As a Texas oil and gas lawyer, I work frequently with Texas ranch owners to negotiate oil and gas leases or pipeline easements that effect their ranches. A recent development threatens to add yet another layer of regulation for the operation of these ranches. Specifically, the United States Environmental Protection Agency (EPA) has recently proposed new guidance rules regarding what bodies of water are protected by the federal Clean Water Act (CWA). Bodies of water protected by the CWA are regulated by the EPA, and the draft guidance that the agency has submitted seeks to expand the types of waterways that are within the gamut of the CWA. These rules purport to increase the EPA’s jurisdiction under the auspice of both the statutory language of the Act and federal case law, such as the Rapanos v. United States decision handed down by the United States Supreme Court several years ago.
Generally, the Clean Water Act covers navigable waterways that are “relatively permanent, standing or continuously flowing bodies of water” under Rapanos. The new guidance rules, however, are based upon Justice Kennedy’s concurrence opinion in Rapanos, in which he stated that the CWA covers waters that “significantly affect the chemical, physical, and biological integrity” of navigable waterways. According to the EPA website, using this broader standard allows the EPA to evaluate “groups of waters holistically” instead of using the waterway-by-waterway piecemeal evaluations that are currently performed by the agency. The new rules mean that a surface connection to a navigable waterway is not necessarily needed for that waterway to be protected under the CWA. Additionally, the guidance states that waters which flow between two or more states are protected under the Act as well.
The draft guidance will be open for public comment for 60 days once it is published in the Federal Register, and cattle ranchers, in particular, have voiced opinions that are strongly opposed to the EPA’s proposal. According to the Texas and Southwestern Cattle Raisers Association (TSCRA), the guidance, if approved as is, may give the Environmental Protection Agency regulatory authority over stock tanks, drainage ditches, and other intermittently flowing bodies of water that are currently not within its jurisdiction. As a result of the agency’s additional authority, ranchers would have to submit to an additional permitting process — and incur the cost of hiring both engineers to evaluate the bodies of water and lawyers to explain the regulations and help the ranchers successfully navigate that process — and allow federal inspections of their private property. This increased regulation would prove a significant financial hardship to those who raise cattle.