OP-ED By State Representative James Allen Tipton
Latest EPA Regulation Equates to 'War on Kentucky Farms'
FRANKFORT, Ky. (June 3, 2015) - In conversations with constituents, I often hear repeated concerns with the interference and overreach of government, both federal and state.
As an elected official, it's troubling to know many people do not trust those who govern to have their best interests at heart. However, having a bit more of an insider's view, I can also recognize that sometimes their fears are well-founded and the regulations and bureaucracy instilled, while possibly well-intentioned, can have a negative effect on the daily lives of our citizens and stifle economic opportunities.
Details of a prime example of this emerged last week, as the federal EPA released their Waters of the United States (WOTUS) rule. The WOTUS rule is part of the Clean Water Act, a law enacted in 1972 which has, undeniably, caused much good to be done in depolluting our nation's waterways. However, the recent expansion of definitions may cause the Clean Water Act to far overreach what was its original intent.
In 2006, the Supreme Court of the United States ruled in Raponos v. United States that the Clean Water Act did not grant the U.S. Army Corps of Engineers limitless authority over what is considered a waterway. Rather, the majority of the Court held that "Waters of the United States" should be defined as "only those relatively permanent, standing or continuously flowing bodies of water 'forming geographic features' that are described in ordinary parlance as 'streams[,] ... oceans, rivers, [and] lakes.'"
Yet, the recent release by the EPA has now clouded that definition further. The vagueness of the new rule makes it arguable that the Corps would have jurisdiction in all waters within floodplains and wetland areas. Those terms are not specifically defined, but rather it is left to governmental regulators to use their best professional judgment. By setting that standard, the possibility for abuse is virtually limitless and unchecked.
Perhaps the greater issue though, is the process by which landowners would have to go through in order to receive permission for proposals related to this new expanded definition of waterways located on their property. As anyone who has dealt with the federal government before can attest, the amount of time it takes, even for simple and routine requests, can be staggering. The federal agencies are already struggling to handle the backlog of requests, and that is before the definition was expanded which would affect many more areas.
As a cattle farmer, I can speak to the fact that the prospect of having to seek federal approval in relation to streams and ponds to be used as water sources for livestock is unsettling. Farmers and ranchers throughout this nation want clean water sources for their livestock, as we wish to produce the healthiest animals possible. Aside from genuinely caring about the livestock, that simply makes sound economic sense as well. For the EPA to expand their definitions to put further constraints on every farmer in Kentucky is absurd.
With vague definitions and regulators left unchecked, what this amounts to is the Obama administration, through the EPA, unilaterally stripping private property rights without congressional approval. It flies in the face of what the Supreme Court ruled and should not be allowed to stand.
Rather, I would urge the U.S. Senate to take up S.1140, the Federal Water Quality Protection Act. This legislation, sponsored by a bipartisan group of senators, would continue to ensure the protection of traditional navigable waters throughout the nation, which nearly everyone agrees should be done. However, it would protect private landowners, including farmers, by directing the EPA to release a new WOTUS definition that would not include isolated ponds, agriculture water, ditches or streams without enough flow to carry pollutants to navigable waters.
This seems to be a reasonable approach that I believe most Kentuckians could support. I would urge all landowners, including farmers, to call members of our federal Congressional delegation and encourage them to support this revised definition.
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Representative James Allen Tipton is a cattle farmer and represents Anderson, Spencer, and part of Bullitt counties in the 53rd District in the Kentucky House of Representatives
