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Kansas Points Out CWA Flaws
Thursday, October 30, 2014 12:22PM CDT

By Todd Neeley
DTN Staff Reporter

OMAHA (DTN) -- Officials in Kansas argue they see plenty of evidence contrary to EPA's science on water connectivity, especially in the western part of the state.

Kansas officials filed comments on Wednesday in the Federal Register asking EPA to withdraw its proposed rule redefining regulated waters in the U.S. Kansas officials specifically challenged EPA's arguments that ephemeral and intermittent streams are connected to larger bodies of water downstream.

EPA is using connectivity science in making the case that all tributaries should be subject to the Clean Water Act. EPA's scientific advisory board signed on to the agency's connectivity science in a report earlier this month.

Kansas officials, however, offered specific evidence they say shows tributary connections to downstream waters aren't set in stone.

"Kansas believes connectivity in the western stream networks is tenuous and episodic, at best," the comment letter said.

As an example, the state points to recent flow conditions of an intermittent stream to the Smoky Hill River above Cedar Bluff Reservoir in Gove and Trego counties. Smoky Hill River is classified as protected water according to Kansas Water Quality Standards and is a water of the U.S. in federal law.

"Our concern here is not with a larger stream such as the Smoky Hill River, but instead where the proposed rule will take us, i.e., the tributary to the tributary to the tributary of the Smoky Hill River. Those small-order streams will be, in fact, ephemeral and the significance of their impacts very marginal, if even measurable."

State officials said Kansas ephemeral streams "do not automatically possess a significant nexus and more often than not, do not impose impacts on the downstream waters actually used by the citizens of Kansas."

Officials signing the letter include Gov. Sam Brownback; Secretary of Health and Environment Robert Moser; Secretary of Transportation Mike King; Secretary of Agriculture Jackie McClaskey; Secretary of Wildlife, Parks and Tourism Robin Jennison and Tracy Streeter, director of the Kansas Water Office.

EXEMPTIONS QUESTIONED

When EPA released the proposed rule last April, the agency also released a companion interpretive rule that currently lists 56 exempted conservation practices. The agency has indicated that practices can be added to or subtracted from the list. Kansas officials said EPA left off the list a critical tool used by farmers and other landowners in Kansas -- terraces.

"Such a list invites unnecessary federal scrutiny and requirements on any practice designed to conserve soil and water, but which may not fit neatly among the 56 practices the federal agencies deem permissible," the letter said.

Kansas officials are particularly concerned about gradient terraces used to reduce runoff from sloped land. EPA cites such terraces among its list of urban storm water best-management practices, state officials said, but the practice didn't make the list. "Is it EPA's position that installation of gradient terraces requires 404 permitting?" state officials said. Such permits are for dredge and fill work that includes covering waters with dirt and other materials.

The state has about 290,000 miles of terraces that protect more than 9 million acres, state officials said. That represents an estimated $1.9 billion investment by landowners and government agencies. If terraces are not exempted, they said, it will make it difficult to continue what has been a successful way to manage land and water.

"We are concerned that the interpretive rule, in concert with the proposed rule, will quell the desire of many agricultural producers to employ conservation practices, leading to a net increase in pollutant loading from our lands," state officials said. "We already have reports those voluntary conservation efforts to protect playa lakes in western Kansas are diminishing for fear of federal interference."

ENFORCEMENT CONCERNS

EPA has taken a lot of heat following the release of a database of maps by a congressional committee earlier this year, based on data from the U.S. Geological Survey. The agency has been criticized for not making the maps public as part of the rulemaking process, but has insisted the maps will not be used to make Clean Water Act determinations. Kansas officials said they are unconvinced.

"With the inclusion of adjacent waters to the coverage provided by tributaries, positive jurisdiction determinations will become automatic, without consideration of site-specific conditions," Kansas officials wrote.

Kansas' surface water register contains 30,620 miles of perennial and intermittent streams. The latest information from the National Hydrographic Database identifies numerous ephemeral streams in Kansas. That would bump the total stream mileage in EPA jurisdiction to about 174,000 miles.

"Where we draw the line in regulation is over land use decisions," they said in the letter. "That has always been the purview of local government and the rights of individual landowners. Because of the dominance of agricultural land use in Kansas, our citizens' interaction with the Clean Water Act should be minimal, as deigned by the act itself."

Editor's note: DTN will take a closer look at the Clean Water Act rule next week in a series of stories entitled, "Web of Water."

Todd Neeley can be reached at todd.neeley@dtn.com

Follow Todd on Twitter @toddneeleyDTN

(CC/AG)


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