The new “Waters of the U.S.” proposal represents a potential expansion of the historical scope of federal jurisdiction. “Under the proposal, all tributary and adjacent waters would now be “jurisdictional by rule”, the definition of “tributary” and the scope of what is “adjacent” would both expand, a new concept of “neighboring waters” would be incorporated, and the significant nexus test would allow for a watershed scale determination of jurisdiction. Many of the dry arroyos, washes, ditches and ephemeral or intermittent water bodies so common in the arid West could become the subject of federal oversight” (MP Testimony).
While Western water providers and NWRA members welcome the opportunity to work alongside the EPA to identify any necessary proposal adjustments, it is important that the implications of this proposed language be considered in the context of Western environmental and water supply challenges being faced by local communities. These challenges include climate change, particularly drought, forest fires, post fire floods, and the overall health of forested watersheds. The West is in fact the region that will be most directly affected by the outcome of this new proposal.
Mark Pifher is proposing that CWC consider establishing a short-term project (about 3 months) to work on comments on the Waters of the U.S. action. The concept is to work with other Western water interests and to participate in a Work Group being assembled by the Van Ness Feldman law firm. The funding goal for the Van Ness effort is $15,000 from Colorado. The Water Congress would potentially gather the funds from participants and no money would be pulled from fund balance. We are soliciting input from Water Quality and Federal Affairs Committees by Friday, May 16.