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EPA to propose rule change for Clean Water Act

By Trevor Graff | April 09, 2014

The Environmental Protection Agency is clarifying its definition of which waters are protected under the Clean Water Act with a proposed rule change that it says will clarify current policy without expanding the agency’s jurisdiction.

U.S. Supreme Court rulings in 2001 and 2006 concerning Clean Water Act violations have left legislators, industry officials and the EPA stuck with complicated Clean Water Act cases concerning the EPA’s jurisdiction over small streams and wetlands. The new rule would clarify the EPA's intent to protect those smaller streams and wetlands connected to the rivers and lakes of Kansas even if they might be considered seasonal.

According to Elaine Giessel, water quality chair of the Kansas Chapter of the Sierra Club, the change to the Clean Water Act is long overdue.

“As it was first applied, it had a broad scope and protected wetlands and headwater streams,” Giessel said. “It was following the court rulings that there was a pulling back from protecting these streams.”

Giessel said under current interpretations of the law, a nexus, or a specific line of reasoning, is needed to protect seasonal waters and that the complete protection of these streams is often lost. She said that protecting headwaters is essential for protecting drinking water and recreational interests downstream.

“What happens upstream matters,” Giessel said. “There’s good science showing that removal of pollutants in the headwaters areas and seasonal streams contributes to cleaner water all the way down to the Gulf of Mexico.”

The new rule has set Kansas industrial and agricultural interests against the EPA in a battle over the federal government’s role in regulating non-navigable waters.

The Governor’s Kansas Water Vision Team will meet Friday at the Kansas Farm Bureau Building in Manhattan to review for the first time all of the feedback collected in the team’s statewide outreach effort to create a 50-year plan for the future of water in the state.

The team has met with more than 7,000 Kansans to gather feedback for the drafting of the plan. Members of the Kansas Water Authority, Kansas Agriculture Advisory Board and the Governor’s Council on Economic Affairs will take their first opportunity to review information gathered from around the state.

The meeting starts at 8:30 a.m. at the Kansas Farm Bureau and will provide the foundation for the drafting of the plan over the next four to eight weeks.

EPA officials say their proposal is meant to increase efficiency and end confusion over what types of waters are covered by federal regulations, but industry officials say the move is an end run of current federal regulations by an agency trying to expand its jurisdiction.

EPA statements say: “The proposed rule does not protect any types of waters that have not historically been covered under the Clean Water Act. Waters that have never been protected remain outside the scope of the Clean Water Act.”

Industry officials disagree.

“It doesn’t look like it’s going to be very friendly toward the overall operation of the state economy,” said Kent Askren, assistant director of natural resources at the Kansas Farm Bureau. “Everything from municipal development to any type of energy or agricultural uses, every one of these industries is required to have a Clean Water Act permit before they take any type of action. It could paralyze the economy.”

But the EPA said the proposed rule doesn’t change exemptions already in place for the agricultural industry and that the agency worked with agricultural interests in the drafting of the proposed rule.

“I think the fear has always been, 'Well they’re going to start regulating our stock tanks,' and that has never been the case,” Giessel said. “It’s a knee-jerk reaction that is inappropriate.”

Askren said the Farm Bureau is still vetting the 371-page rule, but that the changes in policy will likely cause rather than allay confusion.

“Where all waters are subject to regulatory authority, there’s a significant amount of interpretation to the law,” Askren said. “Unless you’ve got an EPA employee standing at your doorstep telling you what you can and can’t do, there’s going to be a lot of uncertainty out there.”

“At first blush we think it’s a pretty significant expansion of the federal authority, and I think to say that it isn’t really doesn’t take into account the complete ramifications,” Askren said.

The state’s regulatory agencies - the Kansas Department of Health and Environment and Kansas Water Office - are still reviewing the rule’s impact on the state regulatory climate.

The EPA expects the rule to be published in the federal register in the next two weeks with a 90-day public comment period opening upon its publication.

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