Sound Protocol Needed in Defining Jurisdictional Waters in US

Apr 29, 2011

WASHINGTON, DC – CropLife America (CLA) calls for a sound protocol in defining jurisdictional water under the Clean Water Act (CWA), as well as sensible definition of these bodies of water, in response to the release of the U.S. Environmental Protection Agency’s (EPA) guidance laying out the Agency's view on what is considered a "water of the U.S." EPA released the new guidance on Wednesday, April 27, and it was developed in conjunction with the U.S. Army Corps of Engineers. Unfortunately, the Agency has chosen to issue this policy without entering into formal rulemaking procedures, despite the vast potential negative impact of this regulatory definition. The determination of the breadth of what is and is not jurisdictional water directly impacts whether pesticide users, such as U.S. growers, will be subjected to the National Pollutant Discharge Elimination System (NPDES) pesticide general permit, soon to be required for certain pesticide uses "over or to" jurisdictional waters of the U.S.

“Protecting our U.S. waterways and water quality is of the utmost importance for today’s farmers and ranchers, yet the guidance issued by the EPA follows a recent history of unnecessary regulatory burdens, all while circumventing our established rulemaking process,” said Jay Vroom, president and CEO of CLA. “As the agricultural industry stands to be impacted by enforcement of the 6th Circuit Court’s ruling on NPDES permitting, this guidance broadens the impact that will be felt by America’s growers with its broader definition of jurisdictional waters.”

In developing the guidance, EPA has not consulted with the states, which are important partners in implementing the Clean Water Act, or followed the rulemaking principles of the Administrative Procedure Act. The Agency is only now seeking comment on the policy. Congress and the U.S. Supreme Court have both decided against expansion of the CWA in past votes and rulings, and 170 members of Congress recently sent a letter to the EPA expressing concern with the Agency’s attempt to excessively broaden the scope of jurisdictional waters while also bypassing established rulemaking processes.

The guidance allows for new bodies of water to be protected under the CWA if they are determined to have a “significant nexus” to a traditional navigable or interstate water. This would also require additional NPDES permitting applications for growers, all with negligible environmental benefit. As growers already stand to face fines of up to $37,500 per day for pesticide applications not covered by an NPDES permit, this expansion poses additional burdensome costs for U.S. agriculture.

The guidance stands as EPA’s attempt to interpret the Supreme Court’s plurality opinion in Rapanos v. U.S. which stated that, to be jurisdictional, waters that are not traditionally navigable must have a sufficient nexus to navigable waters.