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The EPA Overreaches Again

Monday, June 23, 2014

A new EPA rule is a disaster for farmers and the traditional understanding of the relationship between the federal government and the states.

In farm country, the joke goes like this: “I don’t want any more land, except my neighbor’s.” That’s a pretty fair description of how the EPA has treated America’s landowners. With a recent rule, the agency is continuing to broaden its jurisdiction over U.S. waters and is reaching to regulate more farmland.

Back in 1972, when Congress passed the Clean Water Act (CWA), the EPA was given jurisdiction over discharges from “point sources” like factories into the “navigable waters” of the United States. Jurisdiction over the majority of U.S. water and land was left to state and local governments.

By the 1980s the EPA was claiming jurisdiction over any spot a migratory bird might land. According to the EPA, a wandering goose established the needed link between actual navigable waters and waters far removed from Congress’s intent. In what was piquantly called the glancing goose test, if a goose paused during migration at any body of water, no matter how temporary, it was deemed a water of the U.S. and thus covered by the CWA. The Supreme Court called a halt to this bit of avian aggrandizement in a landmark 2001 case. In a split 5-4 decision in a second CWA case in 2006, the Supreme Court further reminded the agency that Congress had put strict limits on the EPA’s reach under the CWA; it ruled that the EPA had jurisdiction over waters if the agency could prove, as Justice Kennedy wrote, a “significant nexus” between a navigable water and the area over which the agency claimed jurisdiction.

Justice Kennedy’s infelicitous phrase was the judicial equivalent of handing a 16-year-old the car keys and a six pack. In a rule released on March 25, the EPA found a “significant nexus” between navigable waters and well, most everywhere else within the boundaries of the United States. Or as the EPA “connectivity study” claims, all waters have a chemical and ecological nexus, and not only that, each and every one of these connections is “significant.” It’s no surprise that a “connectivity” study found connections.

The present administration has made it clear that prosperity and individual choice take a very distant second place to environmental regulation.

To quote one analysis of the proposed rule: “the preamble provides so many avenues to claim jurisdiction that very few remote and seemingly unconnected ponds, wetlands, or ephemeral washes in a watershed will ever be deemed so insignificant that the federal government leaves regulation to the states.” The EPA says it will be difficult to determine whether a gully is excluded or is an “ephemeral stream” that requires the EPA to protect it. That intentional ambiguity leaves landowners in a perpetual state of legal jeopardy. The distance between the “navigable waters of the U.S.” and ephemeral washes is the difference between common sense and our current calamity.

The EPA maintains that the rule will affect only 1,300 acres nationwide, which fails to find a significant nexus with the truth. Of course, when every riparian area, floodplain, wetland, ditch, gully, and ephemeral rill is connected to the major U.S. rivers in a “significant” way, there is very little that falls outside the purview of the newly expanded CWA. I would guess my family’s farm alone will have an additional 1,300 acres under EPA control. 

Under the CWA, a permit is needed to discharge into U.S. waters. Agriculture has always been exempt from the permitting process. But if U.S. waters now include places which are dry most of the year, then it won’t be long before the EPA requires a permit for most agricultural practices. If my best farmland, next to a small creek and planted in crops for generations, is now a U.S. water, then applying fertilizer or disturbing the soil with a planter is without doubt a discharge into EPA regulated territory. Not only that, but I might well be vulnerable to lawsuits from environmental and citizen’s groups for unlawful discharge. Federal penalties can run as much as $37,500 per day for unlawful discharges. 

The distance between the ‘navigable waters of the U.S.’ and ephemeral washes is the difference between common sense and our current calamity.

The EPA has offered a list of more than 50 exemptions to the rule for agriculture, but no list can be inclusive. Clearly those agriculture activities not included in the list are now prohibited without a permit. More importantly, if Congress and the courts have made it clear that the places where agricultural activities occur do not fall under the EPA’s jurisdiction, that is a very different thing from the EPA claiming jurisdiction but choosing not to exercise it. Once jurisdiction is claimed, the EPA can begin exercising that jurisdiction at any time. Not only that, but the exemption is not in the actual rule, but rather is what the regulatory agencies call a guidance, which can be changed with little notice and no public input.

The streams, wetlands, ditches, and gullies involved in the new rule are already regulated by the states, as Congress clearly intended. It is an important distinction, because state regulators are closer to the people on the land than is the federal government. That’s the problem, as far as the EPA is concerned, because states, while working toward cleaner water, are also responsive to concerns about economic growth, job creation, and the rights of their citizens to enjoy the use of their property. The present administration has made it clear that prosperity and individual choice take a very distant second place to environmental regulation.

If the waters of the U.S now include places which are dry most of the year, then it won’t be long before the EPA requires a permit for most agricultural practices.

Soil erosion has been cut by over 700 million tons per year over the last 30 years. That’s been accomplished through a combination of public funds, private investment, and technological advances. Genetically modified crops have played a role and satellite-guided precision farming promises advances in protecting the nation’s waters. Farmers rely on technical advice from the USDA’s National Resource Conservation Service as we work to further reduce soil erosion and pollution from our land. Farmers realize that preventing erosion is in their best interests, and the industry has made tremendous strides in protecting the nation’s soil and water resources. The recent farm bill requires a conservation plan in order to receive subsidized crop insurance. All of these successes have come about through largely voluntary efforts, and they are making a difference. 

The EPA would ignore those voluntary efforts and supplant a successful partnership with coercion. There are some 2 million farms in the country, and the mind boggles at the legions of bureaucrats necessary to actually enforce the new rule. On such a scale, the EPA rule can’t be enforced in anything resembling a fair and equitable way, but will tend to produce the arbitrary and perhaps selective political enforcement that we’ve seen in so many other areas of the administrative state.

The CWA rule is receiving little attention anywhere, as its been overshadowed by greenhouse gas rules and the conflicts in the Middle East and Ukraine, but it’s a disaster for the traditional understanding of the relationship between the federal government and the states, and between the federal government and U.S. citizens. It should be withdrawn immediately.

Blake Hurst is a Missouri farmer and a frequent contributor to THE AMERICAN.

 
FURTHER READING: Hurst also writes "California’s Chicken Law and the Commerce Clause," “Big Farms Are About to Get Bigger,” “The Next Real Estate Bubble: Farmland,” “When Saving Is a Problem Not a Virtue,” and “Organic Illusions."

 

Image by Meg Bosse / Bergman Group

 

 

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