Commentary: Clean Water Act threatens private property rights


Issue Date: June 24, 2015
By Josh Rolph
Josh Rolph
Fields such as this could fall under the jurisdiction of the U.S. Environmental Protection Agency’s overly restrictive “waters of the U.S.” final rule.
Photo/Kate Campbell

As farmers and ranchers, we are stewards of the land and depend on it along with clean water. Now imagine if both of these resources are severely regulated by the federal government to the point where farming is not economically viable. Unfortunately, this is now a reality with the recent redefinition of "waters of the U.S." under the Clean Water Act.

One of our members, a farmer on the east side of the San Joaquin Valley, recently went through a full assessment of an 80-acre parcel of agricultural property to see how it might be regulated under changes to the Clean Water Act.

What he found was downright scary: Under the jurisdiction of an overly restrictive Clean Water Act final rule, he would have to fallow 64 of 80 acres, or 80 percent of his farm, and would therefore be left with only oddly shaped and disjointed areas of his property to farm. In other words, sustainable farming as he knows it—meaning the kind of farming that has supported his family and way of life for generations—would be over. He is not alone. This could be anyone's farmland in the state or nation.

A lot of ink has been spilled in the news media for more than a decade about efforts by Congress, the courts and the Bush and Obama administrations to redefine the Clean Water Act's "waters of the United States" regulation, or WOTUS for short. The overarching final rule will greatly expand the federal government's jurisdiction by radically expanding what it means to be a navigable water.

For years, Farm Bureau and many others concerned about what this would do to the future of farming tried everything to keep this redefinition from happening. Now, however, it's no longer an idea or a proposal. In late May, the U.S. Environmental Protection Agency released the final version of its rule redefining and expanding WOTUS.

If only the rule was about clean water. Instead, it's about regulating land use, creating a permitting nightmare, greatly limiting land-use options, requiring mitigation, negatively affecting land values, and making it more difficult to obtain financing. At the end of the day, and as the above real-life example shows, this rule makes it significantly more difficult to farm.

Farm Bureau is currently carefully dissecting the final rule in order to fully understand its implications and will continue to convey the wide breadth of impacts in future Ag Alert® articles. For now, I want to lay out some of my principle concerns and current options to eliminate the final rule. Overall, I'm troubled by the EPA's new interpretation, which defies congressional intent and upends 200 years of judicial precedent.

The final rule and its preamble come in at 297 pages and open with the words, "the scope of jurisdiction in this rule is narrower than that under the existing regulations." If only that were the case. After hours slogging through these pages, we see instance after instance of the rule broadening in scope, not narrowing.

What the final rule actually does is exactly the opposite: It creates a broader regulatory scheme than the earlier proposed rule, providing farmers with no certainty and few exemptions.

If interpreted by the agency and the courts in the way we read it, the final rule threatens private property rights more than any other regulation in the history of the United States.

If there is good news, it is that we are not alone. In addition to agriculture, other important industries we all rely upon will be impacted by this rule. Whether it is energy, manufacturing, home builders, transportation and mining, we can unite with these sectors to try to restore common sense by doing away with this law.

Currently, members in Congress are attempting to do just that. House and Senate appropriators have included language that will strike all funding to implement the WOTUS rule. We support these temporary measures but need something more permanent.

The House last month passed a bill that would require the administration to withdraw the WOTUS rule. The bill passed by a vote of 261-155. Unfortunately, that vote was 29 votes shy of the two-thirds needed to become veto proof.

This summer, the Senate is expected to consider a similar bill that would rescind the final rule and require the EPA to restart the rulemaking process by consulting with state and local government. Current thinking is that the bill doesn't have enough votes for a veto majority either, though we will actively seek support from the Hill.

The president has stated he would veto the House and Senate bills if they come across his desk for signature. The question is whether the president prioritizes this rule enough to veto an appropriations bill.

Assuming Congress doesn't come through with veto-proof legislation or vetoed appropriations bills, this issue will be left to the courts, while EPA and the Army Corps of Engineers enforce the rule.

The irony is how—when we are currently faced with historic drought, only worsened because of policy decisions—we now face new policy decisions that would bring an additional regulatory burden that ignores the contribution of farmers and ranchers to be good stewards of our land and water.

(Josh Rolph is manager of federal policy for the California Farm Bureau Federation. He may be contacted at jrolph@cfbf.com.)

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