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Feds Could Get Control Of All U.S. Water Under Proposed Rule

by Colleen Schreiber - Livestock Weekly

AUSTIN — The EPA is on the take again, so to speak. This time it’s with a proposed rule dubbed the “Waters of the United States.”

Richard Gephart, an Oklahoma attorney and also the president of the Oklahoma Cattlemen’s Association, has read the proposed rule five or six times. He sent a message to those attending the recent Texas and Southwestern Cattle Raisers Assn. board meeting here through fellow Oklahoman and TSCRA board member Bob Drake: “Tell my Texas friends that every drop of water that falls on Texas will be controlled by the federal government under this proposed rule.”

The proposed rule was released in April. Since then organizations such as the National Cattlemen’s Beef Association, the Farm Bureau, the American Sheep Industry Association, the Public Lands Council and the like, as well as state livestock and farming organizations, have been fighting to get this proposal stopped. Even the Pro Golfers’ Association of America has teamed up to defeat the proposal.

Ashley McDonald, environmental counsel for NCBA, was one of the keynote speakers during the recent TSCRA board meeting here. She offered an overview of the rule, and the potential outcome and impact should the proposed rule go forward as is.

The definition of “waters of the U.S.”, over which the federal government has control, is at the crux of the federal Clean Water Act. The EPA, McDonald said, has been trying to expand its authority under the Clean Water Act for years with respect to the definition of “navigable.” The EPA has tried twice to get Congress to take out the word “navigable”.

“It failed. Navigable is still in there, and it does mean something; unfortunately, they refuse to recognize that.”

There have also been Supreme Court cases that have tried to define the term “navigable waters” or “waters of the U.S.”, and the latest two cases, McDonald said, really put limits on EPA’s authority.

“The Supreme Court said navigable might not mean navigable, but it does mean there is a limit to federal jurisdiction and there is a point at which the federal authority stops and the state authority picks up.”

The proposed rule, as in the past, identifies seven categories of water. The first four

categories are the traditional ones — major waterways, rivers, lakes, interstate wetlands, and the like.

However, three of the seven categories have been expanded. The category dealing with tributaries is one of the categories where big changes have been written in. Under the proposed rule, all tributaries of any of the four “traditional” waterways would automatically come under the jurisdiction of the Clean Water Act. Basically what that means, McDonald told listeners, is that all tributaries are under federal jurisdiction.

Under the proposed rule, waters adjacent to any of the four traditional waterways or tributaries would also be jurisdictional.

“It used to be all adjacent wetlands, and now it’s all adjacent waters — big difference,” said McDonald. “That means ponds, ditches, everything.”

Then there is the “catch-all category.” What the proposed rule says is that all other waters that are either alone or in combination with other waters that have a significant nexus to downstream water are now jurisdictional.

“There is a lot in that sentence that gives us problems, and it’s not just the definition of ‘nexus’,” McDonald said. “If the EPA can’t get you in one through six, they’ll get you in the seventh, which is the case by case analysis of other waters.”

One of the comments made by NCBA to the EPA regards their definition of tributary.

“I will tell you a tributary does not mean what you think it means,” McDonald told listeners.

“This proposed rule, which they claim is meant to be written so that anyone can understand it — they’ve defined a tributary as a water body that is physically characterized by a bed and bank and ordinary high water mark that ever contributes flow ... but then it goes on to say it doesn’t actually have to have a bed and a bank or ordinary high water mark. It can be a stream with no water in it; it can be a wetland, a pond — it’s opened it up to so many features. It can go underground for a while, it can be manmade, natural or altered. Drainage ditches are specifically included in the definition of tributary.

“The one thing that is not in there,” she added, “is any talk of actual water. What they really want is the land under their control.”

And if it’s not a tributary, then it may be defined as a flood plain or a riparian area, both of which are now also automatically under federal jurisdiction should the proposed rule go forward.

“That means wetlands, ponds, ditches that might not connect or contribute flow ...

basically any open water, so that’s obviously a concern for us.”

The rule does not clarify the size of the floodplain or the size of the riparian area, but rather leaves it up to the discretion of the regulator.

The proposed rule’s “other waters” category — the catch-all category — says, “other waters, including wetlands, provided that those waters alone, or in combination with other similarly situated waters, including wetlands, located in the same region, have a significant nexus to a water ...” This category, McDonald said, has still more questionable language, including vague terms such as “sufficiently close together” and “perform similar functions”.

“What does that mean?”

The EPA contends that NCBA, Farm Bureau and other ag organizations asked for rulemaking.

“That’s true,” said McDonald. “When they were doing guidance documents on this issue over the last 15 years we said that this is too big of an issue, that they needed to do rulemaking, but this is not the rulemaking that we asked for. We asked for clarity; this is not clarity. This is a trial lawyer’s dream come true.”

McDonald went on to point out that there are some exclusions and some new exclusions. For example, the agency added two exclusions for ditches. One calls for exclusion of ditches that drain only upland flow.

“They conveniently forgot to put in what they consider an upland.”

There is also a stock pond exemption — defined as “artificial lakes or ponds created in dry lands used exclusively for stock water ...”

“I don’t know what ‘exclusively’ means,” said McDonald. “Does that mean if kids go swimming in the stock pond or if it has fish in it does that make it recreational? So again, there are more questions than answers.”

Artificial reflecting pools and swimming pools, she said, are not waters of the U.S.

“That explains the breadth of this regulation, when they had to specifically exclude swimming pools.”

The proposed rule also specifically excludes groundwater, except that the rule also talks about shallow subsurface flow as a connection for the significant nexus test.

“What is shallow subsurface flow, and how is that different from groundwater?”

The reason this proposed rule matters, McDonald explained, is that it means farmers and ranchers will now be required to get a 404 permit for basically any practice performed

on their land or spend a lot of time and money defending themselves if a permit is not obtained. A 404 permit, she said, costs about $30,000 on average, and it could take up to a year to even secure one, meaning that projects will likely be delayed or deterred altogether.

“The EPA says, ‘Don’t worry; the ag exemptions will save you.’ I don’t want you to believe that, either,” McDonald told listeners. “The ag exemptions are not adequate.”

With help from USDA, the authors of the proposed rule attempted to provide additional clarity to the applicability of the permitting exemption dealing with dredge or fill material associated with certain agricultural conservation practices, McDonald said, which in the end made matters far worse.

“What the EPA has done is they’ve added 56 NCRCS practices to this exemption list, and in so doing they made those NRCS practices mandatory. So now conservational practices that I’ve always considered normal activities are definitely not legal without a 404 permit.”

Two of the practices chosen were fencing and prescribed grazing.

“Now, if you have a fence that touches a water of the U.S., say you build a fence through a dry ephemeral stream, that fence now has to be an NRCS fence. If it’s not, you’re in violation of the Clean Water Act.”

With respect to prescribed grazing, McDonald opined that what the proposed rule says is that if cattle graze across a dry ditch, the rancher must have a grazing plan.

“So to me, what that says it that everyone across the U.S. has to have a prescribed grazing plan.”

The other problem, she said, is that this puts the NRCS in the role of policing these activities, even if they are voluntary.

“It doesn’t matter if you took the government’s money or not; if you’re engaging in these activities and you touch a water of the U.S. and you want this exemption, you have to have dotted every ‘I’ and crossed every ‘T.’”

The deadline for filing comments is October 20. Thus far more than 300,000 comments have been filed; fewer than a thousand comments have been filed by Texans.

“The way to defeat this is volumes of comments; everyone needs to file comments on this rule. Tell the EPA to withdraw the proposed rule. Using personal examples is best.”

Anyone can file a comment, and commenting more than once is also acceptable. She encouraged everyone to solicit neighbors, friends, family members, city and county officials to get involved and to file comments.

“Counties and states should be very upset about this rule,” said McDonald. “Under the proposed rule, roadside ditches are tributaries, and so they would be jurisdictional, so anytime a utility has to cross a road or any kind of construction-related activity has to be done, the county will have to get a 404 permit. That puts a significant burden on them because that means a whole lot more red tape.”

She also noted that any citizen could challenge a 404 permit, and the challenge does not have to have any merit.

“Any angry neighbor can take you to court for the price of a postage stamp, and you will be left with the legal bills to defend yourself, because the door is so wide open and this proposed rule is so ambiguous.”

The U.S. House recently passed the Waters of the U.S. Regulatory Overreach Protection Act of 2014.

“This is not a partisan issue. Democrats crossed the aisle to vote for the bill. One of the most outspoken opponents is Oregon Democrat Kurt Schrader.”

Referring to the Senate as “the black hole,” McDonald said the Senate bill is similar to the House in that it invalidates the proposed rule, but unfortunately, it currently only has Republican support.

“We’re looking for a Democrat over on the Senate side to take a lead on this issue, so we continue to work the channels in the Senate. If we could get a vote in the Senate on this issue, we could win. It’s just a matter of getting leadership to allow a vote to happen.”

NCBA is pushing for full withdrawal of the proposed rule.

“There are so many issues with the proposed rule that there is no way to finalize a rule that corrects all these problems,” McDonald opined.

“The Clean Water Act is very clear. The states have the primary role of deciding land use and water rights, and this proposed rule has definitely blurred if not completely obliterated that line. Make no mistake, this is a private property rights issue if ever there was one. They could take over the entire land mass through this regulation,” she concluded.