Cook CFB sent the following letter in regards to US EPA’s recently released Water Body Connectivity Report.  The report will be used as a tool to justify a rulemaking that seeks to define the legal term “waters of the US.”  Farm Bureau is concerned that the report lays the foundation for the US EPA to significantly expand its regulatory reach and effectively delete the word “navigable” from the Clean Water Act.

Cook County Farm Bureau® is a 46,000-member organization dedicated to working for the interests of farmers in northeastern Illinois.

We are very concerned that EPA is again taking steps to expand its control over water, and therefore are writing to comment on EPA’s draft report: Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence.  

We find this report disturbing because it was apparently developed with little purpose other than to justify the broadest possible expansion of EPA authority to regulate all waters.  Contrary to being a “scientific” document, it appears to be driven by policy considerations that are not only at odds with the existing Clean Water Act but with two Supreme Court decisions that explicitly said that there are limits to Federal jurisdiction.

The Supreme Court told EPA that it can only regulate waters that have a “significant nexus” to federally regulated waters.  Yet this report does not even attempt to address the important question of what is significant and what is not.    

The draft report fails to make a scientific distinction between aquatic resources that are important and other marginal/unimportant non-aquatic landscape features that may puddle or carry water during a rain.  

From a farmer prospective, the review and literature cited appears to be nothing more than a rather basic compilation of articles that ultimately describes how water flows down hill.  None of the conclusions found in the literature review show whether the connections are “significant” or how the existence of connections support regulatory or policy decisions related to navigable waters.  Thus, the report simply ignores the most important scientific point that needs clarification.

Another concern is that the draft report identifies only the presence of connections, but cannot differentiate or characterize the difference between something that is an aquatic stream from a common ditch, gully, swale or erosion channel.  Moreover, from a legal standpoint, there is virtually no justification for concluding that such connections are “significant.”  Farm ditches in particular are critical to farming and ranching operations and this draft report further muddles the issue of whether EPA can regulate them as streams.  Without a discussion of how ditches are distinguished from streams or whether ditches are considered streams, the draft report appears to have little or no practice scientific value, in particular as a basis for regulatory actions.   

If you need any additional information, please feel free to contact me at (708) 254-3276 or via email at bona@cookcfb.org.