS) could be implemented.  What remains is the final publication of the WoUS rules in the Federal Register.  This is expected soon.  Once that happens the new WoUS rules will be the “law of the land.”

According the EPA, the report summarizes “the current scientific understanding about the connectivity and mechanisms by which streams and wetlands, singly or in aggregate, affect the physical, chemical, and biological integrity of downstream waters.” More specifically, however, the report focuses on “shallow subsurface connections by which small or temporary streams, nontidal wetlands, and open waters affect larger waters such as rivers, lakes, reservoirs, and estuaries.” It is able to do so by addressing the following three questions pertaining to connectivity:

  • What are the physical, chemical, and biological connections to, and effects of, ephemeral, intermittent, and perennial stream on downstream waters?
  • What are the physical, chemical, and biological connections to, and effects of, riparian or floodplain wetlands and open waters on downstream waters?
  • What are the physical, chemical, and biological connections to, and the effects of, wetlands and open waters in non-floodplain settings on downstream waters?

epasab

In order to answer these questions, the EPA reviewed over 1,200 peer-reviewed publications in scientific literature. Subsequently, the final report lists the following five major conclusions:

  • The scientific literature unequivocally demonstrates that streams, regardless of their size or frequency of flow, are connected to downstream waters and strongly influence their function.
  • The scientific literature clearly shows that wetlands and open waters in riparian areas (transitional areas between terrestrial and aquatic ecosystems) and floodplains are physically, chemically, and biologically integrated with rivers via functions that improve downstream water quality. These systems act as effective buffers to protect downstream waters from pollution and are essential components of river food webs.
  • There is ample evidence that many wetlands and open waters located outside of riparian areas and floodplains, even when lacking surface water connections, provide physical, chemical, and biological functions that could affect the integrity of downstream waters. Some potential benefits of these wetlands are due to their isolation rather than their connectivity.
  • Variations in the degree of connectivity are determined by the physical, chemical, and biological environment, and by human activities. These variations support a range of stream and wetland functions that affect the integrity and sustainability of downstream waters.
  • The literature strongly supports the conclusion that the incremental contributions of individual streams and wetlands are cumulative across entire watersheds, and their effects on downstream waters should be evaluated within the context of other streams and wetlands in that watershed.

A major sticking point regarding the definition of wetlands was brought up in the public comments to this report.  Namely, the use of the 1979, US Fish and Wildlife’s one parameter approach to identifying wetlands.  There were many who questioned the wisdom for using this method as opposed to the US Army Corps Federal 3 parameter definition.  The EPA has decided to stick with the 1979 definition and only requires the presence of soil, vegetation OR hydrology to define a wetland for the purposes of its study.  This report is enjoined in the proposed WoUS rules by reference and as such its recommendations carry forward into the new rules.  Consequently, one could extrapolate that a wetland need only meet one criteria to be deemed jurisdictional.  It remains to be seen if this will carry forward into the new rules.

This report is one of the last steps before the EPA and U.S. Army Corps of Engineers will implement new rules for the “waters of the U.S.” under the Clean Water Act. Now that the report has been finalized, we can expect to see the new rules published in their final form very soon.

The full report can be found on EPA’s website at: http://ofmpub.epa.gov/eims/eimscomm.getfile?p_download_id=521415

 

EPA Fights to Overturn Federal Sanction

Swamp Stomp

Volume 14, Issue 52

The Environmental Protection Agency (EPA) hopes the federal appeals court will overturn a court order that forces the agency into a decision regarding whether or not federal regulations are needed to curb the flow of pollutants into the Mississippi River. As it stands, the accumulation of pollutants entering the river creates a low-oxygen “dead zone” along the coast of Louisiana each spring.

A hearing was held on December 4, 2014 before the 5th Circuit Court of Appeals, whereby federal attorneys argued that setting priorities for water quality falls under the EPA’s responsibility, not that of the court.

In 2013 U.S. District Judge Jay Zainey ruled that the EPA needed to make a “necessary determination” on whether federal intervention was imperative to the prevention of pollutants running into the Mississippi.  A delay to the order was granted by the 5th Circuit, allowing time for the Agency to appeal the decision.

Zainey’s ruling came as good news to the several environmental groups that have accused the EPA of taking more than their fair share of time addressing the problem, such as The Gulf Restoration Network, a conservation group based in New Orleans, and the Natural Resources Defense Council. In 2008, the EPA was asked by these groups to draft new regulations that would reduce the flow of Nitrogen and Phosphorus running into the river from certain sources, including farms and sewage treatment plants. The request was denied.

The added amounts of Nitrogen and Phosphorus into the water stream acts as a stimulant to the algae that are present. Toxic algae blooms subsequently grow, sink to the ocean floor, decompose, and consume all the oxygen in the water. The infected area effectively becomes a “dead zone;” any fish, worms, clams, or other oxygen reliant organisms in the range suffocate and die.

According to estimates from the National Oceanic and Atmospheric Administration, the added nutrients entering the Mississippi River result in a gulf dead zone that in 2013 covered at least 5,800 square miles—roughly the size of Connecticut.

The EPA argued that states are responsible under the Clean Water Act for regulating water quality, so any regulation is outside their jurisdiction. However, the aforementioned environmental groups think federal intervention is necessary due to how states have handled the issue—or as it may be, not handled the issue.

Ann Alexander, an attorney with the Natural Resources Defense Council, claimed at the December hearing that if individual states fail to act, then federal law requires the EPA to take action. She added, “On this particular issue, it has been an entire decade of relentless avoidance of the problem.”

If the EPA’s appeal to overturn Zainey’s order fails, then they have 180 days to formally decide whether it will create regulations to limit nutrient pollution. The Agency may act in either the affirmative or the negative, however, it must provide both a clear legal and scientific explanation for their decision.

If a decision is not arrived at during that time, the EPA is responsible for providing both an explanation as to why no decision was able to be made, and a projected timeline as to when a decision can be made. In such an event, the Agency will seek clarification on what are acceptable reasons for being unable to produce a decision.

In the order, Zainey, who was appointed to the bench by President George W. Bush, asserted that the EPA’s decision does not have to be made solely on environmental factors, but can take into account any influential aspects.

The Panel of 5th Circuit Judges, which includes Judge Edith Brown Clement—appointed by President George W. Bush—Judge Patrick E. Higginbotham—appointed by President Ronald Reagan—and Judge Stephen A. Higginson—appointed by President Barack Obama—is expected to reach a decision in the coming months.

EPA Public Comments Close on 11/14/14

Swamp Stomp

Volume 14, Issue 45

Pubic comments on the proposed “Waters of the US” regulations close on November 14, 2014.  That is if they do not extend them once again.  I very much encourage you to submit your comments before then.  Many of our readers already have done so as evidenced by the over 250,000 comments submitted to date.

You can submit your comments online by going to:  http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OW-2011-0880-0001

If you do comment, I would encourage you to post your comment tracking number in the comments section of this post.  My comment comment tracking number is 1jy-8fd2-fndk.  I have posted my full comment below.

My main concern is not that the definition needs to be revamped.  Rather, it is more focused on the way it is being done.  I am very concerned that the vast majority of water resource and wetland professionals have been left out of this discussion.  The regulations have been drafted by a very select group of mostly academics including at least one foreign national from Canada.  There are virtually no professionals involved.

I do not believe that this new definition is a matter of the “right thing to do.”  It is more a matter of is it the legal thing to do.  Does the President have the right to act alone and promulgate a regulation that expands the  reach of government into private landownership?  I believe that is a matter for our representative and elected officials in Congress to take up.

What do you think?

– Marc


Environmental Protection Agency

Water Docket

Mail Code 2822T

1200 Pennsylvania Avenue, NW

Washington, DC 20460

Re: Comments on the U.S. Environmental Protection Agency’s and U.S. Army Corps of

Engineers’ Proposed Rule to Define “Waters of the United States” Under the Clean

Water Act,

Docket ID No. EPA-HW-OW-2011-0880

To whom it may concern:

I would like to offer my comments on the proposed “Waters of the US” (2011-EPA-OW-0880) as advertised the Federal Register on April 21, 2014.

My chief comment relates to the overall stated premise of these new rules. The proposed rules are concerned with the perceived issue that the existing rules do not adequately represent the intent of Congress (ergo the people) when they passed the Clean Water Act in 1972. Currently, it is the Agencies’ stated belief that the intent of Congress was to claim jurisdictional authority over nearly every body of water in the United States including wetlands and non-wetlands.

In 2001 The Supreme Court ruled in Solid Waste Agency of Northern Cook County v. Army Corps of Engineers (SWANCC) that Congress did not have unlimited authority to regulate all bodies of water. This was emphasized on isolated wetlands associated with the SWANCC site. These wetland areas lacked the required commerce connection to downstream waters. The Clean Water Act is limited in jurisdiction to only those waters that have a potential to affect interstate or international commerce. Article 1, Section 8 of the US Constitution limits the role of the Federal government in this matter to only those areas that could affect commerce.

The proposed rules seem to ignore the SWANCC ruling of the Supreme Court. In fact, it is the stated intention of this rule to reverse the Courts decision.

Under the Constitution, it is the role of the executive branch to administer the laws that are passed by Congress. It is acknowledged that many aspects of the Clean Water Act are purposely left to the discretion of the executive branch to interpret these laws by promulgating regulations such as this proposed rule. However, the Executive branch does not have the authority to expand the regulations beyond what the laws allows. Similarly, it is the role of the Judicial Branch to reign in Congress and the President should they pass a law that is beyond what the Constitution allows as was done with the SWANCC case.

The White House Office of Management and Budget (OMB) report referenced in the proposed rule states that there is a minimal expansion of Federal jurisdiction over what is currently called “Waters of the US”. The report estimates that the expansion is only about 3%. While this may seem small on a relative scale it represents a land area roughly the size of the State of Arizona. This is in fact a rather large expansion of the Federal Governments reach into private land ownership. I am very concerned with the concept that the Executive Branch can expand the Federal Governments land holdings without the consent of the other two branches of government and the people.

Much of the proposed rule is based upon a misinterpretation of Supreme Court Justice Kennedy’s lone opinion in the 2006 John A. Rapanos, et ux., et al., Petitioners v. United States; June Carabell, et al., Petitioners v. United States Army Corps of Engineers, et al. case. The concept of significant nexus is central to his opinion. However the proposed rule offers no further insight into what constitutes “significant.”

The proposed rule does by way of reference to the EPA Science Advisory Board (SAB) Connectivity Report delve into the concept of “nexus.” The SAB report ostensibly argues that all bodies of water are connected to all other bodies of water. At a very fundamental level this is true. However, the SAB report does not address the concept of which of these connections or nexus are “significant” as described by Justice Kennedy. If it is assume that all waters are connected and that there is no procedure to distinguish these connections as significant, then are we to assume that all connected water bodies are considered ““Waters of the US?”

It is clear in the opinions of the Supreme Court Justices that there is a difference between jurisdictional and non-jurisdictional waters. What is not clear, and in fact these proposed regulations make it much less clear, what exactly is a ““Waters of the US.”

Furthermore, I draw your attention to the 199 additional documents posted to the Regulation.gov docket folder in the last two weeks. They in fact have not been posted and the public is greeted with this 12 page notice:

Additional Supporting Materials for Docket EPA-HQ-OW-2011-0880

EPA will be adding the following documents to the docket. Copyrighted material is publicly available only in hard copy. Publicly available docket materials are available electronically at http://www.regulations.gov or in hard copy at the Water Docket, EPA Docket Center, EPA West, Room 3334, 1301 Constitution Avenue, NW, Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is 202–566–1744, and the telephone number for the Water Docket is 202–566–2426.

To what purpose do these documents serve? Why at this juncture are the Agencies concerned with copyright issues? It does beg the question of whether these copyright issue were addressed in the SAB report. Perhaps this should be disclosed.

How does this serve the public trust when the vast majority of these documents are only available by taking a trip to Washington, D.C. If the agencies feel that these documents are necessary to support their case for further regulations, then they should resolve the stated copyright concerns and publish them on the website in their entirety.   Otherwise these 199 documents should be removed from the docket.

I disagree that there is a regulatory need to update the definition of what is a waters of the United States. What is needed and was voiced by Justice Alito in the Sackett v. Environmental Protection Agency case is for Congress to more narrowly define what is meant by a “Waters of the US” by amending the Clean Water Act.   This would afford the public through its elected representatives in Congress to express its concerns and support for what should be regulated as a “Waters of the US” and what should not. This current proposed regulation dictates to the public what is and is not jurisdictional without the consent of the governed. With over a quarter- million public comments already submitted, it is clear that this is a matter for the people to decide, not a single branch of the government.

Thank you for your consideration.

Sincerely,

Marc Seelinger, PWS

EPA Wants Water Professionals to Support New Wetland Rules

The Swamp Stomp

Volume 14, Issue 42

Speaking at the Water Environment Federation Technical Exhibition and Conference at the Ernest N. Morial Convention Center in New Orleans, Gina McCarthy, Environmental Protection Agency (EPA) Administrator, requested that wastewater professionals begin to back the agencies proposed Waters of the U.S. rule. The controversial rule attempts to redefine which bodies of water fall under the Clean Water Act, and, subsequently, the EPA’s jurisdiction.  If the rule is passed then wetlands, streams, and various watersheds would become subject to federal regulations.

McCarthy, however, holds the opinion that in order to maintain safe water supplies in the U.S., then new regulations of wetlands and runoff entering streams and rivers are necessary. Therefore, in an attempt to establish supporting evidence, she requested that water professionals back the rule. She said, “As water managers, as regulators, as technicians, help us explain what this rule is and isn’t.”

McCarthy then cited the August shutdown of the water supply in Toledo, Ohio, as proof for why new regulations ought to be implemented. The shutdown occurred due to a toxic algae bloom—created by added nutrients running into the city’s water supply—infecting Lake Erie. Subsequently, the water was forced to be shut down for two days.

Such an event, McCarthy said, “is what one would call a wake-up call.” She continued, “It’s 2014, folks, 2014, in the most prosperous nation on earth. Yet for two full days, thousands of families couldn’t access life’s most basic necessity.”

Furthermore, McCarthy approached the issue from an economic standpoint. Since the implementation of the Clean Water Act in 1972, the nation’s economy tripled, which, she claims, “goes to show that having environmental protection does not stifle economic growth.” Correlation, however, does not prove causation, so the implication that EPA regulations provide a positive effect of the nation’s economy remains unsubstantiated.

If the Waters of the U.S. rule is passed, then 60 percent of the nation’s streams and wetlands will be subject to the Clean Water Act. McCarthy believes that this will make it easier to maintain healthy water supplies for drinking water. She said, “These streams and wetlands filter pollution, they reduce runoff, they recharge our groundwater supplies. How critical is that in areas of continued or historic droughts?”

“And we know our iconic water bodies like Boston Harbor, like the Chesapeake Bay, like the Great Lakes as a whole, like the Mississippi, like the Missouri, they rely on clean streams and they rely on wetlands to feed into those water supplies, in order to maintain them as viable opportunities for clean drinking water,” she continued.

Climate change, according to McCarthy, also plays a significant role in water quality. She said that the warmer temperatures on Lake Erie this year—possibly resulting from global warming—exacerbated the toxic algae bloom.

Due to the sea levels possibly rising because of global warming, she said, “If we don’t act by 2050, more than $100 billion worth of coastal property could be submerged.” She continued, “But we don’t need to wait until 2050, folks, we know it’s happening today. We’ve already heard about the drought in California that’s historic, that is challenging that great state to find a way to protect their economic growth opportunities, and frankly, to find a way to continue to have their faucets continue to have clean water when they turn them on.”

As the debate over the Waters of the U.S. rule continues, the EPA is reaching for more controversial topics—such as global warming—to justify their claims, depending on economic correlation rather than economic causation to demonstrate economic benefits, and is pleading that wastewater professionals begin to back their proposal.

EPA’s Proposal to Define its Jurisdiction over Bodies of Water

Swamp Stomp

Volume 14, Issue 39

EPA’s Proposal to Define its Jurisdiction over Bodies of Water

In March, the Environmental Protection Agency (EPA) proposed that a rule be implemented to establish more clearly which bodies of water—for example, wetlands and streams—actually fall under the Clean Water Act, and, subsequently, under their own authority. The proposal became a controversial topic that forced Gina McCarthy, the EPA Administer, to claim that the rule does not significantly expand the EPA’s current authority to those bodies of water that lay outside of the agency’s jurisdiction.

Such a statement only added to the debate, however. Republicans argue that the rule grants the EPA too broad a reign, and that inconsequential bodies of water will become subject to federal regulation. Pennsylvania Representative Lou Barletta asserted, “I have heard from many of my constituents that this rule would force them to prove that large mud puddles and ditches on their property are not federally regulated waters…sometimes, a mud puddle is just a mud puddle.” Perhaps the regulation of inconsequential bodies of water is exactly what McCarthy meant to allude to when she said that the new rule would not “significantly” expand the EPA’s authority.

Democrats, however, appear somewhat split on the issue. The larger percentage of Democrats dismiss the Republican concern as excessive use of hyperbole. Oregon Representative Peter DeFazio, the top Democrat on the House Natural Resource Committee, claimed that if such concerns were taken seriously, then not only have we “departed from reality,” but have also returned to “the earlier era of the 2003 and 2008 guidance.” Other Democrats, however, such as West Virginia Representative Nick Rahall—the top Democrat on the House Transportation Committee—agreed with the Republicans that such a rule may result in federal overreach. He stated, “The only certainty that these regulations provide is the sure knowledge that under them, anyone undertaking any activity so much as a ditch in the United States will have to deal with the bureaucracy known as the EPA.”

This debate remains far from over, however. In early September, the House passed legislation that would prevent the EPA from implementing their proposed rule with a vote of 262 to 152. The bill would block the EPA from using their proposal in any way regarding the Clean Water Act.

Obama’s administration, however, “strongly opposes” the bill, and will advise that President Obama veto’s the bill if it reaches his desk. The Obama administration is allegedly only interested in protecting the waterways from pollution. They claimed that “clarifying the scope of the Clean Water Act helps to protect clean water, safeguard public health, and strengthen the economy.” They continued by asserting that the bill not only “would derail current efforts to clarify the scope of the Clean Water Act, hamstring future regulatory efforts, and create significant ambiguity regarding existing regulations and guidance,” but would also “sow more confusion and invite more conflict at a time when our communities and businesses need clarity and certainty around clean water regulation.”

This debate is set to continue, and with the threat of a presidential veto looming overhead, it may prove to be a significant issue in upcoming elections.

EPA drops wage garnishment rule

Swamp Stomp

Volume 14, Issue 29

The people have spoken!

This is from the July 17, 2014 Federal Register.

Action

Withdrawal of direct final rule.

Summary

Due to the receipt of adverse comments, EPA is withdrawing the direct final rule for Administrative Wage Garnishment published in the Federal Register on July 2, 2014.

Dates

The direct final rule published at 79 FR 37644 on July 2, 2014 is withdrawn effective July 17, 2014.

For Further Information Contact

FPPS c/o Anita Jones, OCFO/OFM/FPPS, Mailcode 2733R, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: (202) 564-4969; fax number: (202) 565-2585; email address: jones.anita@epa.gov.

Supplementary Information

Due to the receipt of adverse comments, EPA is withdrawing the direct final rule amending EPA’s claims collection standards to include Administrative Wage Garnishment, which published in the Federal Register on July 2, 2014 (79 FR 37644). In the direct final rule, EPA stated that if adverse comments were received by August 1, 2014, the direct final rule would be withdrawn and not take effect. EPA received adverse comments on that direct final rule. EPA will address those comments in any subsequent final action, based upon the proposed rule making action, which was published in the Federal Register on July 2, 2014 (79 FR 37704).

To date there were a total of 574 comments.  Some of them are quite direct.  It is nice to know that we still have a hand in our own government.  Thank to all of you who provided comments.  It did make a difference!

Redefining No Net Loss

Swamp Stomp

Volume 14, Issue 19

The EPA’s Office of Inspector General has released a report detailing the success or lack thereof of wetland mitigation programs around the country.  The central concern is whether or not “no net loss” is being achieved.  The report is entitled, “EPA Needs to Clarify Its Claim of ‘No Net Loss ‘of Wetlands.”  As the title might suggest it does not appear that this goal is being realized.

The following is from the report.

“The EPA attempts to verify that the application of the wetlands protection and restoration guidelines furthers the goal of “no net loss” by comparing the total acres of wetland impacts to the total acres planned for mitigation in the USACE’s Section 404 permits. However, this comparison is based on the EPA’s assumption that all wetlands mitigation projects will meet performance standards. Not all mitigation projects meet these standards. For example, in a 2011 report about North Carolina wetlands mitigation projects, it was reported that “… no single mitigation provider, mitigation type or geographic region achieved complete success according to the standards approved in mitigation plans.” Specifically, the report noted that 74 percent of the mitigation projects attained the mitigation goals established in the Section 404 permits. Because the EPA’s performance reporting does not inform readers of this assumption, the Office of Inspector General concluded that the EPA’s reporting of “no net loss” of wetlands hampers the public’s understanding of the EPA’s actual performance in protecting wetlands. The EPA should indicate in its wetlands measure definitions webpage and in future annual plan performance reporting that achieving “no net loss” is based upon an assumption that wetlands mitigation projects meet performance standards.”

So what is the recommendation?  It is simply to lower the bar.  This is the EPA Inspector General’s recommendation.

“Clarify on the wetlands measure definitions webpage and in future annual plan performance reporting that “no net loss” of wetlands is based upon an assumption that mitigation projects contained in CWA Section 404 permits will meet performance standards.”

This seems reasonable however, the agency response to this recommendation is a bit bizarre.

“In partnership with the U.S. Army Corps of Engineers, states and tribes achieve ‘no net loss’ of wetlands each year under the Clean Water Act Section 404 regulatory program. (‘No net loss’ of wetlands is based on requirements for mitigation in CWA 404 permits and not the actual mitigation attained.).”

So no net loss is based upon the requirement of wetland mitigation.  The fact that the mitigation put into the ground that does not work does not seem to matter.  Oh well.  We tried.

Perhaps I am reading this wrong.  I invite our readers to look at this document and provide any insight they can.  This seems to me to be a major step backward in ensuring wetlands that are impacted are put back.

Have a great week!

Marc

Congress Pushes Back on New EPA WoUS Rules

Swamp Stomp

Volume 14, Issue 18

On May 1, 2014, 231 lawmakers led by U.S. Representatives Chris Collins (R-NY) and Kurt Schrader (D-Ore.), in the U.S. House of Representatives sent a letter to the EPA and U.S. Army Corp of Engineers to retract its proposed rule to expand federal control under the Clean Water Act. They have citied technical, legal and economic concerns regarding the new rules that have been published in the Federal Register.

Congress is most concerned with the legal position that the EPA and the Corps have taken by more or less basing the entire rule revision on Justice Kennedy’s lone opinion in the Rapanos case. The letter states, “Contrary to your agencies’ claims, this would directly contract prior U.S. Supreme Court decisions, which imposed limits on the extent of federal CWA authority,” the lawmakers stated in the letter. It went on to say that “Based on a legally and scientifically unsound view of the “significant nexus” concept espoused by Justice Kennedy, the rule would places features such as ditches, ephemeral drainages, ponds (natural or manmade), prairie potholes, seeps, flood plains, and other occasionally or seasonally wet areas under federal control.”

The letter also raised concerns with the economic analysis on which the proposed rule is based. In the agency’s analysis, it was determined that the proposed rule would result in a 2.7 percent increase in jurisdictional determinations and would impact an additional 1,332 acres nationwide under Section 404. They applied that 2.7 percent increase across other EPA permitting programs. The agencies determined that the draft proposed rule would result in costs between $133 million and $231 million annually. Based on this, the agencies have said the rule would not have a significant economic impact. The lawmakers disagree, saying errors in the analysis “call into question the veracity of any of the conclusions in the economic analysis.”

House Natural Resources Chairman Doc Hastings (R-Wash.) says the proposal is a massive power grab that must be stopped. “Under this plan, there’d be no body of water in America – including mud puddles and canals – that wouldn’t be at risk from job-destroying federal regulation,” he says.”

Read the full letter here.

To date the EPA has received more than 61,000 comments on the new rules. Your comments and suggestions are needed. So far a total of 789 comments have been published. Many support the new rules and a few do not. If you have any opinion on these new rules, please provide you comments by going to regulations.gov and searching for EPA-HQ-OW-2011-0880. From there you can see the entire docket and submit your comments.

Comments are due by July 21, 2014. If EPA and the Corps finalize these rules it is expected that they will be in force by the fall of this year.