Small streams, big impact: Agency wants oversight

Brian Bowling
| Sunday, Aug. 7, 2011

Changing a stream such as Irwin Run has minimal impact on rivers and lakes, but those changes can add up in terms of discharging pollutants, Louis Kaplan, a senior research scientist at the Stroud Water Research Center in Chester County.

Protecting the nation's biggest rivers and lakes depends on guarding the smallest creeks feeding them, the Environmental Protection Agency said in an argument to bolster its right to oversee headwaters.

Expanding that oversight, however, could incur the wrath of a U.S. Supreme Court that has already ruled against the agency's claim.

Meanwhile, the proposal already has drawn widespread criticism from industry and local government groups while gaining support from environmental organizations.

The EPA and Army Corps of Engineers have proposed a "guidance" — a set of guidelines their field agents would use to determine whether they can regulate a particular site. The agencies claim they cannot control the quality of drinking water for more than 117 million Americans unless they have that authority, which two Supreme Court decisions during the past decade weakened.

The agencies and environmental groups see the proposed policy as restoring responsibilities the agencies had for decades under the Clean Water Act. Those responsibilities include being able to regulate pollutants discharged into the streams, as well as determining whether a stream can be dredged or filled in.

Scott Kovarovics, national spokesman for the nonprofit environmental group the Izaak Walton League, said if the EPA can't regulate pollutants entering headwaters, it loses the ability to regulate pollutants ending up in large streams, lakes and rivers across the United States.

"The question (under debate) is the loss of the federal protection that the Clean Water Act provides," he said.

Opponents include industry groups and farm bureaus, which see the proposal as an illegitimate attempt to expand government power, and local governments, which object to the agencies attempting to implement the policy as an informal guidance document instead of a formal regulation that would give them a say in the final result.

"The EPA is just going way over its authority," said Rick Ebert, a Westmoreland County dairy farmer and vice president of the Pennsylvania Farm Bureau.

On the website explaining its proposal, the EPA includes a document saying that it wouldn't affect farmers. Ebert said that's hard to believe because water decisions always affect farmers.

"What they're proposing is just the next step in regulating what we do," he said.

Dan Bain, a professor of geology and planetary science at the University of Pittsburgh, said the EPA's logic makes sense. For example, New York City has imposed zoning rules that reach into the Catskill Mountains specifically because city officials determined a need to control what happens upstream in order to protect drinking water, he said.

"I don't understand an argument saying that it wouldn't (be needed)," he said.

Louis Kaplan, a senior research scientist at the Stroud Water Research Center in Chester County, said it's easy to miss the importance of headwater areas because they're small. Changing one stream has minimal impact on rivers and lakes, but those changes can add up in terms of discharging pollutants or filling streams in.

Jen Novak, a program associate with the Pennsylvania Environmental Council, said the Pine Creek watershed that sits just north of Pittsburgh is a good example.

"The largest percentage of the watershed is the headwater area," she said.

Water picks up pesticides when it runs across lawns and a range of pollutants as it crosses streets and parking lots. That heads toward the stream, but the preservation of buffer areas around the headwaters allows plants to slow down the runoff, which reduces the chance of flooding and cleans up the water.

"They can filter out pollutants," she said.

Douglas Hill, executive director of the County Commissioners Association of Pennsylvania, said the federal government has an understandable concern about the need to control what happens upstream, but his organization believes the new definition of regulated waters goes too far and, more importantly, the agencies are using a process that doesn't require them to balance the benefit of protection with its costs.

If the agencies implemented the policy as a formal regulation, they would be required to hold hearings and talk with people affected by the proposal, he said.

The county commissioners association and the National Association of Counties believe the EPA has not adequately considered the impacts on local governments if it increases the number of areas covered by clean water regulations, he said.

Those impacts include direct effects, such as requiring more permits when spraying to control mosquito populations that carry the West Nile virus, as well as indirect effects, such as slowing development within their boundaries, he said.

"We think it's going to extend the (federal) jurisdiction considerably," he said.

The Clean Water Act gave the EPA and Army Corps authority over "navigable" waters. The Army Corps in 1974 interpreted that to mean waters capable of supporting transportation or commerce. The agencies redefined the term several times over the years — initially by adding wetlands adjacent to navigable waters and then to isolated wetlands that provide habitat for migratory birds.

The Supreme Court struck down the migratory bird interpretation in a 2001 ruling that found the Army Corps didn't have jurisdiction over an abandoned sand and gravel pit in Illinois simply because some of its trenches became ponds that several species of birds use. The Army Corps had denied a permit to the Solid Waste Agency of northern Cook County, which wanted to turn the pit into a landfill.

In a February 2006 ruling known as the Rapanos decision, the court further limited federal jurisdiction in two Michigan cases in which the Army Corps claimed authority over wetlands that were connected to navigable waters by typically dry drainage ditches.

The EPA and Army Corps drafted the proposal in response to that decision. An EPA spokeswoman said agency officials are reading "tens of thousands" of comments submitted during a public review period before deciding whether to implement the policy.

Given the amount of opposition, the guidance is likely to be challenged in court if the agencies adopt it, but that might take some time to develop.

William Luneburg, a University of Pittsburgh law professor specializing in environmental law, said a formal regulation can usually be challenged as soon as it is adopted since it imposes legal requirements on whomever it regulates. A guidance is trickier.

Industry and environmental groups have successfully challenged similar policies over the years when they could show that — regardless of agency claims that they lack the "force of law" — the policies have the same practical effect as a legally binding regulation, he said.

On the other hand, if an opponent can't persuade a court of that, "you've got to wait until the EPA or Corps takes some action against you," Luneberg said.

The agency, in response to the Tribune-Review's emailed questions, claims that Congress gave it and the Army Corps authority over drainage areas, isolated wetlands and other non-navigable streams when it passed the Clean Water Act.

"Congress indicated that because water flows in hydrologic cycles, it was essential that the discharge of pollutants be controlled at the source," the EPA said. "In three cases, the Supreme Court has confirmed that the Clean Water Act protects non-navigable waters. But the most recent cases have narrowed the scope of non-navigable waters clearly protected under the law."

Although state environmental agencies protect those waters, the federal act gives the EPA authority "to review and adjust key state water pollution control decisions where necessary to assure that they reflect science, comply with the law and protect downstream water users in other states," the EPA said.

Katy Gresh, spokeswoman for the state Department of Environmental Protection, said consistent federal law is important, but the state is capable of protecting headwater areas.

Several groups have criticized the logic of the guidance, including the Pennsylvania Coal Association, which said in its written comments that it "disagrees with the agencies' interpretation on page 6 of the guidance that a canoe trip taken solely for the purpose of demonstrating a water body can be navigated is sufficient to demonstrate that a water body is susceptible to future commercial navigation, and thus can be considered a (traditional navigable waterway)."

The National Association of Counties said the agencies' definition of a "tributary" as something with "a bed, bank and an ordinary high-water mark" would include concrete-lined flood control ditches, as well as roadside ditches and culverts.

"The guidance document is confusing and contradictory, leaving more questions than answers and open to broad interpretations, which would be detrimental to county governments," the association said in its comment.

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