Producers testify against federal expansion of water regulations

Jul 24, 2009

Producers testify against federal

expansion of water regulations

The Clean Water Restoration Act (CWRA), Senate Bill 787 (S. 787), was strongly opposed by a wide range of organizations last Wednesday at a hearing before the House Committee on Small Business. Many of the organizations testifying against the legislation said it would stifle industry and the economy as a whole if Congress removes the term "navigable" from the Clean Water Act and gains regulatory control on waters now governed by the states. Under the current law, the federal oversight extends only to navigable waterways and water which drains into them. The change would grant oversight authority to the federal government for all water, from standing surface water and all seasonal ponds, down to the smallest rainwater puddle.

Before the Senate Environment and Public Works Committee passed S. 787 last month, in a letter to Senate Environment and Public Works Chair Barbara Boxer, D-CA, and ranking member James Inhofe, R-OK, the American Farm Bureau Federation said that the proposed law would "extend to all water—anywhere from farm ponds, to storm water retention basins, to roadside ditches, to desert washes, to streets and gutters, even to a puddle of rainwater. For the first time in the 36-year history of the act, activities that have no impact on actual rivers and lakes would be subject to full federal regulation."

In testimony before the committee, Missouri Farm Bureau President Charlie Kruse, a Missouri farmer, said the change would force farmers and ranchers to comply with overly burdensome regulatory costs and compliance schemes. Kruse cited a number of cases that point out the hurdles farmers across the country will face if S. 787 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 (Army Corp of Engineers) 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 Clean Water Act 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."

Well-known Arizona rancher and public land advocate Jim Chilton was also on hand during the committee hearing to testify on behalf of National Cattlemen’s Beef Association (NCBA) and the Public Lands Council against the passage of the bill, which he said would allow the regulation of "every activity in a wet area in the nation. 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," said Chilton.

In order to comply with the changes created by CWRA, farmers and ranchers could be forced to obtain permits for any action involving the use of surface water, including common acts such as watering cattle at dugouts or working the lands on their private property since all U.S. lands are within a watershed and would be subject to regulation under the act. NCBA officials explained that the agencies responsible for handling permit applications (Section 404 permits) are already struggling with a backlog of as many as 20,000 permits.

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 v. U.S.).

"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," NCBA officials explained in a press release after the hearing.

Producers and small business owners across the U.S. are already struggling to comply with the additional paperwork burdens and costs of compliance, and the addition of further CWRA requirements could force many out of business, several groups testified last week. However, members of Congress insist that this law simply restores the original intent of the original Clean Water Act, which was passed in 1972. The Rapanos v. U.S. decision removed some of that oversight authority as part of the ruling, something Congress is set to restore under this new regulation, regardless of the potential negative impact on the rural economy, which several individuals testified would be enormous and unnecessary.

"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." — John Robinson, WLJ Editor