EPA Irritates me Again

5 thoughts on “EPA Irritates me Again”

1. Commenter Reality Check responded to my 3/16 posting on this with a link to the Administrative Compliance Order filed by EPA in this case. According to the Findings of Violation: the construction was built on or near Six Mile Creek, which is a perennial tributary of the Blacks Forks River which is a perennial tributary of the Green River, which is a navigable, interstate water of the United States. They were contacted by the Corps of Engineers in September and inspected in October. I’m not sure what they thought they had from the State, but they should have lawyered up early. They may have been able to avoid the whole thing by talking before building.
   http://www.epw.senate.gov/public/index.cfm?FuseAction=Files.View&FileStore_id=b5d11bd4-7c08-4ecb-8c2f-6fd819ca9be7
   Notice the track getting to interstate navigable waters. There isn’t much that isn’t connected.

2. Non EPA rules don’t seem to be in play here.
   The stream is a ditzel stream and certainly not part of the navigable waters and I really don’t think that interfering with private property right should be tolerated–do you?
   This is all part of the extension of the EPA authority into wetlands or potential wetlands,
   A retention pond for a wet weather or small non navigable stream should not be the trigger for such an onerous fine threat.
   http://water.epa.gov/lawsregs/guidance/wetlands/CWAwaters_guidesum.cfm
   the pertinent part is that they PROPOSE certain guidelines that expand their authority.
   Summary of Key Points in the Proposed Guidance
   Based on the agencies’ interpretation of the statute, implementing regulations and relevant caselaw, the following waters are protected by the Clean Water Act:
   Traditional navigable waters
   Interstate waters
   Wetlands adjacent to either traditional navigable waters or interstate waters
   Non-navigable tributaries to traditional navigable waters that are relatively permanent, meaning they contain water at least seasonally
   Wetlands that directly abut relatively permanent waters
   In addition, the following waters are protected by the Clean Water Act if a fact-specific analysis determines they have a “significant nexus” to a traditional navigable water or interstate water:
   Tributaries to traditional navigable waters or interstate waters
   Wetlands adjacent to jurisdictional tributaries to traditional navigable waters or interstate waters
   Waters that fall under the “other waters” category of the regulations. The guidance divides these waters into two categories, those that are physically proximate to other jurisdictional waters and those that are not, and discusses how each category should be evaluated.
   The following aquatic areas are generally not protected by the Clean Water Act:
   Wet areas that are not tributaries or open waters and do not meet the agencies’ regulatory definition of “wetlands”
   Waters excluded from coverage under the CWA by existing regulations
   Waters that lack a “significant nexus” where one is required for a water to be protected by the CWA
   Artificially irrigated areas that would revert to upland should irrigation cease
   Artificial lakes or ponds created by excavating and/or diking dry land and used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing
   Artificial reflecting pools or swimming pools created by excavating and/or diking dry land
   Small ornamental waters created by excavating and/or diking dry land for primarily aesthetic reasons
   Water-filled depressions created incidental to construction activity
   Groundwater drained through subsurface drainage systems and
   Erosional features (gullies and rills), and swales and ditches that are not tributaries or wetlands
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   See when thy propose guideance that expands their authority that means that they didn’t have it before.
   Don’t assume these people are actiing under color of law when they pick on some small farmer and some small retention pond.
   I am not an enviro lawyer but I am going to send this over to Gary Baise, enviro ag lawyer at a big DC firm and see if there is any uncertainty or argument that works to the advantage of the farmer.
   If you don’t want the farmer to have an advantage–ignore this and hand in your citizen badge. Riparian rights have been diminished enough and a small retention pond sure ain’t my idea of an offense worth tens of thousands of dollars.

3. Was the catchment allowed under state regulations? Water rules are very tight in the American west. There are a lot of non-EPA rules on this subject.

4. The EPA has jurisdiction over waters of the United States under the Clean Water Act. That could include intermittent streams. Some farm uses are excluded. The thing is a regulatory mess with the EPA continually encroaching. I’m sure when the CWA was written, no one intended this. It’s so bad that the EPA webpage titled “Definition of Waters of the United States” doesn’t contain the definition.
   http://water.epa.gov/lawsregs/guidance/wetlands/CWAwaters.cfm

5. Looks like the Dept of Interior Bureau of Land Management Oklahoma Field Office out of Tulsa (letter number 1610, dated March 14, 2014) Oklahoma may be trying a new angle regarding land and minerals. We are so cynical nowadays. I wonder if this is a new angle on a land and mineral grab.
   The thing about this letter, though, is that it was sent to at least one Texas county judge’s office in a Texas county where there is no federal land for the Dept of Interior  to manage, only private land and private minerals.