The comments Nevada's Association of Counties (NACO) provided to the EPA and U.S. Army Corps of Engineers (the Corps) questioned the proposed rule-making process with regard to changing the "Definition of Waters of the U.S. Under the Clean Water Act" published in the federal register.
NACO brought up several issues not mentioned elsewhere.
The proposed rule raises Federalism concerns, said NACO. Under "Executive Order 13132 - Federalism," federal agencies are required to work with state and local governments when they propose regulations that have substantial direct compliance costs.EPA and the Corps claimed the "Waters of the U.S." definition change imposed only "indirect" costs, and as such did not trigger the Federalism concern. NACO disagreed, pointing out that the agencies' cost-benefit analysis acknowledges additional implementation costs for a number of Clean Water Act regulations. Since it is local governments that pay the costs of meeting those regulations, the definition change does have a substantial direct compliance costs.
The cost-benefit analysis of the "Waters of the U.S." definition change was made using data and assumptions the agencies have acknowledged may be flawed. NACO said economic costs and benefits are misleading because the reasoning used to determine them is flawed and doesn't give a true accounting.
NACO said proposed definitions are unclear and will result in further legal challenges and delays.
Since stormwater management activities are not explicitly exempt under the proposed rule, NACO expressed concern that man-made conveyances and facilities for stormwater management could be classified as a "water of the U.S." subject to federal clean water act regulations. Since stormwater management is often not funded as a water utility, but through the county general fund, NACO's comments expressed concern that significantly increased costs due to the proposed rule could impact cities' and counties' ability to focus available resources on real, priority water quality issues. NACO said Nevada's counties cannot assume additional unnecessary or unintended costs that could require funds to be diverted from law enforcement, road construction and maintenance and other necessary services to citizens.
NACO comments said shifting the point of compliance for stormwater systems further upstream under the proposed rule could reduce opportunities for establishment of cost-effective regional stormwater management systems. Many counties and stormwater management agencies are attempting to stretch resources by looking for regional approaches for managing stormwater quality, and NACO expressed concern that the new "Waters of the U.S. definition" would potentially inhibit such efforts.
Humboldt and other Nevada counties joined NACO in commenting to EPA and the Corps that the proposed change will increase the number of ditches for which the counties are required to get 404 permits before doing ditch maintenance such as cleaning out vegetation and debris. Since the Corps offices which oversee the 404 permit program are severely backlogged in evaluating and processing permits, counties are in a precarious position trying to balance small budgets against public health and safety needs, while being left vulnerable to lawsuits if the federal permit process isn't streamlined.
Finally, NACO requests recognition of the fact that the State of Nevada already has statutes that clearly provide for protection of all waters in the state.
"There is no reason for the EPA and the Corps to duplicate regulations the State of Nevada currently administers," NACO's comment document states. "We understand there may be states that do not regulate runoff as the State of Nevada does, but including all the states under the proposed rule changes because some states do not regulate runoff, only complicates administration and impact to state's rights.
Specific to northern Nevada's Carson River and Humboldt River Basins, NACO commented that the best way to achieve water quality improvements is by working with local jurisdictions and land owners along the river to more effectively implement projects rather than expanding the jurisdiction of The Corps' regulatory authority.
NACO urged the administration to remand the rule until the outlined concerns are addressed in coordination with state and local governments.
In addition to sending the NACO comments on the proposed "Waters of the U.S." rule change to EPA and The Corps, NACO Executive Director Jeff Fontaine had it sent to U.S. Senators Harry Reid and Dean Heller, Congressmen Mark Amodei, Steven Horsford, Dina Titus and Joe Heck, Gov. Brian Sandoval and Nevada Department of Conservation and Natural Resources' Director Leo Drozdoff.[[In-content Ad]]
