Steven Serio Testifies Before Sen. David Vitter at Briefing

Fishman Haygood Partner Steven Serio testified before Sen. David Vitter and Congressman Bill Cassidy at an Environment & Public Works Committee Republic Field Briefing on August 15, 2014 in New Orleans.

Steven, who is the Louisiana Government Relations Chair for the International Council of Shopping Centers, was one of three panelists who testified about the Environmental Protection Agency’s proposed “Water of the United States” wetlands rule and its potential impact on Louisiana.

At the hearing, Senator Vitter expressed concern that the new wetlands rule could exacerbate issues relating to the Army Corps of Engineers’ “Modified Charleston Method” for mitigation.

Steven concurred:

“I think the Modified Charleston Method could have a real crippling effect.  [For one project where the Modified Charleston Method applied,], the ratio went from 1.3:1 to 4:1 in terms of the amount of wetlands that needed to be mitigated, which quadrupled the cost of the project and rendered it economically unviable.  So that method alone will cripple quite a bit of projects,” Steven testified.

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David Vitter Wants EPA to Dump New “Waters of the U.S.” Wetlands Regulations

The Times-Picayune · Mark Schleifstein

U.S. Sen. David Vitter, R-La., demanded Friday that the Environmental Protection Agencydrop its proposed “Waters of the United States” wetlands rule, which he said unconstitutionally expands the federal government’s control over private property and would bring Louisiana’s economic expansion to a “screeching halt”.

“The proposed rule’s sweeping language is a direct threat to the private property rights which serve as a backbone to our nation’s economy,” Vitter said at a Senate hearing in New Orleans. “I am very concerned that the consequences of the Obama Administration’s proposed rule will be especially severe for businesses, farmers, municipalities, and other landowners here in Louisiana.”

Vitter’s comments came as he hosted a field hearing of the Senate Committee on Environment & Public Works in the chambers of the Louisiana Supreme Court in the French Quarter. Vitter is the ranking Republican on the committee, and in June, announced he will be a 2015 candidate for Louisiana governor.

U.S. Sen. David Vitter opposes new EPA, Corps wetlands ruleU.S. Sen. David Vitter, R-La., discusses his opposition to the proposed EPA, Army Corps of Engineers, “Waters of the U.S.” wetlands rule, after a Senate Environment & Public Works Committee field hearing at the Louisiana Supreme Court in the French Quarter on Friday (Aug. 15).

Testifying at the hearing were Louisiana Department of Agriculture & Forestry Secretary Mike Strain, Louisiana Forestry Association executive director Buck Vandersteen, and Steven Serio, a New Orleans attorney who represents theInternational Council of Shopping Centers. The committee didn’t invite EPA officials to testify, though agency representatives have testified at other committee hearings.

Sitting on the dais with Vitter was U.S. Rep. Bill Cassidy, R-Baton Rouge, who is a candidate this fall for the U.S. Senate seat now held by Sen. Mary Landrieu, D-La.

Vitter and Cassidy both turned thumbs down on the proposed EPA rules that expand the authority of the federal government to enforce the Clean Water Act on lands crossed by small tributaries of navigable water bodies, including some where the presence of water is seasonal, or “ephemeral,” meaning only when it rains.

They contend the new rules threaten the future of agriculture and forestry in Louisiana by disrupting existing state regulatory control over wetlands that could lead some farmers and forest owners to abandon farms and forests to avoid a lengthy and costly permitting process.

Similar enforcement concerns would obstruct economic development projects, Serio said. He pointed to a recent decision by a company to abandon plans to build a shopping center in the vicinity of the intersection of Interstates 10 and 59 in St. Tammany Parish when the Army Corps of Engineers used its restrictive “modified Charleston method” to determine the amount wetland mitigation the company would have to pay for to compensate for wetlands injured by construction.

While the corps was using existing wetland rules, rather than the new rules, Serio said the new rules would lead to the end of similar development projects.

The new rules were proposed by EPA and the corps earlier this year as a long-delayed response to 2001 and 2006 U.S. Supreme Court rulings that threw out past definitions of land containing wetlands that were not directly connected to navigable water bodies.

Vandersteen said that in its most recent ruling, the Supreme Court suggested to EPA officials that they would want to rewrite the rules to better address areas with seasonal or ephemeral water sources. Vitter said that was a role for Congress, and the new rule was an unconstitutional rewriting of federal law.

EPA officials have said the rules are aimed at implementing the original goal of the 1972 Clean Water Act to regulate — and reduce — pollutants entering the nation’s water bodies to protect public drinking water supplies and wildlife and fisheries, and to reduce downstream flooding.

In Louisiana, the goal is to assure that pollutants are not carried into the Mississippi River from adjacent wetlands or tributaries, where the chemicals can get into public water supplies that use river water, such as New Orleans. The rules also will be used to reduce nutrient pollution that causes algae blooms that result in the annual low-oxygen “dead zone” off Louisiana’s coast, and similar low oxygen areas in rivers and lakes elsewhere in the state

But Strain said Friday that the state’s agriculture industry believes the new rules will be interpreted in ways that will disrupt efforts to increase crop yields, by increasing control over the way farmers apply nutrient fertilizers to their crops, some of which run off into nearby rivers and streams.

He said the rule includes definitions of 56 conservation methods for agricultural and forestry land. But listing only 56 methods in itself sends a signal that EPA wants to require permits for any methods not on the list, which would add to food production costs, or limit the use of land.

All three witnesses also targeted wording in the rule they contend would allowEPA to regulate man-made ditches as another concern, contending that businesses and homeowners would have to apply for permits to remove trees or debris, or be found in violation of the law.

An EPA official disagreed with several of those interpretations of the new rules during a telephone interview on Friday.

Arvin Ganesan, EPA deputy chief of staff for policy, said the list of 56 conservation measures was an attempt to define what was meant by the Clean Water Act when it exempted “normal farming activity” from being regulated.

“Yes, it identifies 56 Natural Resources Conservation Services practices that fall under the exemption, but they do not represent the totality of all ‘normal farming practices,’” Ganesan said. “It’s just a subset. And the rule is self-implementing, meaning the farmer implements the exemption (for normal farming practices) himself. Very simply put, if you didn’t need a permit before this proposal, you don’t need one now.“

And he said the reference to ditches in the new rule actually reduces the agency’s oversight over ditches.

“If the ditch is not constructed and doesn’t flow year round, its excluded. If its not a water-flowing ditch 24 hours a day, its excluded,” he said. “And that’s a change from the status quo, where the permitting decision requires a case-by-case analysis.

“If a ditch is constructed through wetlands or a stream or connects with navigable waters, it will be treated in exactly the same way as it was treated before this proposal,” he said.

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