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Sea change for puddles?

| Saturday, April 12, 2014, 9:00 p.m.

Republican Pat Toomey has been the junior United States senator from Pennsylvania since 2011. He spoke to the Trib regarding the Environmental Protection Agency's attempt to expand its authority over navigable waterways to include areas of runoff and puddles.

Q: The EPA wanting to have jurisdiction over runoff areas and puddles probably sounds to most people like a bad “Saturday Night Live” sketch. Why would the EPA care about puddles?

A: I don't think the EPA should care about puddles. But they have proposed a rule that would dramatically expand their authority to regulate virtually all outdoor water, because they have worded this so broadly and so vaguely it would give them this very, very sweeping authority.

You know, I understand it is the nature of regulatory bodies to always seek more power, but that doesn't make it a good idea.

Q: Wouldn't changing the definition of what constitutes a navigable waterway under the Clean Water Act take an act of Congress?

A: In my view, (making the change) certainly is beyond the scope of the authority they have. The EPA has some discretion in the application of this law, but I think this goes well beyond that.

I think that in order for a body of water to legitimately be considered navigable, it probably ought to be able to float a canoe. And to suggest that a temporary puddle somewhere might qualify based on what they have as their significant nexus test, I don't think that is the intent of the law. So I'm making the point that if you want to make such a fundamental change, you ought to do it the legal way, which is pass a new law.

Q: Hasn't the Supreme Court already ruled on which specific bodies of water the EPA has authority over?

A: That's another element of this debate that's disturbing. We have a number of Supreme Court decisions in this area.

(In one decision), Justice (Antonin) Scalia, writing for the majority, explained what his view of a navigable body of water ought to be. He describes it as a relatively permanent, standing or flowing body of water such as a stream, river, lake or other body of water forming geographic features.

He explicitly excluded intermittent and ephemeral flows. Four justices signed on to that opinion concurring with his limited — and I think sensible — interpretation of the law.

Q: Who would be most impacted by this change?

A: Well, it should be of great concern to farmers because if you have a sufficient amount of land, you probably get intermittent puddles, right? So that's a very disturbing worry about whether the EPA would assert jurisdiction over your farm that it does not have today.

It's a big concern to developers for similar reasons. But frankly, this is a danger for any homeowner who has their own private land, and maybe after a heavy rain there is an intermittent sort of stream that flows across their yard or maybe a big puddle.

Q: You're advocating that people voice their opposition to the proposed change?

A: Yes. I'd like to suggest the email address to which people can send their comments, and that is OW-docket@epa.gov. We currently are in the comment period on this rulemaking, and the EPA is required to look at these comments. I would definitely encourage people to send in their concerns.

Eric Heyl is a staff writer for Trib Total Media (412-320-7857 or eheyl@tribweb.com).

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