|Lake Michigan falls under the CWA, but
what about that mud puddle?
The Clean Water Act, which was originally enacted in 1948 and then underwent a major overhaul in 1972, has been met with many legal challenges, most notably about whether a body or water falls under the CWA and, therefore, the EPA’s control. The CWA currently covers “waters of the United States” and “other waters.”
The definition is such a big deal because if the water comes within the definition, the EPA had regulatory control over it.
In order supposedly end the confusion about it, the EPA has proposed to replace the current interpretations of water with this:
The agencies propose to define “waters of the United States” in section (a) of the proposed rule for all sections of the CWA to mean: traditional navigable waters; interstate waters, including interstate wetlands; the territorial seas; impoundments of traditional navigable waters, interstate waters, including interstate wetlands, the territorial seas, and tributaries, as defined, of such waters; tributaries, as defined, of traditional navigable waters, interstate waters, or the territorial seas; and adjacent waters, including adjacent wetlands. Waters in these categories would be jurisdictional “waters of the United States” by rule – no additional analysis would be required.
That might seem perfectly legitimate and acceptable, but that’s not the problem. The real issue is how the EPA wants to define “other waters.” The proposal would define it as: “either alone or in combination with similarly situated ‘other waters’ in the region they have a ‘significant nexus‘ to traditional navigable waters. How to determine whether the water has a “significant nexus” will still be up to determination and on a case by case basis.
One way the EPA chooses to define “other waters” and “significant nexus” goes like this:
“Functions of waters that might demonstrate a significant nexus includes sediment trapping, nutrient recycling, pollutant trapping and filtering, retention or attenuation of flood waters, runoff storage, export of organic matter, export of food resources, and provision of aquatic habitat. A hydrologic connection is not necessary to establish a significant nexus.”
(Source: Pork Network) That would mean any time there is standing water in a field, a ditch, or where ever else, the EPA will have jurisdiction (or control) over the water to enforce the CWA.
Enforcement includes making farmers get permits for doing certain activities near waters under the CWA’s reach. The permits are generally costly and can take months to process. Of course, if a permit has to be issued the EPA would have the power to also deny the permit — which means telling farmers they can’t use those fields.
Now, the CWA does include some exemptions for agriculture and Ag Secretary Vilsack has stated repeatedly that this will not interfere with farming. But according to American Farm Bureau, the regulations leave a lot to be determined. In other words, there is room for lawyers (and environmental extremists) to argue. (Source: New York Times) Additional farming exemptions are also proposed with the new definitions. However, in order to qualify for the exemptions, farmers have to already participate in conservation programs – it definitely isn’t a free for all! (Source: Fox News)
That uncertainty raises a lot of eyebrows, especially with farmers.