Page 20 October 27, 2015
2015 Logan County Farm Outlook Magazine
LINCOLN DAILY NEWS.COM
so-called “tributary” on your land—or even
just places where a “tributary” used to be—
whether or not you can see anything that looks
like a water feature. What’s more, the rule
automatically regulates other waters within
certain distances of any such invisible or
historical “tributary.”
Stallman pointed at exclusions from regulation,
“the one for farm ponds, apply only to features
‘created in dry land.’ Was your farm pond
‘created in dry land’? Who knows!”
He said that the pages and pages intended for
“’clarity’ don’t help you distinguish between
‘waters’ and ‘dry land.’ Only the agencies can
say for sure.”
Overall, Stallman says, “The EPA has made
it impossible for farmers and ranchers to look
at their own land and know what falls under
federal jurisdiction and what doesn’t. But if
the government does later find that your land
is ‘waters of the U.S.,’ you will already be in
violation of the law for farming there, even
though you had no reason to know your land was
regulated.”
He says that this puts landowners at risk of steep
fines and concludes, “It’s time for Congress
to step in and check EPA’s blatant overreach.
Farmers and ranchers know the importance of
protecting water resources.”
Some members of congress have expressed
concern about the rules. In a farm magazine
article, “On WOTUS, EPA is taking the law into
its own hands” North Carolina’s Republican
Representative Mark Meadows was quoted as
saying, “Under the EPA’s absurd new WOTUS
rule, the agency would have the ability to
regulate
waters on private lands down to ditches,
potholes, and puddles.”
Industry leaders believe the rule could also affect
streams farmers use for drainage and irrigation
even though the EPA document states that it does
not regulate most ditches, groundwater, or tile
drains.
According to a National Association of Counties
(NACO) Policy Brief, “The newly proposed rule
attempts to resolve confusion by broadening the
geographic scope of CWA (Clean Water Act)
jurisdiction.” NACO says, “The proposal states
that ‘waters of the U.S’ under federal jurisdiction
include navigable waters, interstate waters,
territorial waters, tributaries (ditches), wetlands,
and ‘other waters.’ It also redefines or includes
new definitions for key terms—adjacency,
riparian area, and flood plain—that could be used
by EPA and the Corps to claim additional waters
as jurisdictional.”
At the time the new rule passed on Aug. 28, its
employment was tied up in state courts all across
the U.S.
As of Oct. 9th, 2015, judges from Sixth Judicial
Circuit Court of Appeals ordered that the rule not
be implemented nation-wide until the jurisdiction
has been more specifically established.
Select excerpts from the judges decision:
[“What is of greater concern to us, in balancing
the harms, is the burden—potentially visited
nationwide on governmental bodies, state and
federal, as well as private parties—and the
impact on the public in general, implicated by
the Rule’s effective redrawing of jurisdictional
lines over certain of the nation’s waters. Given
that the definitions of “navigable waters” and
“waters of the United States” have been clouded
by uncertainty, in spite of (or exacerbated by)
a series of Supreme Court decisions over the
last thirty years, we appreciate the need for the
new Rule. ... “The Clean Water Rule is hereby
STAYED, nationwide, pending further order of
the court.”]
Continued
