Update for October 16, 2014
Landowners gather to oppose CWA rules
By William Hoover
Around 150 ranchers, farmers, and landowners packed into Hermann Sons Lodge last Thursday, Oct. 9, to hear the Texas Farm Bureau’s Jay Bragg discuss how to oppose the Environmental Protection Agency’s proposed Clean Water Act Interpretive Rules. The new rules establish a connection or nexus between navigable waters and ordinarily dry creek beds, ponds, ditches and other wet lands thereby subjecting them to federal regulation as “Water of The United States”.
The Medina County Farm Bureau and Medina County Environmental Action Association sponsored the meeting to alert residents of the need to oppose the rule changes, which they say amount to a federal overreach and infringement of private property rights.
“We have folks here from Medina County and beyond,” said moderator and MCEAA leader Alyne Fitzgerald. “The Clean Water Act was effective when it was passed in the 1970s. But now with these new rules, we are concerned about EPA overreach into our lives, agricultural practices and our private property rights.”
She then introduced Bragg, the state Farm Bureau’s Associate Director of Commodity and Regulatory Activities. Also present were Kelly Holligan of the Texas Commission on Environmental Quality; Adam Yablonski, Medina County’s representative to the Edwards Aquifer Authority; Farm and Ranch Club President Roger Bippert; and, Precinct #1 County Commissioner Richard Saathoff.
Bragg gave a presentation entitled “Clarification of Federal Overreach.” He reviewed the CWA’s history, explained how the Act has evolved, and urged the audience to submit letters and comments to the EPA in opposition to the CWA Interpretive Rules.
“The EPA claims what they are doing through these new rules does not expand regulatory authority of jurisdiction–all they do is clarify what has been law since 1972,” he said.
The original goal of the CWA’s National Pollutant Discharge Elimination Act was to eliminate the discharge of sewage and other pollutants into navigable waters by 1985, noted Bragg.
“The primary focus was on point source (or pipe source) pollution, probably for the first 10 years,” said Bragg. “Another program focuses just on runoff from urban areas.
“Farming and ranching activities were explicitly excluded from permitting under the CWA,” he said.
By the late 1990s the Corps of Engineers and EPA both defined setting water on low-lying farmlands as “wetlands”. A developer sued EPA and the Supreme Court ruled in 1999 and in 2003 that federal jurisdiction in the CWA was limited to navigable waters, according to Bragg.
“The court went as far as to say those waters that have a significant nexus to navigable waters could be regulated under the CWA,” he said. “The EPA said that was confusing. So in order to clarify what navigable water is, they wrote 288 pages of regulations.
“So how expansive is this new proposal?” he asked. “It gives the EPA the authority to regulate basically anyplace where water collects and runs off. So we are talking about ditches, farm ponds, creeks that only flow when it rains—like Hondo Creek, flood plains and wet areas in fields.”
In response to the CWA Interpretive Rules, the American Farm Bureau created the ‘Ditch the Rules’ campaign to fight the proposed expansion of regulated waterways.
“I guess we struck a nerve a little because the EPA now has the ‘Ditch the Myth’ campaign,” said Bragg.
“We say the EPA rules are going to regulate practically every ditch,” he said. “The EPA says no, they are actually providing more protection in this rule because they actually mention ditches in the regulation. The EPA has never managed ditches before.
“They get around this by saying, ‘ditches constructed through dry lands’,” he noted. “How many ditches are built to drain dry land? They also say those ditches not built to drain dry land are actually diverted streams and they have to be regulated. A ditch that drains into a larger body of water with a connection to a WOTUS, that also can be regulated.”
“That means pretty much all ditches can be regulated,” he added.
The EPA says they are actually expanding the agricultural exemptions from permitting by explicitly listing 56 of the exempt activities in the CWA, according to Bragg.
“But to qualify for an exemption, activities must be implemented in conformance with National Resource Conservation Service technical standards,” he said. “So if you don’t conform to NRCS technical standards, you have to apply for a permit or you are going to be fined for being in violation of the CWA.”
“Those fines run up to $37,500 a day per incident,” he added.
Bragg warned farmers that, when they apply fertilizer to croplands connected to wetlands, they could be subject to such CWA fines.
“If EPA implements these rules, there will be more regulatory burdens and road blocks, more headaches and delays trying to do any kind of project, and there’s the threat of fines,” he said. “And you’ll have to watch over your shoulder for your neighbors. There are citizen lawsuit provisions embedded in the CWA already that enable your neighbor or an activist to sue you.”
The speaker concluded his presentation by encouraging the audience to go to the EPA website or the American Farm Bureau website and the ‘Ditch the Rules’ link to submit comments to the EPA in hopes of preventing implementation of rule changes.
“The Farm Bureau has received over 1,000 comments so far and we want to have as many as we can,” said Bragg. “We will have folks on both sides trying to accumulate the biggest stack of comments. I hope each of you submit comments.
“My understanding is there are over 200,000 comments nationwide that have already been submitted to the EPA,” he said. “At this point, this is an exercise in paperwork and we want the bigger stack.”
The EPA, for the third time, has extended the comment period on the CWA Interpretive Rules allowing ample time for the audience to submit their remarks, noted moderator Fitzgerald.
“The comment period was going to end on Oct. 20 and now it is Nov. 14,” she said. “If you go to www.regulations.gov, you can see other people’s comments. They range from very simple one or two lines, to letters from governors of the United States.
“The governors are upset at being overruled by the federal government,” said Fitzgerald. “Traditionally, each state has jurisdiction over its own waters.
“Don’t feel helpless, we do what we can do,” she said. “The only thing we can do right now is submit our comments. Flood them with comments by going to the EPA or Farm Bureau websites.”
“There is bipartisan support on the House of Representatives side of congress to defund the EPA over this,” added MCFB President Ken Graff referring to the Collins-Shrader letter signed by 231 House members, both Republican and Democrat.
Politicians do respond to their constituents’ desires, noted Commissioner Saathoff, further encouraging the submission of comments to the EPA.
“Believe it or not, we do listen,” he said. “You don’t always get what you ask for but the more we get the word up there, the better. Sadly, a lot of what gets their attention is the size of the stack of papers. I encourage everyone, don’t give up.”
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