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Farm organizations want to correct overreach in federal water proposal

They want EPA, Corps of Engineers, to limit interpretation of traditional navigable waters.

Gary Baise, Attorney at Law

May 22, 2019

3 Min Read

Last week I reviewed American Farm Bureau Federation’s comments to EPA and the Corps of Engineers (Corps) new “Waters of the United States” proposal. In my blog I suggested all landowners take a moment during the busy planting season to review the 25-page document.

AFBF and other agriculture organizations support the new WOTUS rule; however, there are serious suggestions as to how to make the proposed WOTUS rule better and safer for landowners.

On page 9 of the comments, there is a significant recommendation to change the new WOTUS proposal; it involves how to define “navigable waters.” There is concern by AFBF and others “that [ the WOTUS] preamble makes it clear that the agencies are carrying forward prior, overly broad interpretations of TNW [traditional navigable waters].”

Click the download button below to see the AFBF document Baise refers to.

Agricultural organizations worry that EPA and the Corps will be including all the court decisions which define waters beyond those which are navigable-in-fact. AFBF and other farm groups “…strongly urge that the Agency correct this overreaching interpretation and limit the TNW category to just waters subject to Rivers and Harbors Act jurisdiction.”

Landowners vs. environmental groups

This change in definition would have substantial consequences helpful to landowners. Environmental groups will be unalterably opposed.

The comments reach back in Supreme Court history to 1871 and subsequent cases from the Supreme Court issued in 1921 and 1940. The AFBF comments attempt to limit the Agencies’ expanded traditional meaning of navigability. As we all know, the Agencies “…have expanded the traditional meaning of navigability by referring to ‘use in interstate or foreign commerce.”

The comments claim they are looking at a “subtle” change, but it is very important for all landowners.

Without getting into the weeds too deeply, AFBF argues that only “…waters…are or were navigable-in-fact or are capable of being made so with reasonable improvements; and (ii) waters that, alone or in combination with other waters for a continuous highway to transport goods in interstate commerce.” These waters are the only waters to be covered by the EPA and Corps.  

Not just any water

EPA over the last 40-plus years has been able to get courts to agree that “any water” that could be used in interstate commerce was within its jurisdiction. AFBF and the agricultural organizations want the agencies to have jurisdiction only when the water can continuously transport goods in interstate commerce. As we all know, EPA and the Corps want waters to be jurisdictional merely based on the water’s potential to support recreation. The comments strongly suggest that it is improper to rely on the many federal court decisions which establish a water body as a traditional navigable water.

The farm organizations suggest that two small words, “use in,” be replaced by the word “transport.” AFBF and others believe that the proposal should be changed to read as follows:

“Waters which are currently used, or were used in the past, or may be susceptible to ‘transport’ in interstate or foreign commerce, including the territorial seas and waters which are subject to the ebb and flow of the tide.”

This may seem to be arguing over a very fine point. EPA and the Obama Administration, in the Connectivity Report, made the scientific common-sense claim that water runs downhill. As a result, all water is connected; therefore, EPA and the Corps get to regulate virtually all water running off farms, ranches and timberland under the Clean Water Act (CWA).

The Connectivity Report was simply an outrageous power grab by both agencies to assume jurisdiction of all water in the United States.

The CWA was never meant to be stretched this far. And so, AFBF tries to establish that not all waters are jurisdictional under WOTUS.  

The opinions of the author are not necessarily those of Farm Futures or Farm Progress. 

About the Author(s)

Gary Baise

Attorney at Law, Gary H. Baise

Gary Baise is an Illinois farmer and attorney. He also serves as outside General Counsel for several national agriculture organizations, including Agricultural Retailers Association and National Sorghum Producers. Baise organized President Trump’s agricultural team of advisers. He was the first Chief of Staff to the first U.S. Environmental Protection Agency Administrator. He owns a family farm in Jacksonville, Ill.

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