“Life and liberty are secure so long as the right to property is secure.” – W. Cleon Skousen, author, “The 5,000 Year Leap.”
As we prepare to celebrate Independence Day and the liberties enshrined in our founding document, we need to be vigilant on the latest federal encroachments on our rights: President Obama’s EPA and their attempt to use the Clean Water Act (CWA) to restrict property rights of farmers and ranchers. Although the EPA’s so-called “Waters of the U.S.” rule has gone largely unnoticed, due to the media attention on the EPA’s recently proposed carbon regulations, this far-reaching new water rule will dramatically tighten the EPA’s stranglehold on Montana’s economy.
The proposed “Waters of the U.S.” rule would increase the jurisdiction of the EPA and the Army Corps of Engineers (Corps) by expanding the definition of “navigable waters” as used in CWA. By redefining “navigable waters”, the proposed rule would allow the EPA and Corps to regulate private land anywhere in the U.S. where water can conceivably flow – even dry creek beds and manmade ditches. The EPA’s expansive federal power grab poses a serious threat to the water and property rights of land owners, especially farmers and ranchers across Montana and the nation. It will inevitably adversely impact our food supply and food costs while also hurting local “family farmers” and small organic farmers who are making important contributions to our community’s food supply.
It’s no secret water use is one of the basic tenets of farming and ranching. Whether it’s irrigation operations, watering livestock or even drainage ditches, water is the lifeblood of rural communities. The American agricultural landscape is comprised of thousands of dry creek beds, manmade ditches, and low spots in fields where intermittent standing water can accumulate for short periods of time. It’s true in Montana, where agriculture is our leading industry. In 2012, our 28,000+ Montana farms and ranches generated over $4.2 billion in agriculture services and products.
Under the “Waters of the U.S.” proposal, all of these areas would now be subject to the regulatory jurisdiction of Obama’s EPA, requiring expensive federal permits for everything from clearing vegetation to building a fence. While the EPA has attempted to justify the proposed rule by saying its only effect would be to “clarify” language under the CWA, the real effect would be increased permitting costs and a thicket of bureaucratic red tape for our farmers.
Permitting wouldn’t be the only factor that increases costs. Farming is not only a water intensive practice but also a time sensitive practice. The planting, growing and harvesting seasons farmers operate under require flexibility in operations, flexibility that would be lost under the proposed rule. For instance, time sensitive changes in land would be almost impossible if each small change to an irrigation or drainage ditch would require the farmer to go through a multi-faceted, multi-layered, drawn-out and costly federal permitting process. It’s impossible for famers to predict every issue that may crop up on their land. Delays due to an expansive new federal regulatory scheme could be the difference between turning a profit and going broke.
Additionally, the nation’s small businesses as a whole, not just farmers, would be subject to a heavy and costly compliance burden. In a recent letter to EPA Administrator Gina McCarthy, the House Committee on Small Businesses expressed concern over the rule’s economic impacts. The letter stated that “permitting can be a costly and time-consuming process that requires small businesses to hire attorneys and environmental consultants,” which would increase small businesses’ compliance costs. The land’s value would be diminished by the rule because future development would be adversely affected.
While the detrimental effects the “Waters of the U.S.” rule would have on small businesses and farmers specifically, the precedent that would be set by passing the rule could prove even worse. If Obama’s EPA implements this massive power grab there may be little we can do in the future to prevent the agency from further restricting our property and water rights. If the EPA can regulate ditches and drains as navigable water, what will be next?
Henry Kriegel is deputy director of Americans For Prosperity-Montana.