Analysis: Ag claims a win in #WOTUS rollback, but will it last? — The Sterling Journal Advocate

Pawnee Creek running high.

From The Sterling Journal-Advocate (Jeff Rice):

The Environmental Protection Agency and Army Corps of Engineers announced this past week that they will roll back much of the 2015 clean water regulations known collectively as Waters of the U.S.

Whether that’s good or bad depends, as usual, on who you are, but membership in a particular group doesn’t necessarily mean support or opposition is consistent. Most of agriculture seems to be happy, but some ag groups are suing to block the rule rollback…

On the other side of the coin are farmers, ranchers and livestock feeders, along with those who manage surface water in the western U.S., who hailed the rollback as a victory of reason and logic, and respect for states’ rights to manage natural resources within their borders.

Colorado Corn released a statement Thursday in which CCGA President Dave Cure, a Wray, Colo., corn grower, asserted again the claim that farmers are better stewards that they’re given credit for.

“Farmers rely on clean water to make a living and often go above and beyond regulatory requirements to be avid stewards of all their resources,” Cure said. “The new rule clarifies oversight on dry land that is sometimes wet, something the 2015 WOTUS rule did not. These and other improvements allow the kind of farming practices to protect the environment to continue and new ones to be implemented without confusion.”

The Fertilizer Institute also praised the rule rollback saying the new rules “ensure a future with both clean water and clear rules.”

Even in California, supposed bastion of socialist over-regulation, California Farm Bureau President Jamie Johansson said this week’s release of the Navigable Waters Protection encourages farmers and ranchers.

“You won’t find a stronger ally than farmers and ranchers when it comes to protecting land and natural resources, because they depend on those resources to produce food and farm products,” Johansson said. “The new rule promises clear guidelines to help farmers maintain and improve water quality while retaining the flexibility they need to manage their land.”

Those who opposed the 2015 rules charged that the rules were unclear and, thus, overreaching. They claim that the regulations extend the EPA’s and the Army Corps’ regulatory reach over what is termed “navigable waters,” which ranchers, farmers and states argue gives the federal agencies’ unprecedented authority over drainage ditches and nearly anything else that can contain water. It was even supposed, among Logan County water experts, that Pawnee Creek, which runs water only once every few years, would be regulated under WOTUS.

The apparent intent of the rules was to clean up not just America’s major waterways, but also anything that feeds into them. After all, how can the Mississippi River be cleaned up if its tributaries are dumping millions of tons of pollution from upstream into it? Thus, the Big Muddy would best be protected by cleaning up the Missouri, the Platte, the South Platte, the Poudre, the Big Thompson and the Saint Vrain. That might make sense if there was no state oversight of surface water quality in Colorado. But there is. The Colorado Department of Public Health and Environment – a state-sized version of the EPA – has stringent rules about water quality in Colorado, which is why all six municipalities in Logan County are spending millions of dollars to upgrade their water supplies and wastewater treatment systems.

Colorado also has decided that it was wasteful to have both the CDPHE and the Department of Agriculture setting regulations for water and air quality for agricultural producers, so CDPHE turned that regulation over to CDA. Federal oversight of the quality of surface water in Colorado would greatly complicate efforts by ag producers to make a living while still protecting the environment they depend on for that living.

That’s why, in 2015, Colorado’s Attorney General, Republican Cynthia Coffman, joined the attorneys general in 12 other states to sue to block WOTUS. North Dakota led the charge and was joined by Alaska, Arizona, Arkansas, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota and Wyoming, as well as the New Mexico Environment Department and State Engineer. Notice that all but Missouri are western states whose water laws are modeled after Colorado’s Doctrine of Prior Appropriation. It is always a fear in the West that when the federal government gets involved in water regulations, DOPA, also known as the Colorado Doctrine because this is where it was born, will be usurped by federal regulations modeled along the riparian doctrine best known east of the Mississippi. More than a century of water law and interstate compacts could be thrown into turmoil as a result.

Not everyone in the West was unhappy with the 2015 rules, however. According to Pamela King, reporter for E&E News, the New Mexico Cattle Grower’s Association sued the that EPA and the Army Corps of Engineers in October last year claiming that the government cannot revert to 1986 regulations governing which wetlands and waterways are protected by the Clean Water Act. At that time there were 22 states in which the WOTUS rule was still in effect, and it was blocked in 27 other states.

The situation is fluid, so to speak, and a search of newspaper and webzine headlines on the subject shows anywhere from 12 to 18 states trying to block WOTUS and a fresh round of lawsuits shows states lining up to sue to keep the WOTUS regulations.

Through it all both supporters and opponents identify the push and pull by the president in office at the time. The 2015 regulations are called Obama rules, although they were adopted by supposedly autonomous and non-partisan bureaucrats at the EPA and Corps of Engineers; similarly, the repeal is laid at Donald Trump’s doorstep, although it was done by those same agencies after gaining input from myriad citizen organizations.

And Colorado still isn’t quite sure what it wants to do about WOTUS. In September the new attorney general, Democrat Phil Weiser, said that if he thought the EPA rollback went too far, he might take legal action. Attempts by the Journal-Advocate to find out whether that action has been taken yet hadn’t been fruitful by time of publication.

Photo credit: Greg Hobbs

I understand the farmers and ranchers point of view. I don’t worry about them much, they know the pitfalls of modern chemicals used in Ag, strive to be responsible stewards of the land, and know that developed Ag land has an exemption under the 2015 rules. However, the states and the U.S. government needs to keep a tight grip on the extractive industries and irresponsible folks that locate in rural areas and don’t pay for their pollution.

Arizona Rivers Map via Geology.com.

From The Tucson Sentinel (Jessica Meyers):

Clean-water rules unveiled Thursday by the Environmental Protection Agency could remove the vast majority of Arizona’s waterways from federal oversight, a change environmentalists call bad news in a region where water is “super precious.”

[…]

While farmers may save legal fees under the new Navigable Waters Protection Rule, the government likely will not.

“We’ll absolutely be fighting it in court,” said Brett Hartl, government affairs director for the Center for Biological Diversity, who said the new rule will be one of President Donald Trump’s “ugliest legacies.”

“This sickening gift to polluters will allow wetlands, streams and rivers across a vast stretch of America to be obliterated with pollution,” Hartl said in a prepared statement.

Critics said the impact will be particularly strong in states like Arizona, where a 2008 EPA study said 94% of the waterways are ephemeral and intermittent – exactly the sort of waterways that will be exempt from federal regulation under the new rule…

The change is the latest step in the Trump administration’s efforts to roll back the Waters of the United States rule enacted under President Barack Obama. The so-called WOTUS rule was a response to complaints by landowners that there was no clear definition of waterways that fell under the regulatory control of the EPA and the U.S. Army Corps of Engineers…

The Arizona Department of Environmental Quality declined comment on the new federal rule Thursday, except to say it is reviewing the proposal to “fully understand how it impacts Arizona waterways.” But, in anticipation of the new federal rule, the state has been working for some time on a Waters of Arizona definition that is aimed to fill gaps left by the federal approach and protect state waterways through a “local control approach.”

Wheeler said federal officials had states in mind when they created their new plan.

“Our new rule recognizes this relationship and strikes a proper balance between Washington, D.C., and the states, and clearly details which waters are subject to federal control under the Clean Water Act, and importantly, which waters fall solely under the state’s jurisdiction,” Wheeler said…

But Rep. Raul Grijalva tweeted that what he called the “#DirtyWaterRule endangers the drinking water for the millions of Arizonans and other Western residents who depend on the Colorado River.” Grijalva, chairman of the House Natural Resources Committee, added that “clean water is a human right.”

[…]

The Center for Biological Diversity cited 75 endangered species that could be threatened by the change, with Hartl specifically noting the yellow-billed cuckoo and the New Mexico meadow jumping mouse, both of which live near streams.

“People and wildlife need clean water to thrive. Destroying half of our nation’s streams and wetlands will be one of Trump’s ugliest legacies,” Hartl said.

Map of Nevada’s major rivers and streams via Geology.com.

From Nevada Public Radio (Luke Runyon):

The updated policy excludes some wetlands and all ephemeral streams — which only flow after a heavy rain or intense snowmelt.

They act as tributaries to rivers that millions of people across the southwest count on for drinking water and irrigation.

In Colorado, about 70 percent of all streams will be affected by the new rule. In New Mexico and Nevada, it’s upwards of 90 percent.

Hay fields under Meeker Ditch 2. Photo credit: Brent Gardner-Smith/Aspen Journalism

From The Grand Junction Daily Sentinel (Dennis Webb):

Federal agencies on Thursday finalized a new clean-water rule that supporters including U.S. Rep. Scott Tipton say provides much-needed regulatory certainty.

But opponents, including the administration of Colorado Gov. Jared Polis, say it will result in the weakest protections since the passage of the Clean Water Act nearly a half a century ago…

Tipton said in a statement that the previous uncertainty “left farmers, ranchers and private land owners unprotected from federal land and water grabs.” He said the clarification provided by the new rule “will restore long-standing states’ water rights and greater certainty for the Coloradans whose livelihoods depend on availability of water.”

But the Colorado Department of Public Health and Environment is criticizing the rollback, saying it could impact 70% of waters in the state…

“The EPA’s announcement today is alarming as it puts our precious waters at risk,” Jill Hunsaker Ryan, the department’s executive director, said in a CDPHE news release.

“In the absence of federal leadership, we are going to do everything possible to protect streams and wetlands in Colorado,” Patrick Pfaltzgraff, director of the Water Quality Control Division, said in the same release.

Polis released a statement saying in part, “Our administration will continue to reject attempts by the Trump administration to gut proven ways to protect our health and environment.”

[…]

Last April, the Polis administration and Colorado Attorney General Phil Weiser submitted joint comments on the rule proposal that was finalized this week. Their letter said that as with many western states, the large majority of Colorado’s stream miles are intermittent or ephemeral. The state said the proposal would shrink federal jurisdiction far below guidance issued in 2008 by the George W. Bush administration “to a smaller number of Colorado waters” than what presidential administrations have required since the Clean Water Act’s passage. While many ephemeral waters aren’t jurisdictional under the 2008 guidance, the new rule categorically excludes them from jurisdiction, “regardless of their connection to downstream waters,” the state wrote.

It wrote that the proposed rule “shifts the burden onto Colorado to protect federally excluded wetlands and waters, thereby saddling Colorado with the burden of protecting the quality of water received by nineteen states that receive Colorado waters.”

However, the Polis administration and Weiser, in the letter, supported the rule’s continued exclusion of prior converted cropland and its “recognition of the importance of upholding state sovereignty to administer and allocate water.”

From The Colorado Springs Gazette (Tom Roeder):

The Environmental Protection Agency on Thursday announced the shift, which significantly narrows what waters can be defined as “navigable,” and thus subject to federal rules. It also lifts federal oversight for most groundwater, many wetlands and some streams, passing those smaller water sources to state and local control.

At a news conference Thursday in Colorado Springs, Mayor John Suthers, Republican U.S. Rep. Doug Lamborn and EPA bosses praised the new rule, saying it will be bring clarity and certainty to businesses and farmers.

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