RANCHING The Clean Water Act Is Anything but Clean By Les Nunn E


ARLY ON IN AMERICAN JURISPRU- dence, “waters of the United States” were only those wa-


ters that could be navigated by boat. If a creek could not fl oat a boat, it was not navigable and, hence, not a water of the United States. But sadly, times change. The federal government, through the Environ- mental Protection Agency (EPA), now seeks to impose its authority over essentially all waters in the United States. The Clean Water Act passed by


Congress started out with good in- tentions. Certain rivers and streams were notorious for being polluted. The desire was to prevent chemi- cal and other pollution of rivers and navigable streams by giving the EPA certain authority to force industries and people to literally “clean up” their acts and stop pol- luting the rivers. Congress passed the Clean Water


44 The Cattleman May 2014


Act, giving the EPA jurisdiction over only “waters of the United States.” That was a long time ago, and


the EPA has dramatically expanded its hold by increasing what “waters of the United States” are, thereby giving itself more jurisdiction. For some time the EPA has


claimed authority over preserving wetlands, issuing regulations that expanded the defi nition of what are “wetland” waters of the U.S. to the point almost any land that periodi- cally becomes damp during various times of the year might well be a wetland, thereby giving the EPA the power to control what people do on and around that particular spot. The U.S. Army Corps of En-


gineers was created originally to dredge navigable streams and rivers to keep them deep enough to fl oat boats needed for the transporta- tion of goods. Its role has changed now to essentially issuing permits


for people to drain or affect wet- lands, in those rare times when it so chooses to issue a permit. The river dredging, if done at all, is contracted out to private businesses. In fact, today very few, if any, employees of the Army Corps of Engineers have engineering degrees. As a lawyer, I have represented


farmers in fi ghting the EPA over draining wetlands. On one par- ticular case, I was with a regional authority of the Army Corps of En- gineers and asked him where he got his engineering degree. He looked at me surprised and asked why I thought he would have an engineer- ing degree? Because he was in the Army Corps of Engineers, of course! His degree, he said, was in “wet-


lands science” and he did not know of anyone in the Corps of Engineers now who had an engineering de- gree, but almost all have degrees in wetlands science, biology, hy-


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