A former director of the Nebraska Department of Environmental Quality says the Environmental Protection Agency is trying to fix something that isn’t broken in its controversial proposal to expand the Clean Water Act.
Former NDEQ Director Mike Linder has analyzed the EPA move to update the Clean Water Act, called “Waters of the United States” on behalf of Common Sense Nebraska, a group opposed to the change.
“So, the first part of my summary is they’re trying to fix the 404, the federal program, and I think they’ve broadened the jurisdiction and I don’t think they’ve really fixed it very well,” Linder tells reporters on a conference call.
Section 404 covers the wetlands permit program operated by the United States Army Corps of Engineers.
Linder, an attorney with Koley Jessen of Omaha, says currently the Corps determines on a case-by-case basis which rivers, streams, creeks, and ponds are covered by the Clean Water Act and which are exempt from regulation. He says the EPA effort to define those bodies of water is problematic.
The change also would affect programs traditionally overseen by the states.
Linder says the change could encroach on those state-run programs that have operated under a cooperative federalism since the Clean Water Act became law in the early 1970s. In Nebraska, the state works with farmers and livestock producers on compliance.
“If I were a producer I would be a little bit confused as to how this would impact my operation,” Linder says. “And if I had had an exemption or other decision by the state agency that now could be changed by this definition, I would want to have that clarification made.”
Linder speculates the change could also extend EPA’s regulator power to groundwater, which hasn’t been subject to regulation under the Clean Water Act. The EPA has stated it does not have jurisdiction over groundwater, but Linder says some definitions need to be revised to clearly indicate that.
Deputy Assistant Administrator of the Office of Water with the EPA, Ken Kopocis, denied the proposed changes would extend the EPA’s reach onto the farm.
“We believe that the proposed rule would cover fewer waters than what the current rule covers. So, we do not believe that we’re expanding jurisdiction,” Kopocis told Nebraska Radio Network in a telephone interview from this Washington, D.C. office in August.
Linder, responding to a question about Kopocis’ statement, says he couldn’t see how the proposed expansion would not broaden the reach of the EPA.
Linder says he would prefer EPA withdraw the proposal and work to better enforce current law.
“So, I don’t know, they’re trying to fix something that’s not broken with the other programs.”
EPA is accepting public comment on the proposed rule through November14th.
The Nebraska Farm Bureau is encouraging comments opposed to the rule change be posted on ditchtherule.fb.org.
AUDIO: Brent Martin reports [1 min.]