Implemented through the
Environmental Protection Agency (EPA), the CWAP contains "Key
Actions" affecting all federal agencies and state and local
governments. These Key Actions govern everything from Forest Service road
closures, to requiring additional procedures for Bureau of Land Management
(BLM) livestock grazing permit renewals, to regulating agriculture, to
governing air emissions.
One specific Key Action mandates
that the Forest Service "decommis-sion or obliterate 5000 miles [of
roads] per year by 2002," and that it "place a temporary
moratorium on new road construction in roadless areas greater than 5000
acres." Two of the Key Actions require that the Department of
Agriculture (DOA) establish by the year 2002 two million miles of
conservation buffers along streams and rivers, and reserve four million
acres from the Conservation Reserve program for the establishment of
conservation buffers. (See February 1999 Discerning the Times Digest)
In short, the CWAP represents a
full frontal assault on private property in rural America.
Even though non-point source
pollution requirements are specifically spelled out in other sections of
the Clean Water Act (CWA), the EPA has reinterpreted the regulations
intended for point sources of pollutants in Section 303(d) so as to
include non-point pollution sources. Point source pollution is any
discernible, confined and discrete conveyance, such as a pipe, from which
pollutants may be discharged. Conversely, non-point sources originate from
agricultural, forestry and construction runoff.
The statutory definitions used in
this section of the Clean Water Act explicitly indicate that the EPA’s
jurisdiction does not include non-point sources of pollutants. The U.S.
Supreme Court has made it clear in past decisions that the EPA cannot
sweep non-point source into its regulation of point source pollutants:
"Few principles of statutory construction are more compelling than
the proposition that Congress does not intend sub silentio [with silence]
to enact statutory language that it has earlier discarded." (Ins v.
Cardozo-Fonseca 480 U.S. 421, 442-43 1987).
Illegal or not, the EPA rule
requires states to develop "TMDLs" for non-point source impaired
and threatened waters for entire watersheds. TMDLs represent the total
maximum daily load for sediment, or the maximum amount of a pollutant that
a water segment can receive without violating water quality standards. By
mandating TMDLs for a "water segment," land use for entire
watersheds must be controlled. In short, the CWAP instantly extended the
EPA’s jurisdiction for regulating all land use over all watersheds in
the U.S.
The EPA will withhold funds
allocated by Congress for stream restoration if states refuse to designate
certain waters as impaired. Incredibly, if a state does not develop
EPA-approved implementation plans for these waters, the EPA will do it for
the state. The fact that they do not have the constitutional authority to
do this is obviously immaterial. The Wyoming Association of Conservation
Districts has filed suit against the EPA and DOA for violating the Clean
Water Act and numerous other laws in implementing the CWAP. Since filing
last year, 55 other organizations have joined in the suit.
In arriving at a TMDL, the EPA
assumes a high correlation between water purity tests and sediment runoff
from human activities. Yet, according to the National Academy of Sciences,
between 25 and 60 percent of sediment deposition into waters is due to air
deposition, not runoff. Stream bank erosion is another source of natural
sediment loading. These are described as "background loadings"
in a TMDL calculation. Since sediment can come from several sources,
landowners can easily find themselves being held responsible for sediment
coming from natural background sources. As a result, they can be forced to
make cutbacks in operations to make up for background sediments over which
they have no control. Not only is this unfair, it is economically
devastating without doing a thing to protect the environment.
Costs of TMDL management are
borne in large part by the little guys, the farmers, ranchers and their
communities. The surrounding agricultural communities along the Garcia
River in California, for instance, are drowning under the EPA’s 12
million dollar price tag for implementing the CWAP. Road closures on
public lands under the tenets of CWAP have already caused the loss of
logging contracts and blocked recreational roads. The oppressive water
quality regulations imposed on the mining and petroleum industries
threaten to shut those industries down under impossible financial burdens.
The rule ignores most state costs and all federal and private sector
incremental costs. It is entirely feasible that state and federal costs
will be ten times higher than EPA estimates.
In a letter to Congress in
February of this year, more than 30 organizations involved in agriculture,
forestry and conservation expressed their concerns over the TMDL rules
being pushed on the nation by the EPA. "The Environmental
Protection Agency’s Total Maximum Daily Load (TMDL) proposed rule making
would have a crippling impact on agricultural activities and individual
farm, forestry, and ranch operations. The TMDL rule is counterproductive
and contradicts ongoing progressive efforts. Enforcement-based programs,
such as the TMDL rule will significantly impact successful, voluntary
initiatives, for farmers and other voluntary stewards."
CWAP is more than the EPA illegally governing and
seizing property rights by regulation under the guise of protecting the
environment. It fully meets the demands of Chapter 18 of the UN’s Agenda
21 to control and integrate land and water use to protect clean water.
Pray that the courts will find the CWAP to be unconstitutional. V
ks
