WaterNews for December 31, 2002

WaterNews is a weekly on-line publication that announces publications, policies, and activities of the U.S. Environmental Protection Agency's Office of Water.

Inside this week’s WaterNews

• Withdrawal of Federal Rule from Michigan
• Court Decision Upheld
• Source Water Protection and Education Project
• New Source Water Cooperative Agreement
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Withdrawal of Federal Rule from Michigan

Feb. 6, 2003 the Direct Final rule will be in effect. In 1992, EPA promulgated Federal regulations establishing water quality criteria for priority toxic pollutants for 12 states and two territories, including Michigan, that had not fully complied with Clean Water Act [known as the “National Toxics Rule” (NTR)]. The Agency then published the Water Quality Guidance for the Great Lakes System (GLI) providing recommendations on how to consistently protect the waters of the Great Lakes. Michigan adopted the GLI recommendations into their standards, and EPA approved their revisions. As a result, Federal criteria were no longer needed. You can learn more about this action and other water quality standards activities by visiting the internet at http://www.epa.gov/waterscience/standards/actions.htm.

Court Decision Upheld

On Dec. 16 the U.S. Supreme Court issued a 4-4 decision in Borden Ranch Partnership v. US Army Corps of Engineers, which arose under Section 404 of the Clean Water Act (CWA) and an activity known as “deep ripping.” Because the Court was equally divided, the judgment of the lower court, which had ruled in favor of the Government, was affirmed. The case presented to the Supreme Court three key three legal issues related to (1) whether deep ripping involves the “addition” of “pollutants” from a “point source;” (2) if so, whether it was exempt from permit requirements under CWA Section 404(f); and (3) the methodology used to calculate the penalty amount.

The case arose from an enforcement action involving the use of deep ripping to convert ranch land to vineyards and orchards without a Section 404 permit. Petitioner was warned a number of times that this activity required a permit but continued nonetheless. "Deep ripping" is a process in which bulldozers drag rippers, consisting of four-foot to seven-foot metal prongs, through the earth to break up a restrictive clay layer and disgorge earth, rock, sand, and biological material behind the ripper. When, as here, deep ripping equipment passes through a wetland, it moves soil from adjoining uplands into the wetland and also brings up substrate into the wetland. It has the effect of draining and filling the wetland. The Government alleged this activity resulted in a discharge of dredged and/or fill material into various swales (a type of wetland) which were adjacent to waters of U.S. The district court had ruled that the government had authority under the CWA to regulate such deep ripping, and the court of appeals had affirmed (261 F.3d 810 (9th Cir., 2001)). As is the practice when the Supreme Court is equally divided, their opinion merely indicates the judgment of the court below is affirmed, and does not address or discuss the substance of the issues presented, nor does it serve as legal precedent.

Source Water Protection and Education Project

The Mentor Project with the Environmental Alliance for Senior Involvement has been completed and the final report will be distributed shortly. The project resulted in establishing Senior Environment Corps in 15 States. This model of using seniors and youth in source water protection is being replicated in at least 20 other States and in several foreign countries. For more information, please contact Tom Belk, of Office of Water, at 202-564-3875.

New Source Water Cooperative Agreement

The Prevention Branch of the Office of Water has completed a cooperative agreement with various environmental groups (Clean Water Fund, Clean Water Network, and the Campaign for Safe and Affordable Drinking Water) designed to promote greater local involvement with source water protection. The three coalition groups will help local stakeholders, many of whom are already engaged in Clean Water Act related activities within their communities, to recognize the connection between clean source water and healthy natural ecosystems. For more information, please contact Debra Gutenson at 202-564-3882.

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