Date: May 20, 2020
Magazine:
May/June 2020

By Tony Francois, Pacific Legal Foundation

This piece originally published in The Hill.

In World War II, the U.S. Army Corps of Engineers played a proud role in the Allied victory over totalitarian aggression in Europe and the Pacific theater by building bridges, clearing beaches and harbors, and creating the conditions for military units to hit fast and hit hard. The Corps’ resourcefulness, creativity and engineering expertise no doubt was a critical weapon in that victorious military campaign.

But that was a long time ago. Today the Corps of Engineers is less likely to be facing down tyranny than practicing it, in the form of abusive regulatory enforcement that punishes farmers and other property owners who seek to make productive use of their land. After decades of bureaucratic mission creep, the Corps has mutated into a rogue agency—and it’s time for Congress to rein it in.

It’s worth considering how we got here, since many Americans may wonder why a unit of the U.S. Army is in the business of enforcing domestic environmental regulations in the first place. That story stretches back to the 19th century when Congress began tasking the Army’s engineers with domestic civil works projects such as flood control and managing river navigation. The idea was to ensure that America’s major rivers, then the primary arteries of commerce, remained open and navigable, and that states did not impede navigation at the expense of their neighbors.

But this scheme failed to account for the reality of how bureaucracies mutate. Over time, the Corps of Engineers’ civil works grew more ambitious, as construction projects grew larger and budgets skyrocketed. By the mid-20th century, predictably enough, the Corps was bloated and inefficient, and had earned a reputation for poor planning, uncompleted projects, cost overruns and environmental damage.

Perhaps most notoriously, the Corps’ poor administration of (the) Mississippi River levee systems led to catastrophic failures when Hurricane Katrina struck the Gulf Coast in 2005. The Corps’ lackluster management practices greatly exacerbated the ruinous flooding that was the most visible aftereffect of that natural disaster.

And yet, none of that has stopped the Corps of Engineers from pushing forward into new areas beyond its mandate, including the regulatory realm. The Corps has been particularly aggressive in enforcing theClean Water Act, contrary to congressional direction. The law prohibits unpermitted discharges of pollutants into “navigable” waters. So those who want to discharge dredged or fill material into navigable waters must get a permit from the Corps. Thus far, that sounds reasonable enough.

But the Corps has breached the limits of its traditional authority in two ways. First, it defines “navigable waters” to include almost the entire network of non-navigable tributaries upstream of real rivers and lakes, including seasonal ponds and drainages on private property. This means that, technically, moving soil around in a seasonal pond or drainage by plowing a farm is the same as dumping truckloads of dirt into the Hudson River—a practice for which a dredge and fill permit is understandably necessary.

For farmers and small landowners, that’s almost a regulatory death sentence. Dredge and fill permits take years, and hundreds of thousands of dollars in consulting costs, to obtain. And they limit your ability to use your own property. In response, Congress—in a rare lucid moment—amended the Clean Water Act to say that normal farming and ranching activities do not require dredge and fill permits.

The Corps’ dredge-and-fill bureaucrats disagree with Congress’ policy choice to protect farming from their permitting control. So, they have “interpreted” the normal farming activities provision of the Clean Water Act with regulations that narrow its availability. Put simply, if you “take a break” from farming for any period of time and for almost any reason, you may need the Corps’ permission to resume.

The Trump administration has made much of its solicitude for farmers, and many of them in turn have shown the president their appreciation. But sadly, the Corps’ abuses of farmers continue under his watch, and even the recent and much-debated rewrite of the “navigable waters” definition still gives the Corps too much authority over farming operations.

There are solutions to this. The federal courts could restrain the Corps’ wayward misinterpretation of normal farming activities. A functional and more bipartisan Congress could enact commonsense clarifications that would keep the Corps off farms. And the Corps itself could revise its offending regulations so they conform to Congress’s expressed policy choice of not putting farmers under its thumb.

One piece of good news is that the Corps’ unchecked ambitions and subsequent abuses have led to pushback from both the political right and left. Could that be the foundation of a bipartisan political coalition aimed at checking the runaway power of this rogue agency? Here’s hoping that’s so. But until then, farmers and property owners may find themselves under the thumb of a civil works agency that behaves more like an occupying power.

Tony Francois is a senior attorney with Pacific Legal Foundation, which litigates nationwide to achieve court victories enforcing the Constitution’s guarantee of individual liberty.

 

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