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5/8/2014 6:00:00 AM
Lawmakers, farmers wary of proposed water rule

Matt Reinig
Miner reporter

KINGMAN - Arizona politicians and farm organizations are fighting a federal rule proposed last month that would expand federal control over state waters by narrowing Supreme Court interpretations of the Clean Water Act.

The U.S. Environmental Protection Agency and U.S. Army Corps of Engineers state in a 88-page proposal, published April 21 in the Federal Register, that the terms "water," "waters," and "water bodies" in the Act would serve as categorical references under the new rule to rivers, streams, ditches, wetlands, ponds, lakes, playas, "and other types of natural or man-made aquatic systems."

"The terms do not refer solely to the water contained in these aquatic systems, but to the system as a whole including associated chemical, physical, and biological features," reads a footnote in the proposal.

U.S. Rep. Paul Gosar, R-Ariz., and 230 colleagues responded with a letter to EPA Administrator Gina McCarthy and Department of the Army Secretary John McHugh.

It urged them to withdraw the proposed rule, calling it a scientifically and economically flawed expansion of the federal government's role under the Clean Water Act.

"The EPA has no legal authority to expand the definition of navigable waters under the Clean Water Act, as the Supreme Court has repeatedly made clear. Only Congress has such authority," the letter states.

"The EPA is once again overreaching and attempting to seize control of more of our resources - in this case water - by attempting to expand the definition of navigable waters to include things like intrastate waters, farm and stock ponds, prior converted crop lands, prairie potholes and trenches that contain rainwater."

The letter goes on to say the "proposed water grab" runs contrary to state water law and existing compacts with devastating economic consequences for farmers, ranchers, small businesses and water users in Arizona, and throughout the country.

The EPA and Army Corps of Engineers say the proposed rule would clarify protection under the Clean Water Act for streams and wetlands that form the foundation of the nation's water resources.

The federal agencies also state in a release the proposed rule would enhance protection for the nation's public health and aquatic resources, and increase Clean Water Act program predictability and consistency by bringing clarity to the phrase, "waters of the United States," or those waters protected under the Act, which they say became "confusing and complex" following two Supreme Court decisions in 2001 and 2006.

The Congressional letter opposing the federal proposals also cites concerns by the Central Arizona Project that the new rule could include the project's aqueduct system, which diverts Colorado River water from Lake Havasu to central and southern parts of the state.

"Arizonans can't afford more economic hurdles and extortions of precious water supplies from an overzealous federal government," the letter states.

Arizona Farm Bureau President Kevin Rogers also responded with a release, saying the Clean Water Act has been clear on what constitutes navigable waters.

"Puddles, ponds, ditches and water tanks have no business being reclassified as navigable as proposed under the new EPA rule," Rogers wrote. "Congress, not the EPA, makes the laws."

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Reader Comments

Posted: Tuesday, May 13, 2014
Article comment by: Frank Harris

Perhaps Gosar should sponsor legislation to build a pipeline from the area of our country prone to flood to the drought stricken southwest.

I doubt if a pipeline that would help two regions of our country would be supported by Gosar. Why? Well it differs from the Keystone pipeline in one important way that Gosar and those of his party only care about. There are no big companies like the oil companies making big, big bucks of which they share with those in congress that matter!

Posted: Thursday, May 8, 2014
Article comment by: RICK SHERWOOD

If we don't hurry up and file for State Sovereignty more and more of the overreach will take place. Why our legislature doesn't take up the cause is worrisome.

Posted: Thursday, May 8, 2014
Article comment by: Monte Wilson

The new rule proposal is preposterous. In fact, it can be reasonably interpreted as including every square inch of the U.S. as under the jurisdiction of the USACE. The language of the proposed rules literally include all runoff. Not just that which runs in rivulets and ditches but as sheet flow as well. I am a Commissioned Engineer Officer in the USACE and a licensed Engineer as well. I was there when the original navigable waters rule was in first instituted. It was meant to include, as the name implies, navigable waters. Since that time there have been memorandums of instruction, which are not law by the way, which have expanded the Clean Water Act to the ridiculous. For example, for those of you that will whine for one, let's look at Red Lake. It is a captive basin meaning no outlet under the CWA. The former USACE area chief stated that they considered commerce to be the act trigger and that photography was commerce and hence it applied to Red Lake. They lost that one at least until this new proposed rule. Nonsense, but that's how it works now. The proposed rules took years to write yet we, the people, are generously granted 60 days for comment? If I were you, I would be as fed up with the EPA and blind Federal "run a muck" as I am.

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