Commentary: Water police, part two: EPA proposal won't help ag
If you missed part one of this discussion about EPA Clean Water Act regulations, view EPA's Water Police, Part One: Coming to Your Farm?
The Drovers Cattle Network reprinted my comments regarding the EPA and Corps of Engineers' new definition of "Waters of the United States." A reader took umbrage at my reference to "ill-informed politicians" who attacked EPA's proposed land grab of private property. Devil is in the details on new government effort to regulate U.S. waters.
The reader suggested I too should read EPA's proposed rule "first" before commenting. He set forth exemptions EPA creates for agriculture, ranching and silviculture, and suggests EPA is helping agriculture.
The EPA benevolence needs to be examined so that you can decide whether the "ill-informed politicians" are as ill-informed as the reader from Kansas suggested.
The rule does say "longstanding exemptions in the CWA for farming, silviculture, ranching and other activities, do not change…" TRUE. The reason is that vast millions of acres are considered uplands over which EPA has no jurisdiction under the Clean Water Act.
Farm land that may be a wetland is exempted if it was farmed before the advent of the CWA under the "converted cropland" exemption. Notwithstanding this exemption the "ill-informed politicians" are probably concerned with EPA saying even if the farm is converted cropland,"…. for the purposes of the Clean Water Act the final authority regarding Clean Water Act jurisdiction remains with EPA."
(I have been involved in a case which was "converted cropland" and should have been exempted but EPA issued a fine anyway.)
EPA exempts "ditches that are excavated wholly in uplands, drain-only uplands and have less than perennial flow." This really is not an exemption because EPA does not have jurisdiction in uplands.
EPA exempts, "Ditches that do not contribute flow, either directly or through another water, to a traditional navigable water…" Again, EPA does not have jurisdiction over ditches in uplands because these do not flow to traditional navigable water or to an impoundment of jurisdictional water.
So, EPA is giving nothing because it does not have jurisdiction in the first place.
EPA exempts "artificially irrigated areas that would revert to upland …" EPA has never had jurisdiction on upland areas – irrigated or not. Once again, EPA is giving nothing.
EPA exempts "artificial reflecting pools or swimming pools created by excavating and/or diking dry land;" It is generous of EPA to exempt homeowners' swimming and/or reflecting pools on dry land.
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