From our April issue: EPA and “Waters of the United States"

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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.

The April issue of Drovers/CattleNetwork includes a summary of the proposed rule and how it may affect cattle operations around the country. This is an excerpt from that article.

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.”

EPA, however, says the proposed rule will simply provide “greater consistency, certainty and predictability nationwide by providing clarity where the Clean Water Act applies.” EPA also says the proposed rule takes into consideration the latest peer-reviewed science, which happens to be in draft form still, and does not propose changes to “existing regulatory exemptions and exclusions,” including exemptions for established farming and ranching activities, agricultural stormwater discharges; return flows from irrigated agriculture; upland soil and water conservation practices; maintaining and constructing farm ponds and irrigation ditches, maintaining (but not constructing) drainage ditches; maintaining structures like dams, dikes and levees, etc. According to EPA, the proposed rule clarifies that under the CWA, most seasonal and rain-dependent streams are protected; wetlands near rivers and streams are protected; and other waters that may have more “uncertain” connections with downstream water will be evaluated on a case-by-case basis to determine whether the connection is significant or not.

Much like the confusion surrounding the definition of jurisdictional waters, NCBA Environmental Counsel Ashley McDonald says the proposed rule would result in even greater confusion surrounding many of the current agricultural exemptions. She also says it would extend EPA and the Corps’ jurisdiction to additional categories of waters, including a category that include all waters in a floodplain, and add ditches in the definition of a tributary. “As a category, if you have farmland in a floodplain and you have a ditch or depression that’s filled with water that’s isolated and does not touch other waters – that’s a ‘water of the United States.’ Automatically. No analysis needed. Administratively, that’s very convenient for them. Unfortunately, I don’t think that’s the kind of clarity landowners were looking for when the called for clarity.”

With regard to the definition of tributaries, Guild says it’s not that hard. He said one can look at the words significant nexus and build a definition, noting that significant means big, important or impactful, and citing Justice Scalia’s description of nexus as abutting. “So an important abutment to a water of the United States. If there is a stream that flows into a stream that flows into the Missouri River, there’s a significant nexus. If there’s an irrigation ditch in North Dakota that has water in it sometimes, is that a tributary of the Missouri River? No – it’s not.”

For more, check out the April issue of Drovers/CattleNetwork magazine

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