™ ® November 2014
Volume 71, No. 10
EPA’s Latest Power Grab
by Dalene Hodnett, Director of Communications and Media Relations “They will have the last word in any project whether it’s commercial, industrial or agricultural in nature. It is completely up to their discretion to approve or deny a project.” Who is they? The bank, the IRS, the Supreme Court? This quote is from Aron Balok, Superintendent of the Pecos Valley Artesian Conservancy District as he discusses the Environmental Protection Agency and their proposed “Waters of the U.S.” rule. Announced by the EPA and the Army Corps of Engineers on March 25th, the 370 page proposed rule seeks to clarify their jurisdictional powers under the Clean Water Act. Rather than clarify, the language in the rule has sown further confusion and ignited a backlash against government overreach from farmers, ranchers, builders, and transportation companies. Currently the EPA has jurisdiction over “Navigable Waters,” waters that could support commercial traffic, interstate waters, all other waters that could affect interstate or foreign commerce, impoundments of waters of the United States, tributaries, the territorial seas, and adjacent wetlands. Enacted in 1972, the objective of the Federal Water Pollution Control Act Amendments, (now known as the Clean Water Act), was to restore and maintain the chemical, physical, and biological integrity of the Nation's waters. The definition of the “the Nation’s waters” became muddied after two Supreme Court cases where it was unclear where EPA jurisdiction began and where it ended. To solve that problem, the EPA proposed rule gives the agency complete control over all natural and artificial tributary streams, lakes, ponds and wetlands that affect the chemical, physical and biological November 2014
integrity of larger, downstream navigable waters. Downstream is a very broad net for the EPA to cast. On their Q&A website they emphasize that “Everyone lives downstream. This means that our communities, our cities, our businesses, our schools, and our farms are all impacted by the pollution and
destruction that happens upstream.” Therefore, the EPA has its sights on every tributary, whether it has water in it year-round or only after a good rain. AFBF notes in their www.ditchtherule. fb.org fact sheet that to: “meet the definition of a tributary, a water need not contribute flow directly to downstream navigable waters. As the definition makes clear, the water may contribute flow directly or may contribute flow to another water or waters which eventually flow into downstream navigable waters. Under the proposed definition of tributary, the upper limit of a tributary is established where the channel begins. Tributaries that are small, flow infrequently, or are a substantial distance from the nearest traditional navigable water (e.g., headwater perennial, intermittent, and ephemeral tributaries) are essential components of the tributary network.” How does the playa on your ranch become a tributary? As written, the rule pre-supposes that all bodies of water have a nexus to downstream, larger, navigable waters. The rule
states that “Adjacent waters and wetlands that are separated from jurisdictional waters by artificial dikes or barriers, natural river berms and beach dunes would be considered jurisdictional under this proposed rule.” “This is where it comes down to who is interpreting the rule,” says Balok. “Our artesian aquifer is a karst formation, meaning that the underground reservoir is a giant honeycomb of soluble bedrock. This leads to high transitivity with the water moving readily from one section to another. The EPA can decide that an alfalfa farmer cannot apply fertilizer to his field since it will seep into the groundwater and may end up in the Rio Grande and then the Gulf of Mexico.” Gary Esslinger, Treasurer-Manager of the Elephant Butte Irrigation District concurs. “Farmers in the Mesilla Valley will be greatly impacted since everything they do has a nexus with the Rio Grande. Regulatory compliance costs will significantly increase the cost of water delivery to farmers, flood protection dams will require permits before you clean out sediment, and private property rights will be affected as more private land is brought under CWA jurisdiction.” EPA claims the opposite, as Gina McCarty, EPA administrator asserts that “Our proposed rule will not add to or expand the scope of waters historically protected under the Clean Water Act. In the end, the increased clarity will save us time, keep money in our pockets, cut red tape, give certainty to business, and help fulfill the Clean Water Act's original promise: to make America's waters fishable and swimmable for all.” Various groups such as Continued on page 4, see “WOTUS” Farm & Ranch Page 1