Public Comments on EPA Challenge of Supreme Court CWA Decision

In our ongoing effort to keep WVFA members educated about issues that may affect them, we have become aware of a proposed rule from the Environmental Protection Agency. On April 19, the Federal Register published a more-than-111,000-word "Waters of the U.S." proposed rule, which reflects the EPA’s latest interpretation of the 1972 Clean Water Act (CWA). Effectively, the proposed rule with eliminate the word "navigable" from the decades old language of the CWA’s jurisdiction over "navigable waters of the U.S." This action could lead to the expansion of federal regulation to cover routine forest management, even though West Virginia is one of the few states to have mandated Best Management Practices to prevent water pollution and the CWA carries a "silvicultural exemption."  

The EPA proposal defies the 2006 Supreme Court decision in  Rapanos v. U.S.  In the case, the high Court sided with landowners who objected to federal efforts to regulate Michigan wetlands near drains and ditches emptying into bodies of water traditionally covered by the law. The ruling restricted efforts to force discharge permits for smaller waterways adjacent to larger bodies of water. But some say the Supreme Court did not rule definitively on a host of issues – including whether federal protections extend miles away to nearby waterways – leaving it to the lower courts to decide.  At that time, congressional critics of the majority holding began mulling how to blunt the ruling’s impact.  

The case sprang from a situation on a 175-acre plot of land in Bay County, Mich., owned by John Rapanos. In order to make the land more suitable for sale, Rapanos filled wetlands on the property in spite of warnings from the Michigan Department of Resources that a permit was required. After an unfavorable court decision, Rapanos’ lawyers argued that the 6th Circuit Court erred because the waters at issue in his case lack a surface water connection to "navigable waters"; a requirement of the CWA.  

This 2003 decision helped to bring the debate over the definition of federally protected wetlands full circle since the court’s landmark 2001 decision in Solid Waste Association of Northern Cook County v. the Army Corps of Engineers. In that 2001 decision, the high court ruled in favor of SWANCC, a consortium of Chicago-area municipalities that had been denied a federal permit to build a landfill because isolated ponds on the site could be used by migratory birds. Since then, the court system has been clogged with cases challenging other criteria used by the corps to regulate wetlands that are isolated from major waters, and green groups have been maneuvering for a congressional solution.

Bottom line:  The current EPA proposal is open to public comment about their effort to regulate – what we see as – temporary bodies of water, intermittent steams and seasonal wetlands. People who comment are writing letters, as requested by EPA using the following:

Identifying their comments as 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: ow-docket@epa.gov. Include EPA-HQ-OW-2011-0880 in the subject line of the message.
• Mail: Send the original and three copies of your comments to: Water Docket, Environmental Protection Agency, Mail Code 2822T, 1200 Pennsylvania Avenue NW., Washington, DC 20460, Attention: Docket ID No. EPA-HQ-OW-2011-0880. 

WVFA Area meetings are being planned in conjunction with the WV Farm Bureau. Watch for more information.