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A Water Watergate? Critics Claim EPA Power Grab

Aug 30, 2014 03:20 PM EDT

Farmers and private land owners are getting pretty nervous about maps recently released to the public by the US Environmental Protection Agency (EPA). Critics of the Clean Water Act are concerned that the EPA will use the existence of intermittent waterways to expand its influence and control across states. EPA officials flatly deny this, saying that the public is being misled.

Simply put, the EPA's Clean Water Act (CWA) was created to protect ecosystems and the public. It carefully regulates the discharge of pollutants, control of toxins, and sets wastewater standards for industry. When first introduced in 1948 as the Federal Water Pollution Control Act, new regulation inflicted severe costs on private industry, heavily fining pollutant companies throughout the years and forcing them to spend a great deal of money to step up waste management.

Of course, there is a point when too much control can hurt innocent parties. That's at least what critics of the CWA are saying these days... (Scroll to read on...)

'Vigilantes,' Suspicion, and Confusion

Pete Hannebutt, the director of public policy for the North Dakota Farm Bureau, recently told about his suspicion that the EPA will use the CWA to take away private farming rights and land.

"They've been trying to reinterpret the rules for years, and we've been jumping up and down saying it's not right," he said.

He explained that abuse of the act could severely hamper "generally accepted farming practices" including the building of fences, the clearing of land, and even growing hay (which can be seen as an absorbent that could clog waterways).

"If you see where a farmer has a lane which gives him access to property ... if water is pooling in that lane ... a vigilante EPA officer could say 'you do not have access to this land.'"

Concerns like these began to be shared by many in the agricultural community back in 2011, when the Army Corps of Engineers stopped Peter Smith from tilling and clearing his newly bought land. The land in question included the Gallina Arroyo, a generally sandy strip that becomes a wetland once a year, when water runs through it to feed into the Rio Grande. According to the Los Angeles Times, because Smith never asked for permission to alter this protected waterway, his actions were technically illegal. (Scroll to read on...)

However, because the arroyo exists as a true creek only once a year, the 65-year-old didn't even know what he had on his hands until it was too late. Smith had planned to retire on the land, and told the LA Times that all he wanted to do was clean it up.

"I want to make it look good," he said. "I never thought the federal government would come into my retirement like this."

Flat Denial

Smith's story isn't exactly unique. Law can be a confusing thing, and in the case of bodies of water that only intermittently appear, there is bound to be frustration. However, the EPA asserted that their intention is not to control the lives of people like Smith.

"The Clean Water Act was passed by Congress to protect our nation's water bodies from pollution. This law has nothing to do with land use or private property rights," The EPA's Tom Reynolds, Associate Administrator for External Affairs, said in a recent statement. "The idea that EPA can use the Clean Water Act to execute a land grab or intrude on private property rights is simply false."

And he's certainly not lying. Even in Smith's case, the Corps of Engineers and EPA simply wanted the retiree to strop removing vegetation from the arroyo, as it had been determine that extensive root systems were naturally preventing high concentrations of dangerous nitrates from fertilizer from seeping into the Rio Grande. (Scroll to read on...)

Still, this case showed other farmers that while the EPA can't force you to change your property, it can certainly stop changes from occurring.

Maddening Maps

Worries were exacerbated even more after the EPA released updated maps of state waterways first drafted in 2005. These maps include even the presence of intermittent bodies of water - dozens upon dozens of cases similar to Smith's arroyo that could be found on private property.

Land owners are now sweating that, because it's on an EPA map, the agency could take action any day.

But Reynolds says that that's complete nonsense.

"EPA has never and is not now relying on maps to determine jurisdiction under the Clean Water Act," he stated. "While these maps are useful tools for water resource managers, they cannot be used to determine Clean Water Act jurisdiction - now or ever. "

And why not? Simply put, the resolution is all wrong. When you look at the maps, it makes some regions seem utterly awash in perennial and intermittent waterways - great swaths of blue utterly covering entire states. Such imagery could give land owners who have hard Smith's story nightmares for weeks. (Scroll to read on...)

But even when the EPA first presented the maps to congress, it was explicit in explaining the maps were not-to-scale.

"Due to the resolution limitations of the maps, they are not effective in distinguishing consistency between land and water," wrote Nancy Stoner, the EPA's Acting Assistant Administrator for Water.

She added that the mapping is mainly used as a tool for "visually representing data regarding patterns of stream flow characteristics" - details that would be difficult to see and read if not presented larger-than-life.

Secrets are Scary

So why is everyone afraid of a couple of maps that were only intended for scientific investigation and not legislation?

Congressman Kevin Cramer (rep. North Dakota) called for the release of these maps last month during a hearing examining the EPA's actions to more clearly define "waters of the United States." (Scroll to read on...)

The agency has recently come under fire for being too secretive about the science behind its regulatory decisions, and is now in the midst - at the behest of congress - of taking steps to make its actions more transparent.

"The EPA has been hiding information which could upset the public and jeopardize its massive power grab of unprecedented authority over private and public water," the congressman announced on Wednesday. "It doesn't take much of a leap to conclude these highly detailed maps developed with taxpayer funds are for the purpose of enforcing this rule."

Such a dramatic accusation could certainly have played a part in blowing the threat of these maps completely out of proportion, and that seems to be how Reynolds sees it.

"EPA's job - our obligation - is to use the best data, technology, science, and yes, maps, to protect the water that is absolutely vital to our daily lives for drinking, recreation, and the economy," he reiterated in a statement on Thursday. "Maps such as these are part of that overall effort - to provide clean water to every American."

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