Mehan Talks “Waters of the U.S.” at the Farm Foundation Forum

Those of you who have been following EPA’s proposed rule redefining the term “Waters of the U.S.” and the scope of the federal government’s authority to regulate waters (streams, lakes, ponds, wetlands, etc.), know and appreciate the scientific complexity and many layers of politics that complicate this rule making.  There’s been lots of theatre on the topic, including some wild and hairy statements from some in Congress who have called it the “biggest land grab in the history of the world” – never mind the expansionist Spartans or Huns.  I’m certainly not in that camp, but have expressed concerns of my own regarding the proposal.  This issue has been particularly problematic to the agriculture community, who for the last 40 years have been granted important Ag exemptions under the Clean Water Act.  These exemptions remain critically important today.  EPA has attempted to preserve these exemptions under this rule making and provide a safe harbor of sorts for 56 conservation practices deemed “normal” farming, which under the rule although may impact a “water of the U.S.” would not need a CWA permit.  This effort has created serious concerns by many farmers that it doesn’t provide sufficient flexibility and potentially makes them a greater target of more enforcement and citizen suits.

This past week Tracy Mehan had the opportunity to share his own perspective at the Farm Foundation’s forum at the national press club.  You can hear the entire healthy debate here.  An enlightening discussion if you haven’t been following the kerfuffle.  Chris Clayton, Ag Editor over at The Progressive Farmer, had this to say about the discussion: 

Point, Counterpoint on EPA’s Waters of the U.S. Rule

On Wednesday, the Farm Foundation hosted a forum at the National Press Club looking at some of the complex issues involved in the proposed rule regarding waters of the United States by EPA and the Army Corps of Engineers.

The Acronym Society of the United States likes to call it the WOTUS rule. My aversion to turning everything into an acronym requires me to simply keep referring to the waters of the U.S. unless I need a headline. I hope you can bear with me on that one.

The proposed rule has sparked its share of controversies, leading EPA down a path of political advocacy for its rule with a #DitchtheMyths campaign to counter the farm groups and others who created the #DitchtheRule campaign to defeat the proposal.

Offering some of the legal and environmental justification for the rule at the Farm Foundation event was Tracy Mehan, an environmental consultant and adjunct environmental law professor at George Mason University. He also was an associate administrator for water at EPA in 2001-2003 and a former natural resources director for the state of Missouri. Mehan recalls EPA trying to develop the water rule as far back as his time at the agency.

“Back in the agency in 2001, we were getting ready to try to do what everyone said they wanted, which was more clarity, more definition and doable things,” Mehan said. “Everybody agreed we had to do a rule, but nobody agreed what it should look like.”

Mehan probably did a better job explaining the proposal in the 90-minute session than anyone at EPA has done since the rule was put out there last spring for public comment.

Mehan said EPA is faced with tensions over the 19th Century concept of “navigability” as it relates to federal jurisdiction compared to the 21st Century science understanding the connections between water flows and pollution. Questions were raised the Farm Foundation event about the EPA’s connectivity report that was the scientific backbone of the rule. EPA put out the proposed rule before the connectivity report has completed its scientific peer review. Mehan said Appendix A of the proposed rule in the Federal Register instead cites several peer-reviewed studies tied to the concepts of the proposed rule.

The lynchpin is EPA’s rule stems from language in the Supreme Court cases regarding “significant nexus” of waterways. Mehan notes the proposed rule “is essentially mimicking the precise language” of Justice Anthony Kennedy in the 2006 Supreme Court case, Rapanos v U.S. Significant nexus means waters in a watershed such as a wetlands has an impact the waters of the U.S.

“The Kennedy opinion in Rapanos is crucial to this whole thing, whether you love it or hate it,” Mehan said. He added, “They are taking the Kennedy opinion and they are riding that horse hard.”

Mehan also chided Congress for failing to take up the task of redefining such language itself following the various Supreme Court cases on navigable waters. The House did vote last week simply to kill the waters of the U.S. rule, but we won’t know until after the November elections whether the Democratic-led Senate will consider bringing it up. A significant number of states oppose the rule, partially because state officials nationally don’t believe EPA consulted with them on it.

That’s why I say this isn’t just a science issue,” Mehan said. “This is fundamentally a political question, a question of federalism … The only ones who can fix this problem or clarify it is Congress.”

Mehan said he believes EPA is in a strong defensible position when it comes to the science. The agency has been working on the rule for 11 years, he said. However, Mehan also added that he believes EPA will factor in comments from the public before issuing a final rule.

EPA has maintained that the rule would increase jurisdiction by roughly 3% compared to the agency’s current oversight. Critics have argued the rule would create broad new regulation over ephemeral and intermittent streams, as well as farm ponds. Moreover, EPA and the Army Corps of Engineers could require more permits for everything from pesticide applications to dirt work near waterways.

EPA currently regulates point sources under the Clean Water Act, but is prevented from directly relating non-point sources. States, however, can move to regulate non-point sources. Mehan pointed out EPA has pushed the regulatory demands on point sources about as far as the agency can. A lot of the problems now with nitrates and phosphorus are coming off the land, he said.

“The point-source war is over,” he said. “It’s all about how do we deal with non-point sources.”

A Farmer Counterpoint

Taking the side of those who see a raging regulatory flood hitting their cropland was Indiana farmer Gene Schmidt, past president of the National Association of Conservation Districts. Schmidt pointed out that farmers have no control over the weather, but they also face regulations surrounding areas such as crop insurance that are critical to risk management. Schmidt said farmers are looking to avoid rules and federal policies that create uncertainty in the regulatory arena.

“What are the mechanisms I can truly comply with when it comes to everything prescribed in the regulatory arena? Schmidt said.

The waters of the U.S. rule also came with an accompanying rule citing 56 approved conservation practices that do not require permits to do. Yet, Schmidt noted that the country ranges widely from wetlands to arid areas that make it hard for sweeping prescriptions of what works and what doesn’t work. A list of approved conservation practices may not provide flexibility out in the field.

“How do you take into consideration geographic and weather patterns,” Schmidt said.

Schmidt also brought up a point that is increasingly being raised about the role the Natural Resources Conservation Service would play under a new waters regime that supports a certain suite of conservation practices, but not all. Schmidt noted farmers use NRCS for technical assistance. The new rule could disrupt that relationship.

Reverting back to weather or “Mother Nature,” Schmidt looked at 2012 in Iowa when drought led to a large quantity of crop nutrients sequestered in the soil. That happened to also be a year in which the Des Moines Water Works Department had relatively low nitrate problems. All that changed with an unusually wet spring in 2013 that caused significant water-treatment problems for Des Moines.

“That was a situation farmers could not control,” Schmidt said.

In again stressing the need for clarity and predictability, Schmidt said farmers want to know what would specifically require them to get a permit from EPA or the Army Corps of Engineers. That includes knowing that the costs are going to be.

“When you look at the permitting process, it’s got to be efficient and effective,” Schmidt said.

Who Decides Regulatory Discretion?

Mehan may have made the most critical point of all when revisiting some of the Supreme Court court cases that led to where we are now. In reviewing the Solid Waste Agency of Northern Cook County, or “SWANCC” v. the U.S. Army Corps of Engineers in 2001 and Sackett v. EPA in 2012, you had two cases where the regulatory agency refused to yield. Sackett was a particularly poignant battle because it involved a family in Idaho trying to build a house on less than two-thirds an acre and EPA had argued the Sacketts had illegally filled in a wetlands when clearing the land for the home. Mehan noted those were cases where individual agency staff went too far.

“The SWANCC and Sackett cases were just a case of somebody not using discretion,” Mehan said.

The comment period for the rule is slated to end Oct. 20.

EPA’s website on the proposed rule with a link to submitting public comments.