Seizing the seas

Via Custer County News

Defining “navigable waters” or Waters of the United States (WOTUS) might sound a bit difficult to most people, but not for the Environmental Protection Agency (EPA) and Army Corps of Engineers.

According to a recent article, they’ve defined it as “traditional navigable waters; interstate waters, including interstate wetlands; the territorial seas; impoundments of traditional navigable waters, interstate waters, including interstate wetlands, the territorial seas, and tributaries, as defined, of such waters; tributaries, as defined, of traditional navigable waters, interstate waters or the territorial seas; and adjacent waters, including adjacent wetlands.”

Confused yet? Sounds like that could include pretty much any body of water. Intermittent streams and others can be included through a “case-specific” showing that they, either alone or in combination with other bodies of water, may have a “significant nexus” to a traditional navigable water.

U.S. Rep. (R-SD) Kristi Noem calls this one of the largest federal land grabs in history and is troubled by the broad definition of “navigable” waters. In a recent press release, she expressed deep disappointment with the EPA.

“Small ditches that flow through our backyards, prairie potholes and streams that run only during heavy rains could now be subject to Clean Water Act regulations, meaning everyday tasks like spraying your lawn for mosquitoes or your crops for disease could potentially require new federal permits,” Noem said.

“And if the landowner falls out of compliance, penalties could cost more than $30,000 per day. Despite significant public outcry, the administration is trying to jam this massive expansion of federal power through, further eroding private property rights,” she added. “They must reverse course.”

Sen. John Thune said rule-makers in Washington’s concrete jungle are forcing agriculture producers, homeowners and small businesses across the country to comply with rules that will have devastating effects in rural America. He argues that many of the people making these decisions have never even stepped foot in the states where the effects will be most felt.

Thune said he is especially concerned about the EPA claiming jurisdiction in the Prairie Pothole Region throughout East River. And it doesn’t end there.

“The EPA delivered a one-two punch to South Dakota farmers last week when, following its WOTUS announcement, it proposed new Renewable Fuels Standards (RFS) volume requirements for 2014-16,” he said.

Custer County commissioner and rancher Jim Lintz said he’s been against this for as long as he’s been in the legislature, since 2008 or before. He figured it was pretty much a done deal from the first mention of it.

“It was a power grab and they’ve got it,” he said. “It will be gradual over time, I suspect, and I’m not sure we’ll see any immediate effects, but it will plant lots of possibilities to control water.”

Tom Barnes, supervisor of Custer County Conservation District and local rancher, said when Al Gore had his Clean Water Action Plan (which was similar to WOTUS) it was almost inconceivable that anything like it would pass legislation, but here we are on the cusp of a very important decision.

“The effects on agriculture are astounding. It would allow them to control everything. To be able to include every draw — dry, wet or intermittent. The potential effects could be devastating, especially for the West where we have so little water to begin with,” Barnes said.

Noem said, however, this is not the end of the road. She said the House has already passed bipartisan legislation that would ditch this rule and send the EPA back to the drawing board. She is strongly urging the Senate to pass similar legislation.

Lintz said he doubts any periods of comment (which closed in November 2014) made any difference and that those who make decisions have done what they had to do to get this passed.

“They’ll be able to fence off creeks,” he said. “There are lots of things they can do; it’s just a matter of what they want to do first.”

Barnes said this is just the first step and the EPA will be able to start adding different restrictions from here.

Reed Hopper and Todd Gaziano, members of the Pacific Legal Foundation, the first and oldest public interest legal organization, complain that the rule would federalize virtually all water in the nation — and much of the land — in direct contravention of Supreme Court precedent.

They reference two Supreme Court cases which found that the Army Corps could not regulate isolated bodies of water that were not connected to traditional navigable waters and that agencies could not regulate wetlands merely because they have a hydrological connection to downstream waters.

Lintz also has concerns as a rancher. He has a small stream that runs through his property and that, too, could eventually be fenced off and no longer his.

“The federal government has more and more of a hold all the time. This is just another tentacle reaching out,” he said. “The federal agencies are full of people who are furthering this sort of agenda. It’s not just the President who is elected into office, but everyone in these positions. Eventually we’ll all pay the price.”

Barnes has hope in South Dakota legislators and most legislators in the West, though. Rep. Noem has made sure her voice is heard and Barnes hopes the public will contact other legislators as well.

“I plan on writing a letter myself. And I know the conservation district will also write a letter,” Barnes said. “We haven’t discussed it much this time around at the district meetings, but I know we all have the same feeling and that is ‘please don’t let this happen.’”

Thune strongly opposes the EPA’s overreach and will continue to work with fellow senators to do whatever is possible to block these regulations.

Maps of every single body of water in the state of South Dakota — and nation — have been released. Viewing the map of South Dakota, one quickly understands how quickly things could get out of control. That map can be viewed here: science.edgeboss.net/sst2014/documents/epa/south_dakota2013.pdf

Visit http://www2.epa.gov/cleanwaterrule/documents-related-clean-water-rule for more documentation put together by the EPA.