Keep the Federal Footprint Small
“When you deal with TCEQ, those folks understand what you do, and there’s a reason for a regula- tion. They understand your point of view. EPA is not that way,” said environmental attorney Jim Bradbury at the Private Property Rights Town Hall in San Antonio.
Bradbury and Bryan Shaw, Ph.D., P.E., chairman of the Texas Commission on Environmental Quality (TCEQ), were guest speakers at the 2014 Cattle Raisers Convention. This town hall session was sponsored by Hargrove Ranch Insurance and was moderated by Jim Malewitz, energy reporter for the Texas Tribune.
Bradbury and Shaw talked at length about how the current drought has been as signifi cant an event for cities as it has for agriculture. Part of their discussion was a sidebar comparison of TCEQ and the Environmental Protection Agency (EPA)
TCEQ works within the authority given to it by the Texas Legislature. EPA seems to be actively seeking to expand its jurisdic- tion over private land under the guise of protecting clean water.
Shaw explained that the language of the rules and state statutes determines the scope of TCEQ’s authority. If the rules are silent on a topic, then the agency has “fl exibility in how we can go forward. The courts then see if we were in error in our interpretation of the law.” Then the legislators can look back and see if the courts correctly interpreted their inten- tion for the law. Shaw said it’s important to “make sure you are not acting out of the authority you want, rather than what you have.”
Bradbury suggested to the audience that if “there is one issue, from a water perspective, to take home it’s this — the new guidance from the EPA and the U.S. Army Corps of Engineers about the defi nition of the waters under federal jurisdiction.
64 The Cattleman June 2014
“This is a really, really big deal. It is going to impact farmers and grassland ranchers more than anybody else. This changes how far upstream the federal government has jurisdiction — following tributaries all the way back up into the pasture where it just looks like a cattle track.”
Bradbury says the EPA’s approach is to defi ne those areas as federal waterways, “ostensibly for clean water. When they get jurisdiction for clean water, then it fl ips over into regulating land use, telling landowners what they can and cannot do. This is an iceburg of an issue and we really need to pay attention to it. This is really targeted at you, the landowners,” Bradbury said, adding that he was happy to have heard TSCRA President Pete Bonds touch on this topic in his presi- dent’s report. Read that report on page 54 in this issue.
Shaw agreed about the magnitude of this issue. “Folks in the grasslands, in the upper reaches of river segments, are the most impacted by this.”
Bradbury seemed to think EPA is at- tempting to expand its jurisdiction, and if successful could begin to require changes to how landowners manage their property. “Once this jurisdictional determination gets made, you could be subject to having to get licenses and per- mits do things on your lands” that have not required permits before, he said.
Shaw agreed, “Those uses could be pesticide or fertilizer applications.” With expanded federal jurisdiction, EPA could “potentially require grassed waterways or shielded buffer zones,” or could enact more stringent requirements to legally apply nutrients and fertilizers to land.
Shaw said, “It’s diffi cult to get comfort- able that [EPA is] going to be small in its footprint. The reach of the federal govern- ment is pretty extensive. I’ve never seen a federal program that reduces its infl u- ence over the folks involved in it. There will be efforts to expand authority.”
thecattlemanmagazine.com
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