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Christian McPhate - DRC

New water rule worries those who work the land

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By Christian McPhate

A new proposal expanding the Environmental Protection Agency’s regulatory control over surface water has caused more than 12,000 farmers, ranchers and landowners across the country to submit comments demanding abolishment of the proposed rule in the federal register.

The deadline for the commenting period for the EPA’s “Waters of the U.S.” proposed rule was extended to Oct. 20. Only 10,000 comments were needed to force the agency to re-evaluate its new rule proposal.

“This issue concerns me as a property owner and a rancher because it has some far-reaching implications with the water,” said Tommy Calvert, president of the Farm Bureau in Denton County.

Calvert said such implications include giving the EPA regulatory control over all bodies of water including ponds, streams, creeks, ditches, puddles, man-made conveyances and wet areas on pastures.

“Big Brother is acting like we don’t have the knowhow or the want to take care of our own things,” he said, “and that bothers me.”

In March, the EPA and the U.S. Army Corps of Engineers published for public comment a proposed rule defining the scope of waters protected under the Clean Water Act.

The Supreme Court’s decision in Rapanos vs. United States spurred the EPA into clarifying its regulatory power over water. In the 2006 case, the court ruled the Clean Water Act does govern discharges to “navigable waters” but rejected the position that the Army Corps of Engineers had almost “limitless authority” over water under the same act.

The agency is asking for public comment on if it should require federal permits for “other waters” such as wetlands. But it’s the “other waters” that has many farmers, ranchers, landowners and land developers worrying.

The new proposed rule is the “largest land grab in history,” according to Richard Thorpe III, vice president of the Texas and Southwestern Cattle Raisers Association. “Basically, the federal government would control every drop of water in the country,” Thorpe wrote in a column appearing on the Texas and Southwestern Cattle Raisers Association’s website.

“The whole thing to me is like muddy water,” Calvert said. “You can’t see the bottom, so you don’t know what’s in there. It could be something that could come up and bite you.”

Clean Water Act

“The intent of EPA and the Army Corps of Engineers is to protect clean water without getting in the way of farming and ranching,” said Robert Daguillard, a media relations agent for the EPA. “For example, normal farming practices including planting, plowing and harvesting have always been exempt from Clean Water Act regulations, and our proposal doesn’t change that.”

In 1972, the Clean Water Act was established to regulate water quality standards of “navigable” waters such as rivers or lakes where boats travel. Congress gave the EPA authority over these navigable waterways.

“The Clean Water Act is a great thing,” said Brandon Boughen, a coordinator for the Farm Bureau in Denton County. “It makes sure everybody is doing stuff that’s on the level. But once the EPA goes too far, it is never going to stop.”

Boughen said one major problem is the proposed rule doesn’t clearly define “navigable” waterways. “It doesn’t mean the water has to be big enough to hold a boat,” he said, “or it doesn’t have to hold water all the time.”

He fears if the proposed rule is allowed to pass, the EPA could require landowners to get a permit to fertilize their yards if they’re so many feet away from a body of water like a creek.

Dan Reed, a field operator for Texas Farm Bureau, said the EPA hasn’t been able to define navigable waters since the establishment of the Clean Water Act in 1972. He also warns if this new rule proposal is allowed to pass, the EPA would be able to regulate anything that holds water.

“A man wouldn’t be able to pump water out of his pond to water his cattle, sheep or goats or even irrigate some of his crops in his own backyard,” Reed said. “I couldn’t run a water hose from my pond to water my flowers.”

The EPA claims the agency defines navigable waters as “all waters of the United States, as defined in judicial decisions prior to the passage of the 1972 Amendments of the Federal Water Pollution Control Act (also known as the Clean Water Act) and tributaries of such waters as interstate waters, intrastate lakes, rivers and streams which are utilized by interstate travelers for recreational purposes and intrastate lakes, rivers and streams from which fish or shellfish are taken and sold in interstate commerce,” according to Section 502 of the Federal Water Pollution Control Act.

Environmentalists’ response

Environmentalists claim fish and waterfowl rely on these waters, even if some of them are in places that look dry during the hottest parts of the year, according to a March 25 report in the Washington Post.

According to the EPA, streams provide flow for larger rivers, which offers a spawning and rearing habitat for fish and insects, while also determining the quality of downstream fish habitats. The agency also released a scientific report, “Connectivity of Streams and Wetlands to Downstream Waters,” that confirmed all waterways are connected.

Earthjustice, the League of Conservation Voters and the Sierra Club released a statement when the EPA announced a clarification to the Clean Water Act was needed: “For too long these vital water bodies have been without Clean Water Act protection and have been at risk of contamination.”

Worries about fine print

Bob Stallman, president of American Farm Bureau Federation, wrote a blog posting claiming it’s the fine print of the proposed rule that is troubling.

“Under this proposed rule,” he wrote, “farmers, ranchers and every other landowner across the countryside will face a tremendous new roadblock to ordinary land use activities. This is not just about the paperwork of getting a permit to farm, or even about having farming practices regulated. If farming or ranching activities need a permit, EPA or the Army Corps of Engineers can deny that permit. That’s why Clean Water Act jurisdiction over farmlands amounts to nothing less than federal veto power over a farmer’s ability to farm.”

Boughen said the proposed rule could also open up farmers and ranchers to more lawsuits because of cow or horse manure or fertilizer getting into creeks that eventually flow into Lewisville Lake.

“As landowners, farmers and ranchers, we are land stewards,” Boughen said. “We understand better than anybody that we have to maintain and protect the resources we have for future generations. We understand that better than anybody. We’re not saying protecting our water resources is not a good thing. We protect our water resources because we know we have to have it for our livelihoods.”

CHRISTIAN McPHATE can be reached at 940-566-6878 and via Twitter at @writerontheedge.


Environmental Protection Agency’s Waters of the U.S. site:

Farm Bureau’s “Ditch the Rule” site:

Texas and Southwestern Cattle Raisers Association’s “EPA Land Grab” page: