The EPA’s big land grab

The EPA just finalized one of the biggest land grabs in American history.

Under the Clean Water Rule, all “tributaries” will be categorically regulated by the federal government. Tributaries — which quite literally mean anything with a bed, banks and an “ordinary high water mark” — are now under federal control. Not my words; the Environment Protection Agency’s (EPA). This includes ditches and less.

Under the same rule, the word “adjacent” is stretched from the Supreme Court’s definition of actually “abutting” what most Americans regard as a real water of the United States to anything “neighboring,” “contiguous,” or “bordering” a real water, terms which are again stretched to include whole floodplains and riparian areas. Floodplains are typically based on a 100-year flood, but a separate regulation would stretch that to a 500-year flood.

And, finally, under the rule, the EPA cynically throws in a catch-all “significant nexus” test meant as a shout out to Supreme Court Justice Anthony Kennedy’s opinion in Rapanos v. United States when, in fact, the EPA’s rule makes a mockery of Kennedy’s opinion and of no fewer than three Supreme Court rulings.

Under the three approaches, no land or “water” is beyond the reach of the federal government, never mind the traditional understanding of private property or state and local control of land use.

Farmers, ranchers, dairymen and others, on and off the farm, are in a widespread panic with the finalization of this rule because not only does it allow the EPA onto their land, but it throws the gate wide open to environmental group-led citizen lawsuits that promise to carry the rule’s reach beyond what even the EPA had envisioned. That is because even though the EPA may have intended to show some restraint in the exercise of its newfound powers, the rule itself is virtually boundless and citizen suits are controlled only by the rule. This rule carries with it fines under the law to the tune of $37,500 per day, but comes with absolutely no clarity for farmers as to what side of the law they are now on.

I started work as an legislative assistant covering agriculture for Sen. John Tower (R) of Texas back in 1971 before serving nearly 20 years in Congress, and I have never seen a bigger land grab by the federal government than the Clean Water Rule.

Like Tower, and like most Texans serving in Congress today, I was consistently ranked as one of the most conservative members in Congress. And that is why it appalls me that instead of libertarian groups announcing that their No. 1 objective is to overturn this rule and protect the private property rights of every American citizen — which is at the very heart of a free society — these groups were reported on June 24 in The Washington Post as saying that their No. 1 objective is, of all things, killing U.S. sugar policy.

No wonder rank-and-file conservative Americans are so disgusted. Of all of the maladies in government and society today, the only thing that these groups in Washington, purporting to carry the conservative banner and armed with billions of dollars, can muster is an attack on farmers. What is their next act? To disappear?

Rep. Ted Yoho (R-Fla.), one of the most committed conservatives in the House of Representatives, has introduced legislation — backed by conservative groups that make decisions based on principle rather than a rich donor base — that proposes to do what any conservative American would do. Yoho’s bill would zero out U.S. sugar policy when America’s biggest foreign sugar competitors do the same. Any real conservative and any ordinary American would reasonably wonder if that’s really too much to ask of our trading partners. The Yoho bill should be the model legislation for all of American agriculture, which is hit hard every day by high and rising foreign subsidies, tariffs and other barriers to trade imposed by countries like communist China.

Yet some libertarian groups reject this commonsense approach and look instead for new ways to assail a policy that, in the case of sugar, did not cost taxpayers a dime last year, will not cost taxpayers a dime this year and is projected by the U.S. Department of Agriculture to cost zero dollars for the next decade. The same policy has been demonstrated to have resulted in lower costs on the grocery shelf than what foreign consumers pay.

That’s why these libertarian groups were jubilant to read the news in The Washington Post that an agribusiness may be inviting commodities to join in on the attack against one of their own, with the lead of one of these libertarian groups glibly predicting that this division would bring about the fall of all U.S. farm policy. Of course, tragically, such tactics would obviously imperil important farm policies for all of America’s farmers and ranchers, including those whom agribusiness depends on for business. What a dangerously shortsighted strategy.

Together, these libertarian groups and this particular agribusiness criticize the political involvement of farm families who participate in the very process they vociferously argue every citizen has an inviolable First Amendment right to exercise, and even when their combined political power and spending would swamp a boat like sugar’s.

What is sad is that this enormous fortune that they sit upon is not being used to join in battle for things as important as the defense of private property — an absolutely essential cornerstone of American freedom — but is instead being squandered to wage war on the backbone of a great country: farmers and ranchers.

Combest represented the 19th Congressional District of Texas from 1985 to 2002 and chaired the Select Committee on Intelligence and the Agriculture Committee. He is now a principal at Combest Sell & Associates.

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