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When ‘waters of the U.S.’ aren’t even waters

Published: Friday, June 13, 2014 12:28 p.m. CDT

From unpredictable and uncooperative weather to high input costs, successful farming takes a thick skin, perseverance and the ability to work around obstacles.

One obstacle farmers hope to never have to work around — or fight against — is the federal government.

Still, for the last three years, Illinois Farm Bureau (IFB) members have overwhelmingly said the federal government and over-regulation are their biggest work-arounds and threats to long-term profitability.

And that government over-regulation talk is about to ramp up again – not only for farmers, but for a variety of small businesses – with the Environmental Protection Agency’s latest try at a government land-grab: Its proposed rule changes the waters of the U.S. outlined in the Clean Water Act.

Since it was created in 1972, the Clean Water Act has helped to make significant strides in improving water quality in this country. The act regulates so-called ‘waters of the U.S.’ Until now, those have been defined primarily as waters that can be navigated. State and local governments have jurisdiction over smaller, more remote waters such as ponds and isolated wetlands.

However, the EPA and the U.S. Army Corps of Engineers are seeking to expand the definition of ‘waters of the U.S.’ to include not only navigable waters, but also puddles, ponds, ditches, small wetlands and even land that resembles a stream during a rainstorm but is dry otherwise.

If the expanded definition is allowed, permits and other regulatory roadblocks – having to hire environmental consultants, for example – would stand in the way of conducting routine business activities like building fences, removing debris from ditches, spraying for weeds and insects and removing unwanted vegetation.

The U.S. Census Bureau’s County Business Patterns report indicates there are 640 businesses in Bureau County that employ 100 or fewer people. Among them are homebuilders, real estate agencies, aggregate producers and related small businesses.

They would also be negatively impacted as the proposed role would increase federal regulatory power over private property. The definitions would create confusion and because they were intentionally created to be overly broad, could be interpreted in whatever way the federal agencies see fit.

Agencies like the EPA and the Corps of Engineers are not charged with writing the laws of the land — Congress is. And when Congress wrote the Clean Water Act, it clearly intended for the law to apply to navigable waters. Yet these agencies seek to stretch the meaning in order to gobble up privately owned and managed lands.

Is a small ditch navigable? How about that dry ditch that only fills with water during a rainstorm? Or even that puddle in your backyard? Those bodies of water don’t sound navigable to farmers, either.

Jill Frueh is the manager at the Bureau County Farm Bureau.

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