Proposed bill restores protections for farmers and ranchers
Wyoming Senator Cynthia Lummis recently introduced legislation to protect farmers, ranchers, foresters, and other property owners from overly broad interpretations of the Clean Water Act (CWA).
Shortly after CWA was passed in 1972, Congress carved out an exemption to protect routine land management practices like plowing fields, maintaining drainage ditches, or harvesting timber from federally required permits. Over the years, however, this protection has been undermined by narrow interpretations from courts and federal agencies.
As a result, many property owners have found themselves facing punitive action for failing to get permits they were never required to obtain in the first place.
In 2012, for example, Pacific Legal Foundation client Andy Johnson dammed a stream on his Wyoming property to create a stock pond to provide water to his livestock. Nothing about this was abnormal behavior for a rancher. Nor was it causing any harm to the environment.
Andy constructed the pond to maximize its incidental environmental benefits, including creating habitat for fish, wildlife, and migratory birds; establishing wetlands; and cleaning the water that passes through the pond. Yet, two years later, the EPA issued a compliance order against him, claiming that the dredge and fill materials used to create the dam violated CWA.
The creation of stock ponds like Andy’s is exactly the sort of everyday land management that Congress’ CWA exemption was intended to protect. But that didn’t matter to the EPA, which threatened Andy with fines of up to $37,500 per day for failing to comply with the agency’s demands.
Prior to PLF’s 2012 Supreme Court victory in Sackett v. EPA, Andy wouldn’t even have been able to challenge the EPA in court. Armed with the recent Supreme Court ruling, PLF was able to help Andy challenge the EPA and protect his right to use his land as CWA’s exemption intended.
The EPA eventually settled the case, which was great news for Andy. However, without a trial, the EPA’s refusal to abide by CWA’s exemption was not addressed by the courts, which left other property owners vulnerable to abuse.
Senator Lummis’ Farmers and Ranchers Relief Act would provide the clarity the courts never had the opportunity to establish in Andy’s case.
This long-overdue reform reinforces PLF’s longstanding fight to restore CWA protections for property owners.
In Senator Lummis’ press release, she quoted PLF attorney Damien M. Schiff, who argued both Sackett v. EPA cases in front of the Supreme Court:
Congress never intended for farmers and ranchers to need federal permits for routine agricultural activities on their own land. Yet decades of narrow judicial and administrative interpretations have transformed a commonsense exemption into a regulatory trap for hardworking landowners. Pacific Legal Foundation applauds Senator Lummis for introducing legislation to restore the original meaning of the Clean Water Act’s Section 404(f) exemption, providing much-needed certainty for farmers, ranchers, and foresters by ensuring that routine farming, ranching, and forestry activities are not subjected to unnecessary federal permitting requirements. This long-overdue reform protects property rights and restores the law Congress actually enacted.
Senators Mike Lee, Pete Ricketts, and Alan Armstrong have joined Senator Lummis as cosponsors, and already the bill has received support from the American Farm Bureau.
“Congress recognized that farmers and ranchers must be able to carry out routine agricultural activities without unnecessary federal permitting requirements,” said Todd Fornstrom, president, Wyoming Farm Bureau Federation. “However, exemptions are only effective when they are clear and consistently applied. Greater certainty is needed to ensure farmers and ranchers can confidently conduct normal farming operations as Congress intended, without the risk of unintended regulatory burdens,” he continued.
The fight to uphold property rights must be fought both in the courts and in Congress. The Farmers and Ranchers Relief Act is an important step toward restoring the protections Congress intended and ensuring that routine land management doesn’t become a federal regulatory trap.
