EPA/Army Corps-- Clean Water Act-- WOTUS action

[Shorthorns4us]

I received my June copy of the Iowa Cattleman's Association magazine yesterday and they had an article in the government and legislative section to update about where the proposal is on WOTUS.  The described that possible if the proposal is accepted that there would be a permit process to all farmers for any water on their land.  Exception was swimming pools and Koi ponds.  They summed it up by saying the farmer that owns his land with a pond, ditch or some kind of creek could not use it.  I'm not sure that having the permit would allow you to use it as you need either??
This really makes me nervous.-- the magazine summed this up with "the largest land grab deal by the Federal government in history".

If this goes through-- how are they (govt) going to police this????????  I'm not saying I want this anywhere near passing or being accepted, but I thought how crazy-- how are they going to watch every farm pond or ditch after a rain, etc. 
Anyone else have more info or an opinion on this?
Thought it would be a good discussion.
EF

 

[jaredkcattle]

I can't see it passing, but I am glad this is being brought to the attention.  The EPA can really put the screws on a person if they so feel inclined.  They can operate under the veil of government with very little accountability. 

 

[knabe]

Plumbing should be outlawed.

 

[GoWyo]

The WOTUS "clarification" basically goes beyond the U.S. Supreme Court opinions that require that a water over which the U.S. Army Corps of Engineers and the EPA have jurisdiction over must be a tributary of a traditionally navigable water (tributary rule) or have a "substantial nexus" to a traditionally navigable water.  The analysis can be very complicated, especially with respect to streams that do not run year round, where there is diffuse overland flow, or any other number of situations.  So, EPA has spent 300+ pages with a "scientific analysis" to support claiming jurisdiction to virtually every depression in the earth that is capable of conveying water (and some areas that aren't on the ground such as your barn roof and gutters). 

At the same time, there is an interpretive rule under public comment regarding the "normal farming exemptions" to the Clean Water Act section 404 prohibition on dredge and fill activities without a permit.  What the EPA is attempting to do here is say that the only approved exemptions to having to obtain a section 404 permit are the 56 practices listed by the Natural Resources Conservation Service (NRCS).  If you do not do your farming practice under the supervision of the NRCS or in accordance with what NRCS requires, then you have to obtain a 404 permit.  If you have ever tried to obtain a 404 permit, you will find that the Army Corps of Engineers puts so many conditions on the permit, it is cost prohibitive for most farming practices.  So, the end result is that all farming is brought to heel under NRCS government supervision.  The next step that I anticipate is that EPA would eventually start telling NRCS what is normal farming activities and make NRCS do EPA's dirty work rather than NRCS being the arbiter of what is a normal farming practice.

Basically, if you have a meadow or want to fence a creek, it might be a wetland.  Your post that you want to hold up your fence with is a "pollutant" under the Clean Water Act.  If you have NRCS hold your hand and give you some EQIP funding and implement the project as required by NRCS, then you fence would be exempt as a normal farming practice.  However, if you need a fence in the next couple of weeks and NRCS can't get to your project for a year, you have to be sure to build a NRCS fence in order to be exempt.  If you construct a fence that deviates from NRCS specifications, you will have introduced a pollutant to a water of the U.S. without a 404 permit and will be in violation of the CWA.  EPA, left wing law professors and environmental groups have dreamed for 40 years about how to regulate the stuffing out of ag.  This is the tip of the iceberg.

 

[ferkj]

And this shouldn't come as a surprise to anyone. 

"You can trust us, we're from the Government" Peter Minuit, Manhattan Island, May 24, 1626

 

[chambero]

Most of this rule isn't just aimed at agriculture.  It affects any kind of activity that occurs in a jurisdictional water. 

 

[GoWyo]

There are two rulemaking activities going on.  The WOTUS jurisdictional rulemaking is aimed at allowing the EPA to claim the maximum area under its jurisdiction for all the different elements of the Clean Water Act. 

The other action is the interpretative rule which purpose is to basically start constricting the traditional agriculture activities that are exempt from having to obtain a Section 404 permit under the dredge and fill statute.  Many ag activities on what appears to be dry land are actually construed as dredging and filling of navigable waters or wetlands.

 

[RyanChandler]

"Override the effects of private self-seeking behavior; override the profit motive"

 

[knabe]

"Override the effects of private self-seeking behavior; override the profit motive"

you first.


pretty much means the end of sex.

 

[beebe]

The WOTUS "clarification" basically goes beyond the U.S. Supreme Court opinions that require that a water over which the U.S. Army Corps of Engineers and the EPA have jurisdiction over must be a tributary of a traditionally navigable water (tributary rule) or have a "substantial nexus" to a traditionally navigable water.  The analysis can be very complicated, especially with respect to streams that do not run year round, where there is diffuse overland flow, or any other number of situations.  So, EPA has spent 300+ pages with a "scientific analysis" to support claiming jurisdiction to virtually every depression in the earth that is capable of conveying water (and some areas that aren't on the ground such as your barn roof and gutters). 

At the same time, there is an interpretive rule under public comment regarding the "normal farming exemptions" to the Clean Water Act section 404 prohibition on dredge and fill activities without a permit.  What the EPA is attempting to do here is say that the only approved exemptions to having to obtain a section 404 permit are the 56 practices listed by the Natural Resources Conservation Service (NRCS).  If you do not do your farming practice under the supervision of the NRCS or in accordance with what NRCS requires, then you have to obtain a 404 permit.  If you have ever tried to obtain a 404 permit, you will find that the Army Corps of Engineers puts so many conditions on the permit, it is cost prohibitive for most farming practices.  So, the end result is that all farming is brought to heel under NRCS government supervision.  The next step that I anticipate is that EPA would eventually start telling NRCS what is normal farming activities and make NRCS do EPA's dirty work rather than NRCS being the arbiter of what is a normal farming practice.

Basically, if you have a meadow or want to fence a creek, it might be a wetland.  Your post that you want to hold up your fence with is a "pollutant" under the Clean Water Act.  If you have NRCS hold your hand and give you some EQIP funding and implement the project as required by NRCS, then you fence would be exempt as a normal farming practice.  However, if you need a fence in the next couple of weeks and NRCS can't get to your project for a year, you have to be sure to build a NRCS fence in order to be exempt.  If you construct a fence that deviates from NRCS specifications, you will have introduced a pollutant to a water of the U.S. without a 404 permit and will be in violation of the CWA.  EPA, left wing law professors and environmental groups have dreamed for 40 years about how to regulate the stuffing out of ag.  This is the tip of the iceberg.

You have explained it well.  Last wednesday I was at a meeting in ST. Paul with the EPA they talked about it being a clarification not an expansion.  I told them that I did not believe it would work out that way.  I was then told that by statute ag land and local ditches are exempt.  I said that was great but by staute we are supposed to stop illegal immigration but that is not happening.  The lady that told me that just hung her head and said " I know".
Administrator McCarthy was there and gave a little talk and said that she was a great listener.  Then she told us that she and a couple of Mayors were going to leave and do some "fun stuff".  She left before anyone had a chance to say anything.  I don't beilieve anything the Federal government says these days.

 

[RyanChandler]

"Override the effects of private self-seeking behavior; override the profit motive"

pretty much means the end of sex.

Unless of course you include everyone 

 

[knabe]

Shared misery is your game, except for yourself.

Well at least you aren't as lazy as Marx.

 

[Gargan]

If this goes through, would digging a post hole be in violation without a permit?

 

[BTDT]

The "head" of the water supply in Des Moines also blames all their water issues on agriculture. Even put in a "flyer" in the water bills stating that the increased cost were directly related to agriculture contamination.
Think it is time for him to lose his job. If he is that narrow sighted and biased, he has NO place in a public job or decision making position.

 

[RyanChandler]

What verifiable facts do you have to dispute his claims?

 

[Shorthorns4us]

Yes, I saw that article too from Matt Deppe about putting a Hereford steer on a soap box.  I don't have any facts to 100% dispute Mr. Stowe's opinion on the waterworks in DM, but I don't think it would solve all of his problems if there was no agriculture along "his" rivers.  Think about all of the run off going into those rivers from residential and commercial.  I have read that sometimes residential use of lawn chemicals is worse than agricultural use-- sometimes the average homeowner has good intentions, but way over uses the "round up" or "weed killer" that they bought at Menards and where does it go???
I used to like Mr. Stowe when he worked for the DM road department because he was funny when they interviewed him on the news during snow storms, but since he moved to water works-- he is kind of an a## now. 
There is so much stuff in those rivers that they have got to filter out before it can be used by public, he just has to accept that if you are going to use a moving waterway there is going to be crap.
JMO
EF

 

[GoWyo]

Keep in mind that nonpoint source water pollution (from diffuse runoff) is much different than point source pollution (usually thought of as the end of a discharge pipe) and each type is handled separately by the Clean Water Act.  Nonpoint source can be from farm field runoff, storm water runoff, and the like.  If you overapply fertilizer, etc. then it can lead to nonpoint source pollution.  However, nothing under the federal law (various states have their own programs) requires doing anything as far as nonpoint source pollution unless a stream is found to be impaired for its designated uses; i.e. in Wyoming a cold water fishery can be impaired by sediment, temperature or other issues, a primary contact recreation water body can be impaired by e. coli, etc.  If sediment is coming from diffuse runoff and causing the impairment, then a "total maximum daily load" (TMDL) is established and the landowners in the drainage are required to apply best management practices to reduce the load.  The nonpoint source part of the CWA is generally voluntary, but the agency (usually the states have primacy with the EPA holding a stick behind them with the threat EPA will take over and a carrot out from of them in the form of funding and grants) can do some regulatory action to implement the water quality standard.

Point source pollution is handled with the National Pollutant Discharge Elimination System.  All point sources such as water treatment plants, feedlots (Confined Animal Feeding Operations (CAFOs), factories, etc. have to have a permit to discharge.  These permits are tightly regulated and subject to citizen suit provisions as well as large civil penalties for violation of the discharge limitations.  The NPDES dischargers may have their allowable discharges reduced due to the background pollution caused by nonpoint source pollution.  This is probably what this DesMoines water guy is referring to, but he needs to realize that there might not be much of a city if not for the ag and residential upstream of it.

The Section 404 dredge and fill part of the CWA is separately regulated from the nonpoint source program and the NPDES system, although dredge and fill is a point source activity.

To answer an earlier question, planting a fence post in a water of the U.S. or a wetland could be a discharge of a pollutant under the CWA and in violation of Section 404.  However, Section 404(f)(1)(A) exempts normal agricultural activities from regulation.  Refer to my earlier post about what EPA is attempting to do by narrowing the range of exempt ag activities to only NRCS approved practices.

 

[Shorthorns4us]

Thanks GoWyo!  You are very knowledgeable on the Clean Water Act.  I have learned a lot from your posts!
I will have to continue to stay connected to my Cattleman's Association to see what the next move is.  The IA Cattleman's Association has been really on the fore front of all of the "attacks" on agriculture.
EF

 

[jwfarms]

There are two rulemaking activities going on.  The WOTUS jurisdictional rulemaking is aimed at allowing the EPA to claim the maximum area under its jurisdiction for all the different elements of the Clean Water Act. 

The other action is the interpretative rule which purpose is to basically start constricting the traditional agriculture activities that are exempt from having to obtain a Section 404 permit under the dredge and fill statute.  Many ag activities on what appears to be dry land are actually construed as dredging and filling of navigable waters or wetlands.

You are very knowledgeable about this subject, have you dealt with water rights on your own land?  Where do we stand now?  We have a small creek/stream that passes through the south part of our pasture and feeds into a water shed.