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Canvassers seek stream comments

Canvassers began working in The Dalles this week hoping to talk to 1,200 people and gather 400 comments in support of a proposed major rule clarifying federal Clean Water Act authority.

The blue-shirted canvassers are working for Environment Oregon, a Portland-based organization that hopes to gather 22,000 comments statewide.

The comments will be submitted to the U.S. Environmental Protection Agency during a comment period on the new rule. The comment period ends July 21.

Rikki Seguin, conservation advocate for Environment Oregon, said “loopholes” in the Clean Water Act, due to two U.S. Supreme Court decisions in 2001 and 2006, have left “53 percent of Oregon’s waterways unprotected” by federal regulations, though some of those waterways were protected by state regulations.

The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers are proposing a rule change clarifying which waters are protected by the 1972 Clean Water Act, specifically streams and wetlands.

The agencies say the downstream health of rivers and bodies of water relies on the health of upstream waters. The Supreme Court cases made protections “especially confusing for those smaller, vital interconnected streams and wetlands,” an EPA press release stated.

Specifically, the proposed new rule clarifies that most seasonal and rain-dependent streams are protected and wetlands near rivers and streams are protected. Other types of waters may have more uncertain connections with downstream water, and protection will be evaluated through a case-specific analysis of whether the connection is or is not significant.

The American Farm Bureau Federation has come out against the proposed rule change, saying it would “impose unworkable regulations on the nation’s farms.”

A Farm Bureau press release claims the rule “would expand federal control over land features such as ditches and areas of agricultural land that are wet only during storms.”

Seguin countered that “we’re not, for example, regulating the ditch on your farm and that’s what the bad guys have been spreading around, the lie they’ve been telling.”

She said 40 farmers in Oregon have given their support to the new rule.

“The everyday farmer that most Oregonians know and can relate with, they’re on our side.”

The Farm Bureau further contends efforts to change water protection rules through Congress have failed, and it is an end run to try to change it through an agency. It also contends the report used to justify the rule changes is “flawed” and not peer-reviewed. It worries the new rule would extend authority over “virtually all waters.”

The Farm Bureau believes federal authority “should be limited to navigable streams and waterways that have continuous flow.”

The Farm Bureau further stated, “EPA says its new rule clarifies the scope of the Clean Water Act. However, EPA’s ‘clarification’ is achieved by categorically classifying most water features and even dry land as “waters of the United States,” meaning they would come under Clean Water Act jurisdiction.”

Julia Q. Ortiz, a spokesperson for the EPA, said nothing in the proposed new rule changes rules for agriculture, and in fact, it includes new exemptions for agriculture.

The text of the new rule states that farm ditches, for example, are explicitly exempt from Clean Water Act jurisdiction.

The Supreme Court cases focused on how large a waterway had to be in order to be considered navigable, Seguin said.

She said the Supreme Court cases got federal rules minimized by “polluters” “to make it so smaller waterways were not covered so they could use our streams as their personal sewers.”

EPA statements are more sedate, saying the new rules were the result of requests from many groups to clarify the confusion that followed the court rulings.

The EPA says the proposed ruling “does not protect any new types of waters that have not historically been covered under the Clean Water Act and is consistent with the Supreme Court’s more narrow reading of Clean Water Act jurisdiction.”

They say the new rule would ensure protection of aquatic resources and make the process of defining what constitutes a “water of the United States” less complicated and more efficient.

Any “water of the United States” is subject to regulation under the Clean Water Act. The new rule is defining, for the first time, a “tributary,” which is already a category protected under the Clean Water Act.

It also allows for “other waters,” those not defined in the act, to be protected on a case-specific basis if they have a significant connection to traditional navigable water.

The 2001 and 2006 Supreme Court cases both involved wetlands. In 2001, the court ruled that the use of “isolated” non-navigable ponds by migratory birds was not enough to trigger protection under the Clean Water Act.

In 2006 the Court said the Clean Water Act covered “relatively permanent” waters, and that definition did not necessarily exclude “seasonal rivers” that might go dry every year.

The 2006 case spoke of waters deserving of federal jurisdiction as having a “significant nexus” or connection, to the traditional navigable waters that are covered under the Clean Water Act.

In the new proposed rule, that “significant nexus” concept — of having a connection to a navigable water — is applied to tributaries to navigable water and to “other waters.”

Ortiz said under current rules, a person who had a wetland had to ask for a jurisdictional review to see whether the Clean Water Act applied before they could even seek a permit.

The new rule clarifies whether the wetland applies or doesn’t apply.

The new rule also, for the first time, specifically excludes some features and waters over which the agency has not previously asserted jurisdiction.

The agencies say the new rules bring clarity, consistency and efficiency to federal water regulations.

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