HBW Resources: Forsgren Environmental Report

Forsgren Environmental Report
Wednesday, May 29th, 2013 

***Introducing the Forsgren Environmental Report, another intelligence offering from HBW Resources. This new report, detailing all you need to know on federal environmental policy and regulation is compiled by D. Lee Forsgren. Forsgren is recognized as a leading expert in environmental policy with particular emphasis on the Clean Water Act, the Endangered Species Act, National Environmental Policy Act, the Oil Pollution Act, and issues related to the Army Corps of Engineers.  He is currently “Of Counsel” for HBW Resources and provides legal and policy guidance to the firm’s clients.***

By Land or Water: How Will Regulation Come?
1.  Senate Passes Water Resource Development Act.
Legislation authorizing programs and streamlining the Army Corp of Engineers environmental review process passed the U.S. Senate this past Wednesday by a vote of 83 to 14 .   The “Water Resources Development Act,” S . 601 , will provide for the conservation and development of water and related resources, to authorize the Secretary of the Army to construct various projects for improvements to rivers and harbors of the United States.  Several important amendments were debated as part of the consideration by the full Senate that will be discussed separately.

Why does this matter? – 
The Water Resource Development Act authorizes the Army Corps of engineers to dredge the nation’s ports, build and operate the inland waterway system, and mitigate flooding risks.  The legislation includes provisions that will streamline environmental reviews, however legislation always carries the risk of being used to advance environmental agenda items such as comprehensive Everglades restoration or expansions to the definition of “waters of the United States”…We should keep an eye on this one.     

2. Wyoming Senator  Tom Barrasso  wants to keep the U.S. Government from falling into your ditch.  

The EPA and the Army Corps of Engineers are looking to expand the definition of “waters of the United States” to include ditches or dry areas where water flows even after a rainfall.  Federal regulations have never defined ditches and other upland drainage features as “waters of the United States.”  But draft guidance issued by the agencies does do that, and it will have a huge impact on farmers, ranchers, small businesses, and other industries that need to put a shovel in the ground to make a living.

“The EPA and the Army Corps of Engineers’ guidance amounts to a Federal user fee for farmers and ranchers to farm the land they own.” Barrasso said. “Just as troubling as ignoring congressional intent, the guidance absolutely disregards the fundamental tenet embodied in two decisions of the U.S. Supreme Court. One is the SWANCC decision and the other is the Rapanos decision. Those are decisions that say there are actual limits to Federal jurisdiction. It is particularly troubling to me and to others around the country–and certainly at home in Wyoming it is particularly troubling–that the guidance allows the Army Corps of Engineers and the EPA to regulate waters now considered entirely under State jurisdiction. As somebody who has served in the State legislature, talking to the Presiding Officer as someone who has served as a Governor of his State, we know the key importance of State jurisdiction in making local decisions This guidance would grant the Environmental Protection Agency and the U.S. Corps of Engineers virtually unlimited regulatory control over all wet areas within a State.” said Senator Barrasso in explaining his amendment.

The Barrasso amendment was not included in the passed version of the Senate Water Resources Development Act, even though it technically passed 52-44. Under a previous agreement all amendments were required to have at least 60 votes for inclusion in to the overall bill.  

Why does this matter? –  
A majority of the U.S. Senate and U.S. House of Representatives likely oppose the EPA’s plans to significantly expand the jurisdiction of the Clean Water Act definition of “waters of the United States”.   The agency has yet to determine whether it will go forward with finalizing the proposed guidance in addition to the rulemaking or choose to conduct only a rulemaking.  A strong showing by Congress could impact that decision.

The determination of what constitutes “Waters of the United States” is important because the final rule will indicate whether EPA intends to redefine when isolated wetlands, intermittent streams, and other non-navigable waters should be subject to regulation under the CWA.  This could have a major impact on the breadth of jurisdiction.  Small differences in scope could mean that millions of acres are/or are not, subject to CWA jurisdiction

3. Clean Water Act:  EPA Targets West Virginia’s Shale Gas Region 

The Clean Water Act requires that States periodically submit, and EPA approve or disapprove, lists of waters (called “Section 303(d) lists”) for which existing technology-based pollution controls are not stringent enough to attain or maintain State water quality standards and for which total maximum daily loads (TMDLs) must be prepared. Waters identified on Section 303(d) lists are called “water quality limited segments.” This notice announces EPA’s proposal to include in West Virginia’s Section 303(d) list certain water quality limited segments and requests public comment.

On March 25, 2012 EPA partially approved West Virginia’s 2012 Section 303(d) list of water quality limited segments and associated pollutants and partially disapproved West Virginia’s submission to the extent that West Virginia did not identify certain water quality limited segments. EPA proposes to identify these additional water quality limited segments for inclusion on the State’s 2012 section 303(d) list. The proposed water quality limited segments are identified in Enclosure 3 of the decision document are available here

EPA is providing the public the opportunity to review its decision to add these water quality limited segments to West Virginia’s 2012 Section 303(d) list. EPA will consider public comments before transmitting its final listing decision to the State.

Why does this matter?
While this may look like a ministerial move by the EPA, it is no accident that the rivers and segments the EPA is seeking standards on Total Maximum Daily Limits (TMDLs) are mostly located in the shale gas region of the state.  Through TMDLs, EPA can regulate activates under the Clean Water Act that cannot otherwise be federally regulated.  These activities could include runoff from construction and mining sites and other practices associated with shale gas development.

4. EPA is seeking nominations for “experts” to help them determine the scope of the Clean Water Act

The EPA Science Advisory Board (SAB) Staff Office has requested public nominations of scientific experts to form an SAB panel to review the Agency’s draft science synthesis report on the connectivity of streams and wetlands to downstream waters.

Why does this matter?
While this would seem like another request for scientific input on some obscure governmental panel, this panel’s work will be very critical for any person, company, or organization who must obtain a Section 404 permit under the Clean Water Act.  This panel is likely to be the basis for EPA and the Corps of Engineers’ development of the scope of regulatory reach under the Clean Water Act.  The hydrological connection that ties lands that are not adjacent to the Navigable Waters to those waters is the basis for regulation. Without such a basis the Supreme Court has ruled the Clean Water Act doesn’t permit, and the Constitution’s “Commerce Clause” would not allow, Congress to require a federal permit on such lands.  Therefore having a sound scientific basis for the connections is critical.  It is likely that the Environmental Groups are likely to push for “scientists” who will seek the broadest imaginable interpretation of “connection” in order to bring as much land as possible under the scope of the regulation. Get your applications in NOW.

5. Thune cautions EPA on getting too cozy with Earth Justice

Senator John Thune (R-S.D.) expressed concern to Acting Administrator of the Environmental Protection Agency (EPA), Bob Perciasepe, about the EPA release of personal information of approximately 80,000 agriculture producers released to environmental groups Earth Justice, the Natural Resources Defense Council, and the environmental arm of the Pew Charitable Trusts.  The data dump included 500 farms and ranches in South Dakota. The personal information included the name of the operation, permit number, numbers and types of animals, and county of residence.

Senators Deb Fischer (R-NE) and Sen. David Vitter (R-LA), top Republican on the Environment and Public Works Committee, along with committee members Sens. James Inhofe (R-Okla.), John Barrasso (R-Wyo.), Jeff Sessions (R-Ala.), Mike Crapo (R-Idaho), Roger Wicker (R-Miss.), and John Boozman (R-Ark.) previously wrote to Acting Administrator Bob Perciasepe of the U.S. Environmental Protection Agency (EPA) questioning the agency’s decision to release personal and confidential business information related to recent Freedom of Information Act (FOIA) requests from environmental groups.  A copy of the letter can be viewed here

Why does this Matter?
U.S. Senators from agricultural states do not want the release of sensitive business, or personal information by EPA under the Freedom of Information Act (FOIA) to become routine process.  Environmental and animal rights groups have attempted to use FOIA as a means of obtaining sensitive business data and locations of regulated CAFO’s and other agricultural operations. The release of the data poses a significant security risk to the affected operations. EPA’s conscience release of such information may well have set a precedent if gone unchecked.  The strong challenge by a number of Senators makes the likelihood that future release of sensitive information will not become routine.

When asked about the collection of such data by EPA and its release under FOIA, EPA Administrator designate Gina McCarthy promised to work with Senators to “assure that this type of improper release of information doesn’t happen again.” 

6. The House Transportation & Infrastructure Committee hearing on the “Water Resource Development Act“.
Why does this matter? 
The House of Representatives is serious enough about moving legislation to have a policy only hearing significantly enhances the likelihood of Water Resource legislation being enacted this year.  Good sign.  


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