Mapping the CWA

By Todd Neeley
DTN Staff Reporter

OMAHA (DTN) — Farm groups are using mapping technology in their latest effort to block EPA from finalizing new regulations under the Clean Water Act.

A map of the state of Iowa virtually is covered in red — a color that has agriculture groups burning mad at an image that represents all the waters that could be considered jurisdictional if the proposed Clean Water Act rule becomes finalized. An image from the South Dakota Farm Bureau maps the same waters painted green across easily two-thirds of that state — mostly covering South Dakota’s western half.

A number of ag groups including the American Farm Bureau Federation, the National Pork Producers Council, National Corn Growers Association, National Cattlemen’s Beef Association, among others, have been undertaking the seemingly impossible task of mapping those waters that could be in EPA’s control. In addition, this week the House Committee on Science, Space and Technology is set to post online similar maps of all 50 states provided to the committee by EPA.

From day one agriculture groups have sounded alarm bells on what they say will be a large expansion of EPA’s authority. EPA and environmental groups have downplayed those concerns as the product of a misread of the rule. The agency has stated the rule only codifies how the Clean Water Act is enforced already.

The Clean Water Act currently provides no definition of tributary to include ditches of any kind. "To tell us they are doing this in practice already — where did they get the authority to do that?," said Don Parrish, senior director of regulatory relations at the American Farm Bureau Federation. The release of maps, he said, "will all of a sudden allow people to see in stark terms what the proposed rule will mean. You can see the absurdity."

Ag groups believe pictures are worth a thousand words — that mapping those waters as defined by the rule could be a game-changer drawing wider public attention to the rule.

MAPPING NOT ACCURATE

EPA Press Secretary Liz Purchia said attempts to map waters will not provide an accurate picture of jurisdiction.

"We have not reviewed any maps that may be released by outside groups, but it is important to point out that to actually reflect what is in the proposed rule, the maps would have to be based on ground surveys of specific tributaries and other waters," she said in a statement. "Hypothetical maps of what is or is not in the proposal by an outside group would likely be misleading. The maps would also need to account for the fact that streams that don’t flow all the time are already protected under the Clean Water Act. And often due to the resolution of maps and inflated scale of waterways depicted, such maps can make waters appear more prevalent than is actually the case on the ground.

"For the past 40 years decisions regarding the jurisdictional status of particular waters have been made almost exclusively in response to requests for a jurisdictional determination. Mapping every jurisdictional water in the U.S. would involve ground surveys and be prohibitively expensive. Also, some waters are unique and require a case specific look before deeming it jurisdictional or non-jurisdictional."

EPA MAPS

EPA developed maps for all 50 states in 2005 after the U.S. Supreme Court ruling in Rapanos v. the United States, Parrish said. The agency updated those maps in 2009 and 2013, yet the maps were not made public until this week by the House Science, Space and Technology Committee. Zachary Kurz, director of communications for the House Science, Space and Technology Committee, told DTN the committee received maps from EPA and plans to make those public this week. Agriculture groups hired a consultant to create a set of maps of at least 15 states, set for public release sometime next week.

"They’re not being transparent," Parrish said. "I will tell you that it’s going to hit everybody. The one thing that is most stark and breathtaking is the definition of tributary — that as long as there is flow the duration of that flow doesn’t matter to make the water jurisdictional."

Michael Formica, chief environmental counsel for the National Pork Producers Council, said ag groups retained engineering firm Geosyntec, http://tinyurl.com/…, a firm that has done work on total maximum daily loads, or TMDLs, in the Chesapeake Bay.

The firm is using U.S. Geological Survey hydrologic maps to create interactive maps. This will allow ag groups to show roughly where perennial, intermittent and ephemeral streams are located. States covered by the project include Missouri, Minnesota, Iowa, North Carolina, Pennsylvania, Arkansas, Florida, South Dakota, Montana, Colorado, Louisiana, among others.

Mapping waters has confirmed for ag groups that the proposed rule will give EPA widely expanded authority in the Clean Water Act — something EPA has denied. Formica said based on his analysis, Iowa and Minnesota stand to be hit hardest by the rule. Minnesota regulates far more of its own waters than does EPA, he said. With those waters brought into federal control more Minnesota farmers could be subject to citizen lawsuits.

The red on the Iowa map generated by NPPC shows a higher resolution view that ag groups believe picks up just about 35% of all ephemeral drainage that likely would be waters of the U.S. EPA could have made the maps public years ago, Formica said.

"I assume that somebody realizes that the release of maps of the whole country makes their challenges more difficult," he said. "It creates a bunch of problems for them. My sense is the extent to which EPA is pushing back on this we’ve really touched a nerve there. Otherwise they wouldn’t worry."

Some farm groups continue to meet with EPA over the proposed rule. Chip Bowling, first-vice president for the National Corn Growers Association, said on Tuesday that corn growers are planning to meet with EPA officials again in mid-September to talk about their concerns over the proposal.

Look for the release of maps on the CWA from the House Science, Space and Technology Committee here, http://tinyurl.com/….

Todd Neeley can be reached at todd.neeley@dtn.com

Follow Todd on Twitter at toddneeleyDTN

(CC/CZ)