INDIANAPOLIS — U.S. Environmental Protection Agency staffers have been told that the top issue in rewriting federal water regulations is to simplify rules initiated under the Obama administration, according to the current EPA administrator.
“I wanted property owners to be able to stand on their property and be able to tell for themselves what is the definition of a federal waterway, whether or not they have a federal waterway on their property, without having to hire an outside lawyer or consultant,” Administrator Andrew Wheeler told 175 people at the annual Indiana Environmental Conference last month.
Wheeler said the Obama-era “Waters of the U.S.” rules, a key element of the 2015 Clean Water Act, were convoluted.
“In fact, the definition was so far-reaching that they needed to clarify in the regulatory text that puddles were excluded,” he said.
The ongoing repeal of the Clean Water Act follows an executive order from President Trump seeking pollution-free navigable waters while promoting economic growth and minimizing “regulatory uncertainty.”
Some in the audience at the Indiana Chamber of Commerce conference questioned Wheeler’s announcement that the rules would be simplified.
“I was struck by the administrator’s comment that in their new rule they want to go to something that would allow a property owner to stand on his property and say that’s a Water of the U.S. and that isn’t,” said Indianapolis attorney Curt DeVoe, a partner with the Plews Shadley Racher & Braun law firm.
DeVoe has worked on numerous environmental compliance and ligation cases.
“I don’t think that’s a very manageable standard. … Think about the range of land owners making that determination. There are landowners who would say this is my private property and there is no federal jurisdiction anywhere,” DeVoe added.
One change involves agricultural ditches running through farmland that may carry water, or agricultural chemicals, to a larger stream or river.
“We are specifically excluding agricultural ditches. They will no longer be considered Waters of the U.S.,” Wheeler said.
A reason? It may go back to Wheeler’s experiences as a private lawyer in Indiana.
In a short interview, he recalled a case of an Indiana farmer whose ditch was inspected by the Army Corps of Engineers. That inspector told the farmer that the ditch was a water of the U.S.
The farmer responded that the EPA eliminated such ditches from the rules.
“And that inspector said, ‘I get to decide what is and what is not a Water of the U.S.,’” Wheeler said.
Wheeler said the new rules will help guide individual inspectors who “make up the rules as they go along.”
The EPA may rely on states to enforce more jurisdiction, Wheeler said.
“If the federal government were to walk away tomorrow from regulating waters of the US — we’re not going to, but if we were — most of the major water bodies would still be covered by state laws,” he said.
While in Indianapolis, Wheeler announced issuance of $436 million in low-interest loans from the federal Water Infrastructure Finance and Innovation Act (WIFIA) for 20 Indiana projects.
Wheeler called it one of the “most consequential” loans ever issued by the EPA.
“Our effort is to modernize the state of Indiana from the smallest community to the largest, and that was represented in this package,” Gov. Eric Holcomb said.
The projects total $910.3 million in costs and include a new $22 million water treatment plant in Greensburg, $2.2 million in water system improvements in Greentown and $182 million for a long-term plan to control wastewater in Evansville.
“This is the first time that a state is using the WIFIA funds to help finance projects in rural communities,” Wheeler said. “We wanted this to be a model for other states to follow.”
The remainder of the loans will come through the Indiana Finance Authority’s uncommitted revolving fund balance. The current interest rate is 2%.