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CWA Rule Pressure
Wednesday, October 15, 2014 7:17AM CDT

By Todd Neeley
DTN Staff Reporter

(DTN) -- The Pennsylvania Department of Environmental Protection said in a comment letter to the U.S. EPA recently that states are far more equipped to regulate waters.

What's more, Pennsylvania's top environmental agency called on the EPA to withdraw the proposed rule redefining "waters of the U.S." and engage in a process that includes input from state agencies and public hearings. EPA has received more than 415,000 public comments ahead of the now-Nov. 14 public comment deadline on the proposed rule.

"The rule as drafted creates more confusion than it clarifies, and is already subject to differing interpretations by EPA and ACOE (U.S. Army Corps of Engineers) staff," the Pennsylvania letter said. "This confusion will delay permitting and could undermine strong state programs."

Don Parrish, senior director of regulatory relations for the American Farm Bureau Federation, said the comments coming from the state of Pennsylvania should catch EPA's attention on the importance of state-federal partnerships in regulating water.

"Note that it completely undermines a number of EPA talking points on expanded jurisdiction," he said. "It eviscerates the credibility of an Environmental Law Institute study as a rationale for EPA's proposed rule."

Parrish refers to claims by a May 2013 Environmental Law Institute study that two-thirds of states have laws that could restrict the authority of state regulators to protect waters left uncovered by the Clean Water Act.

In the letter, Pennsylvania authorities outline the state's clean streams law and how it fits into federal Clean Water Act implementation, making the case that the state law "the scope of protected waters is not subject to confusion or debate, but is clear and comprehensive."

The state said in its letter that it was "frustrated, disappointed and frankly, alarmed, to discover that in formulating this rulemaking, EPA is relying on inadequate and inaccurate information regarding the breadth and scope of state law programs.

In the letter, the state said EPA has expressed unfamiliarity with state laws and instead relies on the ELI study as reason for justifying the need for the rule "because state programs to protect water resources are lacking, and purporting that the proposed rule will address states' regulatory loopholes. EPA has asserted that Pennsylvania is one such state. This characterization and assertion by EPA is completely erroneous and reflects a lack of due diligence and coordination with states."

In 2013, Pennsylvania provided 13,066 state law water program authorizations, including 4,914 in the Clean Water Act's National Pollution Discharge Elimination System program. "These numbers represent the extensive state law oversight in Pennsylvania over projects which affect or have the potential affect waters of the commonwealth," the letter said. In fact, the state said 62% of the 2013 water-related permits were issued via state authority and not through the Clean Water Act.

The new waters of the U.S. definition in the rule would render the state's permitting in federal programs "more cumbersome and confusing," Pennsylvania officials said. In addition, EPA's simultaneous review of connectivity science and the public comment period on the rule "provides a major obstacle in providing substantive comments and recommendations regarding the scientific basis for the validity of the obligations established in the rule." The state said it recommends EPA allow the public a 60- or 90-day review and public comment period to allow for input on the relationship the study has to the rule.

Although EPA has stated the rule is necessary in order to clarify Clean Water Act jurisdiction and to take some of the guesswork out of making determinations, the state said in its letter that the application of a significant nexus analysis would lead to "exchanging one collection of uncertainties for another."

Todd Neeley can be reached at todd.neeley@dtn.com

Follow Todd on Twitter @toddneeleyDTN


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