EPA Releases Clean Water Act Jurisdiction Guidance

The Obama administration yesterday, April 27, 2011, essentially rewrote two U.S. Supreme Court cases and ignored concerns from Congress and industry by issuing a guidance, which dramatically expands the regulatory authority of the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) under the Clean Water Act (CWA). National Cattlemen’s Beef Association (NCBA) Deputy Environmental Counsel Ashley Lyon said the Obama administration has once again acted as an “activist” administration rather than simply implementing laws as intended by Congress and required under the U.S. Constitution.

“EPA and the Corps have attempted to make an end run around two Supreme Court decisions that limited their authority under the CWA by issuing a draft guidance document giving field staff a plethora of approaches to make jurisdictional determinations,” said Lyon. “Through vague definitions and broad interpretations laid out in this draft guidance, EPA and the Corps have once again shown little regard for the practical implications of their actions or Congress’ intentions under the CWA. Despite a letter from 170 members of Congress opposing the guidance, EPA and the Corps have crowned themselves kings of every drop of water in the country – except maybe a backyard swimming pool.”

The draft CWA jurisdiction guidance offers a broad interpretation of Supreme Court Justice Anthony Kennedy’s “significant nexus” test for determining regulatory jurisdiction over wetlands by expanding this test in a way that would seemingly allow EPA and the Corps jurisdiction over all types of waters. The guidance claims to provide clarity and certainty to landowners. According to Lyon, if the guidance is finalized, the only thing cattle producers can be clear and certain about is that any stream, ditch and pond on their land could easily be subject to regulation. Knowing that guidance documents are normally reviewed and signed off on by all federal agencies with an interest in the subject matter, Lyon said she is surprised that U.S. Department of Agriculture Secretary Tom Vilsack would allow something like this document to go through the review process given the “devastating impact” it would have on America’s farmers and ranchers.

“This is a direct hit on the private property rights of farmers and ranchers across this country.  We will fight hard against this administration’s continuing efforts to curtail the private property rights of farmers and ranchers by regulating them to the brink of bankruptcy,” said Lyon.

A 60-day comment period will begin as soon as the draft guidance is published in the Federal Register.

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