NORTHWEST ARKANSAS -- Delia Haak would love to have every brook and stream in the nation monitored, but the executive director of the Illinois River Watershed Partnership knows such oversight is impracticable.
"We don't have the money, the personnel and the technology to do everything that's supposed to be done now," Haak said Thursday of her conservation group, headquartered in Cave Springs, and of local, state and federal agencies concerned with water quality.
On Aug. 28, a new federal regulation will redefine -- and greatly extend -- what waters are protected under the Clean Water Act, the law that authorizes federal oversight of water quality. That rule will face numerous and lengthy legal challenges, according to a July 16 analysis by the The National Law Review, a scholarly journal.
"I wonder what they were thinking, quite frankly," Haak said of the Waters of the United States, the new regulation.
The Clean Water Act gave the federal government agencies authority over quality in waters that flow between states and in "navigable" waterways, such as major rivers and the Great Lakes. The new rule would extend federal authority upstream into water courses and wetlands that feed into those major waterways.
Protecting the major waters of the United States is not practical without more authority over the waters flowing in, regulators argue. The Army Corps of Engineers and the federal Environmental Protection Agency, which drew up the new rule, estimate it will apply to about 60 percent of the nation's water bodies.
"They talk like there's a vacuum here," state Attorney General Leslie Rutledge said Wednesday. A comprehensive system of state and local regulators oversee water quality already, she said. "There are conservation districts in every county in this state," Rutledge said. "There is a network of state, local and regional entities. This rule would leave them all wondering who's responsible for what."
Rutledge and attorneys general in 12 other states joined in one of several lawsuits against the rule.
Arkansas is crisscrossed with creeks, brooks and other waters that fit this new rule, leaving very little of the state out, said both Rutledge and Sen. Tom Cotton, R-Ark. There's no type of land use in Arkansas that would remain unaffected, said Cotton, who is a lawyer.
"There's a reason the Clean Water Act was written the way it is," Cotton said in a recent interview in Rogers. "Intra-state matters are clearly left to the states in the Constitution. But suppose they weren't. There's no one set of rules that's going to apply to every type of hydrology and geology across the whole country. There's no agency that can make all the decisions that need to be made, even at regional offices. That's the practical reason why you have state and local people making those decisions.
"We give states discretion on how they spend some of their funds in the federal highway bill because that flexibility is needed," Cotton said. "Where to put a highway is a whole lot simpler of an engineering proposition than managing water quality everywhere."
Arkansas is a largely rural state with one of the most farm-dependent economies in the country, said both Cotton and Evan Teague, director of Environmental and Regulatory Affairs for the Arkansas Farm Bureau Federation, an agriculture lobby. Another pillar of the state's economy is forestry, they said. Both of those business sectors are land intensive. That will put those industries under the authority of federal agencies under any interpretation of this new rule, they said.
"Look at North Dakota." Cotton said. "If you want to drill an oil or gas well there and your site's not on federal land, you can go to the state and have your permit accepted or denied in 10 days to two weeks. The same permit application process on federal land managed by the Bureau of Land Management often takes 300 days in the same state. Now, imagine applying for a permit if you want to hold back some more water to fill your stock pond, or build a logging road. It may not take 300 days, but it will take time. Time is something a business often doesn't have, especially a small one."
The full extent of the reach of federal authority is hard to limit under the proposed rule, Teague said. "Don't read the press releases. Read the regulation," he said. "Suppose there's a piece of ground that doesn't fall under those definitions, like a rice field that's been precision-leveled. The regulation allows the agencies to use aerial photographs from 30, 40 or even 60 years ago to see if there ever was water flowing across it."
Sen. John Boozman, R-Ark., agreed. Boozman, who lives in Rogers, has called water quality concerns the number one issue in Northwest Arkansas for years. He spoke against the new rule on the Senate floor the day it came out and criticized the Obama administration for cutting the Safe Drinking Water grant program, which helps rural areas, in 2013 and 2014.
"This administration says one thing about safe drinking water and then does another," Boozman said in that speech.
The National Law Review analysis said the final version of the rule did little to address criticisms that it is too far-reaching. A public review process that entailed more than 400 meetings and more than 1.2 million comments on file produced few changes from the agencies' first public draft, the article said. The review predicted the rule will "raise a host of constitutional and statutory and regulatory challenges."
Doug Thompson can be reached by email at [email protected].
Fast fact
The federal Clean Water Act dates to 1948, but was greatly expanded in 1972.
Source: Staff report
General News on 07/22/2015