The Environmental Protection Agency rule that would redefine waters protected under the Clean Water Act appears relatively simple on the surface, but a shift in the rule’s definitions could greatly affect the implementation of the rule at the state and local levels.
U.S. Supreme Court rulings in 2001 and 2006 on Clean Water Act violations have left industry officials, lawmakers and the EPA in a confused state when it comes to which waterways are protected under the Clean Water Act.
The new rule is aimed at ending that confusion and clarifying protection measures for small streams and wetlands, but people opposed to the change say it’s an EPA plan to take control of more surface water.
“They’re making a very honest effort to modify the definition of waters of the United States to comply with the Supreme Court decisions,” said Wyoming Outdoor Council chief legal counsel Bruce Pendery. “At the same time, they are remaining true to the fundamental objective of the Clean Water Act to protect the physical, biological and chemical integrity of the waters of the United States.”
The rule will expand portions of the EPA’s jurisdiction concerning small streams and other surface waters connecting to downstream water. It would also limit the EPA’s jurisdiction concerning small waters not connected to downstream water bodies.
“The proposed regulation is specific that they would expand the definition to adjacent waters,” Pendery said. “That would be an expansion. But the other provision relating to other waters is actually a restriction in the Clean Water Act’s jurisdiction.”
Sen. John Barrasso, R-Wyo., asked his Senate colleagues to block an Environmental Protection Agency rule change last week that would redefine the types of waterways protected by the Clean Water Act.
In his statement on the floor of the Senate, he said the extended definitions would greatly affect farmers and ranchers, who need to “put a shovel in the ground to make a living.”
“They want to include ditches and other dry areas where water flows only for a short duration after a rainfall,” Barrasso said. “But the government wants to control even that. Federal regulations have never defined ditches and other upland drainage features as ‘waters of the U.S.’”
The proposed rule has local agencies considering what the changes might mean for enforcement of the Clean Water Act at the ground level.
Pat Tyrrell, the state engineer, said his office is concerned about the rule’s jurisdictional shift to cover shallow subsurface water under the act.
“While they have excluded groundwater, they kept in the rule the notion of shallow subsurface water as jurisdictional,” Tyrrell said. “We’re not quite sure what the difference is. It’s hard to read in the rule just what the clear line is as to whether waters will be jurisdictional or not.”
Tyrrell is concerned that the rule was drafted by the EPA without the input of states. The sheer size of the rule has left his staff members confused.
“I know that EPA is hoping that this is not seen as an expansion of the rule itself, but it’s hard to glean that from the rule’s language,” Tyrrell said. “It’s long and complicated. It has more exemptions in it than the previous rule, and there’s just a lot of uncertainty around the actual implementation of the rule.”
Tyrrell said his main concern is that disputes would have to be interpreted on a case-by-case basis. This would create more work for the agency and take a long time to implement.
Officials at the Wyoming Department of Environmental Quality are still evaluating the effect the rule change might have on that department, DEQ public information officer Keith Guile said.
“It is too early to tell,” Guile wrote in an email to the Star-Tribune. “That being said, the concern is that this would add additional oversight, regulatory requirements and costs.”
Uncertainty at the local level prompted the EPA to extend the public comment period until Oct. 20.
Reach general assignment reporter Trevor Graff at 307-266-0639 or Trevor.Graff@trib.com. Follow him on Twitter @TrevGraff.