By Michael Howell
The Ravalli County Commissioners are composing a written comment on a proposed rule change under the federal Clean Water Act. The Environmental Protection Agency and the Army Corps of Engineers are considering a rule change that, according to EPA Administrator Gina McCarthy, clarifies the act in ways “called for by the Supreme Court and by numerous state organizations, as well as numerous agriculture stakeholder groups.” The aim of this proposal is clear, she said, to clear up legal confusion and protect waters that are vital to our health, using sound science so that EPA can get its job done.”
The Ravalli County Commissioners and the Montana Association of Counties (MACo), however, allege that the efforts to clarify the law are actually confusing. They see the new rule change as an unauthorized expansion of federal jurisdiction into state waters. EPA officials claim the opposite. McCarthy stated in a recent speech that under the new rule, “EPA feels confident that, under this proposal, fewer waters will be jurisdictional than under President Reagan… The bottom line is – if you didn’t need a permit before this proposed rule, you won’t need one when it’s finalized.”
Following MACo’s lead, the Commissioners have composed a draft letter that expresses concerns, not just about fears of expanded jurisdiction, but also that the federal agencies did not properly consult with state and local government in the composition of the new rule. They complain that the new rule was written prior to release of a science review of the proposal and that the comment period was insufficient. They allege that the cost/benefit analysis of implementation was flawed and that the definitions of terms such as tributary, adjacent waters, riparian areas, flood plains and uplands is unclear and will lead to confusion on the ground. They argue that the exemptions for ditches and other agricultural practices “exists on paper” but in practice are confusing and burdensome to farmers and ranchers. They also express concerns about the many barrow ditches along county roads will now require a federal permit for simple maintenance and repair.
The EPA did extend the deadline for comment on the rule change and is still accepting public comment through November 14, 2014.
The agency has provided a website, www2.epa.gov/uswaters, explaining the rule change and answering concerns about the effect of the new rule. The agency claims that the rule actually reduces confusion about the CWA and clarifies what waters are covered, actually removing some ditches from federal jurisdiction under the act that are now being included due to lack of clarity in the existing rules. The agency claims that the rule change does not protect any new kinds of waters, does not broaden the coverage of the Act, and does not regulate groundwater, as some people fear.
The County Commissioners held a meeting last Tuesday, October 21, to consider a response letter to the EPA, but because the draft letter was not made available for review until the meeting, they agreed to continue the discussion on Thursday, October 30, at 6 p.m. in the commissioners’ meeting room.
At last Tuesday’s meeting, Commissioner Suzy Foss said that the commission has heard from a lot of people saying that the commissioners should not be involved in things outside the “little cocoon” of Ravalli County. But when things happen elsewhere that could seriously impact the county, she said, then the county needs to be involved.
In the public comment, Terry Marasco said that if the commissioners believe that they are responsible for the condition of the waters in Ravalli County, then they need a plan to address the problem of several streams in the valley that have been scientifically determined to be impaired in their status.
“If you want local control, then you also need to accept responsibility,” he said.
Representative Ed Greef said writing a letter was a good idea, but that the situation was a conundrum and a dilemma. He mentioned how nutrient laden water from the Clark Fork had at one point filled Lake Pend Orielle with algae and seaweed. He said Mexico has seen the shrimp industry in the Sea of Cortez decimated by pesticide and fertilizer laden water from the Colorado River.
“We have to be concerned about potential federal overreach, but at the same time we have a moral and ethical obligation to deliver clean and usable water downstream,” he said. He said once the damage is done, it is difficult to go back up stream and straighten things out.
Kelsey Milner praised the new rule for implementing a wholistic systems approach to water management, one that recognizes connectivity and cumulative impacts and provides a mechanism for regulation based on science rather than ideology.
Representative Nancy Ballance said that the jurisdictional questions were serious and needed to be resolved. She said the financial impacts on the county were unclear. She said they seem to brush off any direct financial impacts but then later admit that they in fact exist. She said a number of uncertainties needed to be cleared up before the public could even make meaningful comment.
A few irrigators and representatives of local irrigation districts expressed concerns that the new rule would impose the need for 404 permits from the Army Corps of Engineers to work on their ditches. They said an understaffed agency would not be able to handle the requests in a timely manner.
Ron Porter of the Ward Irrigation District talked about the long delays, up to a year or two, that he has seen in the past for ACE to respond to a permit request. He called the new rule a potential “catastrophe” for local irrigators.
It was decided to continue the meeting until October 30 at 6 p.m. to give the public time to review the proposed letter of comment. A copy of the draft letter is available on the County Commissioners’ website.