Federal agencies plans to take control of every drop of rain that falls

Might have to get an EPA permit to move a rock.

Might have to get an EPA permit to move a rock.

Is there nothing the federal government will not micromanage into a bureaucratic knot of red tape?

Now the Environmental Protection Agency has rewritten the rules for the Clean Water Act in such a way that gives it authority over just about any stream, dry creek bed or backyard wading pool in the country, even though the law as originally written was meant to protect navigable interstate waterways from pollution.

The proposed rule was published in the Federal Register on April 21. The public comment period will be open for 91 days and will close on Monday, July 21.

According to the Nevada Appeal, at a recent meeting of the Nevada Conservation Commission, state engineer Jason King, whose office determines who in Nevada has rights to various water sources, said, “I look at this as an attempt to get into the regulation of the amount of water — an attempt to get their nose under the tent.”

The commission was told the new rules would require federal permits for the most minor changes to the smallest of tributaries, dry creek beds and just about anywhere rain might fall. It would be devastating to farmers, ranchers and others who use water as a part of their business.

An article in the Nevada Cattlemen’s Association newsletter quoted National Cattlemen’s Beef Association President Bob McCan of Victoria, Texas, as saying:

“This is a step too far, even by an agency and an administration notorious for over-regulation. This proposal by EPA and the Corps would require cattlemen like me to obtain costly and burdensome permits to take care of everyday chores like moving cattle across a wet pasture or cleaning out a dugout. These permits will stifle economic growth and inhibit future prosperity without a corresponding environmental benefit. This proposed regulation and the burdensome federal permitting scheme will only hinder producers’ ability to undertake necessary tasks and, in turn, result in an exodus of ranchers from the field.”

The definition of the nation’s waters is changed in the rules to include “rivers, streams, ditches, wetlands, ponds, lakes, playas, and other types of natural or man-made aquatic systems.”

Even without the new rules the EPA is threatening to fine a Wyoming couple $75,000 for building a cattle pond on their property after getting full approval from that state’s water engineer, and there was no evidence of pollution.

The conservation commission voted to protest the rules.

 

Cattlemen stand by rule of law but explain the problems being caused by BLM ignoring the law

When the tensions first began to escalate at Cliven Bundy’s Bunkerville ranch as the Bureau of Land Management began rounding up cattle that they said were trespassing on federal public land, the Nevada Cattlemen’s Association distanced themselves, issuing a statement that NCA “does not feel it is in our best interest to interfere in the process of adjudication in this matter, and in addition NCA believes the matter is between Mr. Bundy and the federal courts.”

The association, which represents about 700 Nevada ranchers, has since issued a longer statement. NCA still does not take sides in the Bundy matter, but it spells out the ranchers’ concerns about property rights and the BLM’s failure to fully comply with the laws under which it is congressionally required to operate. The following includes the entire statement, which begins:

“(Elko, NV) April 16, 2014 – The Nevada Cattlemen’s Association believes that private property rights are at the foundation of our country and our liberty, and we know that the rule of law protects those property rights. Our policy supports private property interests that exist on public lands, including water rights and grazing rights. We also support the continued multiple use of public lands, as authorized by law and confirmed by the courts. It is under this framework of the rule of law that our property rights and multiple uses are protected.

“The multiple-use statutes allow timber, grazing, wildlife, recreation and other uses to carry on side-by-side in a way that, as the statute reads ‘will best meet the needs of the American people.’ Increasingly, we see the federal government placing higher priority on uses other than grazing. This not only violates the multiple-use statutes, it violates the grazing and water rights that are also protected by laws such as the Taylor Grazing Act (TGA). Under the TGA, ranchers have a right to graze livestock on federal lands based on historical utilization. While this property interest is complex by nature — given that it exists on surfaces owned by the federal government — it is nonetheless a real property interest that is taxed and saleable. It must be protected. On the same token, ranchers who exercise their grazing rights are obligated to pay a grazing fee as established by law.”

Though the statement doesn’t mention the Fifth Amendment Takings Clause, that portion of the Bill of Rights was penned to protect private property and require fair compensation when property is taken by government, whether through outright possession or by making the property less valuable through restrictions on use or access. In Bundy’s case he was told 20 years ago he could not graze during the only time of year in which he could fatten his cattle and make a profit. Bundy decided to stop signing restrictive grazing permits and paying grazing fees. The NCA statement goes on to describe what has happened to Bundy and is happening to many other ranchers:

“Ranchers such as Mr. Bundy have found themselves with their backs against the wall as, increasingly, federal regulations have infringed on their public land grazing rights and the multiple use management principle. This is not only devastating to individual ranching families; it is also causing rural communities in the west to whither on the vine. In the west, one in every two acres is owned by the federal government. Therefore, the integrity of the laws protecting productive multiple use is paramount to the communities that exist there.

Desert tortoise

“The situation in Nevada stands as an example the federal agencies’ steady trend toward elevating environmental and wildlife issues over livestock grazing – in violation of the above mentioned laws and principles. Well-intentioned laws such as the Endangered Species Act — which are factors in Mr. Bundy’s case — are being implemented in a way that are damaging  to our rights and to our western families and communities. In Bundy’s case the designation of his grazing area as a critical habitat for the endangered desert tortoise gave the BLM the rationale they needed to order a 500% decrease in his cattle numbers. There never was any scientific proof that cattle had historically harmed the desert tortoise.”

This is a point seldom mentioned in the media coverage. The BLM ordered Bundy to reduce his cattle numbers by 500 percent, even though there was not then and is not now any scientific proof that cattle grazing in any way harms tortoises or their habitat. In fact, biologists have found desert tortoises thrive where cattle are present.

Greater sage grouse

While Bundy’s problem is the desert tortoise, every rancher in 11 Western states is watching closely federal plans to declare the greater sage grouse as threatened under the Endangered Species Act (ESA), a move that will prove to be far more devastating than the ham-fisted efforts to protect desert tortoise. Of course, the feds are paying no heed whatsoever to the fact there were very few grouse until cattle came along to improve the range with their droppings while ranchers improved water sources.

But Bundy has lost his case in federal court twice. Though he had strong arguments about water rights and grazing rights and the fact the federal government has no business controlling so much land in a sovereign state. The judge had to go by a 9th U.S. Circuit Court ruling involving another Nevada rancher who refused to pay grazing fees after being kicked off his own grazing range on Forest Service land.

The NCA makes the pro forma rule of law statement:

“However, in accordance with the rule of law, we must use the system set forth in our Constitution to change those laws and regulations. Nevada Cattlemen’s Association does not condone actions that are outside the law in which citizens take the law into their own hands. Nevada Cattlemen’s Association (NCA) works hard to change regulations detrimental to the sound management of public lands in a lawful manner and supports the concept of multiple uses on federally managed lands and encourages members of the livestock industry to abide by regulations governing federal lands.

“Furthermore, Nevada Cattlemen’s Association supports effective range management through collaboration with resource management agencies and interested parties to achieve rangeland management goals for economically viable ranch operations and the conservation of wildlife species.”

Collaboration can be difficult when the federal agency has the power to dictate what is proper range management and has no incentive whatsoever to compromise or listen to sound science, when the environmental radicals — who elect their Washington, D.C., bosses — continuously clamor, sue and settle.

The statement concludes:

“With the above stated this case was reviewed by a federal judge and a decision was rendered to remove the cattle. Nevada Cattlemen’s Association does not feel it is our place to interfere in the process of adjudication in this matter. Additionally, NCA believes the matter is between Mr. Bundy and the Federal Courts.

“We regret that this entire situation was not avoided through more local government involvement and better implementation of federal regulations, laws, and court decisions. While we cannot advocate operating outside the law to solve problems, we also sympathize with Mr. Bundy’s dilemma. With good faith negotiations from both sides, we believe a result can be achieved which recognizes the balance that must be struck between private property rights and resource sustainability.”

The problem is that our federal agencies have no respect or even passing concern for private property rights and would rather chase off every rancher, farmer, miner, logger, oil and gas explorer, off-roader, hunter, fisher and hiker rather than risk someone disturbing some presumably threatened bug, bird, reptile, minnow, weed or mammal. It is range management by knee-jerk reaction and by whim, instead of reason and science and compromise.

Protesting roundup of Bundy cattle. (R-J photo by Jason Bean)