Monday, February 11, 2013

Clean water high court case poses a threat to agriculture, timber operations

A case pending before the U.S. Supreme Court “is indicative of another attempt by environmentalists to run you out of business,” Washington, D.C., attorney Gary Baise told farmers attending the Mississippi Farm Bureau Federation’s annual commodity conference. The issue in the Oregon case involved a lawsuit by an environmental organization claiming that rain runoff from logging roads constitutes a threat to fish, vegetation, and other wildlife that could be miles downstream from the original source, and asking that runoff from logging operations be subject to the same Clean Water Act rules as industrial storm water and that loggers be required to obtain discharge permits for culverts, ditches, and other water-channeling measures. A federal appeals court upheld the environmental group’s petition, but timber companies and state officials asked the high court to intervene. Under CWA rules, Baise says, “If you have water that is channeled into a ditch next to your logging road and install culvert so you can cross that ditch, it becomes a point source under the Clean Water Act, meaning you have to have a permit. And it gets worse: EPA is now imputing and writing Best Management Practices on how you must run your operation. Those BMPs will then commented upon by the environmental and public interest groups. “The permitting process alone would put you, and me, out of business. It could be applied to any of us in agriculture — any storm water runoff from your property would have to be permitted.” For 35 years, the Clean Water Act has contained exemptions for water runoff from farms and timberland, Baise says. “The Agriculture Storm Water Runoff Exemption and the Silviculture Water Runoff Exemption say that, unlike sewage treatment plants and industrial operations, we don’t need to have to a Clean Water Act permit. “But, this court case says, no, these should not be exempt. It was argued about five weeks ago in the Supreme Court. On the weekend before the case was to be argued, the EPA put out a new rule that was actually helpful to agriculture, saying they would have discretion as to whether or not to require storm water runoff permits under the CWA.The environmentalists have already said, however, that they’re going to sue the EPA over this fairly sensible decision.” A decision by the court should be handed down in the next 30 to 45 day, Baise says. “I think it will come down in favor of agriculture — but even so, the environmentalists are going to continue to come up with tactics to try and get control over your property. In many respects, this comes down to an issue of private property rights being litigated under the Clean Water Act...more  

And that ain't all - there is also the issue of EPA enforcement.

Baise, citing examples of the EPA levying jail terms and fines topping $1 million against agricultural and logging operations, quoted a Washington Post editorial that “The Environmental Protection Agency is earning a reputation for abuse,” and cited a top agency administrator who observed that “EPA’s policy for enforcement is: Hit them as hard as you can, make an example of them, and go after them.”
Starting in the Bush administration, Baise says, “The EPA has become an agency all to its own. It does not have sufficient adult oversight. I’m among a few who say that instead of a single administrator, it needs to be a commission, like the Federal Communications Commission or the Securities and Exchange Commission, so there would be more diversity in who is running things.”

Happy Valentine's Day from the feds.


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