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Feds plan to expand Clean Water Act enforcement

ST. PAUL — Federal clean-water policy has become as muddy over the years as some of the waters is was written to clean up, but on Tuesday the Environmental Protection Agency proposed a change that could give government regulators clear authority over millions of acres of wetlands and 2 million miles of streams across the country.

Environmentalists were happy.

“With the drinking water for nearly one million Minnesotans at risk, we’re thrilled to see the EPA moving forward to protect our waterways,” Samantha Chadwick of Environment Minnesota said Tuesday. “Today’s action is about ensuring that all our water is safe and healthy. Whether we’re kayaking on the Mississippi River, fishing in our favorite stream or just drinking the water that comes from our tap, we need Minnesota’s waterways to be clean and protected.”

The EPA proposed a rule change to clarify specifically what streams and wetlands fall under government regulation. Court and federal actions for more than a decade have muddied the EPA jurisdiction.

The rule, which would become final after a public comment period, does not protect new areas of water.

“The rule removes confusion over which streams and wetlands are covered by the Clean Water Act due to polluter friendly court decisions and subsequent Bush administration policies,” Darrell Gerber of Minnesota’s Clean Water Action said.

The EPA worked with the Army Corps of Engineers on the definitions.

“Today’s rulemaking will better protect our aquatic resources, by strengthening the consistency, predictability and transparency of our jurisdictional determinations,” Assistant Army Secretary Jo-Ellen Darcy said.

Existing protections for agriculture water use would be maintained in the new rule.

Not everyone was as happy as environmentalists.

An American Farm Bureau official said EPA and the Corps of Engineers were pushing the limit of their authority and the National Association of Builders reported the rule would force homebuilders to seek more permits.

“EPA has added just about everything into its jurisdiction by expanding the definition of a ‘tributary’ – even ditches and manmade canals, or any other feature that a regulator determines to have a bed, bank and high-water mark,” said Kevin Kelly, president of the builders’ group.

That will increase the cost of many homes, he added.

The Clean Water Act, passed in 1972, has received credit for cleaning up many of the country’s streams and bodies of water. But the EPA reports that a third of them remain polluted.

One of the problems Tuesday’s EPA rule was written to cure were court rulings that have made it unclear if the EPA has authority to protect certain streams, including those that do not flow all year. The court rulings also forced the EPA to make case-by-case decisions that many observers said were not consistent.

Clean-water advocates say that uncertainty over water law jeopardized many wetlands in Great Lakes states as well as half of the streams in Minnesota, Wisconsin, Illinois, Michigan and Ohio.

A Minnesota Senate committee heard testimony Tuesday that the state is losing wetlands. Sen. Rod Skoe, D-Clearbrook, is expected to lead an effort later this year to put together an agreement about how to handle the need to expand wetlands, especially in northern Minnesota.

Don Davis
Don Davis has been the Forum Communications Minnesota Capitol Bureau chief since 2001, covering state government and politics for two dozen newspapers in the state. Don also blogs at Capital Chatter on Areavoices.