The EPA is coming to get us ... or not 

Proposed changes to the Clean Water Act have the county crying foul. Is that justified?

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, tiny.cc/ditch-myth-cs.)

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."


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