Groups air grievances against Obama admin proposals

E&E News
By Manuel Quinones
June 25, 2014

Several state and industry advocates lined up yesterday to accuse the Obama administration of aiming to usurp water oversight across the country.

A hearing of the House Natural Resources Subcommittee on Water and Power became an arena for farming, electric utility and state interests to warn against the potential ramifications of U.S. EPA and the Army Corps of Engineers' proposal to clarify the Clean Water Act's reach, plus a Forest Service plan to strengthen groundwater protections.

"These proposals not only threaten to upend 150 years of state water laws," said Subcommittee Chairman Tom McClintock (R-Calif.), "but presents us with a constitutional crisis the significance of which cannot be overstated."

Despite Obama administration assurances that the "Waters of the U.S." proposal aims to clarify and not expand the Clean Water Act's reach, advocates expressed deep concern about everything from ditches to agriculture.

"Electric cooperatives just aren't going to be able to do what we do best. We're dying here. We're drowning under reams and reams of federal regulation," said Roger Clark, engineering director for Springfield, Mo.-based Associated Electric Cooperative Inc.

Fearing regulation of roadside ditches, he said, "[t]he ambiguity in this rule makes it impossible to understand the exact impact. It's going to make it near impossible for us to do our job."

Attorney Lawrence Martin, representing the National Water Resources Association, similarly said the proposed rule raised more questions than answers.

"The primary question is why is it necessary to expand jurisdiction to local waters that have marginal connections to traditional navigable waters?" he said. "The proposed rule has the potential to expand categorical federal CWA jurisdiction over thousands, if not millions, of acres of property and will likely encourage litigation over the scope of the rule."

Rep. Jim Costa (D-Calif.) pressed the Obama administration to "call a timeout," especially since EPA has yet to finalize the study being used to justify the Clean Water Act rule.

But full committee ranking member Peter DeFazio (D-Ore.) said, "This is a proposed rule. That means that it's out for comment -- the comment period has been extended." DeFazio encouraged critics to help make it better. "'No' is not helpful," he said.

'Hyperboles and what-ifs'

Republican panel leaders complained that Obama administration representatives, mainly from the Forest Service and the Bureau of Reclamation, were no-shows at the hearing.

But Democrats shot back that the officials have for weeks been answering questions about the Clean Water Act proposal. And, they noted, the panel did not invite EPA.

"While we will leave it to EPA and the Corps to discuss the details of the proposed rule," Bureau of Reclamation acting chief Lowell Pimley said in written testimony, "it is our understanding that the proposed rule is not designed to expand the Act's applicability beyond existing regulation."

Pimley added that the rule "is not designed to cover ground water" and that it "does not expand the Act's reach to cover additional irrigation ditches or alter the existing water transfers exclusion, which are obviously of special relevance for Reclamation."

DeFazio asked Clark whether he had addressed his concerns with EPA and the Corps. Clark responded, "It is my understanding that there have been some questions asked. I believe that's going to be an interpretation on a project-by-project basis."

Regarding ditches, Rep. Grace Napolitano (D-Calif.) asked Martin, "Where in the proposal do you read that this expands coverage to those facilities?"

Martin responded, "Because it talks about all ditches, even though it says they would be excluded, if you look at the definition of exclusion, there are enough questions there."

Napolitano then said, "That's something that may need clarification rather than assumptions that it will affect them."

Rep. Jared Huffman (D-Calif.) was less patient. "I think it is unfair to proceed with all of these worst-case scenarios and hyperboles and what-ifs." He added, "This is not an expansion of Clean Water Act authority. It's just not."

Andrew Lemley, New Belgium Brewing Co.'s government affairs representative, was the only witness to embrace the Clean Water Act proposal. His company makes products including Fat Tire beer.

"The main message I have today is that we depend on clean water for our success," he said. "This action by the EPA gives us the confidence that our brewing company needs."

Forest Service directive

The Forest Service's proposed directive assumes that groundwater and surface water are interdependent. It would encourage conservation and water withdrawal evaluations.

But Randy Parker, CEO of the Utah Farm Bureau Federation, raised concerns. "Shrinking livestock grazing rights in Utah have been troublesome for elected officials and livestock ranchers for generations," he said.

Not long after McClintock closed the hearing, a number of Western lawmakers touted sending a letter to Agriculture Secretary Tom Vilsack urging him to withdraw the proposal.

"The end result could be lost jobs and reduced recreational access to public lands, with little or no environmental benefit," the lawmakers wrote.

In written testimony for the hearing, Wyoming State Engineer Patrick Tyrrell said, "The USFS states that this Proposed Directive does not harm State rights. This is not accurate."

Rep. Cynthia Lummis (R-Wyo.) during the hearing asked Tyrrell, "In Wyoming, isn't it true that surface water and groundwater are regulated separately unless studies confirm that they are so connected as to constitute one source of supply?"

Tyrrell said, "Yes, that's correct."

Lummis went on, "Now does the Forest Service reverse this presumption and presume interconnectivity unless proven otherwise?"

Tyrrell added, "Yes, they do."

But in its written testimony the agency said, "The Forest Service, along with most states, considers surface water and groundwater to be connected and interdependent resources. The proposed directive would establish policy for managing surface uses with the understanding that surface water and groundwater are interconnected."

It added, "The Forest Service recognizes the states' roles in managing water resources and administering water rights within their borders. Nothing in the proposed directive would affect states' role in the management of water rights."