CASPER, Wyo. — 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.
Sen. John Barrasso asked his Senate colleagues to block an EPA 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.”
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.
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.”
Uncertainty at the local level prompted the EPA to extend the public comment period until Oct. 20.