U.S. Senators John Barrasso, R-Wyo., Jim Inhofe. R-Okla., Dean Heller, R-Nev., Jeff Sessions, R-Ala., and 26 other Senators have introduced the "Preserve the Waters of the U.S. Act." The legislation seeks to prevent the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers from issuing their "Final Guidance on Identifying Waters Protected by the Clean Water Act."
The final guidance document, issued in draft form by EPA and the Corps in May 2011, would significantly change and expand the scope of federal jurisdiction under the Clean Water Act. If finalized, it has the potential to make it more difficult for Americans to build in their backyards, grow crops, manage livestock, expand small businesses and carry out other activities on private lands.
S. 2245 was introduced just days after the Supreme Court's decision in Sackett v. EPA, a ruling that supports the rights of property owners to challenge EPA compliance orders that are found to be arbitrary and capricious. In 2007, the Sackett family was told by the Agency that the property they had recently purchased in Idaho to build a home was a wetland covered under the Clean Water Act. Although the Sackett's attempted to prove that their property was not a wetland, EPA proceeded to issue a compliance order that if not obeyed would result in fines of up to $75,000 a day. The case eventually ended up before the Supreme Court which ruled in favor of the Sacketts last week.
"The Fertilizer Institute believes the Supreme Court's decision in Sackett v. EPA is a victory for land owners throughout the country," said TFI President Ford B. West. "We are pleased that the legislation introduced by Senators John Barrasso, Dean Heller, Jim Inhofe and Jeff Sessions seeks to prevent additional situations where EPA may be overstepping and infringing on the rights of property owners, including farmers and other land use stakeholders."
National Cattlemen's Beef Association President J.D. Alexander said the legislation puts up a roadblock to EPA's intentional end-run around the rulemaking process and Congress.
"EPA has an obsession with avoiding accountability. This administration has made clear its preference to use guidance documents as opposed to going through the rulemaking process. This allows the activists turned government officials to avoid public scrutiny and bypass the consideration of legal, economic and unintended consequences," said Alexander. "This is a clear violation of the Administrative Procedures Act."
According to PLC President John Falen, if the guidance is finalized, the only thing livestock producers can be clear and certain about is that any wet or dry stream, ditch and pond on their land could easily be subject to federal regulation and costly permits.
"This is a direct hit on the private property rights of farmers and ranchers across this country," said Falen, who is a Nevada rancher. "We will fight hard against this administration's ongoing efforts to curtail the private property rights of farmers and ranchers by regulating them to the brink of bankruptcy. We commend the senators for standing up for private property rights and the preservation of American agriculture."
Alexander said despite three Supreme Court rulings and a letter from 170 members of Congress opposing the guidance, EPA and the Corps have crowned themselves kings of every drop of water in the country. He said this bill is the best path forward in preventing the guidance from becoming reality.