Web of Water - 3

MEADOW, S.D. (DTN) -- Nothing but rolling hills appear painted on the horizon from the view on Travis and Renae Gebhart's ranch in northwest South Dakota. The family is about 40 miles from the nearest town and 12 miles from the nearest paved highway.

In 2009, they built a house in the middle of a pasture where they manage their rangeland and raise cattle. The family operates a 1,200-head cow-calf operation. They also grow corn for feed, sunflowers, wheat and sorghum on just 10% of their land.

The climate in their area is semi-arid, with annual precipitation of 16 or 17 inches. Their land falls on a web of small, ephemeral streams that flow only during heavy rains. Yet those streams would be deemed as waters of the U.S. under the new Clean Water Act rule proposed by EPA and the Army Corps of Engineers.

What otherwise is considered to be dry in farm country may actually be wet for purposes of the new rule. It's a scenario that could play out on farms and ranches throughout the West.

In this series, "Web of Water," DTN looks at some of the concerns farmers have about the rule and how it might be implemented. In this third story, DTN looks at what the regulation of intermittent and ephemeral streams could mean to a South Dakota rancher.

The Gebharts know they sit in a potential regulatory bulls-eye. They capture what little moisture they have and move it through about 100,000 feet of pipeline, all to maintain healthy pastures and to quench thirsty cattle. They said they have not once in the past decade needed a permit for anything, such as to build their house, construct fences or to spray pesticides when needed.

EPA's plans to regulate intermittent and ephemeral streams in the proposed Clean Water Act rule have infuriated farmers and agricultural organizations. They see the plans as a land grab.

"In the last three months, three times we've had water running through those areas. In the last 12 to 15 years -- probably like nine or 10 times," Travis Gebhart said.

The new rule effectively states that several areas on the Gebharts' ranch potentially have features that could be deemed waters of the U.S. An ephemeral stream passes directly through one particular corn field on their property, down into a culvert and likely to navigable waters at some point. It's not a stretch to imagine that water in the myriad channels on their land ultimately finds its way to the Gulf of Mexico.

"If you take a look at this map, that line right there goes right through our corn field," Travis Gebhart said as he pointed to a satellite map on the family's laptop computer. "So obviously that would have an impact on that corn field. We have no clarity. We don't know where we're going to be. We can draw a line from any point on the land and say theoretically rain that falls in this square foot could make it to the Mississippi River delta."

USGS MAPS

Last summer, a Congressional committee released maps EPA has in its possession. They were generated with U.S. Geological Survey data and show millions of miles of perennial, intermittent and ephemeral features that could be jurisdictional.

Nearly the entire northwestern part of South Dakota is covered in perennial, intermittent and ephemeral streams. Of the 150,284 miles of linear streams in the state, USGS said 92% are intermittent or ephemeral. The EPA rule allows for the possibility that although some ephemeral streams virtually vanish into dust in many locations -- showing no signs of an ordinary high-water mark or bed and bank -- they still are protected waters, even though "the banks of a tributary may be very low or may even disappear at times," EPA stated in its analysis of the proposed rule.

EPA and the Corps' proposed definition of 'tributary' explains that in some areas of the country that are more arid, the normal stream indicators such as ordinary high water marks may not be there because the stream may flow so infrequently. Most people would just view that as dry land, but those areas could be regulated as waterways.

POSSIBLE PERMITS

Don Parrish, senior director of regulatory relations with the American Farm Bureau Federation, said the rule is potentially costly to farmers and ranchers to mitigate to have proper permits to discharge into waters of the U.S.

In essence, if the Gebharts decide to build a new fence on otherwise dry land, for example, such work could require a section 404 dredge and fill permit if the fence is built on ephemeral tributary features that may not otherwise be readily visible. Parrish said it would be smart for ranchers in these situations to seek an expert opinion before undertaking such work. A consultant could charge $100 to $200 an hour, he said.

This would compare to penalties of $37,500 a day for violating the Clean Water Act and failing to get needed permits.

What's more, section 402 of the Clean Water Act requires permits for anyone spraying chemicals on water. Parrish said the new rule establishes the need for farmers to potentially apply for permits when spraying on seemingly dry land -- if that land is decidedly an ephemeral or intermittent stream with a significant nexus to waters of the U.S.

"For farmers this is not an issue they've really been faced with head-on," he said. "EPA says we only need to see indicators. Agriculture exemptions only apply to section 404 permits (dredge and fill). There is no exemption in 402 (regulation of point-source pollution into waters) discharges into tributaries."

Parrish argued the regulatory demand will operate like a ratchet. "They will be somewhat loose in the beginning but will only get more restrictive over time," he said.

THE FUTURE

The Gebharts work closely with the Natural Resources Conservation Service on a number of water and grazing distribution projects, grass management, as well as erosion reduction on riparian areas, including those funded through the Environmental Quality Incentives Program, or EQIP.

"When it comes down to it, what's best for the land is best for the rancher," Travis Gebhart said. Distributing water to parts of the ranch that need it takes the cattle away from riparian areas and to water tanks on hills, he said. "It increases your rate of gain on your calves. It raises the body condition score on the calves. It's going to increase your pregnancy rates -- it's a win-win. But it also keeps the cows up out of the riparian areas and creek bank."

The Gebharts say they aren't against abiding by regulations so long as they are understandable and show measurable benefits to the land.

"Realistically when you think about the Clean Water Act, you think of navigable waters," Renae Gebhart said.

"Well, that doesn't affect us out here. When you look at the maps, you see how it's gonna affect this area greatly," she said. "We were both raised in agriculture, and we want to have the opportunity to have our kids to be able to have this as their income also, and lifestyle."

In comments to EPA Oct. 30, the National Association of Conservation Districts said the interpretive rule does not leave room for practices that do not meet NRCS specifications.

"The requirement for practices to conform to NRCS standards does not protect functionally equivalent practices that serve the same purpose without meeting NRCS standards," the group said in its comments. "While the guidance imposes no new legal requirements on producers, the creation of a bright-line test could potentially increase their exposure to litigious groups and individuals."

The public comment period for the proposed rule ends Nov. 14. You can read the rule here, http://tinyurl.com/… and also see http://www2.epa.gov/…

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Next in the Web of Water series: Although EPA has outlined a number of agriculture-related exemptions, this final story in the series will look at the potential threats farmers face when doing seemingly normal farming operations.

Todd Neeley can be reached at todd.neeley@dtn.com

Follow Todd on Twitter @toddneeleyDTN

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