Missouri Agribusiness Association (MO-AG)

Transcription

1 Missouri Agribusiness Association (MO-AG) Comments on Waters of the United States (WOTUS) Proposed Rule (Below) MO-AG President Steve Taylor addresses EPA Administrator Gina McCarthy. (Left) Taylor pictured with EPA Administrator McCarthy and EPA Region 7 Administrator Karl Brooks along with members of the ABC-KC. During EPA Administrator Gina McCarthy s visit to Columbia and Kansas City, MO-AG President Steve Taylor expressed comments directly to Administrator McCarthy, Senior Advisor Ken Kopocis, and EPA Region 7 Administrator Karl Brooks. MO-AG appreciates Administrator McCarthy travelling to Missouri to personally hear comments concerning the proposed WOTUS rule. EPA claims that the proposed rulemaking is vitally important. EPA also claims nothing is different in that jurisdiction is not being expanded. EPA has stated that the proposed Waters of the United States (WOTUS) rule will not increase regulation of ditches, does not add to or expand the scope of waters historically protected under the Clean Water Act (CWA), and will not protect any new types of waters that haven t historically been covered. These historically covered waters are officially being defined for the first time and includes all tributaries (including ephemeral streams). To date, most tributaries considered historically covered by the agencies have not been determined jurisdictional and all sections of the CWA considered enforceable. Under this rule, EPA (and states) may not have any choice but to enforce expanded scope and jurisdiction on all tributaries because of citizen lawsuits. Missouri has a history of citizen lawsuits being filed against EPA and forcing Missouri to consider expanding the waters covered under the CWA. The agencies have a peculiar interpretation of law. Seemingly, the proposed rule purports to follows Supreme Court Justice Kennedy s opinion in Rapanos. In reality, however, the proposed rule reflect as

2 2 much the opinion of the dissenting justices. And, the opinion of the plurality does not seem to be very much present in the proposed rule at all. And by focusing mostly on the opinions in Rapanos, the agencies seem to have ignored SWANCC. Specifically, the proposed rule, and its draft connectivity study upon which much of the rule is based, refers to studies of both terrestrial species and migratory birds which is directly contrary to prior direction from the Supreme Court in SWANCC. Had EPA properly acknowledged the SWANCC decision, it would have recognized that the connectivity study s finding of biological connectivity has no legal significance to downstream navigable waters. The agencies also error by interpreting a Supreme Court ruling in such a way in which it provides the most expansive federal authority. The Supreme Court has ruled (Marks) that the judgment of the court is the narrowest grounds on which a majority of the judges concur. The correct interpretation is the one which is the narrowest and provides for the least encroachment on personal and property rights. Instead of following Marks, the agencies have issued a proposal that would most probably garner support from the dissenting justices. Instead of the narrowest, this interpretation is the broadest. It promotes a position that most all waters are jurisdictional, except where the agencies grant exemptions. But if we were just to focus upon the Kennedy opinion, the agencies did not follow the limited scope that even Kennedy envisioned. Kennedy said ditches, and streams remote from any navigable-in-fact water and carrying only minor water volumes toward it put common sense and lawful parameters upon the significant nexus concept by recognizing minor water volumes do not result in a significant nexus. This, however, is not reflective in the proposed rule with its inclusion of the minor water volumes such as those in ephemeral streams. Kennedy continued this theme with his concern of including adjacent waters regardless how however remote and insubstantial With it erroneous interpretations of past Supreme Court rulings, EPA has developed a proposed rule whose effect is all waters of the U.S. are significant (except for the arbitrary exemptions that the agencies capriciously grant). If we were to look at the SAB comments regarding the connectivity report, it is in fact not surprising that the SAB states that all water is connected to some undefined degree of significance. In fact, the SAB mentions the need to develop a significance gradient and comments that some connections are so faint that it might take years to express the connection and only through cumulative effect of many such connections might a navigable water actually display some effect. That effect could most probably be negligible. The SAB is basically telling the agencies that a lot of work needs to be conducted to determine how significant a connection is on the connectivity gradient. Policymakers consider science and develop laws such as the CWA which must be followed as allowed under the Constitution. Policy and law is informed from science. But if new science is developed, the process is for policymakers to take that science into account and, perhaps, consider changes in policy. And even still, policy and law has to be constitutional. EPA officials have stated that the two Supreme Court cases concerning WOTUS over the last 15 years confused things because of case-by-case decisions about which waters were protected. EPA states the proposed rule will bring clarity and consistency to this process. The opposite is true as demonstrated by the complex comments of the SAB. It is also evident by the inability to simply replicate a simple but 2

3 3 comprehensive map of where WOTUS exist. In his blog, EPA s Tom Reynolds seemed to argue that simple maps of WOTUS will not suffice but rather that case by case decisions will continue under the proposed WOTUS rule. He affirmed that The U.S. Army Corps of Engineers determines jurisdiction using detailed site specific information in response to requests. That work can be cumbersome and has resulted in lots of on the ground work. As argued below using language from the proposed rule itself, this detailed site specific cumbersome ground work will likely continue and even skyrocket causing more confusion and costing much more time and money than EPA s economic analysis shows. So to move on from the legal issues to other practical and technical issues with the proposed rule, there has been significant attention to the inclusion of all ditches as WOTUS (except for the exemptions). Let s focus for a moment on the ditch pictured here. Is this ditch WOTUS? EPA states that the proposed rule does not regulate new types of ditches and does not regulate activities on land. The proposed rule states that ditches that are excavated wholly in uplands, drain only uplands, and have less than perennial flow are excluded and are not WOTUS (all proposed rule quotes in italics). If uplands can be generally defined as not a floodplain, then, the definition of a floodplain becomes crucial. The rule states the term floodplain means an area bordering inland or coastal waters... inundated during periods of moderate to high water flows. The proposed rule leaves it to the agencies best professional judgment to make determinations as to what flood interval to use for determining floodplains and for determining less than perennial flow. Attempts to clarify when a ditch is a WOTUS simply brings more matters into question. Examples include: Historical evidence, such as photographs, prior delineations, or topographic maps, may be used to determine whether a water body was excavated wholly in uplands and Site characteristics may also be present to inform the determination of whether the water body is a ditch, such as shape, sinuosity, flow indications. The proposed rule further states that even when not jurisdictional waters, ditches may still be a surface hydrologic connection for purposes of a significant nexus analysis. Other waters may be WOTUS if a significant nexus can be established. Again, the agencies rely on the best professional judgment which will defeat any hope of regulatory certainty due to the variability in the factors that the various professionals will have to consider in their decision making. For example, the proposed rule states there is variability in the size of the floodplain, which is dependent on factors such as the flooding frequency being considered, size of the tributary, and topography. As a general matter, large tributaries in low gradient topography will generally have large floodplains (e.g., the lower Mississippi Delta) whereas small headwater streams located in steep gradients will have the smallest floodplains. It may thus be appropriate for the agencies to consider a floodplain associated 3

4 4 with a lower frequency flood when determining adjacency for a smaller stream, and to consider a floodplain associated with a higher frequency flood when determining adjacency for a larger stream. Regarding tributaries, the proposed rule states that while the agencies have not defined tributary in any previous regulation, this proposed definition is consistent with long-standing practice and historical implementation of CWA programs. The key point here is that the long-standing practices that many were unaware of is now being codified in rulemaking and is counter to law and rulings of the Supreme Court. The rule further states that the great majority of tributaries are headwater streams, and whether they are perennial, intermittent, or ephemeral, they play an important role in the transport of water, sediments, organic matter, nutrients, and organisms to downstream environments. Regarding designated use and criteria for ephemeral streams, EPA has stated that ephemeral-type aquatic life should be protected. In a related matter, it should be also noted that in separate rulemaking regarding water quality standards, EPA is proposing to amend (g) to require a state to adopt the highest attainable use. Thus, ephemeral type aquatic life would be protected to the highest attainable use. (Note: MO-AG does not believe CWA gives EPA the authority to require the highest attainable use but only attainable use and 303(c)(2)(A) leaves the identification of uses to states). In her visit to Kansas City which I reference above, Administrator McCarthy stated that if you don t need a permit before, you don t need to get one now. In her June 2014 blog, Acting Assistant Administrator Stoner said that permits will not be applied for the application of fertilizer to fields or surrounding ditches or seasonal streams and that the pesticide general permit only requires a NPDES permit where pesticides are applied directly to a water of the U.S. These statements are incorrect and would not withstand logical scrutiny. Floodplains and ephemeral streams are everywhere in the rural landscape. Thus under the proposed rule, fertilizer and pesticide applications would be near WOTUS. By any definition, the tractor is very near the ditch in the picture used above. Because the proposed rule makes water in a flood plain and ephemeral streams WOTUS and federally regulated, it is totally logical that applicators of fertilizer or pesticides would now or soon in the future be forced to obtain a permit. The pesticide general permit expressly applies to pesticide applications that take place near water. Administrator Stoner s blog also says that Pesticide applicators can avoid direct contact with jurisdictional waters when spraying crop fields. Again, refer to the above picture. It is totally reasonable to assume that a permit with set-back provision may someday be required under the proposed rule. The next couple pages show classified streams in Missouri as well as floodplains for an area near Jefferson City, MO. The key point is variability in floodplains and that ditches in floodplains have no exemption and much of Missouri agriculture is located in floodplains. Following the floodplain maps and figures, continued discussion and figures related to ephemeral streams is found. 4

5 5 FEMA floodplain maps for area near Jefferson City, MO 500 Year Floodplain FEMA Floodplains 100 Year Floodplain 10 Year Floodplain Missouri River Floodway 5

6 6 Missouri Classified Streams Upper map is all classified streams in Missouri. Map to the left shows Missouri Classified Streams in area near Jefferson City, MO. 6

7 7 Below are pictures from EPA Field Operations Manual for Assessing the Hydrologic Permanence and Ecological Condition of Headwater Streams. According to the manual, the length or extent of these headwater (ephemeral streams) may be highly variable and is dictated by multiple factors (e.g., annual precipitation, evapotranspiration, land-use practices). The manual states that defining headwater streams is problematic. The manual describes methods of determining the health of these streams. In March 2014, the Missouri Department of Natural Resources (MDNR) submitted new and revised WQS to EPA. This submittal included state regulations that use the National Hydrography Database (NHD) for classification of enhanced 1:100,000K scale NHD streams. By expanding WOTUS to ephemeral, headwater streams, the proposed rule would expand WOTUS jurisdictional waters beyond 1:100,000K and even beyond the 1:24,000K scale which was rejected by the MDNR. EPA should reflect upon the Missouri experience. There was much science considered regarding the issue of classified streams and uses. The MDNR s Regulatory Impact Report (RIR) for the water classification rulemaking states that the centerpiece of the use designation proposal includes all rivers, streams and intermittent streams spatially represented by the 1:100,000 scale. MDNR rejected 1:24,000 because at the 1:24,000 scale an additional 73,720 miles of stream would need monitoring. If the current annual percentage of waters monitored is extended to the 1:24,000 scale NHD, annual monitoring costs would increase to $24.9 million. Ultimately, the enhanced 1:100,000 scale NHD proposal was advanced through the stakeholder group into the proposed rule because of the following: (1) certainty of aquatic communities on the spatial extent of the enhanced 1:100,000 scale NHD due to data and information contained in Missouri s Aquatic Gap project and data collected by the department and MDC, (2) an aquatic habitat protection UAA protocol would be available to add or remove waters from the rule, and (3) support from the regulated community that the proposal represents an appropriate extent for extending fishable/swimmable protections required by Section 101(a) of the CWA. Under the CWA, fishable/swimmable uses must be extended to all waters of the United States (WOTUS). From the standpoint of the proposed rule s application of CWA Section 101(a) use designations to an enhanced 7

8 8 1:100,000 scale NHD, there is some uncertainty and an assumption that aquatic habitat and recreational uses are attainable at this spatial scale. In an October 22, 2014 letter from EPA Region 7, EPA took actions regarding Missouri s WQS submittal. EPA actually approved much of the submittal. In the letter, EPA did note that Missouri has designated none of its waters for ephemeral aquatic habitat. and that as part of the state's next comprehensive (triennial) WQS review, Missouri would need to complete the necessary UAAs and adopt numeric criteria supportive of these uses consistent with 40 CFR Missouri scientifically documented that establishing the existence of aquatic communities at the 1:24,000K scale is uncertain, however, third party citizen lawsuits continued to push to expand the list of protected waters, as shown below. Presented here are slides from a Missouri Coalition for the Environment presentation depicting small ephemeral streams in backyards in the St. Louis area which MCE seeks to protect. The Coalition filed a lawsuit against EPA because St. Louis Area EPA did not assign proper fishable - swimmable uses to all of Missouri s waters. In 2012, a district court ruled that Missouri's submissions of water quality standards did not meet the requirements of the CWA. 8

9 9 Again, Missouri has a history of citizen lawsuits being filed against EPA and forcing Missouri to consider expanding the waters covered under the CWA. This definition of WOTUS, now codified in official rulemaking, will result in a vast expansion in jurisdiction. That jurisdictional expansion will be utilized by EPA by their choice or by force of law that will result from citizen lawsuits. Science Advisory Board (SAB) Review of EPA s Water Body Connectivity Report: First concerning the process relating to the SAB s review of the draft connectivity report, EPA has not complied with the Administrative Procedures Act (APA) by publishing the proposed rule prior to the final connectivity report. EPA should have incorporated the SAB s comments into the draft connectivity report, published a final connectivity report, and then published a proposed rule. The process actually followed does not allow for public comment after a final connectivity report. The process actually followed is flawed. But, putting aside the flawed process and also putting aside the points made earlier that science only informs policymakers who develop law under the constitution, let us look at what the SAB actually said. Panel members generally found that the term significant nexus was a legal term, was poorly defined in the proposed rule, and that the use of the term was vague. But of course, with vast amounts of additional research and research grants, scientists may be able to establish some of the smaller levels of connectivity and contributions to navigable waters. Most of the current research quoted in the draft connectivity study do not directly and specifically address pollutant transport to and impact on the quality of navigable waters. Accordingly, such studies cannot be used to help policy-makers identify the jurisdictional boundaries of the CWA. A general comment from the SAB is that there is a scientific basis for the fact that most all runoff has the potential to be possibly significant to some degree. This is hardly surprising. This is why the farmers and taxpayers of this country spend millions of dollars each year implementing conservation practices on uplands in order to reduce non-point source pollution and to maintain and improve water quality. The SAB actually establishes a case that the proposed rule is deficient. The SAB s comments, by volume, describes more concerns and uncertainty than it provides support. Here is a sampling of these comments: Recognizing the myriad connections between non-floodplain and non-riparian waters and wetlands and downstream waters (via surface water, shallow subsurface flowpaths, shallow or deep ground water flowpaths, or through chemical and biological connections) with specific attention paid to the magnitude, duration, frequency, predictability, and consequences of these connections is critical to understanding that all water bodies are likely connected to some extent to downstream waters, although the degree of connectivity can vary widely. The SAB rightly describes the myriad of connections and purports a likely connection to some extent. This accurately describes the situation whereby the vast volumes of flowpaths project infinite variations and degrees of connectivity with some impacts being undoubtedly infinitesimally small. 9

10 10 Much of the SAB s comments relate to the general notion that EPA does not go far enough. Some comment that ditches should not be excluded and that most ditches have the potential to deliver pollutant and thus should be WOTUS. The SAB interchanges erosional features and ephemeral streams. Below are some of those comments. Discriminating between shorter-term erosional features (e.g., rills and gullies) and longer-term headwater channels represents a challenge relative to mapping as well as to the nature of ecological transitions between, for example, gullies and ephemeral streams. However, to exclude these and other variable source areas from jurisdiction is not fully supported by the available science as they can be important components of integrated aquatic systems with measurable impacts to downstream systems. Although gullies, rills, and non-wetland swales are excluded by the rule, the proposed rule s preamble notes that these features are important conduits for moving water between jurisdictional waters, making them important with respect to hydrological and other forms of connectivity. Exclusion of ephemeral features located on agricultural land that do not possess a bed and bank due to past farming practices seem to grant an unnecessary and potentially harmful exclusion and should be reconsidered. Many ditches in the Midwest would be excluded under the proposed rule because they were excavated wholly in uplands, drain only uplands, and have less than perennial flow. However, these ditches may drain areas that would be identified as wetlands under the Cowardin classification system and may provide certain ecosystem services. Because such ditches exist in heavily agricultural areas which are subject to runoff containing high concentrations of sediments, nutrients, and pesticides, these ditches may be important for certain ecosystem services such as attenuation of nonpoint source pollution. When ditches in this region do flow, they move water and much agricultural run-off to Lake Erie. This can result in harmful algal blooms and the loss of drinking water (e.g., as has occurred in Toledo and surrounding areas). These statements basically describe the potential effect of ditches, erosion features, and ephemeral streams on downstream water quality and ecosystems. These statements are not germane to the issue of determining WOTUS. From a legal standpoint, from these observations, it does not follow that these landscape features should be defined as waters and considered WOTUS. Congress provided the CWA Section 319, farm bill conservation programs, and other programs for NPS control. The SAB panelists are scientists and not lawmakers or lawyers. SAB comments about the extent of WOTUS coverage is 10

11 11 beyond scientific conversation and ventures into policymaking. This is perhaps said best by one the SAB panelist who stated: I can appreciate the political difficulty of extending CWA jurisdiction to these waters, and the economic hardship that such extension of jurisdiction could place on the regulated public. However, I would be remiss if I didn t point out that any decision to not cover these types of ditches is wholly a policy decision Indeed, the SAB comments ebbs and flow between issues of science, policy, and legal jurisdiction. Based on these comments by the SAB, without the proper respect given to the law which rightfully restrains federal powers, it should be expected that the exclusions currently in the proposed rule for ditches and erosion features will be short-lived. Surly very little time that will pass before there is clamoring to remove the exclusions based on additional scientific information. Will the EPA, now informed by the SAB, surly revisit the exclusions for ditches and erosion features as suggested by science and its SAB? Why doesn t the EPA come forth now, and boldly claim that all waters are jurisdictional as seems to be advocated by the SAB, and remove all exclusions and exceptions. Perhaps because EPA knows that would be a very obvious step too far. All pretense of retrained jurisdictional expansion would surely be gone. Recommendation: MO-AG recommends EPA withdraw the rule and work with States and stakeholders on a new proposed rule. In section 101(b) of the CWA, Congress chose to "recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources. The new proposed rule should meet both the Kennedy and plurality opinions in Rapanos and the ruling in SWANCC. To be true to these opinions, the agencies should specifically follow this basic premise: WOTUS are extended to non-navigable waters only if they exhibit a relatively permanent flow and bear a "significant nexus" to a traditional navigable waterway; and, jurisdiction exists over wetlands only if a continuous surface water connection exists between it and a relatively permanent waterbody, and the wetland bears a "significant nexus" to a traditional navigable waterway Relatively permanent waters (RPW) needs to be defined in the new proposed rule. The plurality opinion in Rapanos stated that RPWs do not necessarily exclude streams, rivers, or lakes that might dry up in extraordinary circumstances, such as drought, and seasonal rivers, which contain continuous flow during some months of the year but no flow during dry months. This legal description needs technical definition. For clarity and ease of use, the new proposed rule should consider utilizing the 1:100K NHD, as was done by the State of Missouri. And in Missouri, UAAs are used to delete, and to add, waters as needed providing flexibility for the State to adjust to local conditions. 11

12 12 This would be a straightforward, simple and easy to understand approach. The NHD is a familiar national database for all states. It could logically be argued that the 1:100K NHD level is generally consistent with the plurality opinion s statement above regarding RPWs. Thank you for this opportunity to comment. Steve Taylor President, Missouri Agribusiness Association (MO-AG) 12