05.10.2011 0

An EPA Attempt to Re-Extend Its Regulatory Tentacles

By Victor Morawski – In a well-produced brochure touted as its Clean Water Framework, the Obama Administration last week announced its updated and revised policies governing the Nation’s Waters. Included in the initiatives it discusses is “updated draft guidance regarding Clean Water Act (CWA) jurisdiction.”

Those of us now familiar with the Administration’s attempts to use the EPA as a vehicle for circumventing the wishes of Congress and the Courts are naturally prone to want to look past the slick ad copy and beautiful glossy photos of National Park scenes and families on vacation for something far less wholesome.

A matter of contention for the last thirty years has been what is to count as “waters of the United States” as it is these waters that the EPA is charged with protecting via the CWA. Ceaselessly and relentlessly this Agency has tried to broaden its jurisdiction by broadening its definition of what is to count as these waters.

Two important Supreme Court cases in the past ten years have reined in EPA’s attempts. Declaring in 2001 that “isolated, non-navigable intrastate ponds” could not be taken to come under CWA jurisdiction “based solely on the presence of migratory birds” it freed them from the clutches of EPA regulatory hands.

Of particular relevance to the current updated EPA Guidelines is a 2006 ruling asserting that CWA jurisdiction should be limited to only those waters having a “continuous surface connection” to other “jurisdictional waters.”

Its efforts significantly hampered in the wake of this ruling, the EPA simply chose not to pursue hundreds of potential water pollution cases in its pipeline, according to MSNBC, because of what the recently released Clean Water Framework brochure calls “the complex evidence needed to establish that [various river] tributaries” fell under the CWA. It now had, said MSNBC, the burden of showing that, “intermittent streams, swamps and marshes flowed into navigable waters.”

Accordingly, 2007 EPA Guidelines instructed its officials to “first analyze whether an ephemeral stream or seasonal wetland leads to federal waters” before attempting any legal action alleging pollution.

The whole point of the recently released EPA Draft Guidance is to supersede these previous instructions by once more allowing it to bring as many of these Court-shielded waters as possible back into its regulatory reach — thus thwarting Court wishes under the guise of following them.

Under its new Guidance, EPA officials freely admit that compared to how things stand currently, “the number of waters identified as protected by the CWA will increase.”

Its strategy for bringing these waters back into its fold is to employ as a standard for “waters of the US” in addition to the current one requiring a “continuous surface connection” to navigable waters an alternative one proposed by Justice Kennedy at the time of the original 2006 ruling requiring only a “significant nexus to traditional navigable waters.” Defined as occurring when waters in question “significantly affect the chemical, physical and biological integrity of other covered waters” it would include many of the waters it wants to bring back in. New EPA Guidelines will now insidiously consider waters under either standard to be “waters of the US” under CWA jurisdiction.

These Draft CWA Guidelines are currently open for 60 days of comment from the public, so interested and potentially affected readers wishing to voice their opinion on them should go to the Federal eRulemaking portal at http://www.regulations.gov and identify your comment with Docket ID No. EPA-HQ-OW-2011-0409 or e-mail it to owdocket@epa.gov including the above Docket ID No. in their message’s subject line.

Perhaps we can have an effect on this EPA attempt to re-extend its regulatory tentacles to these waters.

Victor Morawski, professor at Coppin State University, is a Liberty Features Syndicated writer.

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