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New EPA regs may limit landowners’ property rights
“If water can flow through your property, then you may be subject to EPA control under this rule,” said U.S. Rep. Steve Stockman of Texas April 3, after the Environmental Protection Agency (EPA) formally announced the Clean Water Act proposal.
An EPA document “leaked” last year references proposed new rules under the Clean Water Act that impact everything from agricultural use to navigable waters. The rules could, as written, be stretched to apply to puddles, if they were to be deemed wetlands as described in the new rules (see “Ag producers make waves over mud puddles,” March 5).
Acting as a “big brother,” the EPA -- ostensibly to protect the nation’s water resources -- could dictate what landowners can or cannot do on their own private property, if the rules are implemented. Part of the rules -- governing agricultural practices -- already apply, as of March 25.
Some of the language relates to 56 “normal” farming practices, such as fencing, mulching, prescribed burning, and forage harvest management. These “will not be subject to Section 404 dredged or fill permitting requirements,” according to the proposal -- if the property is listed with the Natural Resources Conservation Service. However, if a landowner completes the conservation practice or changes the use of the land, the exemption with the EPA is lost, and the landowner must then comply with the new rules. The EPA, along with the U.S. Army Corps of Engineers and the U.S. Department of Agriculture, will implement the rules, once they’re approved.
“Under this rule virtually every farmer, rancher, and homeowner in the United States may have to seek federal Clean Water permits to do anything on their land,” Stockman said.
To counter the proposed EPA power grab, Stockman introduced appropriation language that would block “any funding to study, advance, or implement the Environmental Protection Agency’s proposed redefinition of ‘waters of the United States.’”
The proposed changes in the Clean Water Act surfaced when the document was sent to the Office of Management and Budget for interagency review. Legislators and organizations voiced their concerns soon afterward.
The proposed 111,000-word report was posted in the April 21 Federal Register. The comment period ends July 21. The topic of discussion includes the definition of terms such as “other waters” and “neighboring.”
According to a press release, the EPA and the U.S. Army Corps of Engineers believe the proposed rule will “clarify protection under the Clean Water Act for streams and wetlands that form the foundation of the nation’s water resources.”
No change to the exclusion for waste treatment systems or prior converted cropland is being proposed.
The EPA and Army Corps want to clarify the protection of drinking water from public systems that supply approximately 117 million people who rely in part on streams for water. This number equals one in three Americans.
The proposed rules are open for public comment, but “the interpretive rule for agricultural activities is effective immediately,” according to the EPA. For the list of the 56 farming practices exempted at present, visit
Stockman addresses the role the Natural Resources Conservation Service has regarding the conservation practices considered “normal farming” under the Clean Water Act.
“Once the landowner completes the conservation practice or changes the use of his land, he loses his EPA exemption and must now comply with a new, and more complex, set of rules,” Stockman said.
According to the Natural Resources Conservation Service’s Water Quality Policy -- Environmental Evaluation Series, the conservation service does not make Clean Water Act determinations; only the Army Corps and the EPA do.
Stockman is not the only congressman to voice opposition to the plan. U.S. Sen. Pat Toomey of Pennsylvania and 14 other senators, including Texas Sen. John Cornyn, wrote EPA Administrator Gina McCarthy to voice concerns about the changes, asking for an extended comment period from 90 days to 180 days (allowed by the law).
This group also cited a report, “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence,” that is not complete.
“For EPA to propose a rule without the supposed foundational scientific document firmly in place both violates the spirit of the Administrative Procedures Act as well as OMB [Office of Management and Budget] and agency circulars,” the senators wrote.
According to the EPA, “the rule will not be finalized until the final version of this scientific assessment is complete.”
Also voicing opposition is the American Farm Bureau Federation. Watch for more on the Clean Water Act proposals in a future issue of this newspaper.
For more, visit http://www2.epa.gov/uswaters.
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