Latest federal overreach could harm farmers, ranchers

July 23, 2014

Jayson Lusk

In a move that could have a major impact on Oklahoma farmers and ranchers, the U.S. Environmental Protection Agency (EPA) has proposed a new “waters of the United States” rule under the Clean Water Act.

The Clean Water Act has been in existence for more than 40 years, and at the time it was passed, the EPA’s regulatory powers only extended to factories and other entities that contributed “point source” pollution into the “navigable waters” of the U.S. State and local governments retained jurisdiction over most of the other water and land in the country. The EPA’s proposed rule seeks to redefine what is meant by “navigable waters,” and in so doing, could bring large swaths of ranch and farmland under EPA jurisdiction.

The concern among many farmers and ranchers is that rainwater, puddles, or ditches sitting on their land might be considered “navigable water,” and their fertilizer applications or animals’ waste might be considered “discharge” that would require permitting and oversight by the EPA. If a farmer or rancher fails to follow the EPA’s new rules, they could be fined up to $37,500 per day.

The EPA administrator, Gina McCarthy, has hit the road to sell the new rule. The EPA has created a website with a list of “myths” and “facts,” and McCarthy has called many of the farmers’ fears “ludicrous” and “silly.” However, Ashley McDonald, a lawyer for the National Cattlemen’s Beef Association (NCBA), argues that it isn’t what McCarthy or the EPA website says, but rather: “what matters are the words on paper [the legal text of the proposed rule], and currently you and your federal bureaucrats [McCarthy and the EPA] have given yourself enough leeway to find a puddle jurisdictional.”

The NCBA counsel further points out, “You didn’t define what ‘uplands’ means to a federal bureaucrat. So we can’t even be sure what ditches might qualify . . . This key phrase ‘through another water’ was again left undefined, and without a definition it could be defined by an environmental activist group to be groundwater, non-jurisdictional ditches, or anything else wet. So the truth is that you again have left so many holes in the proposed definition to give your staff of regulators the flexibility they need to find that there is literally not one ditch across America that actually falls into your ‘excluded ditches’ categories.”

The new rule would potentially require farmers to obtain a permit simply if they have water collect on or cross their farm. If a puddle or ditch is deemed a “navigable water” of the U.S., then a permit is potentially needed if a farmer or rancher (or their animals) “discharges” anything into the water.

EPA administrator McCarthy argues that it isn’t the EPA’s intent to require a permit if a cow urinates in a puddle, but the NCBA attorney pointed out that

your agency’s intent doesn't amount to a hill of beans in our legal system, what matters is what’s on paper. Your Interpretive Rule says that farmers and ranchers cannot get the “normal farming and ranching” exemption from Sec. 404 UNLESS they comply with one of 56 NRCS conservation practices for any activity on their land. One of those 56 is the standard and specifications for Prescribed Grazing. You agency has said that cattle “discharging” into a ditch, pond, or creek is an illegal discharge unless they qualify for the exemption, which means that if you graze without a Prescribed Grazing plan you are most likely violating the Clean Water Act. While this may not have been your intent, you have opened the door to litigation where a federal judge will say “it is clear by the Interpretive Rule that if you don't have a grazing plan by NRCS you are violating the Clean Water Act if you don't have a permit.” If it wasn't your intent then why did you not just say “conservation activities are considered ‘normal’ for Sec. 404(f)(1)(A)?

Even though some farming practices are supposed to be exempt, and the EPA says they do not intend to require permits for normal farming and ranching practices, as this discussion makes clear, the issue is quite complex.

Most Americans, including farmers and ranchers, want clean water. The more difficult question is how we reach this outcome, and how much we are willing to give up to get it. Missouri farmer Blake Hurst summarized the situation well: “The streams, wetlands, ditches, and gullies involved in the new rule are already regulated by the states, as Congress clearly intended. It is an important distinction, because state regulators are closer to the people on the land than is the federal government. That’s the problem, as far as the EPA is concerned, because states, while working toward cleaner water, are also responsive to concerns about economic growth, job creation, and the rights of their citizens to enjoy the use of their property. The present administration has made it clear that prosperity and individual choice take a very distant second place to environmental regulation.”