The EPA and the Corps of Engineers continue to move forward with their plans to bring more waters under federal regulations through classification as “Waters of the U.S.”
The new regulations could call a dry farm ditch a 'water.' A study, called the 'connectivity study' is closely aligned with this effort and is expected to be used by EPA to support its draft rule. The Federal Water Quality Coalition (FWQC), in which Mid America CropLife Association (MACA) is a member, has submitted comments to the Scientific Advisory Board (SAB) regarding this study.
Our comments point out the foundational point that EPA lacks the constitutional authority to take the action it proposes. We state that "in evaluating EPA and Corps jurisdiction, it is important to understand that Congress has enacted the Clean Water Act in reliance on the Commerce Clause of the U.S. Constitution, and Congress has applied the act only to navigable waters. Accordingly, under the act, EPA and the Corps can regulate only water-quality related activities that have an impact on interstate commerce and that directly affect navigable waters.
Using this as the foundation of its opinion, our comments pointed out that the U.S. Supreme Court ruled "water must have a ‘significant nexus’ to traditional navigable water" and that "if, as a result of hydrologic connectivity, pollutants may be carried from upstream surface water to downstream navigable waters, then hydrologic connectivity may be relevant to a determination whether upstream surface water has a significant nexus to downstream navigable waters. However, studies related to the flow of water alone are not relevant to Clean Water Act goals. Water is not a pollutant.”
Also related to these matters, EPA has released an "importance of water" report that attempts to tie water quality to the economy. The report states that "water is absolutely fundamental to the U.S. economy" and that "food production and water supply account for 94 percent of withdrawal from the nation's groundwater, streams, rivers and lakes." EPA could be using this to help monetize environmental benefits of regulatory actions.
As a report on another topic, EPA has been working on revisions to the Water Quality Standards Regulation and the comment deadline was previously set at December 3rd. But the comment period has been pushed back until January 2nd.