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Saturday, December 3, 2016

By Chris Adams, McClatchy Washington Bureau (MCT)

WASHINGTON — The nation’s primary law to keep its waters clean has a birthday Saturday — but any celebration will have to compete with a contentious battle over what the law actually means.

At issue is a proposal intended to clarify what waterways are and aren’t covered by the Clean Water Act, which dates to 1972. But that so-called “Waters of the United States” proposed rule has turned contentious, with federal officials receiving more than 200,000 comments from citizens and organizations nationwide.

Among those are environmentalists and agricultural groups from Washington state, who represent the sharp divide nationwide on the rule.

Ask the Washington Cattlemen’s Association, and the rule is an “egregious effort to illegally empower” the federal government, allowing it to “seize control over private property without just compensation.”

Officials with the state of Washington, meanwhile, support the rule, which is still in the proposal stage as comments stream in from people around the country.

“We are welcoming of the rule,” said Stephen Bernath, a water quality program policy adviser with the Washington state Department of Ecology. The department said the proposed rule should clarify the extent of the Clean Water Act jurisdiction — exactly the intent of the rule — and that it will be helpful.

It’s not perfect, the state added, and officials expect to offer some suggestions of their own to clarify things further. But for the most part, department spokeswomen Sandy Howard said, “We do not believe the rule will change fundamentally how we do business in our state.”

The Clean Water Act passed Congress in 1972, becoming law Oct. 18, according to the U.S. Environmental Protection Agency.

At the time, according to an EPA account of the act, municipal and household wastes flowed untreated into rivers, lakes and streams; industrial chemicals were dumped into waterways, two-thirds of which were unsafe for swimming or fishing.

The act has since cleaned up many of the nation’s rivers, lakes and streams; far more are acceptable for swimming and fishing.

But the EPA said there is much work yet to be done. And one thing on its plate is the proposed water rule.

The water rule proposal seeks to clarify what is covered by the Clean Water Act — whether certain streams that dry up part of the year, for example, should be covered along with traditional rivers, streams and lakes. The rule was proposed by the EPA and the U.S. Army Corps of Engineers.

It’s a reaction, in part, to two U.S. Supreme Court cases from the 2000s that addressed EPA’s water oversight.

The proposal, which EPA expects to finalize next year, is strongly pushed by the Obama administration and environmental groups, who say it would help keep rivers, lakes and other waterways healthy. But agriculture and other industry groups just as strongly oppose the plan, saying it represents a massive overreach by the federal government that would curtail farm activity.

For Jack Field, executive vice president of the Washington Cattlemen’s Association, the rule that sought clarity instead brought confusion.

“I fear this could have far-reaching impacts that are exactly the opposite of what the EPA is intending,” said Field, who is from Yakima, Wash.

For cattle ranchers, he said, that means an intermittent stream running through grazing areas could come under the jurisdiction of the EPA and be subject to Clean Water Act permitting requirements.

“This is a heavy-handed, top-down attempt to have a one-size-fits-all solution that’s not understood by anybody in the regulated community,” he said.

His official comments to the EPA call on the agency to immediately withdraw the rule.

The Washington Farm Bureau, in its comments, said it “strongly opposes these over-reaching proposals as they can, as drafted, be read to fundamentally expand” federal authority.

“Though our primary concern is the impact on agriculture, potential problems with this rule extend far beyond agriculture,” the Washington Farm Bureau wrote in its official comments to the EPA. “Every roadside ditch on every homeowner’s property, including every simple act of landscaping, spraying or mowing, could become subject to potential Clean Water Act regulations.”

The American Farm Bureau Federation is likewise pushing hard against the rule nationally. While the Clean Water Act exempts routine farming practices from certain permits, that exemption is filled with enough exemptions and limitations of its own that farm practices are effectively hamstrung by EPA authority, the bureau says; the new rule would “make it more difficult to farm or change a farming operation to remain competitive and profitable.”

The EPA has said those fears are overblown, and has rebutted what its administrator said is “a growing list of misunderstandings” about the rule. The EPA, in its assessments, projects that the new rule would result in a 3 percent increase in jurisdiction; farm groups say that seriously undercounts waters that could become covered.

For environmentalists such as Janet Alderton, the rule is both necessary and workable.

Alderton, whose career was as a cell biologist for the University of California, Berkeley, retired to Deer Harbor, a community on the San Juan Islands in Washington state’s far northwest corner.

“It’s a beautiful, beautiful area — lots of water, and our islands are a really important nursery for young salmon,” said Alderton, who is vice president of Friends of the San Juans. “If we don’t have clean water along our shorelines then the salmon in the region would be even more impacted.”

Alderton submitted one of nearly 219,000 comments from people who have weighed in to the EPA on the rule; the agency recently extended its comments on the rule until Nov. 14, saying it needed more time to consider new scientific evidence on its proposal.

For her part, Alderton urged the federal government to finalize the rule as soon as possible.

“Follow the science that shows how water bodies are interconnected,” she wrote, “and fully protect all of the waterways that have important connections to one another. I urge you to continue to stand up to special interests that oppose these important — and popular — clean water protections.”

Photo: J. Stephen Conn via Flickr