IRON COUNTY – On April 21, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers jointly released a new proposed rule that would redefine what constitutes “waters of the U.S.” under the Clean Water Act. Concerns have been raised regarding the impact this rule will have at the local government level.
In changing the definition of “waters of the U.S.,” the proposed rule would expand the range of waters that fall under federal jurisdiction. The proposed rule is open for public comment.
The proposed rule could allow federal jurisdiction over an increased number of county-owned ditches. The National Association of Counties has expressed concern that once a ditch is under federal jurisdiction, the maintenance process will become more difficult.
According to the Federal Register: “This proposal would enhance protection for the nation’s public health and aquatic resources and increase Clean Water Act program predictability and consistency by increasing clarity as to the scope of ‘waters of the United States’ protected under the Act.”
The Environmental Protection Agency claims the rule will clarify questions regarding jurisdiction on water, Iron County Commissioner David Miller said. But Miller has several concerns.
“Well, the problem is this so-called clarification, that’s taking almost 400 pages of clarification, is very threatening to water rights – how water can be used, penalties for use of water in inappropriate ways and who determines that,” Miller said, “that the EPA itself is a unilateral judge, jury, legislative body and executioner.”
Greta Hyland, who has worked with the Bureau of Land Management, National Park Service and nonprofit environmental groups in various capacities specializing in environmental policy and management over the past four years, said:
I can see the concerns the proposed regulation might raise being: Who foots the bill at the end? What sort of oversight is there? Will it be heavy handed? No doubt, local entities are going to run into regulations whether it’s the EPA, the Corps, or land managers – they do need to know which situations require oversight and whether that oversight is local or federal.
According to a definition released by the National Association of Counties, the proposed rule could expand the Clean Water Act jurisdiction. Counties could feel the impact of the rule because more waters would be federally protected, which could lead to new rules or standards.
A letter from senate and congressional western caucuses to the EPA expressed concern regarding changes to jurisdiction and increased permitting that could result in economic barriers – negatively affecting farms, businesses and other developmental projects.
The letter also stated: “… uncertainty established under the proposed rule will ensure that expanding federal control over intrastate waters will substantially interfere with the ability of individual landowners to use their property.”
The issue is not clean water, Miller said; everybody wants clean water, but blanket control from a government body is not the solution.
“This is unacceptable,” Miller said. “Their program and their process is dangerous to state sovereignty – to property right sovereignty. It’s a very big issue – we’re just getting this started. Anybody who has water rights, anybody who uses water, should be concerned.”
“The counties don’t want to have to answer to the feds any more than they have to,” Hyland said. “I can’t say I blame them, but it is the future problems that are the concern because those counties have their hands out fast when they need money – plus, there is all the federal law they must abide.”
Because of the complexity of the proposed rule and the unexplored impacts on Clean Water Act programs, counties have been urged by the National Association of Counties to ask for an extension from a 90-day comment period to 180 days. Iron County is currently awaiting the granting of its extension.
To make a public comment on the matter, visit the Regulations website.
St. George News Editor-in-Chief Joyce Kuzmanic contributed to this report.
- Western Caucus WOTUS letter – May 2014
- Waters-of-the-US-County-Analysis –April 2014
- Proposed rule document – Clean Water Act; Definitions: Waters of the United States – Action Summary for public comment – April 2014
- EPA-HQ-OW-2011-0880-0006 – Definition of “Waters of the United States” under the Clean Water Act – proposed to Office of Management and Budget for regulatory action and rule – May 5, 2010
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