Proposal On Federally Protected Water Sparks Local Opposition

Several Washington and Benton County government officials have united against a proposal affecting what surface water falls under federal protection.

Benton County's Quorum Court approved a resolution in May opposing an Environmental Protection Agency plan the agency says will clarify and simplify the rules protecting the nation's rivers, lakes and other drinking water sources. Officials in Washington County are working on a similar resolution that could be voted on this week.

The counties have no direct power over the EPA, but their resolutions voice concerns raised across the country the proposal is an expansion of federal jurisdiction that could bring even ordinary roadside ditches under government protection.

"They're already way too far in our lives way too much of the time," said Butch Pond, who represents eastern Washington County on the Quorum Court and plans to sponsor the county's resolution. "I have no patience for it."

The EPA and Army Corps of Engineers jointly proposed the changes last spring to the Clean Water Act, which has been used to protect "waters of the United States," since 1972, when Richard Nixon was president. Under the law, cities, power plants and other developments need permits to release chemicals or other waste into protected water and must keep that pollution under safe levels.

Beaver Lake and the Illinois and White Rivers, which flow through Northwest Arkansas, are all under the act's protection, as is the Mississippi. More than 3,500 facilities in Arkansas have a current Clean Water Act permit, according to the EPA, including about 300 in Washington and Benton counties.

Clearer Water?

The changes are meant to solve a tautological problem that the water act has included since its beginning, according to the official proposal.

The act says it applies to "navigable waters," yet gives only a vague, short definition for the term: "waters of the United States, including the territorial seas."

"That kind of leaves one banging one's head," joked Ken Gould, a professor emeritus in water and environmental law at the University of Arkansas at Little Rock.

The U.S. Supreme Court in 2006 split over which water is considered "waters of the United States," adding to the confusion, Gould said. In Rapanos v. United States, the four reliably conservative justices said water must be relatively permanent and flow continuously to be protected, while the four more liberal justices disagreed.

Justice Anthony Kennedy, the ninth justice, joined the conservatives in sending the case back to lower courts, breaking the tie. He was more liberal on the actual question of protected water. Less permanent streams or wetlands can be protected, he said, if they have a "significant nexus" to a traditionally protected river or lake.

With such a jumbled decision, the EPA said it needed to clarify its list of protected water. The proposal specifically defines "waters of the United States" as interstate rivers, lakes and any tributaries or wetlands that pass the "significant nexus" test and specifically excludes several types of ditches and channels.

Water associated with normal farming activity, such as that in irrigation ditches, ponds or streams crossed by livestock, would remain exempt from the law's pollution limits. Ditches in typically dry areas, or uplands, and ditches that don't directly connect to an interstate river or sea would be explicitly exempt as well.

Groundwater, including water drained through below-ground systems, would be exempt, according to the EPA proposal.

Whether water is protected determines fees for permits, which can cost thousands of dollars. The law also sets fines and other punishments for everything from minor violations in construction sites or towns to major spills and accidents, such as the 2010 BP oil spill in the Gulf of Mexico and the Mayflower spill last year. Such penalties can reach into the millions.

Overall, the EPA's message has been blunt: The proposal won't protect any water that the Clean Water Act isn't already protecting.

"It is appropriate to protect all tributaries and adjacent waters, because (they) function as an integrated system" that is "critical for our nation's economic and environmental health," the agency wrote. It will take public comment online until Oct. 20 before making any adjustments to the proposal.

Too Much, Too Little

Many local and national officials remain unconvinced by the agency's placations. They've said their skepticism comes from a section of the rule that leaves the door open for unlisted "other waters" to be covered by the law if they share a "significant nexus" with a protected river or lake. This would be determined on a case-by-case basis.

Some nonexempted ditches could therefore be protected, for example. Critics have pounced on the possibility, telling the EPA to "ditch the rules" on social media.

"The regulation will automatically regulate countless small and remote so-called 'waters' that are usually dry and, in fact, look like land to you and me," Bob Stallman, president of the American Farm Bureau Federation, wrote in July. "This is far more than a 'clarification.' It is a dramatic expansion of federal power."

The National Association of Counties urged counties to speak out on the rule, saying its reach was too unclear for comfort.

U.S. Sen. John Boozman, R-Rogers, sponsored legislation against the rule, though it hasn't passed, and U.S. Rep. Rick Crawford, R-Jonesboro, has said he's also opposed, according to their websites.

The Benton County Quorum Court resolution passed without opposition and says changes without input and action from Congress would "subvert the legislative process."

Some Washington County justices of the peace are pushing for a similar resolution. It failed at a County Services Committee meeting earlier this month with a tied vote. Pond plans to bring the matter to the full Quorum Court this Thursday. The resolution needs eight votes to pass; nine Republicans sit on the panel.

"We can't go and regulate every darn drop of water that falls on these farms," Republican Harvey Bowman, justice of the peace from District 3 in Springdale, said during the committee meeting. Fellow Republicans Rex Bailey and Assessor Jeff Williams first proposed the resolution there.

The committee's Democrats opposed the resolution. Eva Madison said blanket opposition was too vague to be helpful, while Barbara Fitzpatrick said she supported the EPA proposal. The water law aims to keep industries and factories from fouling local water, Fitzpatrick said, pointing to heavy coal ash pollution found in a North Carolina river this year.

"I'm perfectly happy with the attempts to keep coal slag out of my drinking water," she said.

At least one group says the EPA hasn't gone far enough. A federal court in Louisiana last year ordered the agency to decide whether to regulate nitrogen, phosphorus and other fertilizer runoff from farms after the Natural Resource Defense Council sued the agency.

The nutrients are blamed for huge algal blooms in the Gulf and in the Great Lakes, such as the one that released toxin into Lake Erie this month.

As Gould, the water law professor, put it, "The EPA and the Corps are trying their best to implement the standard that (Justice) Kennedy announced, and there's too many people on both sides of the issue for them to satisfy anyone."