Clean Water Act rule changes worry Roaring Fork Valley ranchers
May 28, 2014
BASALT — New rules meant to clarify the types of waterways protected under the federal Clean Water Act and create more certainty for agricultural water users could leave things as ambiguous as ever, area ranchers told a leading EPA official here Wednesday.
"I think this just muddies the waters, and does not make it more clear," Carbondale-area rancher Bill McKee said during a presentation by EPA water programs officials, including Nancy Stoner, the agency's acting assistant administrator. Stoner is helping to oversee a rewrite of rules governing protected waters under the landmark 1972 law aimed at cleaning up the nation's rivers, lakes and streams.
"There are a lot of 'may be's' in here, and that's what has us guarded," said McKee, who runs a ranch where Thompson Creek meets the Crystal River about 6 miles south of Carbondale.
"These are the places where lawyers make a fortune," he said of rules and definitions that could still be left open for interpretation.
“We do fear the ambiguity in this,” he said following the meeting. “Our irrigation ditch is the lifeblood of the ranch, and we need to be able to clean it and maintain it and do repairs when needed.”
Tom Harrington, who ranches west of Carbondale, agreed.
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"We do fear the ambiguity in this," he said following the meeting. "Our irrigation ditch is the lifeblood of the ranch, and we need to be able to clean it and maintain it and do repairs when needed."
Sometimes those decisions need to be made on the spot, and can't wait for a lengthy permitting process, Harrington and McKee said.
Irrigation systems typically found in the Rocky Mountains, where water is shared by multiple ranchers and other users to irrigate fields, and even golf courses and lawns, via ditches that eventually return water to the river system, seem to qualify as protected waters by the revised definitions under review by the EPA and the Army Corps of Engineers, they said.
But Stoner said the new rules are intended to preserve existing agricultural exemptions, and even make it easier for ranchers to carry out certain types of conservation practices such as building stream crossings for livestock or making wetland or riparian enhancements without a permit.
"The goal is to make it as clear as we can which waters are protected, and to make it easy to figure out if you are complying," she said during the meeting, held at the El Jebel firehouse.
Stoner was invited by the nonprofit Roaring Fork Conservancy to speak on the proposed rule changes with ranchers and other area water users and government officials.
Earlier that morning, she took part in a tour of some of the Conservancy's watershed projects on the Fryingpan River. Joining Stoner for the visit were Karen Hamilton, a supervisor in the EPA's regional office in Denver, and EPA stream biologist Julia McCarthy, who also works in the Denver office.
Both have also been actively involved in writing the new rules aimed ensuring greater protection of headwaters, primary waterways and wetlands under the Clean Water Act.
"We don't think this does make any changes [for ranchers], but we would like to hear why you think it does," Stoner said, noting that return flows from irrigated farm and ranch lands would still be exempt.
The 90-day public comment period on the proposed new rules remains open until July 21. Details about the rule changes and instructions on submitting comments can be found at http://www.epa.gov/uswaters.
Stoner said the rulemaking effort was launched following a pair of Supreme Court cases in 2001 and 2006 during which questions were raised about which waterways qualify for protection.
"There is agreement that the current rule is not very good in its clarity, and there is a lot of time, money and litigation spent to implement the rules," she said. "We think we have a good, balanced proposal to change that."
The new rules do not expand the types of water protected under the Clean Water Act, explained McCarthy, but further clarify what qualifies as "navigable waters of the U.S." under the law, she said.
That primarily applies to protecting headwaters, wetlands, major waterways and their tributaries, as long as they have an established streambed, bank and "ordinary high water mark."
Some ditches are regulated if the source point and discharge are on a regulated stream, McCarthy said. But the agricultural exemptions for routine operations remain.
"The comments we are seeking are really important, and we want a Western perspective to make sure these definitions make sense for the types of resources we see here," she said.
The proposed new rules also expand exemptions to 50 types of agricultural conservation practices involving waters without having to notify the Army Corps or obtain permitting.
"Farmers and producers will not need a determination of whether the activities are in 'waters of the United States' to qualify for this exemption, nor will they need site-specific pre-approval from either the Corps or the EPA before implementing the practices," according to an information sheet distributed by Stoner at the meeting.
The proposed rule also does not regulate ground water, tile drainage systems or expand regulation over ditches, Stoner also explained.