EPA wetlands guidance regulations nov 6 comments due 110613

Our Klamath Basin Water Crisis
Upholding rural Americans' rights to grow food,
own property, and caretake our wildlife and natural resources.

Land Rights Network
American Land Rights Association
PO Box 400 – Battle Ground, WA 98604
Phone: 360-687-3087 – Fax: 360-687-2973
E-mail: alra@pacifier.com
Web Address: http://www.landrights.org
Legislative Office: 507 Seward Square SE – Washington, DC 20003

Correction: New EPA Wetlands Jurisdiction Rule, Nov 6 Deadline

2011 draft EPA Corps Jurisdiction Guidance Withdrawn. New EPA Corps
Report and proposed Jurisdiction Rule now in process.

*It is vital that you comment* on the new EPA Connectivity Report by
November 6th because your comments will be used as the basis for the
final writing of the new EPA Corps Wetlands Jurisdiction Rule.

(Actually it appears that EPA has already written its new rule based
on the old Guidance Regulations. But your comments are critical to
allow landowners to defeat this backroom dark of night process.)

Instructions to send comments are below.

Read Analysis by Pacific Legal Foundation.

Read New EPA Release – Also Summary By Stormwater Magazine

EPA and Corps of Engineers are preparing to release their new report
as justification to take jurisdiction over vast areas of the United
States trying to circumvent the “Navigable” requirement in the
Clean Water Act.

*New Barrasso Bill (S1006) Introduced. Will Save “Navigable”
Language In Clean Water Act if passed. *

*Stop New EPA Corps Expanded Wetlands Jurisdiction Regulations.*

*Reminder:* Harry Reid Omnibus Federal Lands Bill coming at you
(Again). Be sure to call your Senators at (202) 224-3121.

*Action Items:*

-----1. Read the Summary from Stormwater Magazine and that released by
the EPA. Deadline for comments: November 6,2013.

-----3. Read short analysis of EPA Corps Jurisdiction regulation
process written by Reed Hopper of the Pacific Legal Foundation.

-----3. Read the instructions to comment on the EPA Wetlands
Jurisdiction Report and Rule below. They call it: Public Comments for
the Science Advisory Board Review of EPA’s Water Body Connectivity
Report

-----4. Take funding away from the EPA and Corps. Call, fax and E-mail
both your Senators to support Sen. Barrasso’s Preserve The Waters Of
The US Act (S 1006). Be sure to oppose the EPA Corps attempt to bypass
Congress and issue new EPA Corps Wetlands Jurisdiction Regulations.
Call your Senator at (202-224-3121.

*-----5 Stop EPA & Corps Of Engineers From Effectively Removing the
“Navigable” requirement From Clean Water Act for jurisdiction by
the EPA and Corps.*

-----6. Please forward this message to at least 10 other people. Your
whole list if possible.

*Talking Points*

The EPA and Army Corps are trying to push through new "Expanded Clean
Water Act Wetlands Jurisdiction Regulations" that would effectively
neutralize the Supreme Court decisions that said the EPA and Corps
cannot regulate all waters in the Nation or even all waters with a
hydrological connection to downstream “navigable waters.”

The EPA and Army Corps are trying to *gain jurisdiction over all
waters of the United S*tates *and all activities affecting all waters
of the United States. That must not be allowed to happen. *
* *
New EPA and Army Corp’s Clean Water Act Jurisdictional Regulations
appear to be modeled after their now withdrawn Guidance Regulations.
These new Jurisdiction Regulations would allow these agencies to
regulate waters now considered entirely under state jurisdiction.

Reed Hopper of Pacific Legal Foundation said, “If the new proposed
jurisdictional rule follows suit, it will be the largest power grab in
the history of the country. Although the new proposed jurisdictional
rule can and will be challenged, the courts are required to give great
deference to agency rulemaking.”

Agriculture, commercial and residential real estate development,
electric transmission, transportation, energy development and mining
will all be affected and thousands of jobs will be lost.

Thousands of small communities would be strangled. *Any action taken
by you on your water could require a permit from the Corps of
Engineers.*
* *
*ALERT -- The EPA is saying they are not going to change Agriculture
wetlands rules. ALRA believes they are saying that just to keep
farmers and ranchers from rising up over this rule. *
* *
*EPA will likely apply the rule to farmers and ranchers at a later
date. Do not be taken in by this sneak attack. These proposed new
Jurisdiction Regulations will eventually apply to agriculture, farmers
and ranchers. So make your comments and oppose the new rules now. The
instructions are below. *

From Stormwater Magazine – Janice Kasperson

EPA has just released a draft report titled “Connectivity of Streams
and Wetlands to Downstream Waters: A Review and Synthesis of
Scientific Evidence.” The report synthesizes recent scientific
literature and will be used by EPA and the US Army Corps of Engineers
in an upcoming joint rulemaking session in December to *clarify the
jurisdiction of the Clean Water Act. *

EPA is asking for public comments on the report; comments must be
received by November 6, 2013, to be considered by the joint rulemaking
panel.

(Editors note: EPA will hold a public meeting on this issue in
December to draft the final new rule. Instructions for attending are
below.)

As EPA states in its introduction, “Recent decisions of the Supreme
Court have underscored the need for EPA and the public to better
understand the connectivity or isolation of streams and wetlands
relative to larger water bodies such as rivers, lakes, estuaries, and
oceans, and to use that understanding to underpin regulatory
actions.”

The report is intended to clarify *“connectivity,”* or what
affects what, and as such could have a big impact on the construction
and storm water industries.

*The report’s three broad conclusions, as summarized by EPA, are:*

-----Streams—both permanent and ephemeral, and of all sizes—are
connected and have effects on downstream waters.

-----Wetlands within stream floodplains are integrated with steams and
rivers and strongly influence downstream waters by affecting flow and
trapping pollutants.

-----Not enough information exists to generalize about wetlands and
other open waters outside riparian floodplains and their effects on
downstream waters.

*At the same time they released the draft report, EPA and the Corps of
Engineers submitted a draft rule to the Office of Management and
Budget, based on the information in the report, for preliminary
review. EPA says public comments on the report will be taken into
account before the rule is finalized. ALRA believes the proposed rule
should be withdrawn until the comments are in. *
* *
*You must comment on the report and the proposed rule. If you fail to
comment you could lose rights to litigate in court later because of
the “laches” rule or “sleeping on your rights.” You did not
participate in the public process. *

One goal of the rule is to clarify which waters are not subject to CWA
jurisdiction and which activities do not require CWA permits. The
proposed rule does not change existing agricultural exemptions (So
they say-editor.)

You can find more information and a link to download the draft report
here
<http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=238345&utm_source=Water+Headlines+for+Week+of+September+17&utm_campaign=Water+Headlines+Sept+11&utm_medium=email>
. *SEE EPA DRAFT REPORT SUMMARY BELOW*

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Analysis of new EPA Corps Wetlands Jurisdiction process by
Reed Hopper of the Pacific Legal Foundation.

-----1. The Corps and EPA have withdrawn their 2011 draft
jurisdictional guidance from OMB review.

-----.2 On Sep 11, the Corps and EPA submitted a new proposed
jurisdictional rule to OMB in place of the 2011 draft jurisdictional
guidance.

-----3. The Corps and EPA have issued a preliminary report on
connectivity that is open for comment until Nov 6.

It’s likely that the new proposed jurisdictional rule, which will go
through formal rulemaking (unlike the 2011 draft jurisdictional
guidance) will simply echo the 2011 draft jurisdictional guidance.

This would be dangerous because the 2011 draft jurisdictional guidance
violated regulatory, statutory and constitutional law and would have
broadened the scope of the Clean Water Act to an unprecedented degree.

The 2011 draft jurisdictional guidance extended federal jurisdiction
to virtually all waters in the Nation.

*Reed Hopper of Pacific Legal Foundation said,* “If the new proposed
jurisdictional rule follows suit, it will be the largest power grab in
the history of the country. Although the new proposed jurisdictional
rule can and will be challenged, the courts are required to give great
deference to agency rulemaking.”

*The connectivity report* was no doubt commissioned to provide support
for the agencies' overly broad interpretation of federal authority
under the Clean Water Act. There are a number of glaring problems with
the report.

First, it concludes that all streams (no matter how small or
intermittent) are interconnected and have an effect on downstream
navigable waters. But the report does not show if those effects are
significant or even how to determine significant effects.

This is important because Justice Kennedy held in the Rapanos Supreme
Court decision that jurisdictional waters must have a significant
effect on traditional navigable waters.

The court rejected the theory that a water is jurisdictional just
because it has a hydrological or other connection to downstream
navigable waters.

Secondly, the preliminary connectivity report uses the terms "stream,"
"wetlands," and "adjacent" differently than the Supreme Court and the
agencies currently use those terms. The report uses broader terms,
apparently to expand the reach of federal authority.

At times, it even includes groundwater, which the courts have
routinely excluded from federal jurisdiction.

Finally, the new jurisdictional rule is being proposed before the
connectivity report is even finalized. This is bizarre and suggests
the EPA and Corps will push forward with their expansive and unlawful
interpretation of their regulatory authority regardless of what the
connectivity report shows.

End of Pacific Legal Foundation analysis.
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Background From EPA:

This draft science report presents a review and synthesis of the
scientific literature pertaining to physical, chemical, and biological
connections from streams, wetlands, and open-waters to downstream
waters such as rivers, lakes, estuaries, and oceans.

This review of more than 1000 peer-reviewed publications summarizes
the current scientific understanding of the connectivity of small or
temporary streams, wetlands, and certain open-waters, evaluated singly
or in aggregate, and the mechanisms by which they affect the function
or condition of downstream waters.

The goals of the report are to (1) provide a context for considering
the evidence of connections between rivers and their tributary waters,
(2) summarize current understanding about these connections and
associated downstream effects, and (3) discuss factors that influence
the degree of connectivity or the magnitude of a downstream effect.

The Environmental Protection Agency – through the independent
Scientific Advisory Board (SAB) - is soliciting public comment on a
new draft science report titled: *Connectivity of Streams and Wetlands
to Downstream Waters. *

*A** **public docket has been opened to receive comments and those
comments received by November 6, 2013*, will be provided to the SAB
Panel for its consideration in advance of their December 16- 18, 2013
meeting. Comments received after November 6, 2013, will be late.

This draft science report presents a review and synthesis of relevant
peer reviewed scientific literature that will inform an upcoming joint
USEPA/ Army Corps of Engineers rulemaking to enhance protection of the
chemical, physical, and biological integrity of our nation’s waters
by clarifying Clean Water Act (CWA) jurisdiction.

Recent decisions of the Supreme Court have underscored the need for
EPA and the public to better understand the connectivity or isolation
of streams and wetlands relative to larger water bodies such as
rivers, lakes, estuaries, and oceans, and to use that understanding to
underpin regulatory actions and increase certainty among various CWA
stakeholders.

This report, when finalized, will provide the scientific basis needed
to clarify CWA jurisdiction, including a description of the factors
that influence connectivity and the mechanisms by which connected
waters affect downstream waters.

This draft science report represents the state-of-the-science on the
connectivity and isolation of waters in the United States. It makes
three main initial conclusions, summarized below, that are drawn from
a broad range of peer reviewed scientific literature.

-----Streams, regardless of their size or how frequently they flow,
are connected to and have important effects on downstream waters.
These streams supply most of the water in rivers, transport sediment
and organic matter, provide habitat for many species, and take up or
change nutrients that could otherwise impair downstream waters.

-----Wetlands and open-waters in floodplains of streams and rivers and
in riparian areas (transition areas between terrestrial and aquatic
ecosystems) are integrated with streams and rivers. They strongly
influence downstream waters by affecting the flow of water, trapping
and reducing nonpoint source pollution, and exchanging biological
species.

-----Finally, there is insufficient information to generalize about
wetlands and open-waters located outside of riparian areas and
floodplains and their connectivity to downstream waters.

Through public comment and independent peer review by the SAB, the
agency is seeking input concerning the literature summarized in the
report and the strengths of its conclusions. As a result of that input
and review by the SAB external review panel, the agency will consider
revisions to these conclusions as it prepares its final report.

In addition to the release of this report, EPA, with the Army Corp of
Engineers, has sent a draft rule to clarify the jurisdiction of the
Clean Water Act to the Office of Management and Budget for interagency
review.

This draft rule takes into consideration the current state-of-the-art
peer reviewed science reflected in the draft science report. Any final
regulatory action related to the jurisdiction of the Clean Water Act
in a rulemaking will be based on final version of this scientific
assessment, which will reflect EPA’s consideration of all comments
received from the public and independent peer review.

The proposed rule is limited to clarifying current uncertainty
concerning the jurisdiction of the Clean Water Act that has arisen as
an outgrowth of recent Supreme Court decisions; it does not propose
changes to existing regulatory exemptions and exclusions, including
those that apply to the agricultural sector that ensure the continuing
production of food, fiber and fuel to benefit all Americans.

Specifically, EPA and the Army Corps are interested in enhancing the
ability of the CWA and USDA’s conservation programs to work in
tandem to protect water quality and improve the environment by
encouraging expanded participation in conservation programs by farmers
and ranchers.

It will do so by providing greater clarity on which waters are not
subject to CWA jurisdiction and greater certainty on which activities
do not require CWA permits.

Current activities and waters falling under existing agricultural
exemptions from Clean Water Act jurisdiction or permitting:

(Editors note from ALRA: Do not believe these agriculture exemptions.
They are just trying to get you to keep quiet so you won’t oppose
the new process.)

Exemptions from Clean Water Act permitting continue for:
-----Agricultural stormwater discharges.
-----Return flows from irrigated agriculture.
-----Normal farming, silvicultural, and ranching activities.
-----Upland soil and water conservation practices.
-----Construction and maintenance of farm or stock ponds or
irrigation ditches.
-----Maintenance of drainage ditches.
-----Construction or maintenance of farm, forest, and temporary mining
roads.

Exclusions from Clean Water Act jurisdiction continue for:
-----Prior Converted Cropland, including the role of USDA.
-----Waste Treatment Systems.

The proposed rule submitted to OMB for review includes exclusions from
Clean Water Act jurisdiction for:

-----Non-tidal drainage, including tiles, and irrigation ditches
excavated on dry land.

-----Artificially irrigated areas that would be dry if irrigation
stops.

-----Artificial lakes or ponds used for purposes such as stock
watering or irrigation.

-----Areas artificially flooded for rice growing.

-----Artificial ornamental waters created for primarily aesthetic
reasons.

-----Water-filled depressions created as a result of construction
activity.

-----Pits excavated in uplands for fill, sand, or gravel that fill
with water.

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*Agency: *Environmental Protection Agency
<https://www.federalregister.gov/agencies/environmental-protection-agency>

*Dates:*
The public meeting will be held on Monday December 16, 2013 from 9:00
a.m. to 5:00 p.m., Tuesday December 17, 2013 from 8:30 a.m. to 5:00
p.m., and Wednesday December 18, 2013 from 8:30 a.m. to 1:00 p.m.
(Eastern Time).

*Document Citation: *78 FR 58536
*Page: *58536 -58537 (2 pages)
*Agency/Docket Number: *FRL-9901-26-OA
*Document Number: *2013-23198
*Shorter URL: *https://federalregister.gov/a/2013-23198

*Regulations.gov Docket Info*
Docket Number: EPA-HQ-OA-2013-0582
<http://www.regulations.gov/#!docketDetail;rpp=100;so=DESC;sb=docId;po=0;D=EPA-HQ-OA-2013-0582>

*Docket Name: *Public Comments for the Science Advisory Board Review
of EPA’s Water Body Connectivity Report

Notice.
*SUMMARY*
The EPA Science Advisory Board (SAB) Staff Office announces a public
meeting of the SAB Panel to conduct a review of the EPA draft report,
/Connectivity of Streams and Wetlands to Downstream Waters: A Review
and Synthesis of the Scientific Evidence (September, 2013 External
Review Draft, EPA/600/R-11/098B)./

*TABLE OF CONTENTS *
· ADDRESSES:
<https://www.federalregister.gov/articles/2013/09/24/2013-23198/notification-of-a-public-meeting-of-the-science-advisory-board-panel-for-the-review-of-the-epa-water#addresses>

· FOR FURTHER INFORMATION CONTACT:
<file:///C:Documents%2520and%2520SettingsChuckMy%2520DocumentsFederal%2520Register%2520%2520%2520Notification%2520of%2520a%2520Public%2520Meeting%2520of%2520the%2520Science%2520Advisory%2520Board%2520Panel%2520for%2520the%2520Review%2520of%2520the%2520EPA%2520Water%2520Body%2520Connectivity%2520Report_filesFederal%2520Register%2520%2520%2520Notification%2520of%2520a%2520Public%2520Meet%2520>

· SUPPLEMENTARY INFORMATION:
<https://www.federalregister.gov/articles/2013/09/24/2013-23198/notification-of-a-public-meeting-of-the-science-advisory-board-panel-for-the-review-of-the-epa-water#h-7>

· Background
<https://www.federalregister.gov/articles/2013/09/24/2013-23198/notification-of-a-public-meeting-of-the-science-advisory-board-panel-for-the-review-of-the-epa-water#h-8>

* *
*ADDRESSES: *
The public meeting will be held at the Washington Plaza Hotel, 10
Thomas Circle, NW., Washington, DC 20005.
* *
*FOR FURTHER INFORMATION CONTACT: *
Any member of the public who wants further information concerning the
public meeting may contact Dr. Thomas Armitage, Designated Federal
Officer (DFO), EPA Science Advisory Board Staff Office (1400R), U.S.
Environmental Protection Agency, 1200 Pennsylvania Avenue NW.,
Washington, DC 20460; via telephone at (202) 564-2155 or via email at
/armitage.thomas@epa.gov <mailto:armitage.thomas@epa.gov>
/. General information concerning the SAB can be found on the EPA Web
site at /http://www.epa.gov/sab
/.

*Background *
The EPA's Office of Research and Development (ORD) has developed a
draft report reviewing and synthesizing the peer-reviewed scientific
literature on the connectivity or isolation of streams and wetlands
relative to large water bodies such as rivers, lakes, estuaries and
oceans.

The purpose of the report, Connectivity of Streams and Wetlands to
Downstream Waters: A Review and Synthesis of the Scientific Evidence
(September, 2013 External Review Draft, EPA/600/R-11/098B), is to
summarize the current understanding about these connections, the
factors that influence them, and the mechanisms by which connected
waters singly or in aggregate, affect the function of downstream
waters.

The SAB Staff Office announced to the public through a *Federal
Register notice published on March 8, 2013 (78 FR 15012
<https://www.federalregister.gov/citation/78-FR-15012>
—15013) that it was soliciting nominations of scientific experts to
serve on the SAB Panel for the Review of the EPA Water Body
Connectivity Report. Information about the formation of this SAB Panel
can be found on the SAB Web site at
/http://yosemite.epa.gov/sab/sabproduct.nsf/fedrgstr_activites/Watershed%20Connectivity%20Report?OpenDocument
/.*

Technical Contact for EPA's Draft Report:
Any technical questions concerning EPA's draft report should be
directed to Dr. Laurie Alexander, National Center for Environmental
Assessment, Office of Research and Development, U.S. EPA, 1200
Pennsylvania Avenue NW., Mail Code 8623P, Washington, DC 20460,
telephone (703) 347-8630 or via email at /alexander.laurie@epa.gov
<mailto:alexander.laurie@epa.gov>
/.

Availability of Meeting Materials: The draft EPA report, /Connectivity
of Streams and Wetlands to Downstream Waters: A Review and Synthesis
of the Scientific Evidence (September, 2013 External Review Draft,
EPA/600/R-11/098B),/ and the charge to the SAB Panel are available on
the SAB Web site at
/http://yosemite.epa.gov/sab/sabproduct.nsf/fedrgstr_activites/Watershed%20Connectivity%20Report?OpenDocument
/. The agenda and other meeting materials will be available on the SAB
Web site at the URL listed above prior to the meeting.

*How To Comment:*
Members of the public wishing to provide written comments may submit
them to the EPA Docket electronically via /www.regulations.gov
<http://www.regulations.gov/>
/, by email, by mail, by facsimile, or by hand delivery/courier.
Please follow the detailed instructions provided in the written
statements section of this notice.

Members of the public wishing to provide oral statements to the SAB
Panel should contact the DFO directly. /Oral Statements:/ In general,
individuals or groups requesting an oral presentation at a public
meeting will be limited to five minutes. Interested parties should
contact Dr. Thomas Armitage, DFO, in writing (preferably via email) at
the contact information noted above by December 9, 2013 to be placed
on the list of public speakers for the meeting.

/Written Statements:/ Written statements for the December 16-18, 2013
meeting should be received in the EPA Docket by November 6, 2013 so
that the information may be made available to the SAB Panel for its
consideration. Written statements should be identified by Docket ID
No. EPA-HQ-OA-2013-0582 and submitted to the Docket at
/www.regulations.gov <http://www.regulations.gov/>
/ by one of the following methods:

· /www.regulations.gov <http://www.regulations.gov/>
:/ Follow the on-line instructions for submitting comments.

· /Email:/ /Docket_OEI@epa.gov <mailto:Docket_OEI@epa.gov>
/: Include the docket number in the subject line of the message.

· /Fax:/ (202) 566-9744

· /Mail:/ Office of Environmental Information (OEI) Docket (Mail
Code: 28221T), Docket ID No. EPA-HQ-OA-2013-0582, U.S. Environmental
Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460.
The phone number is (202) 566-1752.

For additional information about EPA's public docket, visit the EPA
Docket Center homepage at /http://www.epa.gov/epahome/dockets.htm
/.

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Please help American Land Rights raise $120,000 to send tens of
thousands of very expensive faxes and letters about the new EPA Corps
of Engineers Wetlands Jurisdiction Regulations. Your contribution of
any size will help. Go to www.landrights.org
<http://www.landrights.org/>
to make your contribution or mail it to American Land Rights, PO Box
400,
Battle Ground, WA 98604.

Working together and building coalitions across America is the only
way your private property and Federal land access will be protected.

If you are a member of another group, continue to support them. We
hope you support American Land Rights in addition but not instead of
them.

You may join American Land Rights sending a check for $25 (new
members) or $35 for renewing members to American Land Rights, PO Box
400, Battle Ground, WA 98604. Or go online at www.landrights.org
<http://www.landrights.org/>
.

Sincerely,

Chuck Cushman
American Land Rights
(360) 687-3087 – ccushman@pacifier.com
<mailto:ccushman@pacifier.com>

PO Box 400
Battle Ground, WA 98604
www.landrights.org <http://www.landrights.org/>

You may connect with American Land Rights or Chuck Cushman on
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====================================================

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