Oklahoma Ag Secretary Reese Worries About the "Could Be" in the Waters of the US Proposed RuleFri, 25 Jul 2014 10:49:49 CDT
Oklahoma Secretary of Agriculture Jim Reese has submitted comments to the federal government in regards the so called Waters of the US proposed rule that has been advanced by the Army Corps of Engineers and the Environmental Protection Agency. The Secretary has provided us with a copy of his comments- and they follow:
"First I want to be complimentary to Ron Curry, EPA Region 6 Regional Administrator, and Bill Honker, Water Quality Protection Division Director at EPA Region 6. Leadership and staff at Region 6 have been very helpful working cooperatively with the state and the Oklahoma Department of Agriculture, Food and Forestry in implementing AgPDES at the state level and helping to clean our water in Oklahoma through the 319 Program. Oklahoma has removed more streams from the 303(d) impaired list than any other state. We have documented removing more phosphorous and nitrogen from our streams than any other state. Thank you for helping us in those efforts.
"Secondly, I am glad to live in a country with the greatest quantities of clean water and air in the world and the EPA has provided great assistance in achieving this and improving it.
"From there, in discussing this proposed rule, I will not be as complimentary.
"These rules appear to be written by EPA lawyers to appear politically palatable, but still leave everything within the power of the EPA to determine what are and what are not Waters of the U.S. It intends to circumvent every Supreme Court decision that has previously stopped the EPA from enforcing CWA on all waters. Specifically Part 328.3 a. 7. The term Waters of the U.S. means: on a case-specific basis, (determined by the EPA) other waters, provided……, have a significant nexus (determined by the EPA) to a water identified in paragraphs a) 1-3.
"The case-specific basis will be determined by the EPA and the significant nexus will be determined by the EPA. Those are problems that will create “government creep” into private property rights of citizens.
"On a teleconference with NASDA where an EPA representative was asked several times whether specific bodies of water would be regulated or not regulated. The answer repeatedly was “No, but they could be.”
"On page 22262 of the Federal Register, EPA spends two columns describing the significant nexus and defining: may, could, potential, speculative and insubstantial based on the comments of Supreme Court Justice Kennedy. In fact reading the proposed rule one might think Justice Kennedy was the only justice with an opinion on Waters of the US.
"However, The plurality opinion which 4 justices signed said this about Justice Kennedy’s analogy: “Justice Kennedy’s disposition would disallow some of the Corps’ excesses… In another respect, however, it is more extreme… Justice Kennedy, however, has devised his new statute all on his own. It purports to be… acceptance of an agency’s close-to-the-edge expansion of its own powers… It is far from that, unless whatever affects waters is water.” So four Justices thought quite differently about the agency’s extension of their regulatory scope.
"Additionally, on EPA’s website it refers to a 178 page study by the Environmental Law Institute. It implies that the states have no authority to regulate the waters of this state. It says 36 states cannot regulate their waters because their laws say they “cannot exceed federal law.” That just is not true. If anyone pollutes, even a minor stream or soil for that matter, with cyanide, chemicals or fertilizers in the State of Oklahoma, our state through ODEQ and ODAFF has the authority to enforce a cleanup, including fines and penalties, when necessary.
"What the study is more specifically referring to is dredging and filling regulations. And I love to bring up this subject: If Texas had been able to build a new reservoir in East Texas; they would not be suing us to get additional waters. Oklahoma has not built a new lake in the last 40-50 years and environmental laws are very much a part of the equation in every state. The CWA does not affect only dredge and fill, as you well know, but all environmental water laws.
"Finally, in relation to the interpretive rule and NRCS acting as a regulator, I will remind you that landowners used no-till, minimum till, filter strips and redcedar control long before NRCS recommended and endorsed such practices. The government is not the clearinghouse of all good ideas and practices. Normal farming should not be limited to government prescriptions. NRCS is a great cooperator with producers, conservation districts, and the Conservation Commission, but have not been a regulatory agency and do not care to be. I would urge you to withdraw the interpretive rule.
"As I was on a tractor last night I thought of a movie I used to watch with my kids, Matilda. Matilda was a smart little girl who read books and was much smarter that her dysfunctional parents. At one point Matilda confronted her father, played by Danny DeVito. DeVito said “Listen you little wiseacre, I’m smart - you are dumb; I am big, you are little; I am right, you are wrong. And there is nothing you can do about it.”
"Just like the father in Matilda, the government would be better off listening to calls of restraint. I feel like this proposed rule is saying that same thing to the Supreme Court, Congress and the states. Our state hopes to continue its progress in cleaning up water bodies through cooperation with EPA, not through dictation from the dysfunctional father."
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