Clarity Blog

Clarity Blog

Posts Tagged ‘Clean Water Act’

Water Weekly 3: Truncated – The Weekly Two

What were the three biggest California water stories of the past seven days?  Well, the news-heads and policy wonks here at Laer Pearce & Associates have compiled them for you here.  You’ll find the Big Three here every week, or you can follow LPAWater on Twitter for up-to-the-minute news and analysis. You can also sign up to receive the Weekly 3 via email here.  This week:

“Results-Based Science” Update

We’ve written before about Judge Wanger’s shellacking of two federal scientists who he thought were more interested in achieving pre-determined results than pursuing good science.  The issue is not going away, as Republicans seeking to dial back federal regulation have pounced on the case as an emerging cause célèbre, and the feds are standing by their science … and scientists. Wow! Could this become an HBO miniseries?

“100% behind them” – read about it here

“Investigate ‘em!” – read about it here

BTW, a Supreme Court appeal was filed on Delta smelt

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Excuse Me, Is Your Mission Creeping?

Federal wetland regulators suffered a bad decade in the 2000s with the Rapanos and SWANCC decisions temporarily halting EPA and Corps of Engineers mission creep into the regulation of land no one but a regulator could consider to be “Waters of the US” or wetlands.

But like those nasty spirits in Poltergeist, they’re baaa-aack.

EPA released today a draft guidance it hopes will clarify which waters are protected by the Clean Water Act in light of these decisions and which are not.  To our reading, it seems the agency is a bit forgetful of the power the Judicial Branch has over the Executive Branch. For example, borrowing from a summary provided by the Association of California Water Agencies, the guidance would deem the following as protected waters:

  • Traditional navigable waters [check]
  • Interstate waters [check]
  • Wetlands adjacent to either traditional navigable waters or interstate waters [watch out!]
  • Non-navigable tributaries to traditional navigable waters that are relatively permanent, meaning they contain water at least seasonally [watch out!]
  • Wetlands that directly abut relatively permanent waters [watch out!]

How long is a season? When do waters become relatively impermanent? How adjacent is adjacent? For an administration that doesn’t like loopholes when they apply to corporations, these seem like loopholes of a drive-a-truck-through-it scale.

There’s another bunch of possibilities too, like if a “significant nexus” [how significant?] is found, then “wetlands adjacent to jurisdictional tributaries to traditional navigable waters” would be under federal jurisdiction, as well as that good ol’ regulatory Pandora’s box, “other waters.”

We were glad to see swimming pools specifically excluded.  More significantly, “erosional features (rills and gullies) … that are not tributaries or wetlands” are excluded. This is significant in the arid West, where these features, no matter how ephemeral, have been subject to regulation as if they were little Mississippi Rivers and Okefenokee Swamps.

On the plus side, the Obama administration has just ensured unemployment insurance claims from attorneys with Clean Water Act expertise will dry up like a Utah rill in August.

The guidance is now undergoing a 60-day comment period.