Wednesday, August 17, 2022

Property Rights Under Fire with Clean Water Act

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by Victoria G. Myers, Progressive Farmer Senior Editor

Sometimes one word can make a lot of difference. Take the bold step by the EPA and the Corp of Engineers to remove the word “navigable” from the Clean Water Act (CWA). This seemingly simple change is being likened to the largest federal land grab in history. It could affect virtually every landowner whose property includes a body of water.

J.J. Goicoechea, is a fourth-generation rancher in Nevada, as well as a practicing large-animal veterinarian. He testified last month before the House of Representatives Subcommittee on National Parks, Forest and Public Lands Committee on Natural Resources. Part of Goicoechea’s testimony addressed upcoming changes to the Clean Water Act, which are being issued in the form of a “guidance.” The draft of this new guidance was proposed last year, but is expected to be finalized at any time.

Goicoechea, who hopes there’s time to put a stop to the change, testified that: “This guidance as drafted by the agencies, would effectively remove the word ‘navigable’ from the Clean Water Act resulting in legislation by regulation — or in this case not even regulation — only guidance, that has the force of law, but does not have to be vetted through standard rulemaking procedures.”

In the CWA, the term “navigable” is used to define a body of water large enough for commerce to take place. “Navigable” is an important limiting factor within the CWA, seemingly limiting the federal government’s authority to only those waters large enough for barges and other commercial vehicles to navigate through. Effectively removing this term by interpreting it to be so broad as to have little to no meaning leads many to believe the new guidance effectively makes it possible for the government to regulate all waters, both manmade and natural, of any size or type. And that, says Goicoechea, represents land control and a serious loss of property rights.

“We’d heard rumbles that this was coming for two or three years,” says the cow-calf operator. “They couldn’t change this through Congress, so the administration is doing a run-around. The American people don’t want this, and before they know what’s happened they will have lost their property rights.”

A group of U.S. Senators is trying to put a stop to the new guidance with The Preserve the Waters of the U.S. Act (S. 2245). This legislation would stop the EPA and the Corps of Engineers from issuing a final guidance that could expand the power of these two agencies.

A co-sponsor of the legislation Senator Jim Inhofe, R-Okla., issued this statement regarding the reason for the bill: “The Obama-EPA’s proposed water guidance greatly expands the Clean Water Act’s scope through a slew of new and expanded definitions. This approach is so unpopular, however, that it was originally defeated in the previous Democratic-controlled Congress.

“Nevertheless, the Obama administration continues to move these policies forward. In addition to an increase in Army Corps jurisdictional determinations of as much as 17{fd15d42d1b024b97d6d50958be27cc8145b6addb99e015780abccf2984117bb0}, this change in guidance will also result in a change in the responsibilities of states in executing their duties under the Clean Water Act and a change in how individual citizens are governed by the Clean Water Act. These kinds of changes, and passing along more unfunded mandates to state and local governments, should never be done via a guidance document. I call on my colleagues from both the Senate and the House to join us in stopping EPA and the Army Corps from making these unprecedented regulatory changes through a guidance document. I look forward to swift action on this bill.”

The legislation, which originated from Sen. John Barrasso, R-Wyo., is co-sponsored by Sens. Jim Inhofe, R-Okla., Jeff Sessions, R-Ala., Dean Heller, R-Nev., Mitch McConnell, R-Ky., Mike Enzi, R-Wyo., David Vitter, R-La., John Boozman, R-Ark., Mike Crapo, R-Idaho, Pat Roberts, R-Kan., John Thune, R-S.D., Roger Wicker, R-Miss., Jim Risch, R-Idaho, John Cornyn, R-Texas, Richard Lugar, R-Ind., Chuck Grassley, R-Iowa, Tom Coburn, R-Okla., Roy Blunt, R-Mo., Marco Rubio, R-Fla. Jon Kyl, R-Ariz. Pat Toomey, R-Pa., Dan Coats, R-Ind., Rand Paul, R-Ky., Mike Johanns, R-Neb., Saxby Chambliss, R-Ga., John Hoeven, R-N.D., Jerry Moran, R-Kan., Johnny Isakson, R-Ga., Ron Johnson, R-Ohio, and Thad Cochran, R-Miss.

When asked about a timeline for S. 2245, Senator Barrasso’s office responded that a date for the hearing has not been set.

National Cattlemen’s Beef Association president J.D. Alexander pointed out in comments on the issue that there have been three U.S. Supreme Court rulings, as well as a letter from 170 members of Congress opposing this guidance. Despite this, he said the EPA and the Corps have “crowned themselves kings” of every drop of water in the country, and adds that this bill is the best path to keep the guidance from becoming a reality.

The EPA’s version of what the new guidance would mean seems to differ from many of the interpretations. According to the agency, the guidance would not extend federal protection to any waters not historically protected under the CWA and would be consistent with the law and decisions of the Supreme Court. The EPA states the guidance would maintain existing exemptions for agricultural discharges and waters, and says the guidance would not apply to artificial lakes, ponds and some types of irrigation and drainage ditches.

Ashley Lyon McDonald, deputy environmental counsel at NCBA, says EPA through clever interpretations has rendered the statutory exemptions unreliable in providing protections to America’s farmers and ranchers.

“We take no solace in exemptions because we know how they can be worked around,” she says. “In a practical sense, many of the exemptions the EPA talks about for agriculture no longer exist. Unfortunately this is how things have worked in the past.”

One example of how this change to the CWA could affect all farmers is under the SPCC (Spill Prevention Control and Countermeasure) program portion of the Act. “This is just one example of how far-reaching this will be if the new guidance goes into effect,” says McDonald, explaining that the SPCC program would affect many more farmers and ranchers under the new guidance than it does today.

The SPCC rule states that a landowner needs an oil spill plan if spilled fuel or oil on his property would reach a “water of the U.S.” Through this guidance, the expansion of the phrase “waters of the U.S.” to include every dry wash, prairie pothole or roadside ditch creates a huge expansion in the number of farms that would need to have a plan established and be affected by the SPCC program, explains McDonald.

“Under this guidance, I can’t think of a farm or ranch that meets the threshold amount of fuel on their property under the SPCC rule that would not be required to have a plan,” she says. “There would be some feature on your property that will qualify as a ‘water of the U.S.’ under this guidance.”

 

© Copyright 2012 DTN/The Progressive Farmer, A Telvent Brand. All rights reserved.

Posted with DTN Permission by Haylie Shipp

 

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