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Senators: WOTUS unclear

Murkowski grills McCarthy; bill seeks to narrow U.S. water definitions

Viewed by many as a dangerous expansion of authority, marketed by the U.S. Environmental Protection Agency as simply a clarification of water protection rules already in place, the proposed "Clean Water Rule" has emerged as a primary point of contention between many U.S. lawmakers and the EPA.

This dispute was crystal clear when EPA Administrator Gina McCarthy faced U.S. Sen. Lisa Murkowski, R-Alaska, during a recent hearing of the Senate Interior Appropriations Subcommittee in which the environmental agency was seeking congressional approval for an US$8.6-billion budget for the coming year.

Murkowski, who chairs the subcommittee, grilled McCarthy on new definitions of waters of the United States being proposed in the pending Clean Water Rule as well as a number of other concerns she has on how EPA is going about its business.

"EPA's proposal to change the definition of the waters of the United States under the Clean Water Act has been described by some as a simple clarification, but in reality the change would substantially increase the EPA's regulatory reach," Murkowski said.

The senator said the regulatory burden created by the water rule would be a showstopper for new development in Alaska.

McCarthy assured the panel that the EPA is not seeking to extend its reach with the water rule.

"This is not an expansion of our jurisdiction, this is a way to focus attention where it is deserved so there can be increased clarity about what's in and what's not in," the administrator explained.

"While your words are articulate, I don't think it does much to calm the fears of the miners out in Fortymile who are worried about whether or not they are going to be able to move forward with their small placer mining activity," Murkowski fired back.

The Fortymile Mining District, for which the senator was referring, grabbed national media attention when the EPA headed a 2013 task-force of armed agents to investigate water quality violations by placer miners in the region.

Narrowed definition

While Murkowski and McCarthy were discussing the proposed changes to water rules, Sen. John Barrasso, R-Wyo., was preparing to introduce a bill that would direct the EPA to draft new guidelines that would narrow the definition of waters of the United States, compared to what is currently being proposed.

"After working together for months, we've introduced a strong bipartisan bill that will protect America's waterways - and America's farmers, ranchers and landowners," said Barrasso.

The legislation, known as the Federal Water Quality Protection Act, was introduced to the Senate on April 30 with nine co-sponsors onboard - six Republican and three Democrat - including Sen. Dan Sullivan, R-Alaska.

"With Alaska already home to more waters under the jurisdiction of the Clean Water Act than any other state in the country, the EPA's attempt to expand the definition of what constitutes the Waters of the United States impacts no state more than my own," said Sullivan.

In early April, Sullivan held field hearings in Alaska on the potential impacts of the proposed changes to the definitions of waters of the United States.

During an April 8 hearing in Fairbanks, Alaska Miners Association Executive Director Deantha Crockett said the proposed water rules provide less clarity, the opposite of EPA's aim.

"Definitions of numerous key terms and concepts, like waters, floodplain, wetlands, subsurface connection, etc. are ambiguous and unclear," Crockett testified. "There is no room for confusion when it comes to permitting and regulating mining projects in Alaska."

"To be perfectly frank, we fear this provides an avenue for our federal agencies to take a large leap into overreach, and place unreasonable regulations on mining projects simply because they can," she added.

This sentiment is reflected in comments made by several of the co-sponsors of Sen. Barrasso's legislation.

"The administration's proposed waters of the U.S. rule is unnecessary and yet another example of unelected bureaucrats overstepping their boundaries when it comes to rulemaking," said Sen. Mike Rounds, R-South Dakota.

The EPA's proposed water rules are particularly troublesome to the agriculture sector in the Midwest.

"There isn't a regulation that has caused more concern for North Dakota farmers and ranchers than the Waters of the U.S. rule," said Sen. Heidi Heitkamp, D-North Dakota.

One of the concerns is that pools and streams created by uncommon floods, such as is currently happening in North Dakota, would fall under the category of Waters of the U.S., under EPA's proposal.

As a counter, the bill introduced by Barrasso directs the EPA and Army Corps of Engineers to come up with a new definition of waters of the United States that includes: navigable and interstate waters; drinking water streams; streams with enough flow to carry pollutants to a navigable stream; wetlands adjacent to waters of the U.S.; and unlawfully filled areas.

More importantly to the senators is what they do not want included, such as: groundwater; isolated ponds; converted croplands; and agriculture water management systems, such as ditches.

"Our legislation gives the EPA the direction it needs to write a reasonable rule that will truly protect our 'navigable' waterways," said Barrasso. "By striking the right balance, we'll keep our waterways safe and pristine and allow them to be used as natural resources."

Finding balance

Until passage of Barrasso's bill, or some other development that ends the process, EPA plans to continue moving ahead with its proposed clean-water rule.

"In fiscal-year 2016 we will finalize and support implementation of the Clean Water Rule, which will clarify types of waters covered under the Clean Water Act," McCarthy said in her testimony before the Interior Appropriations subcommittee.

Murkowski said the proposed rule changes are stirring discontent.

"You are using the word 'clarification'; for so many of the people we are hearing from, it is not clarifying, it is confusing and confounding, and making people very angry at our government," she informed McCarthy.

Alaska's senior senator said that this anger is resulting in constituents calling for her "to shut the EPA down!"

Murkowski, who understands EPA has a "clear and legitimate role" in protecting the air and waters of the United States, does not intend to dismantle the agency. On the other hand, she has no intention of sitting idle while the agency expands it regulatory reach.

"We want to work with you, but I think you know the pressures that are on us to stop this thing cold, stop it cold in its tracks," the senator warned.

She said this sentiment is spurred by the view of many who see the EPA as an increasing threat to their way of life.

"We do care (about the environment), but we need to have the ability to provide for livelihoods; and sometimes these livelihoods are not clean. You get pretty grubby as placer miner," she informed McCarthy.

"What we are talking about is trying to find a balance between protection of our environment and care and concern for the men and women that are trying to support their families in economies that make sense in their regions," she added.

Author Bio

Shane Lasley, Publisher

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Over his more than 16 years of covering mining and mineral exploration, Shane has become renowned for his ability to report on the sector in a way that is technically sound enough to inform industry insiders while being easy to understand by a wider audience.


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