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Guest Opinions

Tide Beginning to Turn on EPA

Written by Zippy Duvall

The Environmental Protection Agency and the Army Corps of Engineers are finally getting a much-needed check on their runaway overreach. A unanimous ruling by the Supreme Court in May means farmers and ranchers can take the federal government to court immediately after an agency determines it can regulate part of their property.

This ruling – United States Army Corps of Engineers v. Hawkes – is among the most important court opinions we have seen. Along with other groups, including the National Cattlemen’s Beef Association, American Farm Bureau Federation (AFBF) was proud to contribute a friend-of-the-court brief in support of the Hawkes family and the Pacific Legal Foundation.

Before this ruling, the Army Corps would tell farmers they had no right to challenge its decision that it had legal authority over what it had determined to be “navigable waters” on their land. Landowners would have to apply for a permit to work their land, or they could farm without a permit and wait for the government to sue them.

Either of the government’s approaches could bankrupt many farmers. Just applying for a permit takes months or even years, piles of technical studies and many thousands of dollars in consultant and legal fees. Many permit applications die on the vine – neither rejected nor denied by the Corps but abandoned by frustrated landowners after years of delay and requests for more data. It wasn’t hard for the Justices to see the injustice and abuse in the government’s approach. Justices Kennedy, Thomas and Alito did not mince words about the Clean Water Act, either. They warned it “continues to raise troubling questions regarding the government’s power to cast doubt on the full use and enjoyment of private property throughout the nation.”

This isn’t news to Farm Bureau. For more than a decade, we have been battling overreach by both the Corps and the Environmental Protection Agency (EPA), which share limited jurisdiction under the Clean Water Act. We weighed in several years ago in the so-called SWANCC case when the Corps claimed jurisdiction over any water body – no matter how small and isolated – where migratory birds might land. The Supreme Court said "no" to that scheme.

EPA also tried to impose federal permitting on any livestock farm with the “potential” to discharge pollution, even if the farm never had a discharge and even though the law only regulates “discharges” to waters. Farm Bureau filed suit together with the pork industry. The court ruled against the EPA. Livestock farms don’t need a federal permit to operate. But both EPA and the Corps keep trying to push the boundaries – to regulate by any means possible, no matter how they have to stretch logic and the law.

Again, Hawkes isn’t the first time EPA has been caught overstepping its bounds. Take, for example, the case of Andy Johnson, a Wyoming farmer who recently won a long battle with EPA over an environmentally friendly stock pond for cattle on his property. Besides watering Johnson’s cattle, the pond fostered wetland grasses and provided habitat for herons and a stopping place for the local population of eagles.

Johnson had a state permit to construct the pond on his property. But the EPA later claimed that pond violated federal law. They threatened him with a daily fine of $37,500 for failure to follow their order to remove the pond. Johnson wasn’t having any of it. He and attorneys eventually wore down the EPA. The agency settled out of court and let the pond stay as it was, rather than face certain defeat.

Lois Alt, together with the Farm Bureau, also beat back the EPA. Regulators insisted she apply for a Clean Water Act permit for nothing more than the storm water that ran off her well-tended farmyard. And again, the Army Corps of Engineers threatened fines of $37,500 a day if she didn’t comply. It defied common sense. The courts agreed and sent the EPA packing.

Farmers shouldn’t be left in limbo wondering if regulators can shut down our farms over an everyday farming activity. It shouldn’t take a Ph.D. in hydrology to determine if there’s “navigable water” on our land. Opaque, confusing and shockingly expensive regulation by the Army Corps of Engineers and EPA has hamstrung farmers’ and ranchers’ ability to work with and care for the land.

Hawkes, SWANCC, Johnson and Alt – these legal battles have won real victories for private landowners across the country and for agriculture. We will continue to work through the courts and with Congress to control unlawful overreach by agencies that seem incapable of self-control.