What do you get when you mix a 40-year old law that has been changed multiple times and is in the process of changing again, been challenged by multiple lawsuits, and is riddled with unclear definitions and a general uncertainty regarding the rules of the game? The current state of affairs surrounding the definition of “waters of the United States” under the Clean Water Act, and thus, the expanse of the Environmental Protection Agency’s and U.S. Army Corps of Engineers’ jurisdiction over water in this country.
With a proposed rule that could result in jurisdiction expanding to isolated waters, including some ditches, farm and stock ponds and desert washes to name a few, this is an issue that has captured the attention of farm and ranch groups as well as key lawmakers across the country.
More clarity or more confusion?
The proposed has farmers and ranchers across the country sounding the alarm because they say the draft proposed rule would result in them needing EPA permits for everyday ranching practices and would threaten their private property rights. Lawmakers have also weighed in on the issue, including Rep. Lamar Smith (R-Texas), chairman of the House Committee on Science, Space and Technology, when he recently said this rule “could be the largest expansion ever of EPA’s authority to regulate private property.”
Joe Guild, who manages and helps manage several ranches in Nevada and also is an attorney, calls the proposed rule a “sea change” and says all involved in agriculture should be worried. “If you give EPA jurisdiction over all waters of the United States, you have basically given them the ability to go on to a ranch and regulate waters like vernal pool in California that only has water in it two weeks out of the year. When EPA can regulate irrigation water going to sugar cane fields in Florida and an ephemeral stream in Nevada, then all of the sudden, the federal government has jurisdiction over not just the water but also the land use. And I don’t want that to happen on the ranches with which I’m associated.”
Guild is not alone is his concern regarding land use. In fact, Justice Scalia said in his opinion in the Rapanos case that “In applying the definition to ‘ephemeral streams,’ ‘wet meadows,’ ‘storm sewers and culverts,’ ‘directional sheet flowing during storm events,’ drain tiles, made-made drainage ditches and dry arroyos in the middle of the desert, the Corps has stretched the term ‘waters of the United States’ beyond parody. The plain language of the statute simply does not authorize this “Land is Waters” approach to federal jurisdiction.”