Confusion Fueling Oklahoma Outcry Over EPA’s ‘Waters of the United States’ Rule

• Logan Layden
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  Logan Layden is a reporter and managing editor for StateImpact Oklahoma. He is a native of McAlester, Oklahoma and graduated from the University of Oklahoma in 2009. Logan spent three years as a state capitol reporter and local host of All Things Considered for NPR member station KGOU in Norman and six years as a reporter with StateImpact from 2011 to 2017. Most recently, he was news director for McAlester Radio before returning to public radio in 2020.

Logan Layden / StateImpact Oklahoma

Mason Bolay climbs into the cab of a tractor on his family's farm near Perry, Okla.

Oklahoma Congressman Jim Bridenstine calls it a power grab by an imperial president. U.S. Representative Frank Lucas says it would trigger an onslaught of additional red tape for famers and ranchers in Oklahoma.

That kind of hyperbole is expected anytime President Barack Obama’s U.S. Environmental Protection Agency does, well, anything. But the changes being proposed to the way bodies of water are classified are confusing.

The so-called ‘Waters of the United States’ designation is the federal government’s attempt to define which bodies of water qualify for protection under the Clean Water Act. The EPA is trying to tweak that definition. And it’s got farmers like Mason Bolay worried.

“My great, great grandpa made the land run in 1893 and we still farm the same farm they originally staked about five miles south of here,” Bolay says as he gestures toward a dry streambed at the bottom of a hill behind his house. “We’re standing here on top of a hill, but yet, there’s a waterway not 20 feet from us that runs water when it rains. It runs into a pond. It then dumps into the terrace that goes down to the next pond that dumps into the creek.”

‘No Less Fuzzy’

The Bolays have transformed this land over the generations, dug ponds, built barns, fences, houses — all without federal permission. But Mason thinks the proposed ‘Waters of the U.S.’ rule could change that.

State of Oklahoma

J.D. Strong, executive director of the Oklahoma Water Resources Board.

When J.D. Strong, director of Oklahoma’s Water Resources Board, reads the proposed rule, he says even dry ditches in Oklahoma could fall under federal control.

“It throws the door open for a lot more features to be considered ‘waters of the U.S.’ than there were in the mix before,” Strong says. “They’ve taken an already fuzzy line of jurisdiction and simply moved it from one place to another, but it’s no less fuzzy before we started this exercise.”

It’s never been entirely clear which waterways are ‘waters of the U.S.’ and get Clean Water Act protections. The current definition includes any waterway that, if polluted, would have a negative impact on interstate commerce. That includes:

“All the major rivers and streams, the significant ones, ones that are flowing pretty much year around and those sorts of things,” Strong says. “Those are clearly jurisdictional waters of the U.S., because they’re either traditionally navigable waters, or they’re significantly connected to those.”

Interconnected

But U.S. Supreme Court justices in 2001 and 2006 said that’s not a good enough test. That’s why the EPA is proposing a new one.

“The court said, ‘No, you should be looking at the relationship of waters to each other’, and to make a determination of whether the pollution or destruction of upstream waters would have an adverse effect on downstream waters,” Ken Kopocis with the EPA’s Water Office says.

Kopocis says the new rules take into account the interconnected nature of waterways. He says, for example, you can’t protect water in a river without fixing the pollution that comes in from its tributaries or adjacent wetlands.

“So there are two questions that need to be asked,” Kopocis says. “Are they related and connected to each other? And then secondly, would the pollution of the upstream water body effect — significantly affect the downstream water body?”

But EPA officials say farmers’ fears are unfounded and that the proposed rule actually includes fewer waterways than were covered prior to the Supreme Court rulings. For example, Kopocis says tributaries have always been covered by the Clean Water Act, that fact just hasn’t ever been spelled out in the rules.

“People are now wondering, ‘Oh, if the words are going to change, is it going to substantially change the meaning.’ And we actually — we don’t see it that way,” Kopocis says.

The public comment period ends on October 20. Kopocis expects the new EPA rule to be finalized next spring. And if history is any guide, Oklahoma and other states will likely sue to block it.