The EPA, WOTUS, and the Myth of Environmental Protection…

My favorite teenager arrived home last week after spending three weeks at Trinity University taking a course entitled “Myths and Legends”. As she walked out of the airport, she was quick to tell me that a myth “didn’t have to be based on the truth or science to be real, it simply had to be accepted as such by a subset of people.”

Her words have filtered through my thoughts many times over the past few days as I pondered the recent actions of the Environmental Protection Agency. On March 25th, the EPA and the Army Corp of Engineers jointly proposed a regulation redefining what waters will come under Federal jurisdiction through a new definition of “Waters of the United States (WOTUS)” under the federal Clean Water Act.

The agencies have chosen to use the powers of the Executive Branch of government to redefine an already existing law, despite the fact that Congress refused to authorize a legislative change and the proposed rule goes against the definition of WOTUS upheld in the Federal Court system. A basic understanding of United States history would pull into question this action as it is a clear violation of the Checks and Balances System upon which our government was formed.

The proposed rule is a clear overreach of power by the Executive Branch of the United States government, cleverly disguised as environmental protection.

Our farm is diversified:  in addition to the cattle feed yard, we also have grass pasture land and crop ground.  This new definition would expand EPA's jurisdiction to include our pasture and farm ground...

Our farm is diversified: in addition to the cattle feed yard, we also have grass pasture land and crop ground. This new broad definition would expand EPA’s jurisdiction to include pasture and farm ground like ours (pictured above) because during times of heavy rains/flooding parts of this land are under water…

The 88 page document that likely requires legal counsel to fully understand makes many significant changes to expand the reach of the Environmental Protection Agency. Examples of them are as follows:

  • The rule effectively allows for federal jurisdiction over any and all water as the word “navigable” will be eliminated from the Clean Water Act. This means that ditches, ephemeral streams, rain water puddles or low areas of pasture or farm ground, as well as storm water conveyances in urban/municipal areas are now able to be regulated by the EPA. As such, federal permits may be required for “normal” practices both on farms and in the cities.
  • The rule usurps the jurisdiction of ground water protection from state agencies because the EPA and Army Corps fail to distinguish “shallow subsurface flow” from “groundwater” thereby opening it up for federal regulation.

    As part of my Nebraska State Operating Permit from the NE Dept. Of Environmental Quality, I test the ground water under my feed yard twice a year to ensure that there is no contamination.  Ground water protection has historically been regulated by state agencies...

    As part of my Nebraska State Operating Permit from the NE Dept. Of Environmental Quality, I test the ground water under my feed yard twice a year to ensure that there is no contamination. Ground water protection has historically been regulated by state regulatory agencies…

Additionally, an “interpretive rule” that was published alongside the proposed definition by the same federal agencies devastates the collaborative relationship that farmers and ranchers have built with the Natural Resources Conversation Services (NRCS) by turning the NRCS into an arm of the EPA and converting the NRCS scientists from professional consultants/resources into EPA regulators.

Together, these rules make the EPA the land-use planning agency for the entire country.

As a CAFO, my cattle farm is already under the jurisdiction of the EPA as the farm has held an NPDES permit through the agency for more than 20 years.

As a CAFO, my cattle feed yard has held an EPA–NPDES permit for more than 20 years.  Therefore, the feed yard part of our farm was already regulated by both the EPA and the Nebraska Department of Environmental Quality prior to this rule change…

I have had one direct exposure to the Environmental Protection Agency in my 17 year tenure on the farm, and it was clearly the worst single episode of my professional career. With no notice, two EPA agents arrived to perform a “routine inspection” despite the fact that my state regulatory agency normally performed this task.  They entered my office flashing badges and instructing me that I would go to jail if I did not cooperate with them.  Quite frankly, they treated me like I was guilty of a crime despite the fact that I was both innocent and fully cooperative.

As we toured the feed yard, there was a complete lack of civility in their demeanor augmented by an apparent ignorance of how my farm operated.  One of the agents stated “I’ve never been this close to a cow before” and mistook the dirt mounds of my cattle pens for manure.  They were clearly well versed in the words that appeared on my NPDES permit, but failed to have the basic knowledge of a feed yard in order to understand how those words were practically implemented to protect the environment.

Years later, as I have analyzed this experience as well as the continual political power-play in Washington DC, I have come to realize that sometimes the goal isn’t necessarily effective environmental protection, but rather a myth based power play perpetuated by a vocal minority to increase federal government control over the American people.

familypictureblkwhite.jpgI worry that it isn’t about the environment. Rather, it is about continually expanding federal government control into the grassroots areas of our country.

Preserving our Natural Resources is such an important task — Each one of us yearns to enjoy in our beautiful legacy.  Let’s work together responsibly to protect the Earth.  It is too much of a treasure to be used in political games.  The EPA and the Army Corps need to Ditch this Rule as it belittles the cornerstones of our country to egregiously expand federal government powers under the myth of environmental protection.


Filed under Environmental Stewardship, Farming, General

11 responses to “The EPA, WOTUS, and the Myth of Environmental Protection…

  1. Flashback. This ain’t no myth: “I’m Agent Black, and this is Agent Black. We have come to see your cow, you evil capitalist.”

  2. Jeff

    Must refrain from comment for fear of it causing a knock on my door.

  3. Johnny Stansell

    I am appalled at the powers the EPA and the Federal government is taking without representation.

  4. Eugene Story

    Excellent article. The executive branch and bureaucracy are totally out of control.
    “We’re with the government and we’re here to help you.”

  5. Andrew Patterson

    Adding to your story, Anne — more accounts of egregious Obama-EPA regulatory activism across the country, from the Washington Times:

    Power grab:

    EPA wants to garnish wages of polluters

    Accused violators of pollution laws would have little recourse

    Under Gina McCarthy, The EPA has been flexing its regulatory muscle, collecting more fines and hitting individuals with penalties for violating environmental rules. (Associated Press)

    By S.A. Miller -The Washington Times Tuesday, July 8, 2014

    The Environmental Protection Agency has quietly floated a rule claiming authority to bypass the courts and unilaterally garnish paychecks of those accused of violating its rules, a power currently used by agencies such as the Internal Revenue Service.

    The EPA has been flexing its regulatory muscle under President Obama, collecting more fines each year and hitting individuals with costly penalties for violating environmental rules, including recently slapping a $75,000 fine on Wyoming homeowner Andy Johnson for building a pond on his rural property.

    SEE RELATED: EDITORIAL: The EPA’s outrage in the barnyard
    “The EPA has a history of overreaching its authority. It seems like once again the EPA is trying to take power it doesn’t have away from American citizens,” Sen. John Barrasso, Wyoming Republican, said when he learned of the EPA’s wage garnishment scheme.

    Others questioned why the EPA decided to strengthen its collection muscle at this time.

    Critics said the threat of garnishing wages would be a powerful incentive for people to agree to expensive settlements rather than fight EPA charges.

    Enlarge Photo

    EPA officials did not respond to repeated questions by The Washington Times about why they thought it was necessary to garnish people’s wages.

    The EPA announced the plan last week in a notice in the Federal Register, saying federal law allows it “to garnish non-Federal wages to collect delinquent non-tax debts owed the United States without first obtaining a court order.”

    The agency cited authority under the Debt Collection Improvement Act of 1996 that centralized federal collection operations under the Treasury Department, which oversees garnishments of wages or tax refund checks.

    PHOTOS: Obama’s biggest White House ‘fails’
    Under the law, every federal agency has the authority to conduct administrative wage garnishment, provided the agency adopts approved rules for conducting hearings where debtors can challenge the amount of debt or terms of repayment schedule, a Treasury official said.

    Still, the rule would give the EPA sweeping authority to dictate how and whether Americans could dispute fines and penalties, even as the amount of EPA fines collected from individuals, businesses and local governments steadily increase.

    The amount of fines raked in by the agency has jumped from $96 million in 2009 to $252 million in 2012, a more than 160 percent increase, according to EPA annual reports.

    Putting the collection powers on a fast track, the agency announced it in the Federal Register as a “direct final rule” that would take effect automatically Sept. 2, unless the EPA receives adverse public comments by Aug. 1.

    The EPA said it deemed the action as not a “significant regulatory action” and therefore not subject to review.

    The negative reactions began almost immediately.

    In a comment letter submitted to the EPA, the conservative Heritage Foundation faulted the rule for giving the government “unbridled discretion” in controlling the process for challenging fines and wage garnishment, such as dictating the site of a hearing without consideration of the time and travel expense placed on the accused debtor.

    The rule allows the EPA to decide whether a debtor gets a chance to present a defense and then picks whomever it chooses to serve as a hearing officer, even someone not trained as an administrative law judge, wrote David S. Addington, group vice president for research at The Heritage Foundation.

    It also puts the burden of proof on the debtor, not the EPA, he said.

    The EPA has been on the front lines of the battle over Mr. Obama’s climate change agenda, including issuing proposed rules that would require coal-fired power plants to cut carbon dioxide emissions by 30 percent over 15 years.

    Critics say it will cause massive increases in the cost of electricity, lead to power shortages and eliminate jobs, while making scant impact on the amount of greenhouse gasses emitted worldwide.

    The agency has been a magnet for criticism over new rules on things such as wood-burning stoves and small streams or ponds on private land, including waterways on farms and golf courses.

  6. Myths: peace, prosperity and progress. None of you remember this, but that was Eisenhower’s campaign slogan.

  7. Robin

    Hi Anne. I’ve followed your blog for a while, but until now have never commented. I too am concerned for my farmer friends faced with the potential for burdensome and unnecessary regulations. I work for a communications agency that works with farmers to improve water quality and promote best management practices they already implement. I was able to participate in an American Soybean Association webinar today hosted from Washington DC with EPA and Army Corps staff. Many of the concerns you raised in your blog post were addressed by EPA and Corps staff during the webinar: EPA jurisdiction, normal farming practices exempt from rule and NRCS involvement. Slides from the webinar were promised to be posted on EPA’s website next week: If I see something from ASA before that, I’ll send it your way. Keep putting the pressure on – you’re certainly not alone!


    • Thank you, Robin! I so appreciate your input and the work that you are doing in this area. Please let me know when and if you learn anything else.

      Again, I appreciate your note.

  8. Hayleigh Boyd

    I love how you shared your encounter with the EPA including the demeanor of the agents. To me from a consumer stand point, this story shows me that the threat is not from farmers ranchers etc, but rather from political and governmental agencies that do not understand every aspect of what they are supposed to monitor.
    From an aggie standpoint, I find it very disheartening that those agents did not even understand the way their rules are designed to work with your operation. How can they successfully do their job if they lack the understanding of the operation under the rules…
    I know the EPA has harsh rules for good reasons but the scary thought is that the enforcers do not seem to understand much aside from their rule books

    Hayleigh B

  9. Pingback: Americans Need To Engage… | Feed Yard Foodie

  10. Rocke Huntington

    This may sound trite but all things want to survive, that includes an agency created by another agency. That being said, like the consumer protection agency, the EPA has been starved by congress cutting its funds…if it can’t get rid of it then cut funding to make it ineffective. And then desperate takes over and dumb things happen, for survival.
    Foodie, I see you are from Nebraska, same here Lincoln, NE. In my line of work, ponds, and as past president of International Pond Professional Companies Association, not only did I have conversations with the EPA but city officials in Omaha when they decided to write ordinances governing back yard ponds.
    Found it of interest that as a business man in Nebraska and the president of an International pond organization I was told I had NO Interest and would not be allowed to address the Omaha City Council.

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