'Ambiguity... marginal benefit' - PPACG board to EPA on proposed water rules
Editor's note: Is an intermittent stream a tributary? What's the actual definition
of a flood plain? Concerned about local issues that could result from a (proposed)
expansion of what's controlled under the federal Clean Water Act, the Pikes Peak Area
Council of Governments (PPACG) board authorized the following letter to the
Environmental Protection Agency (EPA), dated Sept. 5. The board consists of elected
officials from governments in a three-county region, including El Paso. The author,
Dennis Hisey, is an El Paso County commissioner and chair of the PPACG board.
The letter was timed for the public comment period on what's known as the EPA's
“Waters of the United States” proposal. That period ends Oct. 20. The EPA's
“Waters” website is epa.gov/region6/6en/w/watersus.htm.
[To] Environmental Protection Agency
Subject: Comments regarding Waters of the US proposal
The Pikes Peak Area Council of Governments (PPACG) is the Section 208 water
quality planning agency for El Paso, Teller, and Park Counties, located in
Colorado. We appreciate the
EPA's attempt to clarify the definition of the waters of the US. However, we
believe that the language proposed in certain sections of the
rule is ambiguous and will only add to current uncertainty. In addition, the
proposal appears to significantly expand the scope of federal jurisdiction beyond
that intended by Congress and authorized under Supreme Court interpretations of
the Clean Water Act. Adoption of the proposal will cause delays in project review
and implementation at a time when infrastructure demands associated with water
and wastewater needs, drought response, and post fire remediation are high, but
both federal and local resources are limited. Some of the concerns regarding this
This part of Robinson Street near 27th becomes
a waterway every time it rains hard. But would it be considered a "tributary" under
the EPA's proposed "Waters of the United States" requirements? These are the
kinds of questions the Pikes Peak Area Council of Governments (PPACG) board is
asking in a letter to the EPA.
Westside Pioneer file photo
Ephemeral and intermittent streams, including normally dry arroyos and
washes, which are extremely common in Colorado due to the arid conditions, would
be considered tributary waters under the proposed guidance and therefore subject
to federal regulations. This would increase and expand the permitting requirements under
Sections 402 and 404 of the Act, and potentially trigger time consuming and expensive
NEPA [National Environmental Policy Act] reviews in areas that have not currently or
historically been of concern. Many such tributaries are not physically connected to waters
of the US through other than extremely infrequent surface flow, and it should not be
assumed that such ephemeral or intermittent streams/waterways are "per se" jurisdictional.
This language needs to be modified.
Implementation of this proposed rule would show a marginal environmental
benefit. The potential cost to comply with this proposed rule at a local, state, and
federal level will probably far exceed the environmental benefit, especially in areas
that are arid and semi-arid, such as Colorado. Water quality, aquatic habitat, and
vegetation are much different in areas that have perennial versus intermittent
flow. This rule should focus on areas where there is a known environmental or
ecological benefit and a pilot study should be conducted in each unique ecological
region so that the EPA and stakeholders can determine the rules appropriate for
each area and potential impacts. It is essential that this proposed rule demonstrate
how the downstream waters will be adversely impacted.
Local agencies can better determine priority needs. Each watershed has
unique hydrological, geological, and climatological conditions which will make
one-size-fits-all federal guidance on determining what is considered a water of the
US extremely difficult to fairly implement. Most regions in Colorado have a good
working relationship with the Army Corps of Engineers and the environmental
health department in trying to protect and improve water quality, so delegating
more authority and flexibility to the state and/or local governments would enable
local entities to protect their resources in a more economically efficient manner.
There is also confusion regarding what would and would not be considered a
water of the US, as a consequence of the "significant nexus" test. This is due to the
new proposed definitions of "neighboring," "floodplain" and "riparian area." It
appears that in certain circumstances, a specific area may or may not be
considered a water of the US, depending on whether an aggregate analysis of
waters in the region or a discrete analysis of the particular water in question is
conducted. This adds ambiguity and makes future local planning difficult,
including the establishment of budgets and the prioritization of environmental
Without modifications to the proposal, infrastructure projects will be delayed
and increased in cost due to the need to meet additional permitting requirements.
Both small and large infrastructure projects are already expensive and time
consuming. If permits are not timely issued, it can cause an economic ripple effect
through a community as a consequence of the project delays. The potential
complexity in applying for a permit under the proposal, especially with reference
to the "other waters" category, coupled with the ambiguity in what type of project
will require a permit, will result in project delays and cost increases that local
governments cannot afford. The financial analysis which accompanied the
proposal needs to be re-examined and supplemented so as to provide a more
accurate portrayal of on-the-ground cost impacts. State and local governments
could assist with this effort.
Many local governments in the West move water through ditches in order to
meet water supply needs. This is oftentimes accomplished in coordination or
partnership with agricultural water suppliers. The narrow scope of the proposed
ditch exemption will mean that most ditches will be considered jurisdictional, as
they are not excavated wholly in uplands and drain areas other than uplands.
Hence, this proposal will increase the burdens associated with both meeting future
water supply challenges and maintaining and replacing existing ditch structures.
The proposed language is so broadly drafted that without modifications it will
most likely encompass, and subject to further permit scrutiny, what can be
characterized as "beneficial" infrastructure activities. These activities include: (1)
the construction and operation of ponds and lagoons associated with "water"
delivery/treatment systems (there is a "wastewater" system exemption, but no
comparable water system exemption); (2) the construction and operation of
recharge and reuse facilities being employed in response to climate variability; and
(3) the construction and maintenance of stormwater control facilities, including
"green infrastructure" projects. To unnecessarily erect additional barriers to the
completion of such activities is unwarranted.
Adoption of these new rules requires an increase in funding and staff for both
the federal agencies who implement these rules and their state counterparts. State
health departments will face the burden of additional Section 401 certifications
and, in certain situations, additional standard setting proceedings, TMDL
allocations, and Section 402 permit actions. If such funding is not forthcoming, it
will cause projects to be delayed even further. [Note: TMDL is an acronymn for
Total Maximum Daily Load, a regulatory term in the US Clean Water Act
describing a value of the maximum amount of a pollutant that a body of water
can receive while still meeting water quality standards.]
A pilot projector study should be conducted to determine what the
environmental benefit and cost would be from the implementation of these
PPACG appreciates the EPA trying to clarify what would be considered waters of
the US, but believes there is still a lot of uncertainty and ambiguity surrounding
moving forward with the proposed guidance in its current form. There are many
issues and concerns that need to be clarified.
Board of Directors
Pikes Peak Area Council of Governments
Would you like to respond to this article? The Westside Pioneer
welcomes letters at
(Click here for letter-writing criteria.)