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Blog > Issues > Property Rights > Dry creek beds aren’t navigable water, no matter what the EPA says

Dry creek beds aren’t navigable water, no matter what the EPA says

July 19, 2019 I By TONY FRANCOIS

Curtis Martin is a rancher. Scenic hills surround his remote Oregon farmland, where he grazes his livestock and grows feed for them. Curtis, and thousands like him across our nation, feed America and the world.

Farming is a risky venture. Curtis can’t control the weather, crop prices, equipment costs, or the price he will get for his cattle. But he counters these risks the way famers always have: long days, hard work, and love for his land and way of life.

The last thing he needs is the federal government forcing him to spend years and hundreds of thousands of dollars to get a permit from the U.S. Army Corps of Engineers just to plow and maintain his land.

But Obama-era regulations require just that. These rules claim that the Army and the Environmental Protection Act (EPA) can dictate how landowners are allowed to use streams on private properties all over the nation. As a result, their owners need federal permission just to use their land productively.

So how did the EPA go from preventing industrial facilities and sewage treatment plants from polluting our navigable waterways, to harassing farmers and ranchers?

Agencies do this by rewriting, or “interpreting,” statutes to give themselves power Congress never authorized. Because of rewrites like these, the EPA considers small, temporary gullies or creeks caused by rainwater runoff as federally regulated “navigable waters.” Plows and shovels become “point sources.” And the soil itself becomes a “pollutant” the moment a plow or shovel moves it a few inches.

In short, if you have rainwater draining through your field, it can be a crime to farm your own land without federal permission.

Martin has been forced to fight myriad EPA and Army regulations over rainwater streams on his property. But the great irony is that these regulations also prevent him from improving riparian habitat for wildlife around actual waterways on his land. With a conservation ethic inherited from his father, Curtis has turned inhospitable stretches of his creek into new habitat that benefits plants, birds, deer, and elk, all alongside his cattle.

He has to use heavy equipment in the stream from time to time, to manage the riparian habitat and to maintain the pipes that take away small amounts of the creek’s water to hillside troughs, so his cows won’t congregate in the habitat improvement area. But if he is forced to get an Army permit—which takes hundreds of thousands of dollars and years to obtain—he won’t have the time or resources to make the improvements.

Martin and the rest of the members of the Oregon Cattlemen’s Association are suing the EPA and the Army in federal court to invalidate these illegal regulations. Pacific Legal Foundation attorneys Tony Francois and Christina Martin appeared in federal court in Portland on July 17 to make the case for them, and fortunately for our clients, the judge suspended these regulations in Oregon while the case is working its way through court.

Because the judge suspended (or, formally speaking, enjoined) the regulations, members of the Oregon Cattlemen’s Association can work a little easier, knowing they don’t have bureaucrats from the Army and EPA in charge of their every move, and knowing that their own property is once again their own.

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