If it looks like a skunk and smells like a skunk…

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From the digital edition of the August issue of Drovers/CattleNetwork.

Skunk You know how the rest of that statement goes. I can’t help but think of it when I read, hear or talk about the Environmental Protection Agency’s (EPA) and U.S. Army Corps of Engineers’ proposed rule to redefine what waters fall under federal jurisdiction of the Clean Water Act (CWA).

Before I go any further, let me make one thing clear:  Responsibly managing water resources should not simply be a “check the box” and “do the minimum necessary” practice. As an industry that relies on clean water for our animals, our crops, our survival, implementing sound water-management practices better be looked at as a make it or break it issue for every single farming and ranching operation across the United States — regardless of location, size or animal or crop you grow. Without water nothing else matters. Period.

Now that I’ve got that off my chest, the proposed “waters of the United States” (WOTUS) rule has a skunky funk to it. And here are just a few reasons why the agencies’ latest attempt to redefine WOTUS doesn’t pass my smell test and shouldn’t pass the smell test for anyone who’s got a farm or stock pond, any number of ditches or an ephemeral stream or two on their property.

During my years in D.C., I learned that on any policy topic, pro or con argument points can generally be based on policy implications, economic ramifications, logistical feasibility or even process. While I learned from mentors that basing one’s argument solely on process isn’t likely a winning strategy, in this instance, it’s a factor that shouldn’t be overlooked.

Here’s why.

Before the rule was proposed, EPA issued a draft scientific assessment called “Connectivity of Streams and Wetlands to Downstream Waters.” EPA has said the final report will be the scientific basis for the final WOTUS rule. Here’s the problem — the report isn’t finalized and the rule has been proposed. Furthermore, when the very scientific panel tasked with finalizing the report learned from industry stakeholders that the rule existed, EPA told them they could see it when it was proposed to the public. Seems like a waste of taxpayer dollars and a complete slap in the face of good and transparent government to make a claim on one hand that a massive proposed rule like this will be based on a scientific report only to propose the rule before having the final report.

As I mentioned above, a good policy argument should be based on more than process. Don’t worry — the stench of the proposed WOTUS rule doesn’t stop with process fouls.

Now let’s talk policy and economics for a minute.

The agencies have said time and again since the proposal was issued in late March that it will not expand their jurisdiction under the CWA. The details contained within the rule paint a different picture.

Historically, WOTUS (or those that fell under CWA jurisdiction) were those that are navigable or are significantly connected to a navigable water. The Missouri River is and should be considered navigable. Further, if there’s a stream that flows into the Missouri River, that’s a significant connection. But what about the stream bed that’s dry 362 days out of the year and is wet and flowing only after significant rainfall — is that a significant nexus? How about a depression in a field or pasture? That stock pond out back? A ditch? Unfortunately, because EPA conveniently chose to base the rule on Supreme Court Justice Anthony Kennedy’s broad interpretation of a “significant nexus,” which said an isolated water does not need to have a surface-water connection to be considered significant, those small, isolated waters could very well be considered a WOTUS, giving EPA and the Corps the authority to dictate how you make land- and water-management decisions on your private property.

How about the economics? Unfortunately, the economic analysis has a rotten odor as well. For a proposed rule that will affect all CWA permitting programs, EPA analyzed how the proposal would affect just one section of the act, Section 404, and determined the proposed rule would result in a 2.7 percent increase in jurisdictional determinations and would impact an additional 1,332 acres nationwide. They applied that 2.7 percent increase across other permitting programs to determine the proposed rule would cost between $133 million and $231 million annually.

I know when we go run pastures it doesn’t cut it to check ponds, do headcounts and look for health issues with just one group of our cows and then apply those results across all other pastures. Each pasture is unique just as each permitting program is unique. At the very least, the agencies should call their chief economists back to the office to conduct a comprehensive analysis of the proposal.

Fortunately, you have an opportunity to tell EPA and the Corps what you think about the proposed rule. The agencies are accepting comments until Oct. 20, 2014. Submitting comments at regulations.gov is your chance to tell your story — to let the agencies know how this overreaching proposal will impact your farm or ranch.

Let’s face it, if it looks like a skunk and smells like a skunk, it’s probably a skunk, and EPA and the Corps need to hear from you.

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Joe Gloyd    
Wilmington DE  |  August, 19, 2014 at 10:32 AM

Just to illustrate how "honest" EPA is, Last month, I received a call from a man who said his company was working with the Wyoming Game & Fish Dept & would like permission to take some water samples from the Dempsy Canal on our farm near Thermopolis, Wyoming. I told him to get in touch with the man who leases our farm for permission. Somehow,I smelled a rat & checked with the WY Game & Fish who had never heard of the company. I called the man who then admitted that EPA was funding his project. We then told him that we didn't want him near our place!

mo  |  August, 19, 2014 at 11:05 AM

More important is the way the document is written - it is a specification worded in a way that will get the EPA what it wants - i used to write specifications and that was allows the case to protect the writer organization at all costs and the person/entity on the other end tried everything it could to get some flexibility and almost always lost. The "talking heads" may say that they have no intentions of implementing the worst case scenario that we are talking about but the words give ability to safely implement the worst case. Additionally the way for new and ambitious employees to move up the ladder is to aggressively follow the regulation even if it doesn't make sense as that is his/her ticket to a promotion. Been there.

Wyoming  |  August, 19, 2014 at 04:36 PM

Typical power grab of the regime in charge. It is one more area where they want control. The EPA has become a very scary part of the federal government in the last few years, rivaling the Fish and Wildlife Service, IRS, NSA, etc. In Wyoming we are continuously dealing with federal overreach, but still have an enough of an independent spirt to stand up to the feds. (Look up the fight against wolves). It usually does little good, because these power mongers get what they want, regardless of what the local government would want. The bigger picture of federal government control is what concerns me the most with this. 16 years ago, under Clinton's presidency, Bruce Babbet tried to divert Colorado water rights to places like Nevada and Arizona. Fortunately, some good people, including Ben Nighthorse Campbell got this shut down. It seems that even when you get these things shut down, they never entirely go away. I hope all states, whether it be New York, California, and anything in between will stand up to these people. Every state in the union has agriculture to some extent and should be able to define its own water laws without interference from Washington.

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