Dear EPA: Is that Puddle Navigable?
The title here highlights just how far the Environmental Protection Agency (EPA) has pushed its authority
under the Clean Water Act (CWA). The EPA and the U.S. Army Corps of Engineers (Corps) are taking
public comments on a proposed regulation that would expand the federal government’s authority over
waters; private property rights be damned. This article attempts to provide producers with a taste of the
proposed expansion and the devastating impacts it could have on their operations, in hopes that you talk
to your elected officials at the county, state and federal level to ask that they do everything in their power
to prevent this federal land grab.
When passed in 1972, the CWA created a regulatory permitting system to control discharges (discharge
includes dirt, manure, fertilizer, litter, pesticides, etc.) into “navigable waters.” The term “navigable
waters” is defined in the CWA as “waters of the United States” and nothing more. This absurdly vague
definition has provided the implementing federal agencies (namely EPA and the Corps) with the
enormous loophole they needed 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.
Twice there have been proposals in Congress to delete the word “navigable” altogether from the CWA.
Due in large part to the pushback from farmers and ranchers, both attempts failed and the Congressmen
and Senators who pushed for the legislation were ousted during the next election. But EPA and the Corps
are now trying to do regulatorily what the American public would not let them do legislatively. On March
25, the EPA and the Corps released their proposed rule redefining what qualifies as a “water of the U.S.”
Broad and ambiguous terms are used throughout the proposal and key terms are left undefined, leading to
the conclusion that the federal agencies have granted themselves regulatory authority over every wet spot
in the country. Here are some highlights of the proposal:
 Those waters that qualify as traditionally navigable waters (can float a canoe), interstate waters,
the terrirorial seas, and impoundments of these types of waters remain “waters of the U.S.” This
is not a change from the current regulation.
 The proposal makes every “tributary” a “water of the U.S.” The agencies definition of
“tributary,” for the first time, includes ditches and ponds. It also includes streams that only hold
water during a rainfall event (“ephemeral stream”). No analysis or proof is needed by the
regulator, it is automatically under federal jurisdiction.
 Through its broad definition of “adjacent waters,” the proposal would make every “water”
(undefined) in a flood plain automatically a “water of the U.S.,” no analysis needed; if it is wet in
a flood plain it is now going to be under federal jurisdiction. This includes ditches, ponds,
manmade conveyances like storm water structures, ephemeral streams that might run through
fields, wet areas on pastures, or any other wet area located in a flood plain. The proposed
regulation does not provide a frequency of flooding, begging the question-are we talking about a
20-year flood plain? A 100-year flood plain? The regulation allows the regulator to use his/her
“best professional judgment” to determine the size.
 Similarly, the proposal would make every water in a “riparian area” a “water of the U.S.”
Riparian area is vaguely defined as “transition areas between terrestrial and aquatic ecosystems.”
Again, the proposal gives the regulator the power to decide the size of this transition area.
Even if a water does not fall into a flood plain, riparian area, or is outside the definition of a “tributary” it
still might be a federal water. Even a water that is geographically isolated from all other waters. The
agencies do this through their “significant nexus” analysis. “Significant Nexus” is the phrase coined by
Justice Kennedy in one of the important Supreme Court decisions on this subject. Justice Kennedy said
(in his concurring opinion) that the EPA/Corps could regulate isolated wetlands that are wholly intrastate
if it had a “significant nexus” to a navigable water. He clarified that the phrase significant nexus means
more than speculative or insubstantial. It would make common sense that such an important phrase
would be clearly defined by the agencies, but common sense just is not as common as you might think. In
this proposal the agencies pass on providing a clear test or definition for this important phrase and instead
point to a non-peer reviewed study that fails to look at what is “significant.” Essentially EPA is saying in
this study that any connection is significant, and therefore all isolated waters could come under federal
jurisdiction. Again, I suppose one could say this is “clarity,” but it certainly is not the kind of clarity
landowners were asking for. And to put the icing on the cake, if the geographically isolated water doesn’t
have a “significant nexus” to larger water bodies, the agencies will still claim jurisdiction if they
determine that when it is grouped with other “similarly situated waters in the region” it has a significant
nexus to traditionally navigable waters. Clear as mud? Remember, the agencies say they are proposing the
definition so landowners can have “clarity.”
The costs. Well, they could potentially be catastrophic, not only monetarily but on the federalism
principle of government. If you take a look at the proposed rule one thing is clear - it is written so broadly
that almost everything is now under federal jurisdiction. EPA states in the proposal that the purpose for
the rule is “to make identifying waters of the U.S. less complicated and more efficient.” I guess they have
achieved their goal if every water is now under federal control, but as an industry that is based on strong
principles we should be outraged at their overall belief that the federal government can be so smug as to
say it has the power to regulate everything. Fortunately the agencies keep claiming they are going to save
farmers and ranchers, and that the regulation will actually benefit our industry. You read that correctly,
the agencies are trying to pacify the agriculture community by putting out misleading information saying
that agriculture will actually benefit from this federal land grab. This is simply a smoke and mirrors
routine. Here’s why the rule will not benefit agriculture, and in fact, could paralyze production agriculture
as a whole.
First, state sovereignty, local land use planning, the Constitution, and the words of the CWA itself that
limit the reach of the federal government would be obliterated if the agencies are allowed say “everything
is a federal water, but we (the agencies) will allow you to do A, B, and C activities on your own land.”
There is something fundamentally wrong with this line of thought. Second, farmers and ranchers should
not have to depend on the mercy of a regulator that may or may not grant the farmer an exemption. A
farmer would be in a constant state of confusion about what is in and what is out, and whether he or she
might get a lawsuit filed against them by an environmentalist or EPA. Sec. 505 of the Clean Water Act
allows “Any citizen [to] commence a civil action on his own behalf…against any person…who is alleged
to be in violation of this Act.” If a neighbor, environmental activist, or anyone else does not like what you
are doing, even if you think that activity qualifies for an exemption, you can be sued under the Clean
Water Act and will have to prove your innocence.
To alleviate some legal liability, farmers and ranchers will need more regulatory “jurisdictional
determinations” (where the regulators come out and look at a water you are concerned may be a “water of
the U.S.” and give you a yes or no thereby indicating whether you need to get a permit or not), and these
JDs and the subsequent permitting process can be extremely time consuming and expensive. Data from
two decades ago show that a Sec. 404 Dredge and Fill permit costs around $30,000 and takes a year to get
through the process. It is safe to say that this number would be much greater today and with more and
more permits required, take longer to get through the process. It could prevent pesticide applications,
pasture maintenance, expansions, construction projects, and many other activities that happen on farms
every day. These activities could be completely precluded or delayed for years, shutting down productive
activity altogether.
Agricultural exemptions - don’t put much faith in them despite what the regulators will tell you. The
agricultural exemptions in the CWA are confusing, so here is an attempt at clarifying what they are and
what they are not. First, there are only two exclusions from the actual category of “waters of the U.S.”
that involve agriculture: (1) Prior Converted Croplands (PCC) and (2) Waste Treatment Systems. The
PCC exemption is interesting because it is literally saying that these “lands” are not “waters.” It should
tell you something that this had to be spelled out. The Waste Treatment System exemption includes
retention ponds and lagoons that feeding operations use to catch any rainwater that might have come in
contact with manure or cattle. By regulations under the same law these structures must catch everything
that would be a “discharge” if it went into a “water of the U.S.” Obviously these should not require
additional regulation when they are literally required by the Clean Water Act.
The proposed regulation includes a few new exclusions that directly touch the cattle industry. First, the
agencies have added exclusions for “artificial ponds used exclusively for stock watering;” “ditches that
are (1) excavated wholly in uplands, (2) drain only uplands, and (3) have less than perennial flow;” and
ditches that do not contribute flow, either directly or through another water, to a traditional navigable
water, interstate water, the territorial seas or an impoundment of a jurisdictional water.” Emphasis added.
So, for every segment of every ditch on your property you will need to analyze whether it meets all the
criteria for one of these exclusions. That is at least four analyses for each segment of ditch, and because
we know farmers and ranchers have loads of extra time on their hands, this should be a welcome task
(sarcasm implied). If your ditches do not fall into these exclusions then they are “waters of the U.S.” and
every activity that allows pesticides (spraying a nearby field), dirt (cattle nearby), nitrogen, phosphorus
(fertilizer/manure) or anything else seen as a discharge will need a federal permit, unless the government
gives you a reprieve via the exempted activities below. Additionally, if you have a “natural pond” on your
property, it is considered a “tributary” by definition and automatically a jurisdictional water.
The other “exemptions” the agencies talk about are not exemptions from “waters of the U.S.,” but are
exempted from the meaning of “discharge” or are activities exempted from requiring a permit. The first is
the agricultural storm water exemption, which states that storm water runoff from agricultural operations
is not a discharge from a point source under Sec. 402, the National Pollutant Discharge Elimination
System (NPDES). The other exemptions fall under Sec. 404, the dredge and fill permit program. Under
Sec. 404(f)(1) agriculture has a number of exempted activities. The waters on farmland that these
activities impact would still be considered a “water of the U.S.” under this proposal, but the farmer would
not need a 404 permit for these specific activities. Activities outside those listed that impact these waters
would need a 404 permit. These exempted activities include plowing, seeding, cultivating, harvesting,
minor drainage, soil and water conservation, maintenance of drainage, construction of irrigation ditches,
construction and maintenance of stock ponds, construction and maintenance of farm and forest roads (in
accordance with BMPs), and maintenance of structures (dams, dikes, levees). Unfortunately, this section
also contains section 404(f)(2), known as the “recapture provision” which gives EPA and the Corps the
option to take away any of the exemptions in 404(f)(1) that were just listed if the regulator believes the
activity is bringing the water into a new use that will result in a “reduction in the reach or impairment of
flow.” This recapture provision has had the result of taking away many of the exemptions that 404(f)(1)
provides agriculture and therefore the agencies cannot claim with certainty that even these limited
activities are truly exempted. Activities that are not covered by these exemptions include introduction of
new cultivation techniques, planting different crops, changing crops to pasture, changing pasture to crops,
changing cropland to orchard/vineyard, changing cropland to nurseries. Any of these activities would
need a 404 permit.
In tandem with the proposed rule, the agencies along with the U.S. Department of Agriculture have issued
an “interpretive rule” clarifying that activities associated with implementing 56 specific Natural Resource
Conservation Service (NRCS) conservation practices would be exempted from the 404 permit
requirement under the “normal farming and ranching” exemption under Sec. 404(f)(1). The interpretive
rule is immediately effective but only applies if the producer is in compliance with the NRCS standards.
In addition, the exemptions apply only so long as the conservation activities are ongoing. They do not
apply if there is a change of use. Indeed, once conservation activities are complete, the landowner will
likely have features that will be higher quality and more likely to be considered waters of the U.S. The
interpretive rule has no effect on CWA jurisdiction, i.e., the exemption is not an exclusion from federal
CWA jurisdiction. The wet features these practices touch will still be considered waters of the U.S., but
will not need a 404 permit, however, those activities could need a 402 permit or could create the need to
have a Spill Prevention Control and Countermeasure (SPCC) plan in place. In addition, these newly
created permit exemptions, created by interpretive rule, which is essentially nothing more than agency
guidance, do not have the force of law. Therefore, it is disingenuous for the agencies to suggest that by
adding this interpretive rule they have mitigated the effect of the proposed rule on cattle producers.
So one must consider, after reading this, can you be certain that when conducting routine activities on
your property you will not be touching a regulated “water of the U.S.” with a nonexempt activity? I
certainly cannot say with any certainty that any activity that takes place on a farm or ranch will be safe
from EPA and the Corps’ long reach.
What can you do to stop these regulators run-a-muck? Comment on the proposed rule. An easy way to do
so is to go to www.BeefUSA.org and click on to the Issues tab and follow it to the “Waters of the United
States” proposal. Also, tell your friends, neighbors, local elected officials, state representatives, federal
representatives and your senators about the devastating impacts this regulation would have on agriculture,
and demand that it be stopped. On social media use #DitchTheRule. The only chance we have of
stopping this devastating regulation is to all speak up.