BY TOM CAMPBELL
The 1972 Clean Water Act requires anyone putting anything into a
navigable or interstate watercourse or wetland to get a permit from the
Environmental Protection Agency and the Army Corps of Engineers.
Tributaries to such watercourses are covered, but the word “tributary”
was not defined. Now, for the first time, in pending regulations, the
EPA proposes to do so.
A ditch can be a tributary. They are mentioned explicitly in the
rule. They are excluded only if they “do not contribute flow, either
directly or through another water, to” a watercourse already reached by
the EPA’s jurisdiction. They don’t have to carry water continuously.
“Intermittently” or “ephemerally” is sufficient.
How can the EPA tell if there is such a connection to another
watercourse? The “tributary connection may be traced using direct
observation or U.S. Geological Survey maps, aerial photography or other
reliable remote sensing information, or other appropriate information,”
according to the EPA’s announced rule.
In 1978, the Supreme Court announced that a federal regulatory agency
could enter private property, without a warrant, to ascertain whether a
commercial activity subject to federal regulation was complying with
that regulation, so long as the search was pursuant to a randomized
pattern of searches, and not the result of special targeting. With the
EPA’s explicit mention of aerial photography and remote sensing
information, it’s fair to conclude EPA will overfly farmland, using
infrared and photographic surveillance, to determine where water
connects. Obviously, drones would be helpful in this undertaking, and no
warrant would be needed.
The California Farm Bureau and the American Farm Bureau are opposing
this first-ever reach by the EPA and Corps of Engineers to regulate even
ditches on farmland. The federal agencies defend themselves, saying
they are attempting to lend clarity to the law. They claim all they want
is to regulate those waters that have a significant nexus to what we
would all grant are serious watercourses, potential pollution of which
is of concern to us all.
They have a point: A farmer should not be allowed to put cyanide into
a ditch that flows into a lake from which drinking water is taken. And
if that is what the proposed regulation said, few would oppose it.
What the EPA and Army Corps miss, however, is that by asserting
jurisdiction first, and later filling in the substantive details of the
regulation, the agencies are subjecting landowners of all kinds, but
especially farmers, to the slow death of requiring prior approval. There
is no law mandating that a regulatory agency move expeditiously. If, in
normal agricultural operations, a farmer moves topsoil into a ditch
that occasionally carries water, prior approval would be needed. Farms
can’t operate under a regime of asking permission for actions as mundane
as that.
EPA might answer that it would never impose a prior-approval
requirement for filling in a ditch. Maybe not; but once its proposed
rule goes into force, it could.
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