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Tipton, EPA fight over water rule

Tipton

DENVER – It appears Mark Twain was right when he wrote, “Whiskey is for drinking; water is for fighting over.”

U.S. Rep. Scott Tipton on Wednesday was in a fighting mood when he joined House Republicans in grilling the Environmental Protection Agency’s deputy chief about a proposed rule that many farmers fear would allow the EPA to regulate small bodies of water, even ponds or puddles on their land.

Deputy Administrator Bob Perciasepe said the proposal simply clarifies regulatory authority under the Clean Water Act to protect streams and wetlands. That authority has been murky thanks to confusing and complex guidelines following Supreme Court decisions in 2001 and 2006.

But Tipton worries the proposed rule is too far-reaching, and in a testy exchange with Perciasepe during a House Small Business Committee hearing, he pushed him for clarification on what the new rule would encompass and what sort of exemptions would be available for agriculture.

“I live in the Southwestern United States in Colorado, we get one rainstorm and with the lay of our land, you can have a high water mark caused by a 10-minute flow that then disappears …” Tipton said.

“I’m just trying to get down to the actual definition, because it’s the arbitrary nature of this rule ...” he continued.

Perciasepe interrupted, “It is not arbitrary, sir. If you’d let me answer I can give some clarity ...

“In the science of hydrology, you can look at ... an area where water would flow ... it will exhibit characteristics on the ground … and if you don’t have those characteristics, then there’s not enough frequency of flow or volume of flow that would make it jurisdictional under the Clean Water Act,” Perciasepe said.

The EPA proposed the joint rule in March with the U.S. Army Corps of Engineers. The administration is hopeful that in addition to offering clarity, it would help businesses by increasing efficiency of the environmental agency.

Perciasepe repeatedly said the rule would not protect any new types of waters that have not historically been covered under the Clean Water Act. He also said it is in keeping with Supreme Court guidance.

Specifically, the rule would clarify that most streams and wetlands are protected. The rule-making comes as polluters have escaped fines for violations because the EPA has been uncertain that its authority would hold up in court.

Before the EPA finalizes the rule, Tipton said the agency should hold listening sessions in rural parts of Colorado and the nation. He has made the same request concerning a proposal to set carbon-pollution standards. The EPA ended two days of hearings in Denver on Wednesday over that issue.

The Durango Herald has confirmed that the EPA is working on a hearing for the Craig area in September to address the carbon issue. But no rural meetings have been discussed for the water rule.

“Wouldn’t it be appropriate when we’re doing these hearings ... to actually go to the impacted communities, rather than just go to urban areas? …” Tipton asked. “It’s important that when we’re talking about outreach … to not discard rural America.”

Perciasepe responded, “Hearings are just one aspect of our outreach … the EPA will meet with anybody who wants to meet with us … We are going to reach out to virtually every state and the constituencies in each one of those states.”

Tipton also presented a letter from the Waters Advocacy Coalition, a diverse group of construction, business, mining and agriculture interests. The coalition expressed worries that the rule would have a greater impact on businesses than the EPA estimates.

Breen area rancher Tom Compton echoed many of those concerns.

“The fears are justified because we in agriculture aren’t really certain what all that means, and there is definitely a fear that they will step beyond reasonable limits to control the issue of water used by agriculture, and I really, really have concerns about that,” said Compton. “I don’t see the federal government really having a place in the management of my ditches or my ponds on my own property.”

pmarcus@durangoherald.com



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