Farm groups and local government leaders are concerned a proposal by the Environmental Protection Agency to expand the Clean Water Act to protect more waters could do more harm than good.
If proposed change to the act is approved, the EPA and Army Corps of Engineers would have the authority to protect from pollution almost any wet area on private land that has some connection to a navigable body of water.
Established in 1972, the act now allows the government to regulate the discharge of any pollutant including sand or dirt that has significant nexus to navigable waters. But the revised guidance document announced by the Obama administration Aug. 27 would greatly expand that definition by including a range of other waters formerly not regulated. Right now, the act protects traditional navigable waters, interstate waters, wetlands adjacent to navigable waters or those that directly abut relatively permanent waters, and non-navigable tributaries to navigable waters that are relatively permanent.
But the guidance document states the following waters could also be protected if a fact-specific analysis determines they have a significant nexus to navigable or interstate waters: tributaries, wetlands (including those next to protected tributaries), and those under an other waters category that are physically close to protected waters. Those wet areas wouldnt necessarily need a tributary or stream linking to a navigable water according to the document, but only a hydrological connection between groundwater and streamwater.
A statement on the EPA website claims the retooled law is focused on protection of smaller waters that feed into larger ones to keep downstream water safe from upstream pollutants, (and) protection for wetlands that filter pollution, store water and help keep communities safe from floods. It would keep safe the streams and wetlands that affect the quality of water used for drinking, swimming, fishing, farming, manufacturing and tourism.
Calls seeking comment from Mary Mears, public outreach branch chief for New Yorks regional office, and Julia Valentine, a spokeswoman for drinking water security, watersheds and wetlands at the EPA headquarters in Pennsylvania, were not returned. John Martin, a spokesman at New Yorks regional office who covers water issues, did not answer specific questions about the guidance proposal when asked last week.
The policy change could deem roadside ditches, farm ponds, culverts, seasonal streams and temporary wet spots as waters of the U.S. safeguarded by the act, said Steven Ammerman, manager of public affairs for New York Farm Bureau. To complete maintenance work on such land, residents, farmers and municipalities could need to pay for costly federal permits under the law, he said.
In addition to affecting farmers, he said, the policy change could affect municipalities whose highway departments routinely do work on roadside ditches and storm-water drains.
People are fearful this is going to be costly, because there are a lot of ambiguities, he said. It might not mean the EPA will go after every ditch maintenance project, but it (could) have that option.
Because the EPA is revising the federal law through policy guidance, its skipping over the normal federal rulemaking process that would allow groups to oppose it at public meetings. A letter sent by members of Congress to the EPA and Army Corps of Engineers in April accused the agencies of expanding their authority without following the normal rulemaking process under the Administrative Procedure Act.
The letter said the proposal would substantively change the agencies policy on waters subject to jurisdiction under the act; undermine the regulated communitys rights and obligations, and erode the partnerships that between the states and federal government.
The proposal would increase significantly the scope of the acts jurisdiction over more waters compared to practices under the 2003 and 2008 guidance, said the letter, which was endorsed by Rep. William L. Owens, D-Plattsburgh.
So far, seven counties in New York have passed resolutions opposing the change, in an effort led by the Farm Bureau. In the north country, legislatures in Jefferson and Lewis counties passed resolutions this month.
Jefferson County Legislator Barry M. Ormsby, R-Belleville, speaks with farmers often about their concerns in his job as a sales representative for Walldroff Farm Equipment in Watertown. He called the law an example of the senseless regulation that would hamper the agriculture industry and local governments.
Farmers here are more than willing to comply with regulations, but the government cannot continue to permit them to death, he said. To add more stringent rules when these people are already following so many regulations will overload the system without a clear justification.
To view the guidance plan, visit http://water.epa.gov/lawsregs/guidance/wetlands/CWAwaters.cfm.