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The sands of time

Friday, May 23, 2014 - Updated: 6:44 AM

When it comes to deciding who's in charge of your home or farmland, who you gonna call?

If you are a farmer, it sure won't be the EPA. Unfortunately, the Clean Water Act is probably going to be changed ... again.

The CWA, originally passed in 1972 and heavily amended in 1977, was intended to fight water pollution. At its inception it controlled all waters with a significant nexus to navigable waters, leaving puddles and muddy backyards exempt.

Now the EPA is proposing to also control temporary wetlands and waterways. Supreme Court rulings in 2001 and 2006 restricted the agency's control to more permanent waters, such as lakes, rivers and streams. However, with the proposed new oversight, virtually all water would fall under its reach.

Farmers are concerned, and rightly so. The permitting process alone is exorbitantly expensive. Penalties for failure to comply are staggering and the agency is utterly relentless in pursuing them.

Take, for example, a story from Michigan.

In 1989, John A. Rapanos backfilled some areas on his land there, with the intent to sell it for development. His actions amounted to hauling in sand, moving it around, and dragging out some stumps. He avoided areas that were officially considered wetlands; however, he failed to apply for permits for filling wetlands, because he didn't believe he was doing so.

The Michigan Department of Natural Resources disagreed and filed a cease and desist order, eventually referring the case to the Environmental Protection Agency.

The EPA informed Rapanos that even though the nearest navigable water was 11 to 20 miles away, his fields were "waters of the United States," so he needed to get permits before he leveled them.

The Army Corps of Engineers claims jurisdiction over any water that flows through a conduit or pipe. Since there was a subsurface drain, installed in 1908, on the property, which eventually connected the land to the Kawkawlin River, which eventually drains into Saginaw Bay 20 miles away, the sand constituted "pollution."

A criminal and civil battle that spanned decades ensued.

Rapanos was found guilty and sentenced and resentenced and resentenced. Essentially, his life was destroyed.

Because the story spans so many years, so many courts, and so many opinions, it is hard to even discover how it concluded. However, Google Books quotes "Rescuing a Broken America" by Michael Coffman as saying that, after the Supreme Court rendered an opinion, Rapanos was sentenced to 200 hours of community service and $185,000 in fines. Eventually he is said to have ponied up $150,000 in fines and $750,000 in damages, essentially because he moved some sand.

One of the many judges he faced in this insane odyssey of litigation, District Judge Lawrence P. Zatkoff, said when he passed sentence, after dealing with a drug dealer, who received much more leniency, "So here we have a person who comes to the United States and commits crimes of selling dope, and the government asks me to put him in prison for 10 months. And then we have an American citizen who buys land, pays for it with his own money, and he moves some sand from one end to the other and the government wants me to give him 63 months in prison. Now, if that isn't our system gone crazy, I don't know what is. And I am not going to do it."

Although Judge Zatkoff certainly had the right idea, the case continued to drag on, as the government was not satisfied with the sentence he passed.

This story should serve as a caution to all landowners, especially farmers. If sand can be considered a pollutant and a couple of drainage tiles can be considered "Waters of the United States" under already-existing regulations, what will the new rules require before land can be reasonably used?

According to Cornell University Law School's Legal Information Institute, the average time it takes a person to acquire an individual permit to do work like Rapanos did, should one even be issued at all, is 788 days. Cornell estimated the cost thereof at an average of $271,596.

As you can see in his case, the penalties for failing to obtain such a permit are life-changing.

For clear and obvious reasons the American Farm Bureau is strongly urging its members, and indeed anyone with an interest in property rights, to immediately oppose this proposed "land grab."

AFBF President Bob Stallman said in a press release: "Under this proposed rule, farmers, ranchers and every other landowner across the countryside will face a tremendous new roadblock to ordinary land use activities. This is not just about the paperwork of getting a permit to farm, or even about having farming practices regulated. The fact is there is no legal right to a Clean Water Act permit -- if farming or ranching activities need a permit, EPA or the Army Corps of Engineers can deny that permit. That's why Clean Water Act jurisdiction over farmlands amounts to nothing less than federal veto power over a farmer's ability to farm."

New York Farm Bureau's President Dean Norton agreed and added, "...It could be stretched to contain even puddles and shallow pools if they remain for as little as four days, as they may be connected underground to larger waterways."

After reading convoluted legal discussion on the Rapanos case and applying what happened to him to essentially every normal daily task on any farm in the nation, it is impossible not to be alarmed by the potential for harm to be caused by these new regulations.

If all waters are U.S. waters, then a pool left behind by any of our many heavy rains could become a battleground, with the might of the government on one side and the desire of the farmer to grow food on the other. The potential for the EPA to use Clean Water Act regulations to create an income stream via permit fees and fines, as well as to control the normal day-to-day business activities of farmers and many others, is staggering.

Fultonville dairy farmer MARIANNE FRIERS

is a regular columnist. She blogs



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