Guest Editorial - EPA and Army Corps’ Proposal puts Private Property Rights in Jeopardy

Published on Thu, 08/07/2014 - 11:00am

The Environmental Protection Agency and the Army Corps of Engineers are once again attempting to push their authority even farther, and this time, private property rights be damned. The new “Waters of the United States” proposal subjects nearly all waters in the country to regulation, regardless of size or continuity of flow.

While the EPA continues to claim their proposal does not expand the reach of the Clean Water Act, the way the proposal is written, there is no other interpretation. The vague and subjective wording gives regulators the authority and access to nearly any water, and with it, all land use activities including ranching.

When passed in 1972, the CWA created a regulatory permitting system to control discharges, including dirt, manure, fertilizer, litter, pesticides, etc., into navigable waters. The term navigable is defined in the CWA as “waters of the United States” and nothing more. This vague definition has provided the implementing federal agencies with the enormous loophole to systematically gain more and more regulatory authority over smaller and less significant “bodies of water” a term used loosely over the past 40 years.

Despite Supreme Court rulings striking down broad interpretations of their authority over isolated waters, the agencies keep trying to expand federal jurisdiction over ditches, ponds and puddles.
Under this proposal, ditches are included in the definition of a tributary and many will now come under federal jurisdiction. Any activity near a jurisdictional ditch will now require a federal permit and as a result, many cattle operations will be required to get Sec. 402 National Pollutant Discharge Elimination System permits, Sec. 404 Dredge and Fill permits or Sec. 311 Spill Prevention Control, and Countermeasure spill plans.

Instead of providing the needed clarity that so many people have asked for, the agencies instead have put out a proposed rule that muddies the water even further through their clever use of ambiguous and vague terminology. Their actions have only created more questions for farmers and ranchers. The agency’s interpretive rule simply added more layers of government bureaucracy on top of that created by the agency’s proposed definition.

The EPA has made repeated claims that normal farming and ranching activities are exempted under Section 404 of the Clean Water Act. However, the agencies have exempted only 56 farming and ranching practices and only so long as they meet the Natural Resource Conservation Service standards. Any deviation from these standards can result in fines of up to $37,500 per day.
According to the EPA, the 56 practices exempted, one of which is prescribed grazing, were chosen because they have a potential to discharge into a “water of the United States.” Now that the EPA has made grazing a discharge activity, cattle producers will be forced to obtain a NRCS-approved grazing plan or else be subjected to the 404 permitting scheme and the penalties under the Clean Water Act.

The vast overreach of this regulation is unprecedented, even for an agency notorious for overregulation. If it is not withdrawn, this expansion will hurt a number of industries and small businesses. NCBA is actively working with a multi-industry coalition to push back against the EPA and the Corps because ultimately the increased regulatory burden will be felt by every American consumer. Be sure to submit your comments to the agencies at Your personal story is the most powerful tool we have to end the expansive land grab.