The Obama administration has issued a guidance which expands the regulatory authority of the Environmental Protection Agency and the Army Corps of Engineers under the Clean Water Act. According to the National Cattlemen's Beef Association, the draft guidance expands the "significant nexus" test for determining regulatory jurisdiction over wetlands in a way that would seemingly allow EPA and the Corps jurisdiction over all types of waters, including any stream, ditch and pond on a producer's farm. The guidance claims to provide clarity and certainty to landowners.
NCBA Deputy Environmental Counsel Ashley Lyon says she is surprised Ag Secretary Tom Vilsack would allow something like this document to go through the review process given the "devastating impact" it would have on America's farmers and ranchers.
Lyon says this is a direct hit on the private property rights of farmers and ranchers across this country. A 60-day comment period will begin as soon as the draft guidance is published in the Federal Register.
Also voicing concern about the possibility of federal government regulation of ditches and farm ponds is the National Corn Growers Association. While the guidance maintains existing exemptions for normal farming and ranching activities, NCGA remains concerned the new proposal could expand EPA's authority over isolated waters including ditches and farm ponds.
NCGA President Bart Schott, a grower from Kulm, N.D., says the announced guidelines have the potential to expand federal jurisdiction in a way that could lead to additional permitting requirements and make famers more vulnerable to citizen action lawsuits. Bart also believes states should have the authority to regulate waters and that specific definition between state and federal jurisdictions are important.
NCGA and several other agriculture and environmental groups are asking EPA and the Army Corps of Engineers to initiate a formal rulemaking process on this matter to ensure transparency and public participation. Schott says that since the guidelines are still in draft form, they hope to have the opportunity to provide feedback to the Agency and the Corps about their concerns and find common solutions.