June 1, 2015

Why America’s farmers are alarmed about expanding WOTUS

By Anthony L. Francois Senior Attorney

It would be hard to miss the fact that last week, the EPA and Corps of Engineers announced a vast and illegal expansion of their asserted authority over private property under the Clean Water Act. In light of news that part of the “public” campaign in support of the rule was faked by EPA, many are wary of the government’s glib spin that all will be well. American Farm Bureau states that its members

find little comfort in the agency’s assurances that our concerns have been addressed in any meaningful way.

America’s farmers are alarmed about EPA’s power grab, despite EPA’s self-serving reminders that 33 U.S.C. section 1344(f)(1)(A) specifically exempts normal farming activities such as plowing from the Clean Water Act’s otherwise onerous restrictions and permitting regime for wetlands and other “waters of the United States.” This is a logical and necessary exemption. No nation would successfully feed itself if it required its farmers to spend the two years and hundreds of thousands of dollars required for the average wetland permit. So why the concern?

Because the Corps of Engineers has aggressively whittled this exemption away until little is left of it for many farmers. In its regulations, the Corps reduces this exemption to only those farming activities that take place on “established (i.e., ongoing) farming or ranching operation.” In practice, this separates farming from ranching and denies the exemption to farming activities on ranches, despite the lack of any such distinction in the statute. It also ignores the reality that farming isn’t just one thing forever. Farmers change crops, move back and forth from annual to permanent crops, switch between pasture and field crops, and constantly innovate. But the Corps’ static view of farming ignores all of this.

From there, the Corps staff further limits the definition to farming practices that have been repeatedly employed, essentially annually, without significant modification. If you did not do something last year and all the years before that, it is probably not an exempt activity now. But, Corps staff will vaguely tell you that in some cases, some interruption will allow the exemption to remain in place. So how does a farmer know if a particular farming practice is exempt from Clean Water Act permitting obligations? The only way to know is to ask the local Corps of Engineers staff for their opinion.

And that, as America’s Founders would say, is a government of men, not of laws.


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Waters of the United States

In 2015 PLF challenged the Environmental Protection Agency’s proposed rule to stretch federal control to nearly every pond, ditch, and puddle in the nation as nothing more than an outrageous—and illegal—power grab under cover of the Clean Water Act. And under the Act, people who are harmed by such rules have six years to sue in federal district court. That is, until the EPA rewrote the rule, trying to prevent legal action by giving property owners just 120 days to sue, and then only in federal appellate courts. On January 22, 2018, the U.S. Supreme Court rejected the EPA’s power play and unanimously ruled for PLF and property rights. The High Court agreed with PLF that the EPA cannot shelter its “waters of the United States” rule from judicial review by arbitrarily limiting where victims can sue.

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