From The Greeley Tribune:
New federal rules designed to better protect small streams, tributaries and wetlands — and the drinking water of 117 million Americans — are being criticized by Republicans and farm groups as going too far.
The White House says the rules, issued Wednesday, will provide much-needed clarity for landowners about which waterways must be protected against pollution and development. But House Speaker John Boehner declared they will send “landowners, small businesses, farmers, and manufacturers on the road to a regulatory and economic hell.”
Rep. Ken Buck, R-Colo., released a similar statement Wednesday, calling the rules widely opposed and terribly harmful to the economy of rural Colorado.
However, northern Colorado farmer and president of the Rocky Mountain Farmers Union Kent Peppler called the rules common sense in a news release the same day.
The rules, issued by the Environmental Protection Agency and the U.S. Army Corps of Engineers, aim to clarify which smaller waterways fall under federal protection after two Supreme Court rulings left the reach of the Clean Water Act uncertain. EPA Administrator Gina McCarthy said the waters affected would be only those with a “direct and significant” connection to larger bodies of water downstream that are already protected.
“I’m furious that the President has once again taken unilateral action that is widely opposed by business and agriculture alike,” Buck said in his statement. “He is out of control, and I will do everything in my power to rein him in.
“WOTUS is terribly harmful for the economy of rural Colorado and a disaster for small business across America.”
Peppler, however, had a different reaction.
“Clean water is essential for farmers and ranchers, and for the production of healthful food,” he said in a news release. “The Administration’s new Clean Water Rule again protects upstream water sources and downstream producers, and ensures reliable, clean water for our farms and families. This rule also continues existing exemptions for day-to-day farm operations. This is common-sense rulemaking.”
The Supreme Court decisions in 2001 and 2006 left 60 percent of the nation’s streams and millions of acres of wetlands without clear federal protection, according to EPA, causing confusion for landowners and government officials.
The new rules would kick in and force a permitting process only if a business or landowner took steps to pollute or destroy covered waters.
EPA says the rules will help landowners understand exactly which waters fall under the Clean Water Act. For example, a tributary must show evidence of flowing water to be protected — such as a bank or a high water mark.
President Barack Obama said that while providing that clarity for business and industry, the rules “will ensure polluters who knowingly threaten our waters can be held accountable.”
Rocky Mountain Farmers Union members worked with EPA during the comment period. Farmers and ranchers from Colorado, New Mexico, and Wyoming voiced their concerns and recommendations on how the rules might help, or hurt, farmers and ranchers, according to the Rocky Mountain Farmers Union. “We were at the table during this process,” Peppler said in the new release. “Others who chose to fight EPA at every step failed to address the much bigger issue: EPA has responsibility to protect America’s water supply from being harmed by the irresponsible actions of landowners and corporations.”
“While the new rule is not perfect, it will restore an overdue measure of certainty for farmers and ranchers,” he said.
There is deep opposition from the Republican-led Congress and from farmers and other landowners concerned that every stream, ditch and puddle on their private land could now be subject to federal oversight. The House voted to block the regulations earlier this month, and a Senate panel is planning to consider a similar bill this summer.
House Speaker Boehner called the rules “a raw and tyrannical power grab.”
EPA’s McCarthy has acknowledged the proposed regulations last year were confusing, and she said the final rules were written to be clearer. She said the regulations don’t create any new permitting requirements for agriculture and even add new exemptions for artificial lakes and ponds and water-filled depressions from construction, among other features.
These efforts were “to make clear our goal is to stay out of agriculture’s way,” McCarthy and Assistant Secretary of the Army for Civil Works Jo-Ellen Darcy said in a blog on the EPA website.
The American Farm Bureau Federation has led opposition to the rules, saying they could make business more difficult for farmers. The group said Wednesday that it would wait to review the final rules before responding.
The agriculture industry has been particularly concerned about the regulation of drainage ditches on farmland. The EPA and Army Corps said the only ditches that would be covered under the rule are those that look, act and function like tributaries and carry pollution downstream.
Another farm group, the National Farmers Union, said it still has some concerns about the impact on farmers but is pleased with the increased clarity on ditches, “removing a gray area that has caused farmers and ranchers an incredible amount of concern.”
From The Denver Post (Bruce Finley):
The federal government Wednesday finalized a long-anticipated rule that would ramp up protection against pollution of streams, wetlands and other waterways — winning praise but also igniting opposition.
This Clean Water Rule is meant to clarify federal power, particularly in Western states such as Colorado, where 68 percent of streams are seasonal ones for which protection has been uncertain.
The rule, announced by Environmental Protection Agency administrator Gina McCarthy, won’t require new permits, she said, but it gives federal officials jurisdiction to crack down on polluters.
“This rule will make it easier to identify protected waters,” McCarthy said in a conference call with reporters. “This rule will not get in the way of agriculture.”
But some Colorado farmers and a national coalition of industry groups oppose it. They’ve asked Congress to intervene and are considering legal challenges.
EPA and U.S. Army Corps of Engineers regulators “are saying that if somebody decides that what you are doing on your land has an impact on what they call ‘waters of the United States,’ then the EPA has jurisdiction. If a private citizen complains about it, the EPA has a duty and responsibility to investigate and pursue the case,” Colorado Farm Bureau president Don Shawcroft said. “It means the EPA potentially is looking over our shoulder about everything we do — even for small seasonal streams and during heavy rain.”
EPA officials said 68 percent of streams in Colorado are seasonal or rain-dependent and that these now will be protected as long as they show signs of flowing and affect downstream waters.
The rule is designed to end uncertainty created by Supreme Court decisions in 2001 and 2006 that left small streams, headwaters and wetlands in limbo.
Those decisions suggested that waterways not entirely within one state, creeks that only contain water at certain times of year, and lakes not linked to larger water systems might not qualify as “navigable waters” and might not be covered under the 1972 Clean Water Act. The concern is that pollution of flowing waterways can make its way into sources of drinking water.
Democratic Sen. Michael Bennet on Wednesday didn’t take a position. Bennet “looks forward to reviewing this new rule and hopes it will be workable for Colorado,” a Bennet spokesman said. “He’s heard from farmers and ranchers, sportsmen, water providers and local governments who are all asking for the certainty a balanced rule can provide.”
While farm bureaus decried EPA overreach, Rocky Mountain Farmers Union president Kent Peppler called the rule a common-sense approach to protecting upstream water and downstream producers of food.
From Western Slope Now (Travis Khachatoorian):
Dozens of Colorado organizations and leaders are polarized in their opinions just moments after the U.S. Environmental Protection Agency announced a new rule that would protect hundreds of West Slope streams from pollution…
Environmentalists such as Conservation Colorado and Environment Colorado have hailed the decision as a victory.
“President Obama’s Clean Water Rule re-establishes important protections that fight pollution and keep Colorado’s drinking water, rivers, wetlands and tributaries clean,” said the executive director of Conservation Colorado in a press release.
But the issue is quickly dividing the political landscape. On the other side of the river, Colorado Senator Cory Gardner and West Slope Representative Scott Tipton have denounced the plan as a federal encroachment on water rights.
“This rule represents a massive expansion of federal power and puts the EPA in a ludicrous position of acting as the main regulator of ponds, ditches, and even intermittent streams across the country, said Sen. Gardner in a press release.
There are approximately 77 significant streams in Mesa County and Montrose County.
There’s still a 60 day waiting period before the Clean Water Rule would go into effect. The Republican controlled U.S. House has already passed a bill that would strip the new authority from the EPA.
From Conservation Colorado (Chris Arend):
Conservation Colorado Executive Director Pete Maysmith released the following statement on the Obama Administration issuing the “Clean Water Rule”, which re-establishes critical clean water protections for America’s rivers and streams:
“Today is an important day for Colorado’s most precious resource— our water. President Obama’s Clean Water Rule re-establishes important protections that fight pollution and keep Colorado’s drinking water, rivers, wetlands and tributaries clean. Coloradans cherish their clean water and understand that it is critical to our economy. Protecting the health of our children and grandchildren who drink, swim, and play in our waterways is vital to Colorado’s future. Recent polling shows that over 85% of voters support these new clean water rules which will protect the water of 1 in 3 Americans. We congratulate President Obama for restoring these important protections and standing up for healthy, clean water.”
Here’s the release from the EPA and USACE (Gina McCarthy/Jo-Ellen Darcy):
Today, EPA and the Army finalized a rule under the Clean Water Act to protect the streams and wetlands we depend on for our health, our economy, and our way of life.
The Clean Water Act has protected our health for more than 40 years—and helped our nation clean up hundreds of thousands of miles of waterways that were choked by industrial pollution, untreated sewage, and garbage for decades.
But Supreme Court cases in 2001 and 2006 put protection of 60 percent of our nation’s streams and millions of acres of wetlands into question. At the same time, we understand much more today about how waters connect to each other than we did in decades past. Scientists, water quality experts, and local water managers are better able than ever before to pinpoint the waters that impact our health and the environment the most.
Members of Congress, farmers, ranchers, small business owners, hunters, anglers, and the public have called on EPA and the Army to make a rule to clarify where the Clean Water Act applies, and bring it in line with the law and the latest science. Today, we’re answering that call.
Every lake and every river depends on the streams and wetlands that feed it—and we can’t have healthy communities downstream without healthy headwaters upstream. The Clean Water Rule will protect streams and wetlands and provide greater clarity and certainty to farmers, all without creating any new permitting requirements for agriculture and while maintaining all existing exemptions and exclusions.
The agencies did extensive outreach on the Clean Water Rule, hosting more than 400 meetings across the country and receiving more than a million public comments. EPA officials visited farms in Arizona, Colorado, Maryland, Mississippi, Missouri, New York, Pennsylvania, Texas, and Vermont.
Our nation’s original conservationists—our farmers, ranchers, and foresters—were among the most crucial voices who weighed in during this process. Farmers have a critical job to do; our nation depends on them for food, fiber, and fuel, and they depend on clean water for their livelihoods.
Normal farming and ranching—including planting, harvesting, and moving livestock—have long been exempt from Clean Water Act regulation, and the Clean Water Rule doesn’t change that. It respects producers’ crucial role in our economy and respects the law. We’d like give a few more specifics on our final rule, starting with what it doesn’t do.
The rule doesn’t add any new permitting requirements for agriculture. It doesn’t protect new kinds of waters that the Clean Water Act didn’t historically cover. It doesn’t regulate most ditches and excludes groundwater, shallow subsurface flows, and tile drains. And it doesn’t change policy on irrigation or water transfers. It doesn’t touch land use or private property rights. The Clean Water Rule only deals with the pollution and destruction of waterways. Again, our rule doesn’t touch long-standing Clean Water Act exemptions and exclusions for agriculture. It specifically recognizes the crucial role farmers play and actually adds exclusions for features like artificial lakes and ponds, water-filled depressions from construction, and grass swales. What the rule does is simple: it protects clean water, and it provides clarity on which waters are covered by the Clean Water Act so they can be protected from pollution and destruction.
Feedback from the agricultural community led us to define tributaries more clearly. The rule is precise about the streams being protected so that it can’t be interpreted to pick up erosion in a farmer’s field. The rule says a tributary has to show physical features of flowing water to warrant protection.
We also got feedback that our proposed definition of ditches was confusing. We’re only interested in the ones that act like tributaries and could carry pollution downstream—so we changed the definition in the final rule to focus on tributaries. So ditches that are not constructed in streams and that flow only when it rains are not covered.
We’ve also provided certainty in how far safeguards extend to nearby waters—the rule sets physical, measurable limits for the first time. For example, an adjacent water is protected if it’s within the 100-year floodplain and within 1,500 feet of a covered waterway. By setting bright lines, agricultural producers and others will know exactly where the Clean Water Act applies, and where it doesn’t.
Farmers and ranchers work hard every day to feed America and the world. In this final rule, we’ve provided additional certainty that they’ll retain all of their Clean Water Act exemptions and exclusions—so they can continue to do their jobs, and continue to be conservation leaders.
We appreciate everyone’s input as we’ve worked together to finalize a Clean Water Rule that keeps pollution out of our water, while providing the additional clarity our economy needs. Learn more with this fact sheet.
More Environmental Protection Agency coverage here.