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Agriculture Today

Clean Water regulations could limit grazing access

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Wilson County News
May 21, 2014 | 6,404 views | Post a comment

“... the new Clean Water Act gives the EPA [Environmental Protection Agency] tremendous overreach and ignores private property rights,” said Bill Hyman, executive director of the Independent Cattlemen’s Association of Texas, citing one reason why agriculture groups across the nation are voicing concerns about proposed changes in the Clean Water Act.

“In the past, ‘navigable waters’ were the waters regulated by the Clean Water regulations,” Hyman said. “With the new rules, almost every creek, stream, ditch, and pond could be regulated ... .”

The proposed 300-plus-page report was posted in the April 21 Federal Register. See April 30 Wilson County News, “New EPA regs may limit landowners’ rights.”

The Independent Cattlemen’s Association of Texas is not the only cattlemen’s group concerned about the proposed changes. Kelly Fogarty, deputy director of government and industry relations for the U.S. Cattlemen’s Association, addressed this April 15 during an industry teleconference. She elaborated the issue further afterward.

Fogarty said one concern is how the government will define certain terms within the act.

The U.S. Cattlemen’s Association “remains concerned regarding the definitions of a ‘significant nexus,’ ‘tributaries,’ and ‘adjacent waterways,’” Fogarty said. “... these definitions could have far-reaching impacts to cattle producers across the country. Some terms remain unclear, specifically what constitutes a flood plain and whether storm water will play in as a factor.”

Fogarty said, “documents issued in conjunction with the proposed changes state storm water will not fall within the EPA’s jurisdiction,” but cautions, “... the ultimate definitions of terms ... might widen the scope of those waters to be monitored.”


Although 83 percent of Texas is currently in moderate to exceptional drought, according to the Texas Water Development Board, rainwater and seasonally produced water are a major concern to landowners.

“The proposed rule states that rainwater and seasonally produced water bodies will not fall under the Clean Water Act,” Fogarty said. “This has been a long-debated topic within the Clean Water Act as the EPA continues to state that rainwater does not fall under their jurisdiction if the source developed remains a seasonal body of water. However, given the severity of the weather, the potential for a seasonal pond or flow to connect to an established waterway would then bring the source under jurisdiction. This particular scenario remains unclear,” Fogarty cautioned.

Ag exemptions

As previously reported, ag exemptions will remain in place, including 56 conservation practices, but cattle groups have reservations about how the proposed rules will affect the ag sector.

At present, Fogarty said, it’s unclear who will monitor these exemptions -- the EPA, the U.S. Army Corps of Engineers, the U.S. Department of Agriculture’s Natural Resources Conservation Service, or a third party. If landowners are not involved with the conservation program, they must communicate with the Army Corps of Engineers and the EPA, Fogarty said. For the list of the 56 exemptions, visit

CAFOs, federal grazing

Owners and operators of large cattle feedlots, also known as Concentrated Animal Feeding Operations (CAFOs), are watching the proposed rules closely.

“CAFOs have been regulated correctly for several years; now they will face additional, more detailed, expensive regulations,” Hyman said. “Ranchers will be at risk of losing the right to graze pastures near tributaries. In order to graze pastures near rivers, creeks, and streams, ranchers may have to fence off access by livestock and find alternative sources of water.”

Land located in flood plains also will be subject to more scrutiny and more regulations and rules. Hyman warned of additional rules for the use of herbicides and pesticides in flood-plain areas and privately owned properties in the flood plains.

He also addressed how the Clean Water Act will affect watersheds.

“Once again, this is an enormous broadening of government control,” Hyman said. “Since the definition of watershed and its subsequent delineating is up to the government, any private land near or even in the geographical area could be subject to additional government regulations.”

In conclusion

“The proposal, overall, is not entirely bad for the landowner,” Hyman said. “The main problem is in the details. The Clean Water Act, in its definition of the waters to be regulated, has made a giant public grab of private waters.

“We hope that Congress will address these problems and tone down the language in the Clean Water Act,” he said. “Ultimately, it will most likely come down to a Supreme Court decision.”

It remains to be seen if small streams or seasonal water sources, which are non-navigable, will be included in the new act, Fogarty said.

“This issue remains somewhat in flux as agricultural organizations and the EPA attempt to share concerns and address potential means of misuse that could result from the rule,” she said.

The U.S. Cattlemen’s Association is urging its members to submit comments prior to the Monday, July 21, deadline.

For more, visit

Submit Clean Water Act comments

Submit your comments, identified by Docket ID No. EPA-HQ-OW-2011-0880, by one of the following methods:

•Federal eRulemaking Portal: Follow the instructions for submitting comments.

•Email Include EPA-HQ-OW-2011-0880 in the subject line of the message.

•Send the original and three copies of your comments to: Water Docket, Environmental Protection Agency, Mail Code 2822T, 1200 Pennsylvania Avenue NW., Washington, DC 20460, Attention: Docket ID No. EPA-HQ-OW-2011-0880.

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