By Julie Murphree, Arizona Farm Bureau Communication Director: First it was leaked memos revealing dysfunction and secrecy. And only a week later, the spill of toxic wastewater from an abandoned gold mine high in Colorado's San Juan Mountains is causing Arizona agriculture’s farmers and ranchers to wonder if the Environmental Protection Agency (EPA) really has the capacity to protect our environment and ensure clean water. Their move on the Waters of the U.S. Rule shows they at least know how to over-regulate.

“In the words of Alanis Morissette, ‘Isn't It Ironic,’ while the EPA gears up to implement its final Waters of the U.S. Rule which will strangle land use in the U.S. and keep agency employees busy regulating dry washes in the desert, the EPA is actually polluting waterways themselves,” says Arizona Farm Bureau’s First Vice President Stefanie Smallhouse, a rancher from southern Arizona. “The EPA has the authority to impose hefty fines of $30,000 or more to regular citizens just for permitting violations which don't even pollute. I wonder how much they will lose out of their budget as a “deterrent” for their actually toxic spill into our waterways.”

Contaminated water gushed out, unstoppable, coursing down the mountains and turning the Animas River into a sickening shade of toxic yellow.

First the Memos

A cache of internal memos that federal regulators intended to keep private reveals a culture of secrecy, falsehood and dysfunction that permeated the Waters of the U.S. rulemaking process.

On Thursday, July 30th, the House Committee on Oversight and Government Reform released more than 50 pages of documents in which the Army Corps of Engineers repeatedly rebuked EPA officials for their abuse of the rulemaking process in producing the deeply controversial Waters of the United States (WOTUS) rule. The entire economic analysis used to support the rule, Army Corps officials wrote, had no basis in either science or economics.

“It is clear from the memos that there were dire concerns internally that EPA was getting it wrong and with a high degree of arrogance,” said American Farm Bureau President Bob Stallman, a rice farmer and cattle rancher from Texas. “The flawed economic study is just the tip of the iceberg, and it was known internally that trouble was ahead. In fact, the memos themselves were stamped ‘Litigation Sensitive.’ They were never intended to see the light of day.”

The Corps documents also validate American Farm Bureau Federation and state Farm Bureaus’ own concerns that the rule makes it impossible for anyone, including the Corps, to know which features on the landscape are regulated, and which are not. The Corps even raised concern that it would be difficult to determine whether “a low depressional area on a farm field that ponds water after a rainstorm for ten days” would be a regulated “water” or an excluded “puddle.” EPA insisted throughout the rulemaking process that “puddles” would not be regulated. 

As the Army Corps memos clearly show, political appointees repeatedly ignored vigorous objections of career agency staff in order to rush the rule through.

“The Corps documents confirm what we have been saying all along,” Stallman said. “Even the Army Corps of Engineers concedes this rule is unworkable. The Army Corps’ name is on the rule, yet experts tasked with determining its validity said they wanted the Corps’ name removed from the economic analysis used to justify it.

“U.S. Army Assistant Secretary Darcy pleaded with Congress to keep these memos from the public eye. Well, now we know what they say, and we want to know more. What other internal agency documents are out there?  If the Corps’ economists objected so strongly, what did the EPA’s economists think? What else are these agencies hiding from the public? As Americans, we expect better, but during the entire WOTUS rulemaking process, we got worse – much, much worse.”

AFBF and Arizona Farm Bureau, along with other state Farm Bureaus, are calling on EPA to immediately withdraw its flawed WOTUS rule, go back to the drawing board and address the concerns of farmers, ranchers and business owners across the country.

Now the Spill

Already confirmed, EPA’s inadvertent release of toxic waste will cause untold millions in economic disruptions and damages in three states — to rafting companies, Native American farmers unable to irrigate, municipal water systems and possibly water well owners.

Largely because the federal government inadvertently triggered the release, it has vowed to pay the bill – with our tax dollars, of course. Pay up on the bill could be years in the making. Attorneys general from Colorado, New Mexico and Utah vowed to ensure citizens and towns are compensated for immediate and long-term damages from the spill.

But just what happened? On August 5th, EPA contractors were assessing leaks from the nearby Gold King mine, abandoned since 1923, when they inadvertently shook loose a debris dam that had been holding back a massive amount of water laced with arsenic, lead and other toxins. The contaminated water gushed out, unstoppable, coursing down the mountains and turning the Animas River – yes, a navigable river – into a sickening shade of toxic yellow. From there, the plume headed downstream into the San Juan River (a major tributary of the Colorado River), headed for New Mexico and, eventually, Lake Powell on the Utah-Arizona border.

Initially, the EPA suggested that about 1 million gallons of wastewater had been released. Then, on August 9th, officials on a press call said they’d taken fresh measurements and three times that much had spilled out, or about five Olympic-size swimming pools’ worth.

EPA administrator Gina McCarthy said her agency took full responsibility for the spill.

McCarthy also said she had ordered agency personnel across the country to cease field investigation work on abandoned mines while the spill was investigated. EPA officials said they were seeking details on what the stop-work order means.

The long-term health consequences of the spill are still to be determined. “This event is an unfortunate tragedy and we will not know the extent of the long-term impacts of this highly concentrated release of metals into our environment for quite some time,” explained Paloma Beamer, Ph.D., Associate Professor, Environmental Health Sciences in the Mel and Enid Zuckerman College of Public Health at the University of Arizona. “Even if the water in the river returns to normal levels through dilution or by settling into the river bed sediments, there will still be potential for exposure. For example, the metals could bio-accumulate in fish that live in the river that feed on things that grow in the sediments.

The contaminants could seep into the groundwater, resulting in impacts to drinking and irrigation water. If the metals deposit on river shores or in sediments they could ultimately dry out and become re-suspended via wind. These re-suspended particulates could contaminate surrounding soil, and they could also be inhaled. It will take time to determine if these levels of contamination in the environment will be high enough to result in human health risks over the long term.”

In the meantime, just last week the Animas River was reopened. As Professor Beamer points out dilution is already taking place even as the toxic plume spilled into Lake Powell along the Utah-Arizona border. Contaminants will further dilute and settle out in the reservoir. “It is important to note that these metals are naturally occurring but that they may concentrate under certain conditions like the process of mining. Exposures to high levels of these metals can result in multiple types of health effects including: cancer, neurological and developmental effects, as well as respiratory and cardiovascular disease.”

Despite the EPA’s responsibility in the spill, one environmental sciences professor suggests what happened in Colorado is not a sign of ineptitude. “The spill is a serious problem and was caused by an action of EPA,” says Karl W. Flessa, professor in the Department of Geosciences for the University of Arizona.  “That EPA is responsible – and has accepted responsibility -- is not a sign of their incompetence. The spill is as much a consequence of past mining practices and the community’s opposition to a superfund site as it is to a mistake by an EPA contractor’s earth-movers. There’s plenty of blame to go around.”

The cleanup is ongoing because contaminated water continues to drain from the mine. The total cost to date is more than $100 million, according to the U.S. Geological Service.

Exclusive for Arizona Farm Bureau, Team of U of A Scientists Answer Our Questions

Thanks to a team of U of A scientists, we have an indepth understanding of what happened including specific insights for Arizona

The EPA’s WOTUS Rule will be a Burden to Agriculture

In the meantime, the irony to Arizona’s farmers and ranchers is that such an event would take place in a time when the EPA’s latest WOTUS rule means more regulation over streams and rivers. And despite what EPA’s McCarthy says, there is still strong evidence in the rule’s language that agriculture will be negatively impacted.

“What the EPA has written into this new rule of regulation is far reaching and assumes control over any piece of land where rain might fall and run downhill whether that water actually reaches water flow or not, says Rancher Smallhouse. “The written word of the EPA carries more weight than the verbal assurances from its appointed Administrator, Gina McCarthy, that the EPA will not go after farmers and ranchers. The spill is devastating. I would hope this to be a humbling experience to the regulators in their future interactions with those taking great care to not pollute our water. There is a big difference between using $100 million in tax payer dollars to fix a regulator’s mistake and going after the personal finances of a family farm just to comply with needless permits. And the rule says we will have to submit permits for the most basic of farming practices on our lands.”

If one doesn’t believe Smallhouse’s claim, a series of maps released by the American Farm Bureau Federation show how the EPA will radically expand its jurisdiction over land use if its controversial Waters of the United States rule takes effect as expected August 28. That expansion comes even as major parts of the rule remain largely incomprehensible to experts and laypeople, alike.

The maps, prepared by Geosyntec Consulting, show the dramatic expansion of EPA’s regulatory reach, stretching across wide swaths of land in Pennsylvania, Virginia and Montana. In Pennsylvania, for example, 99 percent of the state’s total acreage is subject to EPA scrutiny. Landowners have no reliable way to know which of the water and land within that area will be regulated yet they must still conform their activities to the new law.

“Farmers face enforcement action and severe penalties under EPA’s new rule for using the same safe, scientifically sound and federally approved crop protection tools they’ve used for years,” American Farm Bureau (AFB) President Bob Stallman said. “This rule creates a new set of tools for harassing farmers in court, and does it all with language that is disturbingly vague and subject to abuse by future regulators. It’s worth saying again: The EPA needs to withdraw this rule and start over.”

Maps prepared to date can be found here:
    Montana WOTUS Maps
    Pennsylvania WOTUS Maps
    Virginia WOTUS Maps
*Additional maps are being developed for parts of Missouri, New York, Oklahoma and Wisconsin.

To understand the maps, the maps’ base layer shows areas regulated as tributaries and adjacent wetlands without a case-specific “significant nexus” analysis under previous rules. Through a progression, the maps add “ephemeral streams”—low spots in the land that drain and channel water away from farmland after a rain but are otherwise dry. The EPA has sometimes asserted jurisdiction over such areas before, but only after a site-specific finding of a “significant nexus” to downstream waters. Under the new rule, all such “ephemeral tributaries” are regulated.

With this added jurisdiction in place, the Clean Water Act will prohibit many common agricultural practices in or around these ephemeral features. Any unpermitted discharge—whether pesticides, fertilizer or even disturbed soil—will leave farmers vulnerable to enforcement by EPA, the Corps, or private citizens, with severe potential penalties. This means unless farmers are able to navigate the regulatory system to secure a costly Clean Water Act permit, farming in many areas will be significantly restricted.

The maps’ next layer shows how the rule expands the definition of regulated “adjacent waters” to cover all waters (including wetlands) that lie, even partially, within 100 feet on either side of these newly regulated ephemeral drains. Next, they show where even more “adjacent waters” may lie—and this is where the vast uncertainty comes in. Where any part of a water or wetland is within the 100-year floodplain of a tributary, and not more than 1,500 feet (1/4 mile) from the tributary, that entire water feature is regulated. The uncertainty springs from the fact that many areas lack flood zone maps. What’s more, many such maps are out-of-date, and most ditches and ephemeral streams do not have mapped flood zones. The result is that farmers and other landowners lack even the basic tools to identify wetlands or other waters that are automatically regulated under the rule.

The final blow—the almost unlimited reach of the rule—is shown in the final map layer that covers waters that are not “tributaries” or “adjacent,” but may still be jurisdictional based on a “significant nexus” to downstream waters. The WOTUS rule allows “significant nexus” regulation of waters (including wetlands) that lie even partially within 4,000 feet (about ¾ mile) of any tributary. Mapping 4,000 feet from even just the known ephemeral streams—ignoring ditches and not-yet-identified ephemeral tributaries—shows that this 4,000-foot zone of uncertainty covers the entire landscape in many parts of the country.

In the meantime, many in Congress are taking note of what’s going on with the EPA, especially as it relates to the WOTUS rule and the memo mismanagement. U.S. Congressman Paul A. Gosar, D.D.S. (AZ-04) released the following statement last month after submitting revelatory evidence into the Congressional Record after participating in a full Oversight and Government Reform Committee Hearing titled “EPA Mismanagement Part II” where he questioned EPA Administrator, Gina McCarthy, on recent reports that senior Army Corps of Engineer (Corps) employees expressed serious legal and scientific deficiencies with the final draft of the Waters of the United States (WOTUS) rule:

“This week, newly uncovered memos document senior Corps employees confirming what many of us have known for a long time; the EPA forced its WOTUS rule down the throats of the American people with total disregard for any scientific basis or adherence to the rule of law. We now have clear evidence that the bureaucratic minions at the EPA are more concerned about enacting the president’s far-left environmental agenda at any cost over the well-being of the American people.

“This federal water grab personifies the Obama Administration’s relentless efforts to control how Americans are allowed to live their lives. I am genuinely unable to comprehend the ignorance required to continue pushing this regulation despite multiple Supreme Court rulings explicitly declaring the EPA’s actions to be unconstitutional. This fundamentally flawed and illegally conceived regulation must never see the light of day. I continue to call on EPA Administrator McCarthy to terminate the WOTUS rule, and if not, Congress should use its Constitutional ‘power of the purse’ to ensure not a single dime is appropriated for its implementation.”

Editor's Note: A resource for additional information on water health is the University of Arizona's Superfund Research Program website.

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