Legislation that would remove the word "navigable” from the Clean Water Act and allow the Army Corps of Engineers (Corps)and the Environmental Protection Agency (EPA) to regulate all interstate and intrastate waters could put farmers in "regulatory quicksand,” according to Missouri Farm Bureau President Charlie Kruse.
The proposed legislation (S. 787)—which passed out of the Senate Environment and Public Works Committee last month—would drastically expand the Clean Water Act, giving the Corps and EPA control over all watersheds in the nation, and all "activities affecting these waters.”
Since all land in the nation is within a watershed, it means that the Corps and EPA would have land-use control over farmers' and ranchers' property and other businesses not currently under the jurisdiction of the CWA, according to the National Cattlemen's Beef Association (NCBA). This new federal jurisdiction would include hundreds of millions of isolated, intrastate pools, stock water ponds, springs, small lakes, depressions filled with water on an intermittent basis, drainage and irrigation ditches, irrigated areas that would otherwise be dry, sloughs, and damp places located on farms and ranches that have no nexus with any navigable waters.
Testifying yesterday on behalf of the American Farm Bureau Federation (AFBF) before the committee, Kruse, a corn producer from a Dexter, Mo, said the bill leads to increased compliance costs, burdensome permit processes and extends the reach of the Clean Water Act to any body of water in the United States.
Kruse cited a number of cases that point out the hurdles farmers across the country will face if the Clean Water Restoration Act is approved. In one example, Kruse told the account of a small farmer in Minnesota who wanted to improve existing drainage on 11 acres of his land.
"USDA and the state did not consider his land a wetland, but the Corps did,” Kruse testified. "They told him he needed both a permit and 17.7 acres of mitigation. The cost of compliance -- $77,000 – was more than the property was worth, and the farmer could not afford to comply.”
Kruse noted that expanding the scope of the Clean Water Act would sweep many agricultural and forestry activities under CWA regulation simply because such activities are conducted near some isolated ditch, swale, wash, erosion feature or ephemeral stream that would newly be deemed a "water of the United States.”
"This would represent the most sweeping change to the law since its enactment in 1972,” Kruse testified.
"Farmers and ranchers are practical small business owners,” Kruse said. "We recognize and understand that words matter. It is clear to us that Congress intended to use the term ‘navigable waters' when it passed the Clean Water Act in 1972 – or it would not be there. It is our view, and that of many legal experts, that deleting this form the 1972 act would fundamentally expand, not simply restore, the scope of areas that would be subject to federal regulation.”
Clean Water Restoration Act Threatens Ranchers, Small Business Owners
Jim Chilton, a fifth generation rancher from southeast Arizona, also testified yesterday on behalf of NCBA and the Public Lands Council during the committee hearing. Chilton, whose family has been in the cattle business for over 120 years, explained how the Clean Water Restoration Act would threaten farmers and ranchers, in addition to small businesses, small communities, forestry, mining, and manufacturing on private and federally-managed lands.
"This is essentially a limitless national land and water use control effort that will regulate every activity in a wet area in the nation,” said Chilton. "It's nothing more than a ‘nice-sounding' name which masks an economically and culturally devastating power grab, flagrantly violating both the spirit and the words of the U.S. Constitution.”
Under the act, family ranchers and farmers may be required to obtain permits from the EPA or Corps before conducting common, everyday operations, like watering their cattle or farming their land. The federal government is already struggling to handle a backlog of 15,000 to 20,000 existing section 404 permit requests. According to the U.S. Supreme Court, the average applicant for an individual Clean Water Act permit spends 788 days and $271,596 in complying with the current process, and the average applicant for a nationwide permit currently spends 313 days and $28,915 - not counting the substantial costs of mitigation or design changes (Rapanos, 447 U.S. at 719, plurality opinion). Considering U.S. farmers and ranchers own and manage approximately 666.4 million acres of the 1.938 billion acres of the contiguous U.S. land mass, the massive new permitting requirements under this Act would be an unmanageable burden for the government, and could literally bring farming operations to a standstill.
Chilton shared from personal experience about a time his family ranch had to apply for a 404 permit to construct a road across a dry wash on their private property. The regulatory approval process took over a year and cost his family nearly $40,000.
"As a rancher, I wholeheartedly understand the critical importance of a clean water supply; it's necessary for the health of my animals and my land,” said Chilton. "Federal agencies have ample authority under existing law to protect water quality, and it's essential that the partnership between the federal and state levels of government be maintained so states can continue to have the essential flexibility to do their own land and water use planning.”