News: CJ Exclusives

Next Farm Bill could target aggressive ag regulations

Waters of the United States rule, other burdensome environmental restrictions could be in play, analysts and lawmakers say

Federal environmental regulations are battering farmers, and public policy research analyst Darren Bakst believes there is a mechanism to address the plight.

It’s the next version of the federal Farm Bill, now in its early stages, said Bakst, a former John Locke Foundation researcher now with the Washington, D.C.-based Heritage Foundation.

The regulatory burden is “the one issue that affects farmers and ranchers across the board,” Bakst said. The biggest offender is the Obama-era Waters of the United States rule.

“It’s just extreme,” Bakst said. “[The rule] pretty much covers land as long as it held water a few days of the year.”

The WOTUS rule continues a decades-long power grab under the federal Clean Water Act, Bakst said. The U.S. Environmental Protection Agency and the Army Corps of Engineers increasingly require property owners to get permits for seemingly every water-related action, even though the Clean Water Act requires states to have a primary role.

U.S. Rep. David Rouzer, R-7th District, has criticized WOTUS early and often. He praised President Trump’s executive order in February ordering the EPA and Army Corps to rescind or revise the rule. Rouzer said expansive interpretations of WOTUS would devastate farm families, small businesses, and local governments. N.C. Agriculture Commissioner Steve Troxler says the abuse of WOTUS by regulators has cost farmers and consumers dearly.

The agencies are reviewing the rule, and Bakst thinks a proposal might come forward early next year. The question, he said, is how the EPA and Army Corps enforce the rule in the interim.

“Are they going to be going after folks for really dumb reasons, or are they going to use common sense?” he said. Reverting to the pre-WOTUS language is not ideal because the earlier rule was a strain on farmers. And any new rule is sure to generate a lawsuit from environmentalists, he said.

The Rapanos v. United States wetlands case decided by the U.S. Supreme Court in 2006, could offer regulators guidance, Bakst said.

Writing for the majority, Justice Antonin Scalia noted wetlands-permitting regulations cost $1.7 billion a year ($2.06 billion in 2017 dollars). Landowners had to get permits to change everything from drainage ditches and desert sands that might hold water a few days a year, to land covered with water from a 100-year flood. Scalia set forth less invasive guidelines for defining a wetland.

Bakst said those criteria should apply to WOTUS. Bodies of water subject to federal regulation should cross state lines and transport foreign goods, since the Clean Water Act falls under the federal Commerce Clause. Only major, primary tributaries should be included. Wetlands should connect directly to a navigable waterway.

Normal farming activities are supposed to get blanket exemptions from civil or criminal penalties. But Bakst said the feds have reinterpreted the Clean Water Act. Now they limit any exemption to a single property and rule on a case-by-case basis.

Troxler said WOTUS is “a real good example of federal overreach” that could be reduced through the Farm Bill.

Troxler said the National Association of State Departments of Agriculture was shocked when lawyers explained its reach to them.

“I think we all walked away believing if a raindrop fell out of the sky it was going to be regulated under the Waters of the U.S.,” Troxler said.

He recalled his brush with the rule when filling in “a mudhole” at the upper end of the State Fairgrounds in Raleigh to expand display space. Although the patch of dirt drained water only from the fairground, federal regulators declared it a navigable water of the United States, subjecting it to a host of environmental rules.

“It ended up costing us a lot of money, and a lot of time, and to top it all off I tongue-in-cheek asked them for a [naval] destroyer to display at the State Fair,” Troxler said.

Any time a federal rule bars a local farmer from using his land to support his farm, or the farmer has to endure a lengthy, expensive permitting processes, the government can violate property rights, Troxler said.

“Anything that affects the cost of production or the amount of food that we can produce, it’s going to end up in the consumer’s lap,” Troxler said. “So the less regulation that we operate under to produce a food supply benefits the consumer.”

The national association hopes to tone down excessive regulations in the Food Safety Modernization Act signed by Obama in 2011, Troxler said. Critics say complying with its mandates for testing, inspections, and infrastructure changes in the name of food safety jeopardize small farmers.

“The feds basically had the big club, and could beat you with it,” Troxler said. State agriculture departments hope to develop a partnership, and he thinks that could be discussed in the next Farm Bill.