ruxpriencdiam / Can Stock Photo
ruxpriencdiam / Can Stock Photo
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Mary Starrett: EPA ruling should be ditched

The Waters of the U.S. (WOTUS) rule that went into effect in 2015 has been highly controversial and was opposed from the get-go by local governments which eye WOTUS as federal overreach designed to greatly expand the jurisdiction of the federal government and place a serious burden on landowners across the country.

What is it about the EPA and Army Corps of Engineers’ WOTUS regulations that would cause what can only be described as a ferocious backlash from 31 states, the National Association of Counties (NaCo), which represents over 3,000 US counties, the Association of Oregon Counties (AOC), which speaks for 36 Oregon counties, the American Legislative Exchange Council (ALEC), a bipartisan contingent in Congress, and scores of home builders and private business owners?

WOTUS, introduced to (supposedly) clarify the 1972 Clean Water Act (CWA) has far-reaching implications that could strain the county budget, hobble economic growth and severely limit local control. WOTUS introduces vague definitions for water-related infrastructure, including puddles, ditches and culverts, in trying to define the term “waterway.” But what exactly is considered a “waterway”? If implemented, WOTUS would mean federal control of ditches, storm drains, and even dry stream beds.

Guest Writer

Mary Starrett is chair of the Yamhill County Board of Commissioners, serves on the Yamhill County Water Task Force and is a member of the Association of Oregon Counties’ Water Policy Steering Committee.

The EPA and the Corps would not even exclude “puddles,” saying the term is too “vague”!

Local governments own nearly 80 percent of all public roads and half the nation’s bridges. Counties own and maintain infrastructure systems that keep water away from people and property during storms and weather events. These systems include flood channels, ditches and, in some places, drinking water facilities. Here in Yamhill County, there are 135 bridges under county jurisdiction and roughly 800 miles of roads (350 of gravel, 450 of paved), 350 live water ditches and approximately 3200 culverts. Trying to comply with the vague WOTUS rule could make it nearly impossible- not to mention financially prohibitive to maintain this infrastructure.

For a county ditch to be exempt from federal regulation, it must be excavated and drain only to a dry area and be wet less than 365 days a year.

WOTUS permits would have to be obtained for ditch maintenance and often come with rigid conditions that say when and how the county is permitted to clean out the ditch. For example, one California county had a maintenance permit for a stormwater ditch. Since they are only permitted to clear debris from the ditch six months out of the year due to Endangered Species Act constraints, this has led to numerous private property flooding events and understandably upset citizens. In the past several years, other counties around the country have had to get permits for ditch maintenance. One Florida county applied for 18 exemptions that cost $600,000, not including the survey costs and materials. Three months later, only two exemptions were granted and the county was still waiting for the other 16 to be approved. At that point, the county was moving into its rainy season and getting calls from residents concerned about flooding from the ditches.

Consider the impact to Yamhill County, which experiences far more rainfall than California or Florida and already sees its Public Works Department often treading water to keep up with ditch maintenance with a budget spread thinner all the time.

This is what is happening to counties now. If WOTUS is implemented, the approval required means more counties will have delays in maintaining their ditches.

Counties nationwide are coping with tight budgets as it is. This latest example of government overreach will only make matters worse and won’t have anywhere near the positive environmental impact this rule purports to guarantee.

Under WOTUS, any area of your field or yard that may have standing water, even for a short time, could be considered “navigable waters” under federal control. It wouldn’t matter if your backyard or field was dry for the past 20 years, and a heavy rainfall suddenly left a puddle or a tiny stream, the EPA, according to the 297-page rule, might consider it “navigable” or a Waters of the U.S. (WOTUS).

That means you would have to ask the federal agencies to find out if it’s “navigable” or apply for federal permits, you’d have to work through additional government red tape to apply fertilizer, or even plant a tree on your land. Want to spray for weeds? Now, you’ll need a federal permit. Without one, you could be subjected to a $37,500-per-day fine if you’re not in compliance. Seem ridiculous? Of course.

Two years ago, the Yamhill County Board of Commissioners passed a resolution condemning the proposed WOTUS rule before it was law, saying “…. it is impractical for the federal government to regulate every ditch, pond and rain puddle…”.

The U.S. House of Representatives passed a resolution of disapproval (Senate Joint Resolution 22) that would repeal WOTUS. The same resolution was passed by the Senate; however, President Obama vetoed the bill.

The WOTUS rule was supposed to take effect in August 2015 but there was such strong criticism of it the Sixth Circuit Court said “Whoa” to WOTUS and stayed its implementation. For now.

The Court did not rule against WOTUS, but simply put the brakes on enforcement of the regulations pending all the litigation stacked up in the courts.
In other words, the issue is far from dead, but it does give counties hope that this federal intrusion will be avoided. In the meantime, let your Congressional representatives hear from you. Tell them we’re drowning in federal regulations as it is. Tell them to ditch the rule.

Comments

Ragnar Lothbrok

Young farm-family fights back at EPA with parady video, over 144,345 views. PARADY OF "LET IT GO" direct to EPA WOTUS rules. Hilarious you got to watch. We won't back away EPA! Federal regulators claim that California farmer John Duarte and his family broke the law by plowing their land --a situation that sends ominous signals regarding how the new Waters of the U.S. rule might be enforced.

https://www.youtube.com/watch?v=9U0OqJqNbbs

Its really funny.

yupjoe

What the EPA really ends up doing, unintentionally or not, is cause farms to consolidate, so we have fewer and fewer farms, and bigger and bigger farms. This consolidation like everything else is the only way that a business can survive such a regulatorially hostile economy. With consolidation we also loose freedom. Not okay.

Megan

Just for the record, puddles are specifically EXCLUDED under WOTUS. You may look this up for yourself, although Commissioner Starrett clearly assumes you won't bother.

https://www.epa.gov/sites/production/files/2015-06/documents/epa-hq-ow-2011-0880-20862.pdf

The text is on the page labelled 37116.

"(2) The following are not ‘‘waters of the United States’’ even where they otherwise meet the terms of paragraphs (o)(1)(iv) through (viii) of this section.

[...]

(iv) The following features:
(A) Artificially irrigated areas that would revert to dry land should application of water to that area cease;
(B) Artificial, constructed lakes and ponds created in dry land such as farm and stock watering ponds, irrigation ponds, settling basins, fields flooded for rice growing, log cleaning ponds, or cooling ponds;
(C) Artificial reflecting pools or swimming pools created in dry land; (D) Small ornamental waters created in dry land;
(E) Water-filled depressions created in dry land incidental to mining or construction activity, including pits excavated for obtaining fill, sand, or gravel that fill with water;
(F) Erosional features, including gullies, rills, and other ephemeral features that do not meet the definition of tributary, non-wetland swales, and lawfully constructed grassed waterways; and
(G) Puddles.

BOC

Megan, w
It is with all due respect that I point your attention to a recent Senate Majority Staff Report (September, 2016)
http://www.milkbusiness.com/article/senate-report-shows-agencies-expanding-through-wotus which states "... puddles,tire ruts... and standing water can all be renamed "disturbed wetlands" and regulated.


Sincerely,
Mary Starrett
Chair, Yamhill County Board of Commissioners

Megan

Mary, thank you for taking the time to respond.

The Senate Report mentioned in the link you shared is a "majority report", which is a fancy way of saying it's released by the Majority Staff of Senator Inhofe (for those following along at home, he's the guy who thinks climate change isn't real because it still snows sometimes). It was not approved by the full Environment and Public Works committee.

Here's the link to the report: http://www.epw.senate.gov/public/_cache/files/7b469fe4-62c3-4ea9-9ce2-bedbf5179372/wotus-committee-report-final1.pdf

Regarding puddles, the case study in the report intended to show EPA overreach is regarding a case from 2007 (8 years before WOTUS was passed), in which a gravel parking lot in a field had a large puddle - actually, I'd call that a lake if I had to drive around it - which was deemed to be a wetlands by the Corps. Here's the "case study" provided by Inhofe's staff as reference: http://www.epw.senate.gov/public/_cache/files/b24992cc-f83b-49f6-b180-e3959802bfe6/parrish-qfr-responses-case-study2-05.24.2016.pdf

One example from 9 years ago is not sufficient, in my opinion, to argue that the law passed 1 year ago is going to cause the EPA or the Corps to consider puddles to be "navigable", as you state above.

By the way, the article from which you borrowed several paragraphs of your essay was published in June, 2014, a year before the final draft of WOTUS was published. http://www.iowafarmertoday.com/news/opinion/epa-overreaches-on-navigable-waters-regulation-under-u-s-clean/article_5781fb8a-f1a1-11e3-8181-001a4bcf887a.html

Shasta

Thanks for pointing this information out Megan.
Its not at all surprising that Mary Starrett wants this "ditched". As a well known Tea Party member and conspiracy theorist, doesn't it go without saying that she wants the federal government as a whole "ditched"?, other than the military of course. I think one could assume anything she writes about the federal government is going to be negative and sharply biased to her extreme right wing views. I guess I can only go off of past statements made by her. And more or less supporting the Malhuer Refuge standoff wingnuts. Next time maybe she should do her homework from real and current source of information instead of collecting it from a fellow conspiracy theorist and climate change denier.

Scott Gibson

Kudos, Megan, for some excellent sleuthing. I appreciate your doing the investigative work I do not have the time for. I have essentially no knowledge of this set of regulations, but it is very good to hear a dissenting view. Whenever I hear a viewpoint that seems to be cut and dried, it makes me suspicious that there is more to the story.

Megan

The link to the original article has changed, but here it is: http://www.agupdate.com/iowafarmertoday/opinion/epa-overreaches-on-navigable-waters-regulation-under-u-s-clean/article_0465a3a9-3dea-52e4-907d-00a8fc745c63.html

For example, see if you can spot the similarities here:

"Under their proposal, any area of your field or yard that may see standing water, even if it’s for a short period, could be considered navigable waters subject to federal jurisdiction.

No matter that your back yard or field was dry seven days a week for the past 20 years, if a 5-inch rainfall suddenly left a puddle or a slowing stream, the EPA, according to this new 370-page “rule,” might consider it “navigable” or a Waters of the U.S. (WOTUS).

That means you would have to ask the federal agencies to find out if it’s “navigable” or apply for federal permits — working through additional government red tape to build a terrace in your field, construct a waterway, apply fertilizer, or even plant a tree on your land.

Want to build a fence or spray for weeds? Now, you’ll need a federal permit! What’s more, you could be subjected to a $37,500-per-day fine if you’re not in compliance.

Ridiculous? Yes. "

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