The EPA is coming to get us … or not — the Colorado Springs Independent

September 17, 2014
Big Wood Falls photo via American Whitewater (2011)

Big Wood Falls photo via American Whitewater (2011)

From the Colorado Springs Independent (J. Adrian Stanley):

Just before the El Paso County commissioners passed a resolution opposing a proposed change to the federal Clean Water Act last week, Commissioner Sallie Clark had something to say.

“Imagine if every little drainage way was considered a navigable waterway as it relates to requiring permitting,” Clark, who brought the resolution, said from the dais. “It’s just one more example of the [Environmental Protection Agency's] overreach on everything from the Endangered Species Act to everything that they do.”

The Endangered Species Act is not administered by the EPA. But that didn’t stop Commissioner Amy Lathen from chiming in.

“Our fundamental responsibility is the protection of private property rights,” she said, “and what the feds do [has] a chilling, chilling impact on land. They sterilize land, they erode private property rights.”

The resolution was approved unanimously, with Commissioner Dennis Hisey absent.

The commissioners aren’t the only ones crying foul about the proposed change, which would define the “waters of the U.S.” and therefore the bodies subject to the Clean Water Act, enacted in 1972 to prevent pollution. However, a representative of the EPA, which is proposing the change along with the Army Corps of Engineers, says concerns like those of the commissioners are unfounded, and rooted in a misunderstanding of how the act works.

Lots of concern

Hours after the commissioners took their Sept. 9 vote, Republican U.S. Congressmen Scott Tipton and Cory Gardner, both of Colorado, sent out press releases noting that a bill they cosponsored, the Water Rights Protection Act, had passed the House and moved to the Senate. H.R. 3189 aims to prevent the EPA and the Corps from making the proposed changes to the Clean Water Act, which Tipton calls “a gross federal overreach” that would expand the act to cover virtually every form of surface water. Gardner says the proposal would even regulate a “puddle.” (Gardner’s “puddle” claim is one of many addressed at the EPA’s Ditch the Myth site,

U.S. Sen. Mark Udall, D-Colo., is usually a proponent of the environment. Asked whether he supported the change, his office issued a statement saying simply that he encouraged constituents to give feedback to the EPA, which has extended a comment period to Oct. 20.

County public services executive director Jim Reid says the changes would mean that every time the county tries to approve a water project, it would need to pay for two permits relating to water quality, which could take as long as a year and cost thousands of dollars. The change would mean that instead of just protecting “navigable waters,” there would suddenly be federal protection for any waterway, he says, even a dry streambed. That could affect the ability to control stormwater and floods.

“There could be more infrastructure damage while we’re waiting for those permits to get through,” he says.

A different explanation

But is that really true?

No, says Karen Hamilton, chief of the EPA’s aquatic resource protection and accountability unit. Many are confused about what the Clean Water Act already regulates, she says. The EPA has jurisdiction over most surface water, not just “navigable waters,” and this proposed change wouldn’t add any new waters.

The point of the change, she says, is to make permitting for water projects easier. It was proposed after over 100 parties complained to the EPA that new rule-making was needed to clarify the act — everyone from Susan Gordon of Venetucci Farm to the American Petroleum Institute. Projects sometimes required lengthy jurisdictional reviews to determine if a permit was needed.

Hamilton says the EPA considered over 1,000 scientific articles when it assembled ways of determining which waters are covered. (The regulation also includes a list of types of waters that are not covered.) It should mean that fewer projects require jurisdictional review.

Two entities in Colorado issue permits related to the Clean Water Act: the state and the Corps. Allan Steinle, regulatory division chief for the Albuquerque District of the Corps, which includes our area, says of the change, “I don’t think it’s going to be very significant … It will actually make things easier for us and for the public.”

Martha Rudolph, director of environmental programs for the state, agrees that permitting requirements for projects should not increase, as Reid and others fear. But she understands where those fears come from, saying the proposed regulation sometimes sounds like an expansion of powers. So the state has asked the EPA to change that language so that it doesn’t look like a power grab.

“I would agree that there needs to be some clarification in the regulatory language,” she says, “to make that abundantly clear.”

More Environmental Protection Agency coverage here.

EPA Announces Funding to Create Two New Drinking Water Innovation Centers

September 15, 2014

The water treatment process

The water treatment process

Here’s the release from the Environmental Protection Agency:

Today the U.S. Environmental Protection Agency (EPA) continues its commitment to improving America’s drinking water by providing over $8 million to create two national centers for research and innovation in small to medium sized drinking water systems.

“These centers will help to develop innovative and practical solutions for challenges faced by smaller drinking water systems, which make up the majority of public water systems in the United States,” said Lek Kadeli, Acting Assistant Administrator for EPA’s Office of Research and Development. “Providing cost effective solutions to help these systems deliver safe, high quality drinking water will help improve the health, economy and security of our nation’s communities.”

The recipients are the University of Colorado Boulder’s Design of Risk Reducing, Innovative Implementable Small System Knowledge (DeRISK) Center [ed. emphasis mine], and the University of Massachusetts Amherst’s Water Innovation Network for Sustainable Small Systems (WINSSS) Center. These two EPA funded centers will develop and test advanced, low cost methods to reduce, control, and eliminate groups of water contaminants that present challenges to communities worldwide.

Ninety seven percent of the nation’s roughly 160,000 public water systems serve fewer than 10,000 people each. These drinking water systems face many obstacles including limited resources, aging infrastructure, and complying with a variety of regulations These centers will help strengthen the technical, managerial, and financial capacities of drinking water providers throughout the country. Both centers will collaborate with a range of stakeholders to support problem-oriented research on groups of water contaminants and their origins. This research marks a move towards developing trans-disciplinary results that will be nationally acceptable and applicable.

These grants, part of EPA’s research on safe and sustainable drinking water, support the development of water clusters– networks of businesses, researchers, and others involved in water technology. Colorado and Massachusetts are both home to water cluster organizations. These organizations are leading the way in developing cutting-edge technologies and bringing them to the market, where they can solve water challenges that threaten health and daily activities while promoting technological innovation and economic growth.

More water treatment coverage here.

“There has been a lot of effort to politicize the [EPA 'Waters of the US'] rule-making” — Mark Squillace

September 2, 2014
Hay meadows near Gunnison

Hay meadows near Gunnison

From The Durango Herald (Mary Bowerman):

With water arguably more precious than gold in the West, measures from the federal government to regulate an already-limited resource have been met with fierce opposition.

In the last year, the U.S. House Committee on Natural Resources held federal oversight hearings on measures ranging from groundwater regulation and ongoing ski area water-rights permits to a Clean Water Act rule. But the measure creating the most noise, specifically from the American Farm Bureau and Western ranching groups, was the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers definition of “waters of the United States,” or what waters fall under federal jurisdiction under the Clean Water Act.

Opponents of the definition painted a picture of federal agents attacking private water rights and regulating puddles, ponds and ditches.

During a hearing on the “waters of the United States rule” in July, Rep. Scott Tipton, R-Cortez, said the rule was a “water grab” by the EPA.

“This is straightforward: You either want to protect the private-property rights of water in Colorado and protect our state law or you don’t,” Tipton said.

Mark Squillace, director of the Natural Resources Law Center at the University of Colorado at Boulder, said the EPA was trying to clarify the rule, so it wouldn’t have an expensive case-by-case process every time someone wanted to use water.

He said the navigable waters under federal jurisdiction are pretty clear; they include waters adjacent to a tributary or wetlands. Where things got tricky, and when the alarm was pulled, was the “other waters” – or waters that aren’t traditionally thought of as navigable or regulated under federal law, but may, in some circumstances, even seasonally, reach a navigable body of water.

“There has been a lot of effort to politicize the rule-making and generate controversy over it,” Squillace said. “Ditching in the backyard is only covered if connected to a navigable body of water. So if you put in a ditch, and it runs into a river or stream, (it is covered). But if you have a pond, and it’s not draining into a stream, you aren’t regulated under the Clean Water Act. Really, nothing has changed.”

In Western states, agriculture uses a predominant portion of water. In Colorado alone, agriculture accounts for nearly 90 percent of water usage, according to the Colorado River Water Users Association.

With so much on the line, Baxstrom said farmers are always wary that federal law regulating water could conflict with Colorado’s state water laws where water is regulated among state, federal and tribal uses. When the federal government inserts a water regulation, it’s laid on top of many different pulls on the water.

“It’s such a variable; it’s very important to agriculture to keep administration at a state level,” Baxstrom said. “Every area is different, and that’s why it’s important to maintain state law as opposed to federal administration because every basin is unique, every situation is unique.”

Squillace said the rule would not protect any waters that were not historically protected under the Clean Water Act but directly responds to Supreme Court cases requiring a more narrowly tailored definition of what wetlands and streams are covered.

“There is an exemption for normal farming and ranching that includes things like cultivation and ground disturbances, even though many of the farming activities could adversely affect water quality,” Squillace said.

And not all farmers are against the rule. The Rocky Mountain Farmers Union supports the rule, alongside other water users like the recreational sector and environmental groups that see the rule as an opportunity to strengthen clean water protections for all water users.

“This is the biggest step forward we’ve seen to protect waterways in more than a decade,” said Kim Stevens, campaign director from Environment Colorado. “This isn’t about regulating puddles; it’s about protecting 73,000 miles of Colorado waterways and drinking water for 3.7 million Coloradans.”

According to the EPA, “about 60 percent of stream miles in the U.S. flow only seasonally or after rain, but have a considerable impact on the downstream waters.” These waters also provide drinking water for about 1 in 3 people.

The public comment period on the rule has been extended until Oct. 20.

House Republicans are expected to take up a bill introduced by Rep. Steve Southerland, R-Fla., that would prohibit the federal government from implementing the rule in lieu of federal agencies working with states to decide what waters are federally protected or left to regulate by the state.

Click here to go to the EPA’s “Ditch the Myth” website. More Environmental Protection Agency coverage here.

EPA: Our scientific assessment for Waters of U.S. is based on over 1,000 pieces of peer-reviewed literature

August 27, 2014

“…there is a proposal afoot that would extend [EPA] jurisdiction and accompanying regulations far beyond what makes sense” — Sallie Clark

August 11, 2014

Groundwater movement via the USGS

Groundwater movement via the USGS

Here’s a guest column (The Pueblo Chieftain) from Sallie Clark dealing with the Environmental Protection Agencie’s proposed clarification of “Waters of the US” under the Clean Water Act:

Coloradans have a special appreciation for the beauty of nature all around us. Everyone benefits from the beauty and bounty of America’s rivers, streams, lakes and other waterways. Of course, these natural resources should be protected from irresponsible polluters, and regulations are in place to ensure clean water in our communities.

But, there is a proposal afoot that would extend federal jurisdiction and accompanying regulations far beyond what makes sense. The National Association of Counties (NACo) sees this proposal as a critical issue, and in my role as First Vice President of NACo and a Colorado county commissioner, I am concerned about how these rule changes will impact local communities.

A new rule, proposed by the Environmental Protection Agency and the Army Corps of Engineers, would erase the distinction between bodies of water — such as streams and lakes — and ditches on the side of a road. According to the proposed redefinition of “Waters of the U.S.,” a river would be no different than a public safety ditch; a lake no different than an emergency flood mitigation system.

This latest example of over-regulation makes no sense and creates more confusion than it seeks to address.

Local water conveyances, such as ditches and flood control channels, may fall under federal regulation in this unworkable proposal. It is unclear how far it would extend into drainage systems. That means counties would be required to obtain federal permits to do routine maintenance work on a roadside ditch or storm-water drain. These are essential components of effective water management.

In many cases, the nation’s counties are responsible for maintaining storm drains and other water conveyance systems that keep people safe from rising waters. They often pay a high price to wait for the federal government to issue permits. This new red tape would slow down the process even more and potentially put more people in harm’s way by inhibiting projects that keep water off of roads and away from homes.

The costs and delays of this federal over-regulation would have a significant impact on public safety and economic prosperity. To give a concrete example of some of these concerns, maintaining drainage is critical to keeping our roads safe and open for use, and it requires daily attention. Increasing fees due to additional regulatory permitting for all runoff, as anticipated by the proposal, could bring maintenance efforts to a halt.

How this regulation would be administered is unclear and would be especially cumbersome if it went directly through federal offices not adequately equipped to accommodate heavier permitting.

The expense for plan preparation would add costs not accounted for in our existing budgets.

If fully exercised every basic culvert maintenance or repair could be held up, placing not only a burden on counties financially, but also putting citizens at risk due to delays, as all work would have to first be reviewed and approved by a federal agency.

The approach taken by this proposal would drain local budgets and create delays in critical, time-crucial repairs with no demonstrated long-term environmental benefit.

Federal over-regulation and unfunded mandates unnecessarily hinder counties’ ability to get things done for local citizens. All of us want to protect the environment, but we cannot allow over-regulation to do more harm than good.

Sallie Clark is first vice president of the National Association of Counties and an El Paso County Commissioner.

More Environmental Protection Agency coverage here.

Texas-based builders fined $310,000 by EPA for stormwater violations at Air Force Academy construction site — @bberwyn

August 9, 2014

“We all want to protect Colorado’s iconic mountain streams” — Karn Stiegelmeier

August 4, 2014
Tabeguache Creek via the USFS

Tabeguache Creek via the USFS

Here’s a guest column in favor of the EPA’s proposed rule clarifying the “waters of the US” under the Clean Water Act, from Karn Stiegelmeier writing in The Denver Post:

We all want to protect Colorado’s iconic mountain streams that provide clean water to drink and clean water to fish, without unnecessary overregulation. A recent proposal from the Environmental Protection Agency and Army Corps strikes that balance. The new rule would restore important protections for waterways and reduce administrative burdens in permitting processes. While admittedly technical, this is an important step forward.

The Clean Water Act is all about restoring and maintaining healthy waterways throughout the United States. But it protects only those waters that meet the definition of “waters of the United States.” Two Supreme Court rulings over the last 15 years muddled the distinction between waters that were covered under the Clean Water Act and those that weren’t. Those rulings resulted in significant additional red tape, time and expense to the permitting processes.

Specifically, in 2009, Denver-based officials with the EPA reported that it takes their office three times as long to process a permit request after the Supreme Court decisions.

Many in Colorado and around the nation clamored for a remedy for the confusion and delays. The federal agencies issuing the proposed rule are currently accepting comments on how this first draft might be improved. The proposed rule, while not perfect, seeks to bring some clarity back to the process. Local governments and individuals around the state should submit comments on how the rule could be made better.

Many government and agricultural leaders have already opposed the rule-making in its entirety, providing little or no feedback on how the rule might be improved. There has been broad misinterpretation of this rule clarification as burdensome “over-regulation.” In fact, the proposal is precisely the opposite.

The proposed rule does not expand federal jurisdiction beyond its historic limits, but instead restores protections for some waters brought into question after the Supreme Court rulings. For example, in 2009 the Corps determined a 12-acre high altitude wetland in Park County was outside of federal jurisdiction because a manmade ditch interrupted the historic connection with the nearby stream. This wetland certainly would have received protection from water pollution before the Supreme Court decisions, and rightfully should under the proposed rule. Without protection under the Act, pristine sites like this wetland may be dredged, filled, and developed without any federal agency oversight, to the detriment not only of the wetland but also the neighboring stream, communities, and economies.

Second, many ditches have been under Clean Water Act jurisdiction since the 1970’s. The Act requires permits for some activities occurring on some ditches because they drain into natural waterways and affect the health of those waters. These ditches should be regulated under the Act, as they have historically, to protect the rivers into which they drain.

In fact, for the first time, the proposed rule would clearly exempt ditches which had been a concern. The rule actually explicitly restricts applicability of the Act to only those ditches that flow into another waterway, exempting ditches that do not flow annually or irrigate only dry lands without returning flows to another waterway.

Finally, the federal agencies also maintain a long list of activities that can receive expedited permits because those activities do not pose a significant threat of water pollution, such as small-scale road maintenance. The proposed rule will not change which activities receive expedited permits.

Healthy waterways benefit the whole state by protecting and enhancing recreational opportunities. For those of us living and working in Summit County, protecting our waters means protecting our clean water and our tourism economy. The proposed rule is a thoughtfully crafted, urgently needed clarification to protect Colorado’s waterways.

Karn Stiegelmeier is a Summit County commissioner.


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