Is EPA Telling the Truth About Clean Water Act Jurisdiction?

“All governments lie.” Journalist I. F. Stone is credited with this simple statement.

Remember when EPA Administrator Gina McCarthy, describing EPA’s 370-page definition of what constitutes waters of the United States said, “To be clear: our proposal does not add to or expand the scope of waters historically protected under the Clean Water Act.”

Do Mr. Stone’s words apply to EPA and its Administrator?  You decide.

The Congressional Research Service, in a report prepared for members of congress on May 28, 2014, states “Proposed changes [by EPA] would increase the asserted scope of CWA jurisdiction, in part as a result of expressly declaring some types of waters categorically jurisdictional (such as all waters adjacent to a jurisdictional water) and also by application of definitions, which would give larger regulatory context to some types of waters, such as tributaries.”

So, is the EPA Administrator a fool or a knave?

The CRS report goes on to say in its summary section that “…17% {of new waters} would be categorically jurisdictional under changes in the proposal.”

The summary quotes the agencies saying, “EPA and the Corps of Engineers, also estimate that 3% of U.S. waters will additionally be subject to CWA jurisdiction…”  (Now do you believe Ms. McCarthy was telling the truth to farmers?)

As Cornelius Tacitus in approximately 55 A.D. said “The more corrupt the republic, the more numerous the laws.” EPA’s definition supports this old quote.

On page 4 of the CRS report, there is a discussion of EPA’s expanded jurisdiction using the term “other waters”.  Under EPA’s 2003 and 2008 guidance, “other waters” required a “…case by case evaluation to determine if a significant nexus exists…”

EPA, in its proposed rule, claims “other waters” including wetlands, that are adjacent to a jurisdictional water are categorically {automatically} jurisdictional.”

So, Ms. McCarthy, your proposal does not add or expand the scope of waters?

EPA and the Corps of Engineers are asking for public comment on whether certain types of “other waters” should automatically be jurisdictional and thus regulated by EPA. The agencies appear to want jurisdiction over “…prairie potholes, western vernal pools, Carolina Delmarva bays, pocosins,(upland swamp), Texas coastal prairie wetlands and perhaps other categories of waters…”

No expansion of EPA jurisdiction here?

Ms. McCarthy is really disingenuous, and I dare say dishonest when she says “Our proposal does not add to or expand the scope of waters historically protected under the Clean Water Act.”

On page 6, notwithstanding Ms. McCarthy’s statement, the Congressional Research Service staff says “The agencies acknowledge that the proposed rule would increase the categorical assertion of CWA jurisdiction, when compared to …current practices under the existing regulations…”

If there are no changes, as Ms. McCarthy alleges, in expanding the scope of waters alleged by EPA, then one is puzzled as to why the CRS staff says there will be additional permit application expenses for “…stormwater permitting for construction and development activities, and permitting of pesticide discharges and confined feeding operations…for discharges to waters that would now be determined jurisdictional…”

As producers, I did not realize we needed permits for pesticide discharges when spraying our crops.

CRS estimates that new incremental costs associated with permitting will add $162 million to $279 million per year. Again, Ms. McCarthy says there is no addition or expansion of EPA’s scope of waters.

Your decision.  Is EPA lying to you?

Courtesy Gary Baise