Supervisors weigh in on EPA waters rule

In letter, Webster County says rule is unclear, should explicitly give exemption to drainage districts

Seeking clarity on how drainage ditches are treated under federal environmental law, Webster County is adding its voice to the comments on a proposed rule from the U.S. Environmental Protection Agency.

The hope is that the new rule will clarify that drainage ditches are exempt from rules for the Water Of The United States (WOTUS), said Webster County Supervisor Keith Dencklau.

“This is a big deal,” Dencklau said. “Right now they have control over the creeks and the streams. So their control stops where our dredge ditch starts. All of our dredge ditches dump into a creek or a stream or a river.”

The supervisors sent a letter to the EPA with their concerns. Dencklau said the letter was being forwarded on from the Iowa Drainage District Association.

The EPA’s proposed rule, which can be found on its website, is changing an earlier WOTUS rule implemented in 2015. That rule has never been put into practice. It is currently on hold due to a preliminary injunction issued by the U.S. District Court in North Dakota, according to the EPA.

In February 2017, President Donald Trump issued an executive order to review the WOTUS rule, leading to the latest changes.

While the EPA in 2015 claimed its rules were only a clarification, not an expansion of power, representatives from the Iowa Drainage District Association said the rule would be a massive expansion of federal power, and could categorize much of Iowa farmland as a water of the U.S.

“They tried to take over the control of every depression, every waterway, every water source–we’d have to go to the EPA and get permission to fix it,” Dencklau said Tuesday.

The Webster County Board of Supervisors is in charge of more than 300 drainage districts in the county, Dencklau said, covering more than 300,000 acres.

“We applaud the stated purpose of the new rule to provide clarity, predictability and consistency to the regulators and to the public,” the letter stated. “In many respects, the proposed rule is much of an improvement over the current situation. However, with respect to the drainage ditches specifically, the proposed rule continues to lack necessary clarity and will lead to increased costs to drainage districts and thus the landowners in those districts. Ditches are listed as a category of WOTUS and as an exclusion. This is unnecessarily confusing.”

The EPA’s potential rule states that “certain ditches” would be included under the EPA’s control, but “certain ditches” would be excluded.

The supervisors’ letter proposed the rule be amended “to add a specific definition for ‘drainage ditch’ and exempting them from the rule.”

The letter warns that the current wording could force counties into a “regulatory never-never land” where decisions on maintaining a ditch would have to be evaluated on a case-by-case basis.

On Tuesday, as part of regular business the supervisors approved five drainage claims for broken tiles, sinkholes, and blowouts around the county.

Dencklau said if the exception isn’t included, the EPA could lead to delays in that process.

“If we have to go to the EPA to get their permission to do that, it will take a while, and it’s going to be costly,” he said.

The letter was sent on behalf of all the supervisors, board chair Mark Campbell said Tuesday.

The board voted unanimously to “receive and place on file” the letter, which Dencklau said was sent to the EPA on Monday.

“The comment period to the EPA was yesterday, so we emailed this yesterday,” Dencklau said.

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