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National View: Overregulation means delays, added costs

We are all for clean waters and protecting the environment, and I thank the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers for accepting comments on a proposal to change the definition of “waters of the United States” under the federal Clean Water Act.

An environmental engineer prior to becoming a county engineer, I understand environmental issues and their related costs to the environment, industry and public.

However, I am concerned with overregulation. It is not that I don’t think permits are necessary, just that we are being overregulated and made to jump through hoops for various regulators to get permits to address the same issues.

As an example, for a typical road reconstruction project, water-related permits are obtained from the Minnesota Pollution Control Agency for a National Pollutant Discharge Elimination System permit; from the Minnesota Department of Natural Resources for protected waters; from Clearwater County, which implements the Minnesota Wetland Conservation Act locally; from the Minnesota Board of Water and Soil Resources, which administers the Minnesota Wetland Conservation Act statewide; from the Corps of Engineers for discharge of dredged or fill materials; and from local watershed districts. I don’t understand why one agency cannot address all water-related permits.

It appears to me the proposed rules would greatly expand the Corps of Engineers’ jurisdiction way beyond what the federal laws intended. Rules should be changed for the Corps of Engineers to regulate only traditional navigable waters; remaining wetland impacts should be left to other agencies to regulate. This would prevent some overlapping of water-related permitting. Other agencies regulate waters that drain into navigable waters. The EPA regulates runoff from construction sites through authority given to the Minnesota Pollution Control Agency to issue NPDES permits. Local and state agencies regulate the state’s Wetland Conservation Act, which is stricter than the federal regulations.

I believe the Corps of Engineers provides an important role in keeping our nation’s navigable waters in navigable condition for commerce and that the EPA plays an important role in protecting our nation’s waters and keeping them clean. It just does not make sense to me to expand the Corps of Engineers’ role when others are addressing the all-important water-quality impacts to our waters.  

Although many times I question the Corps of Engineers’ jurisdiction over a project, we in Clearwater County normally just sign off, giving the Corps of Engineers jurisdiction because it is easier and faster than waiting for the Corps to do a formal jurisdiction review.

However, we recently had a permit application that took much longer than necessary. It was a permit to impact less than 1 acre of isolated wetlands. We used to get these general permits back in about 90 days. This permit took 236 days.  According to processing rules, a request for additional information has to be made within 15 days. In our case, it took 90 days. Only 60 days are set aside to issue a permit after a completed application, according to regulations. A total of 128 days passed before we were given the permit after receiving the completed application. It also should be noted the additional information requested by the Corps of Engineers was just to show the impacts in a graphically different way on a map. The additional information provided did not change the actual wetlands impacted. The original application was acceptable to other wetland regulatory agencies.

Who is responsible for holding the Corps of Engineers to the timelines stated in the regulations? Our district Corps of Engineers blamed the delay on being understaffed. So why would anyone want to expand the Corps of Engineers’ jurisdiction when it apparently already has more work than can be handled?

Remember, where the Corps of Engineers’ jurisdiction ends other agencies pick up. Runoff into wetlands and waters of the state are being regulated by the EPA through the MPCA via NPDES permits, and wetland impacts are being addressed by local and state agencies.

It appears to me the proposed rules do not provide clarification over jurisdiction, leaving everything still up to individual interpretation. The proposed rules should be written clearly to clarify that the Corps of Engineers’ jurisdiction is traditional navigable waters. The proposed rules should state the Corps of Engineers’ jurisdiction only covers the waters listed and that other water-quality and wetlands impacts fall under other agencies to address water quality through the NPDES program and wetland impacts through the Wetland Conservation Act, which is being administered by most states with oversight by the EPA.

Having multiple agencies regulate the same thing just adds unnecessary cost to the public. I urge the EPA and Corps of Engineers to consider separating and clearly defining who has juridical oversight of each area. With today’s technology and GIS systems each agency jurisdiction coverage area could be laid out on a map.  Separating out the jurisdiction and having predetermined mapped areas of jurisdiction would greatly reduce future litigation costs for the agencies and provide clear direction to the applicants of water-related impacts.  

 

Dan S. Sauvé of Bemidji, Minn., is a professional engineer in charge of the highway departments for Clearwater County. A version of this commentary was submitted to the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers as a letter in response to the proposal to change the definition of “waters of the United States” under the federal Clean Water Act.

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