In a February 5 email, the National Association of Counties (NACo) reported that a panel of NACo representatives had testified before the United States Congress on the Environmental Protection Agency’s (EPA) controversial proposed rule that would modify the scope and definition of “waters of the United States” under the federal Clean Water Act. The NACo panel asked that the From the email:
On Feb. 4, El Paso County, Colo. Commissioner and NACo’s First Vice President Sallie Clark, testified on behalf of the National Association of Counties (NACo) before the before the Senate Environment and Public Works Committee (EPW) and the House Committee on Transportation and Infrastructure (T&I) at a hearing, “Impacts of the Proposed Waters of the United States Rule on State and Local Governments.” Clark’s testimony focused on the importance of the local, state and federal partnership in crafting practical rules to ensure clean water without impeding counties’ fundamental infrastructure and public safety functions.
The rare bicameral joint hearing was led by Transportation and Infrastructure Chairman Bill Shuster (R-Pa.) who said that he expected all 79 House T&I and Senate EPW Committee members—20 EPW and 59 T&I committee members—to attend. The hearing focused on the impact the proposed rule would have on states, local governments, their communities, businesses and industries.
In April 2014, The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) jointly released a new proposed rule that would amend the definition of “waters of the U.S.” within the Clean Water Act and dramatically expand the range of public safety infrastructure that falls under federal permitting authority.
Gina McCarthy, Administrator for the U.S. Environmental Protection Agency (EPA) and Jo-Ellen Darcy, Assistant Secretary of the Army (Civil Works) testified on the first panel. For three hours, McCarthy and Darcy were questioned by members of Congress on the proposed rule. McCarthy indicated the proposed rule was in response to stakeholder requests for a rulemaking and, in fact, will make it easier to determine what waters fall under federal jurisdiction. Darcy stressed the rule was based on science and would give regulators in the regional offices greater clarity on jurisdictional waters.
Clark was joined on the second panel by E. Scott Pruitt, Attorney General, State of Okla.; Adam H. Putnam, Florida Commissioner of Agriculture, Florida Department of Agriculture and Consumer Affairs, on behalf of the National Association of State Departments of Agriculture; Timothy Mauck, Commissioner, Clear Creek County, Colo.; and Lemeul M. Srolovic, Bureau Chief, Environmental Protection Bureau, Office of New York State Attorney General T. Schneiderman.
At the hearing, Clark discussed the main reasons that contributed to NACo’s decision to call for withdrawal of the rule, including the proposal’s impacts on counties; an inadequate consultation process with state and local governments; ambiguous and inconsistent terminology; and ongoing delays with the current permitting process. After working closely with county technical experts — county engineers, legal staff, public works directors and stormwater managers — who implement federal and state programs on the ground every day, NACo this past November called for the proposed rule to be withdrawn until further analysis and more in-depth consultation with state and local officials could be completed.
“NACo supports common-sense environmental protection. Expanded federal oversight and the proposal’s vague language would create more uncertainty and delays in critical work without any proven environmental benefit,” said Clark. “Let me be clear, counties support clean water. Our goal is to ensure public safety and economic vitality while safeguarding water quality. The current proposal falls short of this goal.”
“This issue is so important to counties because we build, own and maintain a significant portion of public safety infrastructure. The proposed rule would have direct and extensive implications,” Clark said.
Local governments own nearly 80 percent of all public road miles and half of the nation’s bridges. Counties also own water quality systems and other infrastructure like roadside ditches, stormwater systems, green infrastructure and drinking water facilities.
Clark emphasized the importance of the all levels of government working together to craft workable rules and implementing Clean Water Act programs on the ground. “Counties are not just stakeholders in this discussion — we are key partners in the federal-state-local intergovernmental system,” she said.
“This is an opportunity to reset the clock and work together. NACo looks forward to working with Congress and federal agencies to craft a clear, concise, workable definition of “waters of the U.S.” to achieve our common goal: to protect water quality without inhibiting the public safety and economic vitality of our communities.”
Clark concluded, “In the eyes of county governments, this is not a political issue. It is an issue of practicality and partnership.”
The public comment period for “waters of the U.S.” closed on November 14, 2014. The agencies are currently reviewing over one million comments and plan to release a final rule by late spring of 2015.
Prior to NACo’s submission of comments, MACo submitted its own comments to EPA on November 3, 2014, expressing concern that rule would expand the “waters of the US” definition to include (1) county maintained road and drainage ditches; and (2) stormwater management structures, including environmental site design (ESD) structures such as rain gardens and vegetated swales. Inclusion under the definition could subject those structures to federal permitting requirements and enhanced water quality standards, creating greater costs and uncertainty for counties already struggling to meet Total Maximum Daily Load (TMDL) water pollution reductions. It could also encourage additional litigation over county municipal separate storm sewer system (MS4) permits. MACo requested that ditches and stormwater structures not already subject to the CWA be explicitly excluded from the proposed definition.