Commentary: Water police, part two: EPA proposal won't help ag

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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.)

Limited jurisdiction
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.

EPA exempts "water-filled depressions created incidental to construction activity." Of course, EPA does not regulate these depressions such as in landfills, because they lost a major case where EPA claimed birds flying over such water-filled depressions gave it jurisdiction.

The courts basically said, "you have to be kidding."

EPA claims it is exempting groundwater "including groundwater drained through subsurface drainage systems." EPA is not given authority under the CWA to regulate groundwater but it does attempt to regulate groundwater through the Safe Drinking Water Act. EPA has sought to regulate groundwater in a matter in eastern Washington against 5 family dairies. Moreover, unless there is "an addition of a pollutant" to the water, EPA does not have jurisdiction.

EPA also claims to exempt "gullies and rills and non-wetland swales." Once again EPA is being disingenuous because gullies, rills and non-wetland swales would need to be in uplands. If EPA decides the gullies, rills and swales alone or in combination to "similarly situated waters" have a "significant nexus" to a traditional navigable water, then I suspect you will see a different outcome.

The so-called "ill-informed politicians" have seen an EPA which pursued a cranberry grower in Massachusetts for approximately 22 years trying to establish that a cranberry bog was originally a natural wetland and needed to be destroyed.

The "ill-informed politicians" may have read the U.S. Supreme Court case of 2012 where a young couple named Sackett purchased .62 acres for a home building lot near Priest Lake, Idaho. EPA charged them with filling a wetland and the couple had to appeal all the way to the Supreme Court to challenge EPA on whether the parcel was subject to the CWA. The Supreme Court concluded EPA's actions were egregious.

Read the nine sections of EPA's proposed definition and then decide who is ill-informed. More next week on these definitions.

Gary H. Baise is a principal at OFW Law (Olsson Frank Weeda Terman Matz P.C.). This article first appeared in Farm Futures magazine. The opinions presented here are expressly those of the author. For more information, go to www.OFWlaw.com.


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