Last week, the American Farm Bureau Federation carefully reviewed EPA’s March 25 release of the ‘waters of the U.S.’ proposed rule. The results of our review are dismaying.
The EPA proposal poses a serious threat to farmers, ranchers and other landowners. Under EPA’s proposed new rule, waters—even ditches—are regulated even if they are miles from the nearest ‘navigable’ waters. Indeed, so-called ‘waters’ are regulated even if they aren’t wet most of the time. EPA says its new rule will reduce uncertainty, and that much seems to be true: there isn’t much uncertainty if most every feature where water flows or stands after a rainfall is federally regulated.
Under this proposed rule, farmers, ranchers and every other landowner across the countryside will face a tremendous new roadblock to ordinary land use activities. This is not just about the paperwork of getting a permit to farm, or even about having farming practices regulated. The fact is there is no legal right to a Clean Water Act permit—if farming or ranching activities need a permit, EPA or the Army Corps of Engineers can deny that permit. That’s why Clean Water Act jurisdiction over farmlands amounts to nothing less than federal veto power over a farmer’s ability to farm.
EPA accompanied its proposal with a new ‘interpretive rule’ claiming to clarify certain statutory exemptions for agricultural conservation practices, including activities as commonplace and essential to farming as building a fence. But these exemptions apply only to ‘dredge and fill’ permit requirements. They do not protect farmers from federal veto power over pest and weed control, fertilizer application, and other essential farming activities that may result in the addition of ‘pollutants’ to ‘navigable waters,’ -- providing one views every ditch and wet spot across the landscape as ‘navigable waters.’
The American Farm Bureau Federation will dedicate itself to opposing this attempted end run around the limits set by Congress and the Supreme Court. The Supreme Court has ruled repeatedly that Congress meant what it said: ‘navigable waters’ does not mean all waters. This proposed rule shows that EPA refuses to accept those limits.