The deadline extension will allow the public to read the soon-to-be released report that will provide the scientific basis for the rule change.
The extension gives counties 25 more days to outline to the EPA and the Corps how the phrase, “waters of the U.S.” in the Clean Water Act — once assailed as vague and now characterized by some in the U.S. House of Representatives as an “overreaching regulation” — affects their operations. Reaction has come from counties nationwide, about 100 of which have sent copies of their comments to NACo. As of Oct. 15, more than 217,000 comments from all sources had been submitted.
The comments range from those noting the cost burden that counties would bear to comply with the rule, to ill-suited application in some regions and disparate economic impacts resulting from private sector operations in others.Sweetwater County, Wyo. noted in its comments that the proposed rule would slow permitting for oil and gas extraction operations that comprise 43 percent of the county’s tax base.
Others point out that the rule would cause a disproportional burden on a small number of people whose activities wouldn’t appear to violate the Clean Water Act.
“Some of these requirements make little sense to us and seem geared toward big cities with large populations and significant pollution problems that we do not have,” wrote Aleutians East Borough, Alaska Mayor Stanley Mack. “If we had many polluted waters, then expanded regulation of small interconnected waterways and wetlands would make sense.”
Meanwhile in St. Mary’s County, Md., with its 400 miles of shoreline and network of streams, springs, ponds and storm water management facilities, the County Commission worries that its number of ditches that require programming to comply will increase dramatically.
“We might suggest a dry season evaluation of all County (sic) ditch lines and outfall channels be undertaken by the EPA, which may have extensive coordination with Maryland Department of the Environment and the Corps of Engineers,” the commission wrote.
A letter signed by 25 Minnesota counties, in addition to a handful of watershed districts, called the rule “incomprehensible guidance.” The Nevada County, Calif. Board of Supervisors agreed, and focused in its comments on the persistent ambiguities in the language in the rule and asked that the rule be withdrawn.
“They never define ‘upland,’” said Chairman Nathan Beason, among other points his county’s comments that he pointed out. “As with a lot of things, devil’s in the details. If something is the intent of the EPA, they should make it clear, not leave it open for interpretation 10 years down the road.”
Beason said the county has heard concerns from everyone ranging from farmers to construction workers to private citizens with ditches in their yards.
“We’ve got serious concerns about this continuing expansion of agency power and influence on things that seem fine,” he said. “We don’t know how to stop it. We keep writing letters, ask congressmen for help. Our board is a mix of political viewpoints and aren’t anti-government or anything, but we’re all very worried about this.”
Minnehaha County, S.D. voiced concern that local governments’ comments might not receive appropriate weight: “The fear is the farmers’ discharge is not regulated but ours will be. For example, we have no control over how much nitrogen and phosphorus leaches from their fields into our ditches yet we could potentially be held accountable to only discharge X part per million. Being that farmers generally have a very strong voice in Washington, it is likely that they will remain from being regulated.”
In White Pine County, Nev. Jim Garza stressed clarification of the terms included in the rule. He is the director of community and economic development for the county, and he prepared the county’s comments.
“We’re not 100 percent negative on the rule,” he said after comments were submitted. “It has some very valid points, in the East Coast I could see a lot of these issues making sense. For counties, especially in the West, it’s important that we offer helpful guidance. It’s not going to do any good to take a blanket position that we don’t want the federal government controlling how we use our land. They can do whatever they want anyway so we should be constructive.”
Garza suggested that the Corps should bear the cost of determining which ditches and potential arteries actually do have the capacity to reach waters of the U.S. annually, not just in extreme circumstances. For a county that sees scant rainfall, that is important.
“We only have one U.S. waterway, but the tributary arteries are throughout, we just don’t know if they are perennial yield,” he said. “Proving that (a ditch doesn’t have perennial yield) should not be burdened on the existing landowner. If the Corps wants to go on and drill and use dyed water to see if the dye ends up in a waterway, they should be able to do that, but it shouldn’t be up to the landowner to prove it won’t.”
As the comments pile up for the EPA and the Corps, Garza hopes whoever is reading them is able to keep a clear mind and not be burned out.
“There are so many different ways the rule will affect different kinds of counties, so there will be a lot of guidance in these comments, if people wrote them the right way.”
Reprinted with permission: County News
