thority over just about any water it can imagine. How far is the EPA going in this? Let’s take a look.
EPA enforcement actions One EPA case I was involved in
is an example of what is happening. A farmer’s land was being fl ooded by the acid water draining from an adjacent hillside abandoned coal mine on his neighbor’s property. The red acid water fl owed down
the neighbor’s hill and onto my cli- ent’s farm, killing all the vegetation and making farming impossible. My client had a “Swamp Bust-
ers” permit issued by the U.S. De- partment of Agriculture authoriz- ing him to drain the stagnant acid water from his land into a nearby small creek so the land could be farmed again. The farmer proceeded to drain
the acid water, plant grass and turn it into a beautiful green pasture. An EPA inspector saw what had
happened and asked the farmer for his U.S. Army Corps of Engineer’s permit to drain the “swamp.” Be- cause he had none, the EPA issued its “Cease and Desist Order,” claim- ing the farmer had polluted the stream in violation of the Clean Water Act. Now what is even more shock-
ing, the pollution complained of was not the red acid mine drain- age water. It was the dirt from the ditch the farmer dug to drain the “trespassing” water off his land. Under the EPA’s definition of
“pollution,” removing sub-surface dirt (as in digging a ditch) and plac- ing that removed dirt on top of the surface dirt next to the ditch is “pol- luting” the soil with a contaminant (the dirt from the ditch). This has been upheld by fed-
eral courts to be pollution. The court ruled in favor of the EPA and
tscra.org
against the farmer. The U.S. Court of Appeals upheld the decision. So what about the red acid mine
drainage water that still spews forth from the mine today? While it might be polluting, it was not considered as the offending pollutant since the EPA has no money to clean up red acid mine drainage water like that. It seems only to have money to fi le lawsuits and hire environ- mental experts to testify against ranchers, farmers and other similar “offenders.” What about the Swamp Buster’s
permit issued by the U.S. govern- ment? It was not suffi cient as the court held the farmer should have still complied with the Clean Water Act and obtained a permit from the Army Corps of Engineers.
EPA today Today, the EPA seeks to change
its regulations by increasing even more the types of water over which it wants to have power. EPA claims these new regulations are neces- sary to clarify what waters it “must oversee” under the Clean Water Act. While there is no timetable as to when the new rules will be released, they have caused quite a stir. Some claim these new rules will
require farmers and ranchers to hire an environmental assessment and get permits to till soil near gullies, ditches and dry streambeds where this tillage might create a discharge into a body of water covered under the Clean Water Act. Texas Republican Congressman
Lamar Smith calls it the “largest expansion of EPA regulatory au- thority ever.” He also says “if the draft rule is approved, it would al- low the EPA to regulate virtually every body of water in the United States, including private and public
lakes, ponds and streams.” Con- gressman Smith chairs the House Science Committee. What does the EPA say about
this? Nancy Stoner, EPA’s acting assistant administrator for water, claims the EPA has been working with the agriculture industry to make sure its concerns about the proposed rules were addressed. I don’t recall receiving a phone call from Nancy about my thoughts on the subject. How about you? I do not think anyone called
Andy Johnson either. Andy is a welder in Wyoming who owns 8 acres of land. He and his wife dug a stock pond to provide water for their horses. As of March 14, 2014, the EPA
has issued its order to cease and restore the land to its original con- dition. The EPA is now threatening him with civil and criminal penal- ties totaling $75,000 per day. His crime? Andy and his wife
built the stock pond without a per- mit from the U.S. Army Corps of Engineers. The Wyoming State En- gineer approved his stock pond, but that was not enough for the EPA. Andy has been ordered to hire
an environmental consultant (at his expense, of course) to assess the impact of the supposed unauthor- ized discharges that might come from his pond. If the EPA fails here for some
reason, in my experience it will try again, try again, try again.
Editor’s note: TSCRA member
Les Nunn, Pauls Valley, Okla., is department chair and professor of business law at the department of accounting and fi nance, University of Southern Illinois College of Busi- ness. Read more of Nunn’s work in the “Back to Business” blog on the-
cattlemanmagazine.com.
May 2014 The Cattleman 47
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