May 6, 2014 – EPA and the U.S. Army Corps of Engineers are publishing for public comment a proposed rule (PR) to expand the definition of the scope of “waters of the United States” as defined in the Clean Water Act (CWA).
In the PR, it is stated that US Supreme Court cases have resulted in opinions and rulings that provide opportunity and necessity to refine the Act. They also state that clarification under the rule would enhance protection for the nation’s public health and aquatic resources, and increase CWA program predictability and consistency by increasing clarity as to the scope of ‘‘waters of the United States’’ protected under the Act.
COMMENTS: Submit your comments, identified by Docket ID No. EPA–HQ–OW–2011–0880 by one of the following methods:
• Federal eRulemaking Portal: http://www.regulations.gov
Follow the instructions for submitting comments.
• Email: email@example.com
Include EPA–HQ–OW–2011–0880 in the subject line of the message.
NOTE: This synopsis is based on interpretations by Christopher Weeks, Regional Aquaculture Extension Specialist, North Central Regional Aquaculture Center (NCRAC) of the EPA Proposal Rule on CWA. These views do not necessarily represent views by NCRAC and are not intended as legal advice.
I was first notified by this PR on 4/16/14 by Michigan Farm Bureau, which is adamantly opposed (see attached MFB Key Points file). I have also attached a matrix showing current and proposed language for waters of the US.
The PR posting in the Federal Register is found here: http://www2.epa.gov/sites/production/files/2014-03/documents/wus_proposed_rule_20140325_prepublication.pdf usa microgaming online casinos usa microgaming online casinos
It is quite lengthy (88pgs), covers an expansive range of issues, and a difficult read in my view. Based on the amount of supporting evidence in the PR, it appears that EPA and the Corps have expended considerable effort in obtaining legal and scientific support. My first impression (and one that sticks), however, is based on the point that Farm Bureau is adamantly opposed, and lists a number of points demonstrating that it reduces the rights of farmers (described mainly for terrestrial farming). If this is a valid argument, then aquatic farming rights are likely to be negatively impacted as well, potentially to greater extent.
Congress enacted the Federal Water Pollution Control Act Amendments of 1972, Public Law 92–500, 86 Stat. 816, as amended, (33 U.S.C. 1251 et seq.) (Clean Water Act or CWA) ‘‘to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.’’
In justification of the current PR, 3 court cases are cited for the purpose of the need by EPA and Corps to improve upon the Act:
- United States v. Riverside Bayview Homes, 474 U.S. 121 (1985), which involved wetlands adjacent to a traditional navigable water in Michigan. In a unanimous opinion, the Court deferred to the Corps’ judgment that adjacent wetlands are ‘‘inseparably bound up’’ with the waters to which they are adjacent, and upheld the inclusion of adjacent wetlands in the regulatory definition of ‘‘waters of the United States.’’
- Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001). In SWANCC, the Court (in a 5–4 opinion) held that the use of ‘‘isolated’’ nonnavigable intrastate ponds by migratory birds was not by itself a sufficient basis for the exercise of Federal regulatory authority under the CWA.
- Rapanos v. United States, 547 U.S. 715 (2006). Rapanos involved two consolidated cases in which the CWA had been applied to wetlands adjacent to nonnavigable tributaries of traditional navigable waters. All Members of the Court agreed that the term ‘‘waters of the United States’’ encompasses some waters that are not navigable in the traditional sense. A four-Justice plurality in Rapanos interpreted the term ‘‘waters of the United States’’ as covering ‘‘relatively permanent, standing or continuously flowing bodies of water. . .’’ id. at 739, that are connected to traditional navigable waters, id. at 742, as well as wetlands with a continuous surface connection to such relatively permanent water bodies, id. The Rapanos plurality noted that its reference to ‘‘relatively permanent’’ waters did ‘‘not necessarily exclude streams, rivers, or lakes that might dry up in extraordinary circumstances, such as drought,’’ or ‘‘seasonal rivers, which contain continuous flow during some months of the year but no flow during dry months. . . .’’ Id. at 732 n.5 (emphasis in original). Justice Kennedy’s concurring opinion took a different approach than the plurality’s. Justice Kennedy concluded that the term ‘‘waters of the United States’’ encompasses wetlands that ‘‘possess a ‘significant nexus’ to waters that are or were navigable in fact or that could reasonably be so made.’’
Michigan Farm Bureau’s opposition is mirrored extensively by other agricultural and mineral mining right supporters. Several articles opposing the PR can be found on the Wisconsin Aquaculture Website:
Proponents views:can be found on the following sites:
If you have strong opinions either way this is undoubtedly a very important piece of legislation for comments. Also, I should point out that many individuals feel regulations are one of the biggest obstacles impeding major expansion of US aquaculture. To that end, the aquaculture community must make collective efforts to ensure regulations are fair and effective. Comments can be made according to directions above (and in the PR). Letters to Congress are also highly encouraged. See: https://www.govtrack.us/congress/members for Congress contact information for your state.
Clarifications to this synopsis are welcome and encouraged!
Chris Weeks, PhD
Michigan State University
Aquaculture Extension Specialist, North Central Region
517-353-2298 / firstname.lastname@example.org
Websites: NCRAC, Regulations
Aquaculture Information: NCR Fish Culture List Serve
—- Advocate for Sustainable Aquaculture Practices ———