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Dire consequences face every farmer & landowner who fails to grasp the vast and vague regulation of the Clean Water Act

By Lewis Perdue

Introduction

Originally passed by Congress to address industrial dumping of chemicals and other hazardous substances, the Clean Water act has become a major and expensive problem for farmers and even residential land owners.

The average person has no idea that "Waters of the United States" (WOTUS) may extend beyond actual water.

In reality, the federal government's enforcement of the Clean Water Act (CWA) often extends to dry areas, distant from actual water. Court decisions and regulatory actions have designated these areas as Waters of the United States because of unseen and -- to the average person -- non-intuitive associations to actual water.

No map or topographical census of U.S. land parcels exists that clearly defines any given parcel of land as part of WOTUS or not. There is no zoning, no demarcation, no database or register that marks any parcel as part of the Waters of The United States.

In the absence of any definitively mapped determination of which land is part of WOTUS and which is not, property owners -- especially farmers -- have frequently and inadvertently run afoul of the CWA.

The situation has been aggravated for farmers because of inconsistencies and contradictions among court, regulatory and statutory interpretations of farming exemptions in the CWA.

This series came about because of Wine Industry Insight's coverage of John Duarte's court battle with the Corps of Engineers over the planting of a wheat field in Tehama County Calif.

The difficulty came in trying to understand the logic in the government's actions against Duarte. This series is based entirely on information from Supreme Court and other federal court rulings, federal regulations and laws.

Despite scores of hours spent with those documents over the course of several weeks, it became clear that there are few specific rules and many vague agency interpretations over what defines  stream, wetland, a Water of the United States or even the meaning of "adjacent," "normal," or "ongoing."

The only conclusion is that Clean Water Act regulation by the EPA and Corps of Engineers can -- and has -- extended far beyond agriculture or "normal farming practices."

Court rulings and regulations have varied wildly in interpretation -- and distant from the wording of the original law -- so that  a farmer, residential homeowner, municipal park or utility drainage district have no clear, specific, or firm guidelines as to whether their property may be regulated by the Corps.

The outcome of this is that the only certainty is uncertainty. And that uncertainty has consequences for every American whose name is on the deed to a parcel of land.

This article attempts an objective look at the current reality of the situation in an attempt to help farmers and landowners stay out of trouble.

The above has been just the introduction to the series.

Please click on the following links to read the entire series.

Articles in this series (so far)

• Trying To Make Sense Out Of Clean Water Act Regulation
  
• Clean Water Act Permits: Expensive, time-consuming, uncertain
  
• Ag exemptions to the CWA law and as interpreted by Courts, EPA & Army Corps of Engineers
  
• How does soil become a pollutant? And a plow a "point source" of pollution?
  
• Supreme Court's "Nexus" author expresses second thoughts
  

Interesting and/or helpful links

• Army Corps of Engineers v. Hawkes Co.
  
• Hawkes argument transcript
  
• Rapanos v. United States,
• Rapanos Argument
  
• Entergy v.Riverkeeper
  
• Borden Ranch
  
• Sackett v. EPA
  
• The Economics of Environmental Regulation, Sunding & Zilberman, Natural Resources Journal
  
• 404 Permits Economic Analysis by EPA & Corps of Engineers