Wine Industry Insight launches major series on dire consequences of Clean Water Act enforcement confronting every U.S. property owner with special implications for ag

Introduction

This preview introduces a special series of articles that will begin Monday, August 29.

 

The articles examine the often unclear issues, vague enforcement standards and their frequently expensive and dire consequences for farmers, other land owners and the environment.

 

The articles — with extensive documentation and links to regulations, laws, court casees and other original source materials — will show how the law passed by Congress to address industrial dumping of chemicals and other hazardous substances has developed into a major and expensive problem for farmers, residential and commercial land owners.

 

First disconnect: land does not have to be wet to qualify as “Waters of the United States”

 

The average person has no idea that “Waters of the United States” (WOTUS) may extend beyond actual water.

 

In reality, the federal government’s enforcement of the Clean Water Act (CWA) often extends to dry areas, distant from actual water. Court decisions and regulatory actions have designated these areas as Waters of the United States because of unseen and — to the average person — non-intuitive associations to actual water.

 

No map or topographical census of U.S. land parcels exists that clearly defines any given parcel of land as part of WOTUS or not. There is no zoning, no demarcation, no database or register that marks any parcel as part of the Waters of The United States.

 

In the absence of any definitively mapped determination of which land is part of WOTUS and which is not, property owners — especially farmers — have frequently and inadvertently run afoul of the CWA.

Farming exceptions narrowed to the point of uselessness

 

The situation has been aggravated for farmers because of inconsistencies and contradictions among court, regulatory and statutory interpretations of farming exemptions in the CWA.

 

This series came about because of Wine Industry Insight’s coverage of John Duarte’s court battle with the Corps of Engineers over the planting of a wheat field in Tehama County Calif.

 

The difficulty came in trying to understand the logic in the government’s actions against Duarte. This series is based entirely on information from Supreme Court and other federal court rulings, federal regulations and laws.

 

Enforcement plagued by lack of specific standards and definitions

 

Despite scores of hours spent with those documents over the course of several weeks, it became clear that there are few specific rules and many vague agency interpretations over what defines  stream, wetland, a Water of the United States or even the meaning of “adjacent,” “normal,” or “ongoing.”

 

The only conclusion is that Clean Water Act regulation by the EPA and Corps of Engineers can — and has — extended far beyond agriculture or “normal farming practices.”

 

Court rulings and regulations have varied wildly in interpretation — and distant from the wording of the original law — so that  a farmer, residential homeowner, municipal park or utility drainage district have no clear, specific, or firm guidelines as to whether their property may be regulated by the Corps.

 

The outcome of this is that the only certainty is uncertainty. And that uncertainty has consequences for every American whose name is on the deed to a parcel of land.

Articles in the series:

• Dire consequences face every farmer & landowner who fails to grasp the vast and vague regulation of the Clean Water Act

• Clean Water Act Permits: Expensive, time-consuming, uncertain

• Ag exemptions to the CWA in law and as interpreted by Courts, EPA & Army Corps of Engineers

• How does soil become a pollutant? And a plow a “point source” of pollution?

• Supreme Court’s “Nexus” author expresses second thoughts

• Clean Water Act: A Bare-Bones Primer