A Drop of Water, a Load of Regulations

For: September 2007

By Bob Stallman, President

American Farm Bureau Federation

Legislation currently in Congress would give the federal government a greater role in local, as well as private land-use decisions. The Clean Water Restoration Act of 2007 (H.R. 2421 and S. 1870) would expand Clean Water Act jurisdiction to virtually all wet areas in the United States .  

Don’t be fooled by the legislation’s title. It may say “restoration,” but it’s not. It is an expansion of the federal government’s arm into the majority of landowner’s property across the country. If passed, the results would be broad and significant.

Slippery Slope

Since its enactment in 1972, the Clean Water Act has regulated “navigable waters,” or waters of the U.S.  The proposed legislation would delete the term “navigable” and replace it with “all intrastate waters” and add confusing language allowing the federal government to regulate “activities affecting these waters.” Although technical and hard to get your head around, these terms, if interchanged, would pose serious consequences for most landowners.

The legislation would grant - for the first time ever - the Environmental Protection Agency and the Corps of Engineers jurisdiction over all wet areas within a state, including groundwater, ditches, pipes, streets, municipal storm drains and gutters. It would grant these same agencies - for the first time ever - authority over all activities affecting those waters, regardless of whether the activity is occurring in water or adds a pollutant. With unfunded mandates, this slippery slope takes away power from state and local jurisdictions, shifting the control to the federal government for development and use of local land and water resources. 

What does this mean for the typical residential landowner? Likely, a lot of hassle, expense and time spent in court. The legislation clearly states “all waters.” Those of you with farm, stock and even goldfish ponds--beware.

Bull’s Eye  

Unfortunately, the legislation is not well defined. This creates an open invitation for the courts to define which activities should be regulated. Normal farming methods such as plowing, spraying and fertilizing could all become a target.  And with more than 57 million acres of converted farm land, including cropland, ditches and farm ponds, agriculture is wearing a big bull’s eye.

I’m fond of saying that you can’t conduct farming under a roof. Yet, because of the costs and time associated with obtaining permits to meet regulations, this legislation is leading us in that direction.  

For a “streamlined” version of a permit that covers basic regulations, the waiting period is around 313 days with a cost of $29,000.  On the other hand, an individual permit, which could apply broadly to many agriculture landowners, takes an average 788 days to obtain with a cost of $271,000. Currently, the backlog for permits is between 15,000-30,000 applications. 

This red-taped method of governing will be both burdensome and expensive for landowners.  Further, the expanded reach would not only pre-empt traditional state and local government authority, it would alter the balance between federal and state powers. The federal government’s reach will literally be in all of our backyards.