Earlier this year, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers proposed new rules to “clarify” the scope of their authority to regulate water. But make no mistake, while the proposed rule is characterized as regulating water, the real impact will be in restricting what farmers, and even homeowners, can do with their land. The proposal would expand federal authority to regulate land use activities around small creeks and streams, and even pathways and ditches that carry water only during rain events.
Small creeks crisscross our farms here in the Northeast. Springs naturally seep up out of the ground. Plus, in the spirit of conservation and protecting the soil, we have built drainage features that carry water off our fields, preventing erosion and loss of topsoil.
However, all of those features could fall under the jurisdiction of the federal government if the EPA and Army Corps have their way. The potential impact could mean having to get permission from D.C. bureaucrats to switch a field from pasture to crops, or having to get a federal permit to apply fertilizer on planted acres or even to build a fence.
Unfortunately, the EPA and others would have you believe that unless the federal government regulates it, a body of water is not regulated at all. But here’s the reality: Small and local streams are regulated by state governments. In Pennsylvania, the state Department of Environmental Protection is actively inspecting farms and other activities along the 83,000 miles of rivers and streams.
When Congress created the Clean Water Act in 1972, its goal was to reverse troubling trends. Remember the Cuyahoga River burning in Cleveland in 1969?
Even in the aftermath of an environmental disaster concerning water, Congress placed a clear limit on where federal authority over water begins and ends. Federal authority, under the Clean Water Act, extends to “navigable waters,” meaning rivers and lakes.
Smaller water bodies are the responsibility of state and local governments. Not only are they in a better position than the feds to understand the situation that actually exists, but they are also more likely to provide solutions to any existing problems in a way that is more empathetic and responsive to the personal challenges their neighbors are facing.
While the EPA has suggested farmers will not be regulated further, we disagree. As a matter of fact, the EPA and Army Corps have acknowledged that this proposal would regulate “most seasonal and rain-dependent streams.”
If there was ever an issue that every landowner should monitor closely and offer comments on to the EPA and Congress, this is it.
Keep in mind that this proposed change in regulation was not driven by the passage of a new law. In fact, Congress specifically rejected the notion of expanding the EPA’s authority over small waterways several times. Instead, the federal agencies proposed these so-called clarifications out of frustration with federal court rulings limiting their regulatory reach.
The EPA has often attempted to stretch the limits of authority by threatening and levying fines on landowners over land use activities.
Just last year, the federal court rejected the EPA’s attempt to impose federal regulation on West Virginia poultry farmer Lois Alt over the issue of rainwater containing poultry dander that pooled outside her chicken barns.
In 2006, the Supreme Court made it clear that “waters of the United States” are permanent, continuously flowing bodies of water that form a natural geographic feature. The court also rejected EPA claims that any body of water becomes federally regulated by its mere existence.
Rulings such as these appeal to common sense, and one would hope that the EPA would be more proactive in applying the same common sense. Disturbingly, farmers and others have had to go through the personal agony of court litigation to rebuff the EPA’s creative attempts to morph its authority.
Given its track record, does anyone really believe that the EPA’s proposal will result in anything other than more regulation for farmers and landowners?