High-country wetland with Colorado aspens. Photo with permission by John B. Kalla via Flickr.

By Mark Scharfenaker

Wherefloweth the Clean Water Act Waters of the United States (WOTUS) rule jointly proposed last spring by the U.S. Environmental Protection Agency and the Army Corps of Engineers? The rule clarifies which waters are covered under the Clean Water Act, raising concerns over a potentially expanded federal jurisdiction over previously uncovered waterways, wetlands, and groundwater resources.

The Corps and the EPA have asserted the rules will save time and money in making jurisdictional determinations and provide better protection of the public’s water resources as the Clean Water Act intended, without affecting any new types of waters.

But after more than one million public comments, a questionable “campaign” by the EPA to promote the rule, a GOP-majority Congress aiming to make the agency start over, and the two-term Obama Administration winding down, this important rulemaking very well might emerge this week in final form virtually begging for legal challenges.

Also this week, a Senate hearing on bipartisan legislation to force a makeover saw leading WOTUS-rule critic Sen. James Inhofe, the Oklahoma Republican who chairs the Senate Environment and Public Works Committee, announce that he has asked the Government Accountability Office to assess whether EPA efforts to promote the rule have violated laws banning federal agencies from “grassroots” lobbying.

In doing so, Inhofe cited a May 18 New York Times article addressing that very subject.

“EPA claims that they conducted ‘unprecedented outreach’ after they issued their proposed ‘Waters of the United States’ rule,” said Inhofe. “What they actually conducted was an unprecedented grassroots lobbying campaign which may violate federal law.”

Inhofe said S. 1140, the Federal Water Quality Protection Act introduced in late April sets forth some principles and guidelines for EPA and the Corps to follow when they rewrite the rule. “Importantly, the bill tells EPA and the Corps that they need to focus on water bodies. Not puddles, ditches, groundwater, and overland sheet flow,” he said. “They also need to focus on the ability of water pollution to reach navigable water. This means they cannot use the movement of birds, animals and insects, or nature’s water cycle to create federal control over land and water.”

Also at the hearing, Mark T. Pifher, manager of the Southern Delivery System for Colorado Springs Utilities, testified on behalf of the National Water Resources Association in favor of S. 1140.

While acknowledging that EPA will likely make substantive changes to the proposed bill in response to public comments, Pifher said a major factor in the controversy “was the failure of the agencies to timely initiate consultation with state and local governments, conservation and conservancy districts, ditch companies, special districts, agricultural interests, public and private utilities and others prior to their issuance of the draft rule.”

S. 1140, he said, would “assist in rectifying this failure by requiring expanded outreach efforts. After all, it is state and local entities who have on-the-ground experience in this arena, and who bear the burden of making this regulatory process work on a daily basis.”

Pifher cited specific concerns of western states that the proposed rule “failed to recognize the geologic, hydrologic, and climatic differences that exist across this country, with particular reference to the arid West, a region of the country where ephemeral and intermittent water bodies, effluent dependent and effluent dominated streams, dry arroyos, isolated ponds, artificial conveyance systems, including ditches, and geographically large and diverse basins are so common.”

The Senate is not alone in advancing legislation to block the WOTUS rule.

The U.S. House of Representatives on May 12 approved bipartisan legislation that also requires EPA to withdraw the proposed WOTUS rule and start over. The vote was 261 to 155.

Echoing Inhofe, House Transportation and Infrastructure Committee chairman Bill Shuster, R-Pa., said his Regulatory Integrity Protection Act of 2015 (H.R. 1732) would stop an “onerous rule” that “will impact the nation’s economy, threaten jobs, lead to costly litigation, and restrict the rights of landowners, states and local governments to make decisions about their lands.”

Similar concerns have been expressed by the Western Governors Association and the Western States Water Council.

In its comment on the WOTUS rule, the WGA expressed concern that “this rulemaking was developed without sufficient consultation with the states and that the rulemaking could impinge upon state authority in water management. As co-regulators of water resources, states should be fully consulted and engaged in any process that may affect the management of their waters.”

The Western States Water Council spelled out specifics for a revised WOTUS rule, including that it specifically exclude waters generally considered to be outside the scope of the Clean Water Act. The list includes groundwater, farm and stock ponds, irrigation ditches, man-made dugouts in upland areas, temporary ponds excavated to combat wildfires, and prairie potholes and playa lakes.

EPA chief Gina McCarthy, meanwhile, has said 90 percent of the public comments on the proposed rule were favorable. Still, in an April 2015 blog post she emphasized that the agencies are responding to concerns and outlined a series of changes to the initially proposed rule that will be reflected in the final version, which is expected to be issued any day. Find more coverage in this May 22 New York Times article.

Mark Sharfenaker has been a writer and editor for the American Water Works Association since 1986 and the AWWA website editor since 2008. His previous contributions to CFWE’s Your Water Colorado Blog include “The Value of Water,” “Money for Water,” and “As Big as it Gets: Clean Water Act Rulemaking.” He moved to Colorado in 1982 after a 10-year stint in Montana, where he earned an undergraduate degree in Journalism at the University of Montana and learned the joys of fly fishing and the wonders of western waters.