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By Brandon Loomis | Arizona Republic
Congressional Republicans, angry over what they call a massive federal extension of clean-water rules, vented their frustrations Monday at a roundtable hearing at the Arizona Capitol.
Federal officials say newly proposed Clean Water Act regulations would clarify only where the U.S. has jurisdiction and would not increase the areas where they apply pollution controls. Opponents insist that the U.S. Environmental Protection Agency and Army Corps of Engineers want authority to make anyone affecting even dry washes or ranch stock ponds to get a permit.
"This is not about the environment," said Rep. Matt Salmon, R-Ariz. "This is about a power grab."
In March, the Obama administration proposed a rule clarifying where federal agencies have regulatory authority in protecting waters. The change is in response to U.S. Supreme Court rulings over the past decade, one of which negated the government’s authority over any waters attracting migratory birds — a condition that the agencies had argued indicated an interstate commerce interest.
Instead, borrowing on logic from the court’s ruling in a second case, the proposed rule seeks to regulate degradation of any waters with a "substantial nexus" to the navigable waters of the United States. The regulated waterways would not necessarily need to be wet year-round but would have to have a bed, a bank and a visible high-water mark.
A memorandum signed by the EPA and Army Corps directors specifies the continuation of exemptions for "normal farming, silviculture and ranching activities"; a primer on the EPA website says the rule "actually proposes to reduce jurisdiction and exclude certain ephemeral and intermittent ditches."
"The goal is to clarify jurisdiction, not expand," said Jared Blumenfeld, administrator for the EPA’s Pacific Southwest Region.
A case-by-case analysis may be necessary when a waterway’s connection to downstream navigable waters is less clear. That wiggle room led critics to fear future interpretations or lawsuits could open jurisdiction to practically anyplace that gathers rain. It could require costly studies or long waits for permits.
"Does (the expansion) mean in the wash behind your house that runs to the Indian Bend Wash (during monsoon rains)?" asked Rep. David Schweikert, R-Ariz.
If so, he said, it could mean a resident would need a permit before planting a tree and applying fertilizer.
"It potentially affects everyone," Schweikert said.
Several representatives called the action "executive fiat," and Rep. Trent Franks, R-Ariz., said bypassing Congress to make such rules "literally threatens the fabric of the republic."
"Congress must be involved," said Rep. Paul Gosar, R-Ariz.
None of Arizona’s Democratic congressional delegates attended. Rep. Ron Barber, D-Ariz., sent a statement saying that he was monitoring the issue.
The National Farmers Union, a non-profit proponent of family farms, released a fact sheet defending the rule against "myths" and said the EPA would not gain control over more ditches, farm ponds or any new waterways. The National Wildlife Federation, meanwhile, said 3.2 million Arizonans rely on clean drinking water that would be protected under the rule.
Witnesses at Monday’s hearing said they fear the worst from Washington. Stefanie Smallhouse, whose family ranches near a usually dry section of the San Pedro River in southern Arizona, said she worries the ranch may need a permit to apply fertilizer on the off chance that a big rain might wash some of it into the Colorado River.
"I envision pretty much every farm family (and) ranch family will be in violation of the rule at least one day a year," she said.
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