“That Puddle is Mine!” said the EPA

There is no question—America’s rivers, lakes and oceans need to be clean. Anyone that wants to debate this should have to drink and bathe in water just downriver from a sewage plant. However, a recent move by the Environmental Protection Agency (EPA) to use this premise to substantially change how they regulate water could have far ranging implications. These implications could be detrimental to every American that owns land.

In 1977, Congress passed the Clean Water Act, which gave the EPA the authority to regulate “navigable waters of the United States”. Navigable means that you can use a boat on that waterway. This has worked fantastic for several decades and has led to a radical improvement in water quality for the United States. Rivers that used to be able to start on fire from pollution now support healthy populations of native fish.

Also a navigable water. Just because you can take a boat on it doesn't mean you should.

Also a navigable water. Just because you can take a boat on it doesn’t mean you should.

This year, the EPA has proposed a rule to change their authority from being over “navigable waters of the United States” to “waters of the United States”. It seems relatively minor. The EPA wants this rule because they have had to go to court on a handful of cases to have the court decide whether the EPA has authority over certain waters or not. The EPA believes this change would save taxpayer money on court costs and cut red tape because they wouldn’t have to have the courts decide if a water is under the EPA’s authority on a “case-by-case” basis.

Situations like these remind me of leftover spaghetti that’s been in the fridge for a week. It looks fine, so it should be okay to eat, but how does it smell? Does it pass “the smell test”? Let’s look at this proposed rule in a little more detail. Because it’s on this website, we’ve got a cattle-themed system to rate it. The best rating would be the sweet smell of fresh cut hay, the worst—the pungent odor of male bovine excrement.

Obviously the smellier option is less favorable and therefore undesirable.

Obviously the smellier option is less favorable and therefore undesirable.

So what does this proposed rule look like? At first glance it’s a total mess. The “proposed rule” is 88 pages long, each with three columns and very tiny text. It’s like the “terms and conditions” you have to agree to when you register for a website. The writer knows you aren’t going to read it and purposely can hide things in there that can come back to bite you in the butt. If you want the whole rule, you need to go to http://www2.epa.gov/sites/production/files/2014-04/documents/fr-2014-07142.pdf.

And what bites you in the butt with this proposed rule is the definition of “waters”. Unlike “navagible waters” which is a pretty simple (can I get a boat in this or not?) “waters” covers everything that may or may not have water in it. This includes ditches that only have water in them during a six inch downpour. As a rancher, this means that basically every square foot of my pasture would be regulated by the EPA.

What the EPA would define as a "water of the United States". Complete with earthworms.

What the EPA would define as a “water of the United States”. Complete with earthworms.

With full authority to regulate, if the EPA demanded I apply for a permit to build fence across a ditch on my pasture, I would legally be required to comply. If the EPA said you couldn’t ride your horse or drive an ATV in the rain because there was a chance a pollutant might fall in a ditch, you would have to comply. The list can just keep going and going.  The EPA claims these and other “normal” farming practices will be exempt from regulation, but what is keep the EPA from eliminating these exemptions at any point in time?

It is not like the EPA doesn’t already regulate potential pollutants from agriculture. Runoff from confined feeding operations is already regulated by the EPA. Crop chemical application is already regulated by the EPA. Why does the EPA feel it needs to have control of every last inch of the land in the United States? So much for private property rights.


And if this does pass, then is breaking the law on these "waters" considered piracy?

And if this does pass, then is breaking the law on these “waters” considered piracy?

And if there is a water quality problem in a location, this is certainly not the solution. Giving blanket authority to one agency to regulate every water issue in America makes no sense. Authority needs to be local. The people in authority need to be able to actually go out to the site and see the problem, not have some pre-made form for every case in a nation that spans the length of a continent.

Nobody wants dirty rivers and lakes. The water I drink and the fish I eat come from American rivers and creeks (Yes I drink straight out of the creek back home). If someone is polluting the water, I am the first person affected and want to see it stopped. But this proposed rule has nothing to do with that. It is a power grab from private Americans by a bureaucracy.

Our private property is just that—ours! The land your home sits on and the land my cattle graze on should be under our authority, not a faraway, undemocratic agency. This idea fails the smell test with a rank of three-day-old cow placenta. And boy is it rank!

Three Day Old Placenta

It’s even more gross on a day in July.


10 responses to ““That Puddle is Mine!” said the EPA

  1. I understand the desire to control what happens on your land but with water hydrology what happens on one person’s property affects the commons of everyone’s water. I was delighted with this change because our local creek which was too small to be protected by the EPA in the past might actually enjoy protections in the future.
    I think the intention of this rule change is not to annoy small farmers or ranchers but to find a way to protect everyone from the big time factory farms that produce outrageous amounts of pollution.

    • Thank you for your comment Debra! I appreciate you are also concerned with our common water resources.

      The EPA currently does regulate the large agricultural operations. There is a stringent permitting process and regular water quality monitoring in and around these operations to ensure their regulations are being followed. This includes protecting any body of water, no matter how small. And the EPA does follow through with punishments for people who do not meet their standards. If you have more questions, I know some folks I can get you in contact with that can help explain it more.

      Since they already have and use this authority, adding to their jurisdiction all “waters” by default is aimed directly at small farmers and ranchers. This would give the EPA the power to direct even menial activities if it so desires. This doesn’t mean we don’t currently have EPA regulations to follow, we most certainly do and they are enforced. There are regulations around herbicide application, manure disposal, the list goes on. And I have no problem with that–I want clean water just like you.

      What concerns me is when they already have enough authority to keep the water clean, which is proven by how much better our waters are today than they were 40 years ago, this rule change is unwarranted. And the ramifications for private property rights are profound. The examples I listed in the post are only some of the possible issues that could arise from this change. If you have any more questions, just let me know!

      • Oh, I am so glad you responded. I do not want you to think I am trolling. I am really interested.
        I do not think the factory farms have been adequately regulated because they always got away with claiming they weren’t a point source pollutant. since their waste weren’t piped into waters but washed into them the factory farm lobby claimed they were exempt from prosecution. Will this new regulation finally address that issue? The absolutely gross and unsustainable of the Chesapeake Bay area stems mainly from wastes produced by factory farms. As one example. There are too many more.
        Our waters may look and smell better but in some places they are in much worse shape from the very many (literally thousands) of chemicals that the EPA simply does not monitor
        If this new regulation does cause problems for small farms and ranchers (and do those still exist?) then a new dialogue with the EPA would have to be opened. I am still unclear though why you wouldn’t want to highest possible standards for your own water though. I realize I must be missing something here.

  2. I see your concern with the situation. Are you a current/former Maryland resident? I guess I’ve ate ducks shots off Chesapeake Bay for almost 10 years now and the water quality there never upset my appetite, but I’m sure there are waters in the US that still have issues.

    The answer to your question is no. In its current form, Page 22218 of the proposed rule states “The proposed rule also does not address or change the statutory and regulatory exemptions from NPDES permitting requirements such as those for agricultural stormwater discharges, return flows from irrigated agriculture”. It is important to remember that confined animal feeding operations are already subject to EPA jurisdiction and must maintain 100% of the potential runoff in settling ponds. There is zero tolerance for any leaching of potential pollutants from confined feeding operations and this policy is enforced.

    In general, there are better ways going about maintaining clean water than increasing regulatory jurisdiction. One great example happened in my home county. Here there are several family farms that have cattle feeding operations as part of their income. There was a concern due to our proximity to the Missouri River that in a major rain event there could be manure runoff that could reach the river. Seeing this, the NRCS (Natural Resources Conservation Service, an entity within the USDA that has local offices throughout the country) had a cost-share program to upgrade the family farm facilities. This was universally accepted, because the folks here wanted to keep the river clean. It was a win-win situation for all parties.

    Based on this example, there are effective ways to keep our waters clean and preserve private property rights. I don’t see these as a opposing each other.

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  5. We spent $5000 On containment for our fuel so we wouldn’t contaminate the river in case of a leak. We live 20 miles from the river. There are NO OTHER STREAMS between us and the river.

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