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EPA water rule under fire

The Oregon Cattlemen’s Association has signed onto a lawsuit that challenges an expansion of federal authority over waterways that could result in more regulation of dry land.

The new Environmental Protection Agency rule that expands the “Waters of the U.S.” definition is set to go into effect on Friday. However, federal judges in Georgia, North Dakota and West Virginia are mulling injunction requests.

Thirty-one states and dozens of industry groups are legally challenging the EPA’s expanded authority to enact the Clean Water Act.

Maupin rancher Keith Nantz said the rule amounts to a “federal land grab” since EPA will have control of property around a water body as small as a rain puddle, in addition to stock ponds, irrigation ditches and canals.

“The language granting them this authority is so open ended it gives them the power to encroach on property rights anytime they want,” said Nantz, who is seated on OCA’s water resources committee.

“This rule is agenda-driven to give the government more power and it’s a bad deal for agriculture.”

Jerome Rosa, executive director of OCA, is optimistic that, due to the large outcry of opposition, the Obama Administration will be forced to revisit the issue.

“The WOTUS rule in its current state should be withdrawn due to lack of quality assessment and a biased rulemaking process,” he said.


OCA joined the lawsuit filed in early July by the National Cattlemen’s Beef Association and the Public Lands Council, along with other producer and land use groups.

The complaint charges that EPA and the U.S. Army Corps of Engineers worked together on the plan to expand federal authority far beyond what Congress authorized in the CWA of 1972. In addition, opponents argue that the ambiguity and scope of the role violate the U.S. Constitution.

EPA administrators contend that the rule is necessary to clarify the intent of the CWA, which gave the federal government regulatory control of major waterways designated as “navigable.”

The definition change is based on a draft report by EPA’s Office of Research and Development detailing the connectivity and influences of streams and wetlands on down land waters.

The League of Conservation Voters launched a $30,000 ad campaign in May to show support for the new rule, which was finalized that month. That organization and other environmental groups across the nation say EPA “made the right decision to protect the drinking water of one in three Americans.”

“By restoring protecting for small streams and wetlands, we can preserve the water our children and grandchildren drink, swim and play in for generations to come,” stated Gene Karpinski, president of LCV in a May 29 press release.


Brett VandenHeuvel, executive director of Columbia Riverkeeper,is concerned that, based on reports about the Corps’ strong disagreement with the final rule, water protection could end up being reduced.

“The CWA is very popular and successful and we don’t want to see it weakened,” he said. “If anything, we need to be doing more to prevent pollution.”

According to a Greenwire article, experts at the Corps contend the new limits under the rule are “arbitrarily drawn, supported neither by science nor by law, and will be unworkable on the ground.”

Maj. Gen. John Peabody, the Corps’ top commander for civil works, sent a memo May 15 to the White House stating: “In the Corps’ judgement, the documents (technical and economic analyses underpinning the rule) contain “numerous inappropriate assumptions with no connection to the data provided, analytical deficiencies and logical inconsistencies.”

The agency felt that changes in the final rule had the potential to limit the reach of the CWA, leaving as much as 10 percent of water bodies that provide drinking water and are important for fish and wildlife without protection.

Gina McCarthy, administrator of EPA, contends that agricultural concerns that the rule will allow EPA to regulate activities around irrigation ditches are unfounded. She said an exemption contained in the rule says that ditches constructed through dry lands and those that don’t have water year-round will not be regulated.

The American Farm Bureau Federation, OCA and others organizations argue that the exemption quoted by McCarthy is so narrow that few ditches will qualify. The rule defines all ditches with a bed, bank and high water line as tributaries.

Don Parrish, senior director of regulatory relations for the AFBF, said the rule gives EPA authority anywhere a channel begins and that blurs the distinction between regulating water and land use. In essence, he said every low spot would be subject to regulation, which would make expensive permits necessary for road construction, home building and even mowing grass in a ditch.

Parrish said scientists compiling EPA’s report were only asked to determine if all water is connected.’

“Basically, they were asked, ‘Does water flow downhill?” he said in a 2014 Chronicle story.


If none of the requests for a court injunction are granted before Aug. 28, EPA will start applying the rule for all new and pending applications for certain Clean Water Act permits.

However, steps are being taken in Congress to stop implementation of new regulations.

The House has approved legislation to stop the rule from going into effect and the Senate is being urged to do the same.

“The Senate should swiftly pass this bill. The economies of rural Oregon and other communities around the country face enough obstacles already,” said U.S. Rep. Greg Walden, R-Ore. “We don’t need agencies in Washington, D.C., erecting more hurdles and creating more uncertainty.”

He said EPA has ignored Congress’ repeated rejection of similar legislative efforts to expand jurisdiction of the Clean Water Act, which gives the federal government jurisdiction over major waterways designated as “navigable” waters.

In the past few years, Walden said EPA has earned two “rebukes” from the Supreme Court for attempts to expand its authority over tributaries.

In addition, Congress has cut EPA’s budget by 21 percent over the past five years to send a message that the agency is over-stepping its rightful role by making new laws, which is the responsibility of the House and Senate.

“We need to stop implementation of this rule and send EPA back to the drawing board,” said Walden.

VandenHeuval said government leaders and citizens alike should share the goal of protecting drinking water because everyone benefits.

“Internal politics should not overlap that goal,” he said.


Nantz said a provision in the new rule allows citizens to sue potential polluters, setting the stage for environmentalists to file more lawsuits when they want to stop a farming practice.

He said agriculture is a major contributor to Oregon’s economy and the far-reaching effect of further regulations needs to be given careful consideration.

For the first time in 20 years, cattle have emerged as state number one agricultural commodity, overtaking greenhouse and nursery products.

Cattle and calf production in the state had a value last year of $922 million, according to the U.S. Department of Agriculture. Greenhouse and nursery production was valued at $830 million.

In 2014, there were 34,600 farms in Oregon, with the average size about 474 acres.

Martin said he hopes that OCA joining what looks to be a multiplying number of lawsuits against EPA will cause the agency to think twice about expanding its reach.

“This rule will negate the locally driven initiatives that utilize real, on the ground wisdom,” said Martin.

Nantz said many Oregon ranchers and farmers have families who have worked the land for decades and they already practice responsible water usage.

“No one is going to be more concerned about good stewardship than someone who makes their living from the land,” he said. “This new rule is not needed and has the potential to do a lot of harm to our economy.”

The Obama Administration has threatened to veto any bill that reduces EPA authority.


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