Feds are overreaching on water rules (again)
The Federal government appears to be cracking down on agricultural water use as well as alleged pollution from ordinary agricultural activities, making it harder for farmers to cultivate or irrigate their land — and it also seems the feds are overreaching with the new enforcement initiatives, making further legal challenges a near certainty, according to Gary Baise, writing for Farm Futures. In this case the overreach includes questions about which federal agency actually has jurisdiction, granting it the authority to bring lawsuits, with troubling implications for farmers across the country.
- In the case, which originated in 2011, the Department of Justice sued a farmer for allegedly discharging pollutants from disking or chisel plowing his farmland into the nearby Coyote River. The DOJ brought the lawsuit on the recommendation of the U.S. Army Corps of Engineers, whose representatives observed the alleged discharge.
- This is highly unusual, Baise points out, because this kind of tilling is widely assumed to be exempt from enforcement under the Clean Water Act. Furthermore, in all other cases pertaining to this sort of discharge, the lawsuits have been brought on the recommendation of the Environmental Protection Agency (EPA).
- The lawsuit holds out the possibility that in future the DOJ can sue any farmer on the recommendation of the Corps of Engineers, rather than solely on the recommendation of the EPA as has been the case in the past.
- However this contradicts legal precedent, Baise notes: “This issue has arisen before and was addressed by Attorney General opinion 197 in 1979. The opinion known as the Civiletti Memorandum declared that EPA, rather than the Corps, has the ultimate authority to construe what is a navigable water.”
- The implication is disturbing and contrary to general interpretation of the existing laws and regulations: “The Court in the LaPant case has given DOJ and the Corps unlimited power to pursue farmers. It has been the general belief of many CWA practitioners (including this one) that only EPA could pursue an alleged discharger not having a permit.”