Navigable Waterways

When is a hammer not a hammer, but still a hammer?

Most of us would agree that our government has a unique way of couching its rules and regulations, sometimes in a manner that many of us might find a little confusing.

Back in the late 1980s, a U.S. airman brought to his commander’s attention that the government appeared to be paying $435 each for hammers included as part of an aircraft maintenance contract. The concerned commander reviewed the contract, but could find no such line item.

The next day he confronted the airman, explaining he could find no hammers in the contract. “That’s because they’re not called hammers, sir,” the airman replied. “They’re included in the structural repair kits and they’re called ‘sheet metal adjustment tools.'”

Indeed, the hammer was included in a long list of items that made up the repair kits. The hammer was listed as “adjustment tool, sheet metal, aircraft.” When confronted, the supplier told the Air Force panel investigating the incident he was only following government descriptions of the products he sought to supply. He said the government’s contractor requirements prohibited COTS, or “commercial off the shelf items” to be included in such sensitive military contracts. So hammer was changed to sheet metal adjustment tool. Its price tag was in fact $435.

Unworkable Regulations On Farms
Why do I bring this up? Because the EPA is planning to bring down another hammer on U.S. businesses, agriculture in particular, with a proposed ruling that impacts “navigable” waterways. Like the aircraft hammer incident in which the “government hammer,” while not a hammer, was still in fact a hammer, cost taxpayers hundreds of thousands of dollars, this new ruling by the EPA will do the exact same thing. It seems that drainage ditch in front of your house is now a navigable waterway in the eyes of the EPA. That’s right, the same way the EPA considers the Mississippi River a navigable waterway. It’s another example of government complexity (when is a hammer not a hammer, but still a hammer?) that will impact a farmer’s ability to do his job.

Recently, the American Farm Bureau Federation asked its members to resist a proposed rule from the Environmental Protection Agency it said will impose unworkable regulations on the nation’s farms, especially those which contain water bodies. Published April 21 in the Federal Register, the 111,000-word “Waters of the U.S.” proposed rule reflects the EPA’s latest interpretation of the 1972 Clean Water Act. The rule could ultimately lead to the unlawful expansion of federal regulation to cover routine farming and ranching practices as well as other common private land uses, such as home building. “This rule is an end-run around congressional intent and rulings by the U.S. Supreme Court alike,” said AFBF President Bob Stallman.

“Congress and the courts have said the 50 states, not the EPA, have power to decide how farming and other land uses should be restricted. It’s time to ditch this rule.”

Among other things, the rule would expand federal control over land features such as ditches and areas of agricultural land that are wet only during storms. Those ditches, if they hold water for a certain number of days, could be considered navigable and subject to onerous aspects of the Clean Water Act. The EPA said its new rule “clarifies” the scope of the Clean Water Act. However, EPA’s clarification is achieved by categorically classifying most water features and even dry land as “the waters of the United States.” When I was a kid, we used to float on inner tubes in some of our bigger ditches when we had heavy rains, but never once did I see a tugboat pass me along the way.

No Meaningful Protection
If carried out, ordinary fieldwork, fence construction or even planting could require a federal EPA permit. The result will be a wave of new regulation or outright prohibitions on routine farming practices and other land uses.

“Congress, not federal agencies, writes the laws of the land,” Stallman said. “When Congress wrote the Clean Water Act, it clearly intended for the law to apply to navigable waters. Is a small ditch navigable? Is a stock pond navigable? We really don’t think so, and Farm Bureau members are going to be sending that message to Washington loud and clear.”

The EPA contends that an entire set of exemptions will protect many farmers from the burdensome new rule. But Stallman countered that those exemptions will only apply to farming that has been ongoing since the 1970s, not new or expanded farms.

“The EPA exemptions offer no meaningful protection for the hundreds of thousands of farmers and ranchers whose operations and livelihoods are threatened by this expansion of EPA’s regulatory reach,” Stallman said. “The only thing that is clear and certain is that, under this rule, it will be more difficult for private landowners to farm and ranch, build homes or make changes to the land. This is pure and simply wrong, and it is why we need to ditch the rule.”

“The President’s Column” by the Louisiana
Farm Bureau Federation, April 28, 2014.