News Story

EPA Expands Power by Calling Plowed Farm Fields 'Mini Mountain Ranges'

Federal rule could impose wetland permit mandates on plowing a field

When farmers plow their land, it produces grooves called “furrows,” bordered by small ridges of dirt.

But in pursuit of new regulatory powers, federal agencies refer to the little dirt mounds by another term: “mini mountain ranges.” That seemingly absurd distinction is being used to impose more federal control over private land use decisions made by U.S. farmers.

That was the claim described in a U.S. Senate committee report released Sept. 20. The committee reviewed the powers held by the nation’s two largest environmental regulation agencies, the U.S. Army Corps of Engineers and the Environmental Protection Agency, and a proposed regulatory rule.

The rule, called “Waters of the United States,” uses the Clean Water Act to give both federal agencies expanded jurisdiction over private land use decisions. The Senate report suggests the dispute over whether the rule goes beyond what the law authorizes will ultimately be settled by the U.S. Supreme Court. It accuses the federal agencies of playing word games to get around laws in place that restrict their oversight.

The EPA has referred questions to the Department of Justice. The DOJ refuses to comment because the interpretation of the new rule is being challenged in court.

The rule would allow puddles, tire ruts and standing water to be labeled “disturbed wetlands” and regulated under the Clean Water Act. The Senate committee report states the rule would allow EPA to get around legal limits to its authority over ditches, draws, low areas, or other wet areas by simply calling them a “regulated tributary” or “wetland.”

The report concludes that if the EPA and Corps interpretations were allowed, “most if not all plowing” would be considered a “discharge of a pollutant” and require a federal permit.

The Corps is a federal agency overseeing America’s waterways, and states on its website that “environmental sustainability” is a “guiding principle.”

Jason Hayes, the director of environmental policy at the Mackinac Center for Public Policy, said the 1977 amendments to the Clean Water Act specifically exempted plowing as a “normal farming activity.”

“The Corps even tries to argue that these newly created small mountain ranges hamper the growth and development of wetland plant species, apparently ignoring the fact that farmlands are managed to produce crops, not cattails,” Hayes said in an email. “No reasonable regulation of the nation’s farmland can demand farmers produce crops without moving dirt, or expect farmers to produce wetland plant species instead of corn or wheat.”

Daren Bakst, a research fellow in agricultural policy at The Heritage Foundation, said it is not surprising that the EPA and Army Corps claim furrowing can create small mountain ranges.

“Does kicking a pebble next to water create a mini-meteor? Is a puddle a mini-ocean? Who knows?” Bakst wrote in an email. “The moral of the story is furrows will mean what they want them to mean until the courts stop them. Of course, Congress should have been stopping this nonsense a long time ago.”

Michigan Capitol Confidential is the news source produced by the Mackinac Center for Public Policy. Michigan Capitol Confidential reports with a free-market news perspective.