Managing Water Challenges
SD Corn Growers Annual Meeting
Susan Parker Bodine
Chief Counsel
Senate Environment and Public Works Committee
January 9, 2016
Agriculture and Environmental Issues
 Raising the Alarm

Based on comparison to pristine waters.
 Conventional Wisdom:

Agriculture is the largest remaining water quality problem
 Reality:
Decreasing Environmental Footprint.
 Improvements Not Recognized/Credited.

 Result:

Increasing regulation
Raising the Alarm: EPA’s 2013 National Rivers and
Streams Assessment
Claim:
“55% of the nation’s river and stream miles do not support
healthy populations of aquatic life, with phosphorus and
nitrogen pollution and poor habitat the most widespread
problems.”
Reality:
Assessment based on pristine
waters comparison, not
health of aquatic life
Photos From EPA’s Nutrients Website
Implication: Agriculture is the big problem
Reality: Agriculture is feeding more people with a smaller
environmental footprint
Population
1960 – US - 180 million people
2010 – US - 308 million people
1960 – World - 3 billion people
2010 – World - 6.8 billion people
US Crop land
Conventional Wisdom – Agriculture Is
the Problem
In the Chesapeake Bay:
EPA’s Chesapeake Bay Program Website
Today’s Sources Are From Yesterday’s Practices:
Today’s Sources Are From Yesterday’s Practices: Chesapeake
Bay
Figure 2. Estimated distribution of base-flow age for the Chesapeake Bay watershed on the Maryland and Delaware
sections of the Delmarva Peninsula based on a groundwater-flow (GWF) model of the region, compared to earlier estimates
for the Chesapeake Bay watershed that were from data in the Piedmont and Valley and Ridge Provinces west and north of
the Bay. “Quantifying Groundwater’s Role in Delaying Improvements to Chesapeake Bay Water Quality” Sanford and Pope,
USGS, Environ. Sci. Technol.
Conventional Wisdom – Agriculture Is the Problem
In the Northern Gulf of Mexico
USGS National Water Quality Assessment Program
Today’s Sources Are From Yesterday’s Practices: Northern
Gulf of Mexico
Drive to Find Regulatory Solutions to the Perceived Problem:
Numeric Nutrient Standards
http://cfpub.epa.gov/wqsits/nncdevelopment/
Numeric standards = more waters assumed to be
impaired = more TMDLs
 “Impaired Waters”
 Requires calculation of “total maximum daily load” of a pollutant that will still allow
achievement of water quality standards.
 Require allocation of pollutant loading to point and nonpoint sources.
 EPA claims authority to require “reasonable assurance” that nonpoint source
reductions are met before approving a TMDL.
 EPA is now claiming authority to ensure on-site BMP implementation as part of
“reasonable assurance.”
 92 Members of Congress filed amicus brief in December 2015 in support of
Supreme Court review of Third Circuit opinion upholding these authorities in the
Chesapeake Bay TMDL.
Drive to Find Regulatory Solutions to the Perceived Problem:
Expand federal Clean Water Act jurisdiction
Final Rule Expands Federal Jurisdiction to Include:

All channels with a bed, bank and ordinary high water mark, even if water is present only rarely, only
in small amounts and only when it rains (ephemeral water).

All water located within 100 feet of any other jurisdictional water; all water located within 1,500 feet
of any other jurisdictional water if it also is in the 100 year flood plain; all water located within 1,500
feet of the high tide line or a Great Lake.

All water located within 4,000 feet of any other water or within the 100 year flood plain, if EPA or the
Corps decides it has a significant nexus to navigable water. In many states this covers 95-100% of the
land area.

Likely all prairie potholes, pocosins, Carolina Bays and Delmarva Bays, California vernal
pools, and Texas coastal prairie wetlands because their “significant nexus” to navigable
water is evaluated in the aggregate.

Most water will be regulated unless exempt because significant nexus can be found based on any one
of the following functions: sediment trapping; nutrient recycling; pollutant trapping, transformation,
filtering, and transport; retention and attenuation of flood waters; runoff storage; contribution of flow;
export of organic matter; export of food resources; and provision of life cycle dependent aquatic
habitat .

Exemptions for ditches and storm sewers, etc, do not apply if EPA thinks the ditch or sewer was
historically a stream.
EPA: All Water is Connected
Prairie Pothole Region
What the Corps Said About the Rule 12
Days Before it Went Final
 “[T]he Corps was not part of any type of analysis to reach the conclusions
described; therefore, it is inaccurate to reflect that ‘the agencies’ did this work
or that it is reflective of Corps experience or expertise”.

“It will be difficult, if not impossible, to persuade the federal courts that the

“Arbitrary limits within the definition of “neighboring” are not rooted in
science and beyond the reasonable reach of defining adjacency by rule.”
implicit, effective determination that millions of acres of truly isolated waters
(which have no shallow subsurface or confined surface connections to the
tributary system of the navigable or interstate waters) do in fact have a
‘significant nexus’ with navigable or interstate waters. Consequently, the
draft final rule will appear to be inconsistent with the Supreme Court’s
decisions in Rapanos and SWANCC. As a result, this assertion of CWA
jurisdiction over millions of acres of isolated waters may well be seen by the
federal courts as “regulatory over-reach,” which undermines the legal and
scientific credibility of the rule.”
What the 6th Circuit said when it issued a
nationwide stay of the rule
 “the rulemaking process by which the distance limitations were
adopted is facially suspect.”
 “Respondents [EPA and the Corps] have failed to identify anything
in the record that would substantiate a finding that the public had
reasonably specific notice that the distance-based limitations
adopted in the Rule were among the range of alternatives being
considered.
 “Nor have respondents identified specific scientific support
substantiating the reasonableness of the bright-line standards they
ultimately chose.”
31 States Suing to Overturn Final Rule
S. 1140
 Vacates WOTUS Rule
 Sends EPA and the Corps back to the drawing board to develop new
rule after complying with Executive Orders and laws requiring
consultation with states, local governments, and small businesses, and
economic analyses.
 Requires regulated streams to have enough water in a normal year to
carry pollutants to navigable waters.
 Exempts water management systems like roadside ditches, irrigation
canals, and storm water, drinking water, and wastewater collection and
distribution systems.
 Prohibits use of groundwater, habitat, and overland flow of water
(sheet flow of rain) to establish federal jurisdiction.
Bipartisan – Cosponsored by Donnelly, Heitkamp and Manchin. Similar
to Barrasso budget amendment that garnered 6 democrat votes
(cosponsors plus McCaskill, King, and Klobuchar).
November 3 Senate Vote
 November 3, 2015 Motion to Proceed failed 57-41.
 Immediately following the vote, 11 Senators sent a letter to EPA stating:
“[W]hile we cannot currently support the Federal Water Quality Protection Act,
we believe the EPA and Army Corps of Engineers can and must do better to
address the legitimate issues that have been raised in regards to the
implementation of this rule. We call on the EPA and Army Corps of Engineers
to provide clearer and concise implementation guidance to ensure that the rule
is effectively and consistently interpreted. Farmers, ranchers, water utilities,
local governments, and contractors deserve this clarity and certainty. Should
the EPA not provide this clarity or enforce this rule in a way that erodes
traditional exemptions, we reserve the right to support efforts in the future to
revise the rule.”
Senators Angus King (I-ME), Bill Nelson (D-Fla.), Tim Kaine (D-Va.), Mark Warner (D-Va.), Dianne
Feinstein (D-Calif.), Brian Schatz (D-Hawaii), Chris Coons (D-Del.), Tom Carper (D-Del.), Jon
Tester (D-Mont.), Michael Bennet (D-Colo.) and Amy Klobuchar (D-Minn.)
December 14 GAO Found EPA’s WOTUS Rule Campaign to
be Covert Propaganda and Illegal Lobbying
As reported in the New York Times:
The E.P.A. rolled out a social media campaign on Twitter, Facebook,YouTube, and even on more innovative tools such as
Thunderclap to counter opposition to its water rule, which imposes new restrictions on how land near certain surface waters
can be used. The agency. said the rule would prevent pollution in drinking water sources. Farmers, business groups and
Republicans have called the rule flagrant government overreach.
But in the E.P.A.’s counterattack, the G.A.O. says agency officials engaged in “covert propaganda” on behalf of Mr.
Obama’s water policy by concealing the fact that its social messages were coming from the E.P.A. The agency essentially
became lobbyists for its cause by including links that directed people to advocacy organizations.
Federal agencies are allowed to promote their own policies, but they are not allowed to engage in propaganda, which means
covert activity intended to influence the American public. They also are not allowed to use federal resources to conduct socalled grass-roots lobbying — urging the American public to contact Congress to take a certain kind of action on pending
legislation.
As it promoted the Waters of the United States rule, also known as the Clean Water Rule, the E.P.A. violated both of these
laws, a 26-page report signed by Susan A. Poling, the general counsel to the G.A.O., concluded, in an investigation requested
by the Senate Environment and Public Works Committee.
E.P.A. Broke Law With Social Media Push for Water Rule, Auditor Finds
By ERIC LIPTON and MICHAEL D. SHEAR DEC. 14, 2015
http://www.nytimes.com/2015/12/15/us/politics/epa-broke-the-law-by-using-social-media-to-push-water-rule-auditor-finds.html?_r=1
Omnibus provisions
 Riders to stop the rule were not included.
 Rider from last Congress eliminating 404(f) “recapture” provision for agricultural
permit exemptions retained.
SEC. 110. None of the funds made available by this Act may be used to require a permit for
the discharge of dredged or fill material under the Federal Water Pollution Control Act
(33 U.S.C. 1251, et seq.) for the activities identified in subparagraphs (A)* and (C)* of
section 404(f)(1) of the Act (33 U.S.C. 1344(f)(1)(A), (C)).
[*ordinary farming and ranching activities and the construction or maintenance of farm or
stock ponds or irrigation ditches and the maintenance of drainage ditches.]
 Effect is to eliminate 404(f)(2)* for these activities.
“Any discharge of dredged or fill material into the navigable waters incidental to any
activity having as its purpose bringing an area of the navigable waters into a use to which
it was not previously [pre-1977] subject, where the flow or circulation of navigable
waters may be impaired or the reach of such waters be reduced, shall be required to have
a permit under this section.”
What to do?
 Get involved
 Encourage states to focus on improving water quality – not on
nutrient standards.
 Help build scientific support to get agriculture credit for actions
already taken.
 Comment on rulemakings (water quality standards and TMDLs)
 Ensure scientific support is in the administrative record to provide
support for subsequent legal challenges.
 Participate in national efforts to explain the consequences of
jurisdictional expansion.
 Communicate with your elected officials.
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