Prompted by concerns from farmers and ranchers, Idaho has joined at least 16 other states in objecting to a proposed Environmental Protection Agency rule intended to clarify the federal role in regulating water pollution.
In a letter sent Friday, Gov. Butch Otter and Idaho Attorney Lawrence Wasden asked the EPA and the Army Corps of Engineers to withdraw the proposed rule, saying the two agencies should have consulted with the states before developing it.
“Effective consultation could have addressed many of Idaho’s concerns and avoided much of the confusion that now exists,” the letter states. “EPA and the Corps’ failure to include the states in the formulation process effectively missed an opportunity to build consensus with the primary implementing entities and prevent controversy. As a result, there now is an even greater need, and opportunity, to enter into sustained dialogue and consultation with the states to revise the Proposed Rule.”
Otter and Wasden asked that if the rule is not withdrawn, the EPA should extend the current public comment deadline of Nov. 14. They said the state needs more time “to formulate thorough and thoughtful comments” and to address a report on the connectivity of different bodies of water to be issued by EPA’s Science Advisory Board.
The letter followed a similar one from the attorneys general of 16 states, from Georgia to Alaska, sent to the two agencies on Oct. 8, and another sent by the Western Governors’ Association
The EPA released its 88-page proposed rule on March 25, stating that its intent was to address four U.S. Supreme Court decisions by specifying which bodies of water could be regulated under the Clean Water Act. However, the proposal quickly drew outspoken objections from the agricultural industry, which claimed that the rule could restrict farming operations.
The American Farm Bureau Federation told its members that the rule would extend the EPA’s authority to “puddles, ponds, ditches, ephemerals (land that looks like a small stream during heavy rain but isn’t wet most of the time) and isolated wetlands.”
In a July interview with the National Journal, EPA Administrator Gina McCarthy called some of the concerns that had been expressed “just ludicrous.”
“Some say EPA will regulate small, unconnected waters … including puddles on lawns, driveways, and playgrounds. That’s just silly,” she said. “This proposal is all about protecting waters that science tells us have a significant impact to downstream water quality. No more, no less.”
Even though the EPA stated that a goal of the proposed rule is to reduce the number of decisions that are made on a case-by-case basis, it retains the EPA’s authority to do so. That has prompted objections from the Idaho Barley Commission, which stated that it creates uncertainty among farmers.
The EPA also listed farming practices that would be exempt from regulation. However, the Barley Commission said that caused farmers to wonder if practices not included would be regulated.
Commission member Pat Purdy, whose family farms about five miles along Silver Creek in southern Blaine County, said the main problem is the vagueness of the language in the proposed rule granting EPA the authority to determine which waters fall under the Clean Water Act’s jurisdiction.
“How far that authority goes is not very well defined,” he said.
The act requires a permit to discharge any pollutant from a “point source”—which includes pipes or ditches—into navigable waters or streams that have a significant connection to navigable waters. However, it exempts agricultural runoff or return flows from irrigation ditches from being “point-source” pollution.
Barbara Cosens, a professor at the University of Idaho College of Law and an expert on water law, said it’s been a longstanding concern of the agricultural community to maintain that exemption.
“Anything that could make inroads into that exemption raises red flags,” she said.
Cosens said the American Farm Bureau Federation could also be stating its objections with an eye toward future court cases.
“If there’s a possibility that the EPA’s wording in their rules could be interpreted broadly, what the regulated community wants is to get the EPA to go on record saying, “We don’t mean that,’” she said.
Cosens said the Clean Water Act has gone a long way toward reducing pollution from industrial and municipal waste discharges. According to the EPA, 40 years ago, two-thirds of America’s lakes, rivers and coastal waters were unsafe for fishing and swimming, but because of regulation under the act, that number has been cut in half. However, one-third of the nation’s waters still do not meet standards.
“The remaining problems with water quality have to do with what are or have been defined as non-point-source pollution,” Cosens said. “Many in the environmental community think we have not adequately addressed those sources.”
Marie Kellner, water associate with the Idaho Conservation League, said agricultural runoff is the major source of water pollution in Idaho. She said pollutants include sediment, phosphorous and nitrogen. She said excess sediment clouds water, reducing sunlight for plants, and fertilizer components create algal blooms, which deplete oxygen in the water. That can kill fish, she said.
However, Kellner said, finding solutions is a challenge. She said the proposed rule would have no effect on agricultural pollution.