Budd-Falen looks at the impacts of federal water decisions on agricultureWritten by Saige Albert
Worland – The federal government’s actions have placed increased burdens on American agriculturalists in recent years, and Karen Budd-Falen, a Cheyenne attorney, noted that much of that impact stems from the overreach of the government.
“The U.S. Constitution was set up with three branches of government,” Budd-Falen explained at WESTI Ag Days on Feb. 3 in Worland. “It says we have the Congress, who makes laws, the Executive Branch that is supposed to implement the laws and the courts, who are supposed to determine the constitutionality of laws to make sure Congress doesn’t get too far overboard.”
“Today, I think we have an Executive Branch, including EPA and the Department of the Interior, that is forgetting their goal – which is implementing what Congress passes, not expanding the law into areas where Congress never envisioned,” she continued.
Budd-Falen noted that on first entering office, President Obama immediately initiated a program called America’s Great Outdoors.
“He signed an Executive Order that said we want to get more people active. We need to get folks outdoors enjoying parks and recreational areas,” she explained. “He used that to adopt America’s Great Outdoors, and they went to various colleges conducting listening sessions.”
During those sessions, the administration asked college students what they thought needed to be done to protect America’s outdoors and compiled the information into a report.
“There was no public input in the report, and Congress didn’t review it,” Budd-Falen said. “He put the report out, and then rules started coming out of the report, including the EPA Waters of the U.S. rule.”
“National Blueways was also a product of America’s Great Outdoors,” Budd-Falen commented. “There was an Executive Order from the Department of the Interior that said, we are going to take water bodies and designate them as National Blueways because we want to encourage recreation by encouraging private property owners to allow trespass on their lands for people to get to big waters.”
The Executive Order cited the authority of the America’s Great Outdoors report in the creation of the National Blueways.
However, the problem came in that National Blueways didn’t designate only the water body itself – the designation applied to the entire watershed.
“The first river was the Connecticut River,” explained Budd-Falen. “They didn’t designate just the river, they designated the watershed – all 7.2 million acres in the Connecticut River watershed.”
She added, “There was no public input. They didn’t tell the governor of the states or their congressional representatives. They just designated the watershed.”
The next target was the White River, which included 17.8 million acres in the watershed. The Governor of Arkansas and local governments created an uproar to stave off the designation.
“Then, the Department of the Interior said they wanted to designate the Yellowstone River,” Budd-Falen continued. “It would have had 55 million acres. There was all sorts of Congressional push against it.”
Secretary of the Interior Sally Jewell made an announcement that the program was put on “pause” shortly after.
Water continues to be regulated by the U.S. government, and Budd-Falen looked at the Clean Water Act as one example.
“We’ve had parts of the Clean Water Act since the 1800s,” said Budd-Falen. “The Civil War was when they passed the initial version of the Waters and Harbors Act. It was to stop states from damming up navigable waters and stopping commerce.”
The idea was that commerce should not be interrupted.
“We still can’t put fill material into a navigable waters or water of the U.S.,” she continued. “The federal government said a permit is required, and permitting authority was given to the EPA and the Army Corp of Engineers.”
The Clean Water Act also noted, however, that every other water was to be managed by the state.
“Those amendments passed in 1972,” she said. “Since the 1972 definitions, the words in the Clean Water Act haven’t changed. There hasn’t been anything from Congress saying we need to expand the definition of waters of the U.S. It has happened over time.”
In 1975, the EPA and Corps of Engineers expanded rules to include major tributaries into navigable waters, and it 1979, they further broadened definitions to anything that is used for interstate commerce.
In 1986, EPA and Corp of Engineers attempted an additional expansion under the premise of protecting waters that provided habitat for migratory birds.
“EPA said, if a bird lands in a tributary, flies along it and lands in another water across state lines, EPA would have jurisdiction,” Budd-Falen explained. “That definition remained in place until 2001 before the U.S. Supreme Court said that EPA couldn’t define water by looking at where birds fly.”
The latest waters of the U.S. rule, a further attempted expansion of EPA jurisdiction under the Clean Water Act, closed comments during November 2014.
“This is the biggest expanse of EPA jurisdiction that we have seen, in my opinion,” Budd-Falen noted. “This rule is trying to redefine navigable waters, or waters of the U.S.”
“There are massive problems with this rule,” she added.
With concerns about the expansion of navigable waters to include a wide variety of streams, flood plains, ditches, wetlands and others, Budd-Falen also said, “The second thing that bothers me about the rule is the shift in the burden of proof.”
Initially, EPA and the Corp of Engineers were responsible for proving that any water was under their jurisdiction.
“This rule solely shifts the burden to the landowners to prove that the water or ditch is not part of the waters of the U.S.,” she explained. “They say that they don’t have enough people to make these determinations, so they have shifted power.”
The recent waters of the U.S. rule is problematic because it removes states’ rights.
“According to the original Clean Water Act, states have the primary responsibility and right to manage anything that is not a navigable water,” Budd-Falen said. “By expanding the definitions, they are now taking away the states’ primary responsibilities and turning it over to the federal government.”
At this point, Budd-Falen said, “These are just proposed regulations. The EPA has yet to issue those rules in final draft. It will be interesting to see how this plays out.”