Kansas lawmakers question EPA water rule, citing overreach, lack of data

Key leaders of the Kansas Legislature are pushing the federal government for more information on a pivotal clean-water proposal, one they say reflects an overreach by the federal government that would infringe on the property rights of farmers.

Called the “ Waters of the United States” rule, the proposal seeks to clarify what is covered by the Clean Water Act – whether certain streams that dry up part of the year, for example, should be covered along with traditional rivers, streams and lakes.

The proposal is strongly pushed by the Obama administration and environmental groups, who say it would help keep rivers, lakes and other waterways healthy. But agriculture and other industry groups just as strongly oppose the plan, saying it represents a massive overreach by the federal government that would curtail farm activity.

The legislative letters came from Kansas state Rep. Dennis Hedke, a Republican from Wichita, and state Sen. Larry Powell, a Republican from Garden City, both of whom lead committees dealing with environmental issues.

The lawmakers were responding to a fact sheet that federal officials sent out earlier this summer that sought to clarify concerns about the rule – which itself seeks to clarify the Clean Water Act.

The Waters of the U.S. rule was proposed by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers. It notes that while the powers of the 1972 Clean Water Act clearly cover rivers, lakes and year-round wetlands, other waters aren’t so obvious. Two U.S. Supreme Court cases in the 2000s muddied things further.

The proposed rule is intended to take the standards laid out by the high court.

Hedke first wrote the EPA in July and followed up in September.

He asked the EPA to provide a “clear justification” for its proposal and to provide the state Energy and Environment Committee he leads with economic studies that would show the impact of the proposed rule on all 105 Kansas counties, as well as on “all Kansas rivers, streams and/or tributaries potentially affected” by the proposal.

He also sought to formally invoke a formal level of cooperation, known as “coordination,” between his committee and the EPA, a process he – and Powell on the Senate side – said was required by the EPA under various environmental laws and executive orders.

“The citizens of Kansas are currently being subjected to a significant range of federal actions, each of which has the potential to impact our citizens in psychological, economic and other measurable ways,” Hedke wrote in his letter. That includes everything from a threatened-species listing for the lesser prairie chicken to resource management changes proposed by the Bureau of Land Management, he wrote.

He asked for all the requested documents to be delivered to his office by Sept. 5; his later letter moved the deadline to Sept. 30.

With the exception of form letters acknowledging his submissions, Hedke said, “I haven’t seen a thing from them.”

“There’s a feeling that this is a considerable overreach of their authority – and in fact, they don’t have the authority,” he said in an interview. “I have not heard a positive comment on this from anybody so far – except from the EPA.”

The distance between backers and opponents of the water rule is vast – measured in miles and miles of rivers and streams. The EPA, in its assessments, projects that the new rule would result in a 3 percent increase in jurisdiction, a projection officials with the American Farm Bureau Federation say seriously undercounts waters that could become covered.

In Kansas, officials with the state Department of Health and Environment estimated the proposed rule would increase regulated stream miles from 30,620 stream miles to 174,410.

Ken Kopocis, acting head of the EPA’s Office of Water, said the extensive analysis and documents requested by the Kansas lawmakers is not something the EPA has the ability to fulfill – or the obligation to do so. “It would be prohibitively expensive, and would require us to be on the ground in every county in the country,” he said.

Beyond that, Kopocis said, the EPA has reached out to state-level officials, conducting scores of sessions with farm and other interests. “We have heard some concerns that we are taking very seriously, and we have heard some speculation that we think is not founded in the rule,” he said. “If there are areas that are causing concern, then we will make every effort to address them.”

The rule right now is a proposal; the EPA expects to finalize it next year.

As for the estimate by Kansas officials of covered waterways that could be added, Kopocis said he wasn’t sure how the state derived its estimate. But the EPA “feels really confident in our estimates,” he said.

Ryan Flickner, senior director of public policy for the Kansas Farm Bureau, said his group’s main goal is to have the government scratch the proposal in its entirety. “The way it’s written now, there’s no possible way they can salvage it,” he said.

The Kansas Farm Bureau sees the rule as an “extreme overreach by federal agencies,” he said. If estimates on the number of additional waterways covered are even remotely accurate, he said, “that’s an awful lot of additional miles.”

“There’s a lot of confusion about what is and what isn’t in there,” he said. The Kansas Farm Bureau expects to finish its comments for the EPA before Oct. 20.