EPA, lawyers address ‘waters of the U.S.’
A proposed rule to clarify waterways protection under the Clean Water Act, issued by EPA and the Army Corps of Engineers in late March, has raised concerns in the agricultural community. Ag groups contend the changes would increase regulatory authority from “navigable waters” to more broadly defined “waters of the United States.”
The issue took center stage at the Idaho Water Users Association’s summer water law seminar in Sun Valley on Tuesday when an EPA official and two western water law attorneys addressed the proposed changes in the rule.
EPA attorney and environmental specialist Donna Downing said the agencies have no intention of expanding jurisdiction to waters that have not been historically regulated, such as irrigated lands, irrigation ditches that do not flow year round and ground water.
But the rule change was needed due to congressional ambiguity in the 1972 Clean Water Act and Supreme Court cases challenging regulated waters, she said.
The act covers “navigable waters” defined as “waters of the United States,” including traditional navigable waters, territorial seas, interstate waters, impounded jurisdictional waters (such as those impounded by dams), tributaries of jurisdictional waters, and wetlands adjacent to jurisdictional waters, she said.
Congress left it to EPA and the Corps to determine additional details as to which of that spectrum of waters would be protected, she said.
Every Supreme Court case has affirmed the act covers many waters, which in themselves are not navigable, she said.
About 60 percent of streams in the U.S. only flow seasonally or after rain but are covered under the act due to their considerable impact on downstream waters, she said.
The new rule actually limits, not expands, the scope of the act’s authority by better defining waters of the U.S. and establishing which waters are covered and which aren’t. It also maintains existing agricultural exemptions, she said.
The new rule “does not protect any new types of waters” or broaden Clean Water Act coverage, she said.
The new rule, particularly the rulemaking process, is a very divisive issue that has raised an unprecedented level of concern in ag water circles, said Nathan Bracken, assistant director and general counsel for Western States Water Council.
The 18 western states represented by the council haven’t been treated as co-regulators in the process. Those states are unanimously concerned with the agencies’ lack of meetings with state regulators to address the states’ concerns before the rule was released, he said.
There was no substantive consultation or dialogue with state regulators or water managers. States were not consulted in the development of the rule and had no involvement in its drafting, despite several requests urging EPA and the Corps to consult with states in the early phases, he said.
The agencies’ rulemaking process essentially puts states in the role of being members of the public instead of regulatory partners, he said.
In addition, states’ request to delay issuing the rule until the EPA scientific study guiding the new rule was completed, reviewed and published were also ignored. And state representation on EPA’s science advisory board, on which the agency relies to provide the scientific underpinning for the rule and other regulatory decisions, is woefully low, he said.
Despite the council’s differences of opinion in the agencies’ rulemaking process, it wants to work with EPA and the Corps in what is a difficult task to better define and clarify waters of the U.S., he said.
The council also encourages congressional direction to the agencies to engage states early and often in the development of any CWA proposed actions or studies and encourages the same to ensure EPA achieves a more balanced representation on its science advisory board, he said.
Portland, Ore., water law attorney David Filippi, who represents irrigation districts, said EPA’s intent might not be to protect additional waters, but irrigation companies would like to see some guarantees.
The language is not intact, and there are some discrepancies in the proposed rule and its preamble. Of particular concern is CWA protection of waters in irrigation ditches, he said.
A July 2007 regulatory guidance letter from the Army Corps of Engineers on exemption determinations for the construction and maintenance of irrigation ditches and the maintenance of drainage ditches for discharges of dredged or fill material is the most important document to come into play in the past 30 or 40 years, he said.
Irrigated agriculture would like to see it included and preserved in the new rule, he said.
That letter would not be included in the new rule but there has been no action by the Corps to repeal it, Downing said.