Koochiching County commissioners have asked the area’s federal delegation to oppose legislation in Congress that would broaden the definition of water under federal jurisdiction in the Clean Water Act.

Commissioner Wade Pavleck said this week that the legislation “goes too far... We should be very concerned. There are so many protections now.”

Pavleck said the new legislation would “retard development and impact forestry” in places like Koochiching, which retain a vast majority of presettlement wetlands.

Commissioner Kevin Adee, who represents the county at the Association of Minnesota Counties organization, said he would ask AMC to also oppose the legislation.

According to the National Association of Counties, of which Koochiching is a member, the “Preserve the Waters of the U.S. Act,” introduced in the U.S. Senate, would prevent the Environmental Protection Agency and the U.S. Army Corps of Engineers from moving forward with the “waters of the U.S.” guidance.

The bill is in response to proposed guidance on “Identifying Waters Protected by the Clean Water Act.” Originally issued as a draft in April 2011, the guidance was sent in final form to the Office of Management and Budget Feb. 21. According to the EPA and the Army Corps, the guidance is meant to clarify what waters fall under federal jurisdiction by modifying the “waters of the U.S.” definition in the Clean Water Act.

NACo has expressed concern about the scope of the “waters of the U.S.” proposal, which it says is significantly broader than previous guidance documents on the subject.

Pavleck pointed to language in the proposal that acknowledges “that decisions concerning whether or not a waterbody is subject to the CWA have consequences for states, tribal and local governments.”

Writes NACo, “Since there are a number of CWA programs that directly impact counties — such as the National Pollution Discharge Elimination System Program; Pesticides General Permits; Total Maximum Daily Load; Water Quality Standards, etc. — changing the definition of ‘waters of the U.S.’ will affect local governments.”

Further, NACo states that under the draft guidance, a ditch is under federal jurisdiction if it has a bed, bank and an ordinary high water mark and connects directly or indirectly to navigable and/or an interstate water, regardless of distance. It also writes that while the guidance is technically nonbinding, many counties believe, based on previous experience, Corps staff will claim federal jurisdiction over county ditches using a section in the CWA, known as a 404 permit involving wetlands, essentially using the guidance as a regulation.