Water has been a hot topic in Texas, and now the Environmental Protection Agency is hoping to nail down the answer to a lingering and contentious question:
What constitutes waters of the United States?
The answer could determine how the Clean Waters Act of 1972 would be enforced in the future.
On Tuesday, Smith County joined a growing coalition opposed to expansion of EPA powers that it believes would be detrimental to industry, municipalities and landowners.
The Texas Farm Bureau is circulating information to agriculture extensions and public officials stating the EPA and U.S. Army Corps of Engineers proposed new rules to define “waters of the U.S.” that would “vastly expand the jurisdictional authority” of the Clean Water Act.
But an EPA official said the proposal is meant to clarify regulations already on the books, which would reduce confusion regarding compliance and save businesses time and money.
The act’s “waters of the U.S.” definition includes all lakes, rivers, streams, wetlands, sloughs, prairie potholes and natural ponds. The agency does not assert authority over swales, drainage ditches and erosional features, including washes, gullies and washes, characterized by short, infrequent, low water volume flows.
A 2006 Supreme Court ruling muddied the agency’s jurisdictional authority over those “traditional navigable waters,” tributaries and wetlands. The case involved a Michigan development project that the EPA halted because the land was designated as wetlands. The court sided with the landowner, but justices were split on the agency’s broad regulatory powers and submitted five separate opinions regarding the Clean Water Act.
EPA Office of Water Chief of Staff Greg Peck said the opinions added to the confusion of what constituted “waters of the U.S” and “navigable waters.”
Peck said the proposed rule change would address the confusion. The goal of the proposed changes is to make the rules more consistent, predictable and easier to understand for the public, including farmers, he said.
“There are no waters, absolutely zero, no waters that would become jurisdictional under this proposed rule that has not been regulated during the past 40 years under the Clean Water Act,” he said.
Environmental groups, including the Sierra Club, have championed the refined definitions. It believes the broad powers granted within the act to curtail pollution of waterways and wetlands were reduced by the court and want tributaries and wetlands protected as the law intended.
County Judge Joel Baker said the changes represent more “red tape” for the county, businesses and residents.
“This is a huge overreach by the federal government,” Commissioner Terry Phillips said.
Democrat Commissioner JoAnn Hampton said she hopes the federal government would “change their mind.” She said the proposed regulatory expansion would likely mean “unfunded mandates” for state and local agencies and additional costs for businesses and consumers.
Director of Commodities and Regulatory Activity for the Texas Farm Bureau Ned Meister said it would mean exactly that.
In the past, the definition of navigable waters was simple, “whatever could float a boat.” But the changes could redefine and broaden the range of discretionary control to everything down to a puddle.
Meister said some farm operations, such as dairies, must already file for “point source” permits prohibiting discharge of untreated water. The changes could put regulatory control of all land contributing runoff or holding water, whether puddles or stock tanks, in the hands of the EPA because they could “potentially” reach navigable water sources.
Meister said the changes would impact industry, from agriculture to construction, municipalities, especially counties and landowners.
“It has broad implications on not only the ag industry but also society in general,” he said. “
U.S. Rep. Louie Gohmert, R-Texas, called the rule change another effort to reduce landowner rights and legalize property theft by federal bureaucrats.
“It’s possible that it could force local landowners to file an application with the EPA to plant a tree in his or her yard, which can take two years or more to get permission or a denial,” Gohmert said. “We do not need more Washington cubicle jockeys taking over our local land and water.”
Gohmert implied the move was an attempt to grant powers to punish residents and states. He said state agencies could do a better job “without prejudice against, jealousy of or hostility toward people in the state of Texas.”
Peck said the EPA is working to gain support from various groups including environmental lobbies and industry sectors, including agriculture and construction that want clearly defined lines of operation.
“In order to give people that detail, that predictability, that clarity, the administration decided it was important to revise the rule,” he said.
Peck said the EPA has looked closely at possible impacts to industry and agriculture. The agency partnered with the Corps of Engineers and U.S. Agriculture Department to avoid new burdens on farmers and actually reduced burdens by creating 56 new exemptions for activities ranging from weed control and constructing irrigation canals to wetland restoration and enhancements, when best practice standards are used.
Peck reiterated the rule is open to public comment until July 21.
“We’re very eager to hear from people if there are things that are confusing or don’t meet our goal to provide greater consistency and ease of understanding,” he said.
Peck said the EPA is interested in making the rule work and that public comments help officials draft changes to address confusion or concerns.
Baker said the court is making its position public because he believes it would add to the burden on the county, employers and residents and because so few people are aware the discussion is going on at all.
“It seems like it’s one of those things where if you’re not paying attention it will happen,” he said.