Good Morning David,
No doubt about it, the Army Corps of Engineers has become a rogue agency.
As featured in a recent edition of The Hill, Pacific Legal Foundation Senior Attorney, Tony Francois, says, 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 -- for farmers and small landowners, that’s almost a regulatory death sentence. Here’s Mr. Francis: “This is not something that needs to continue. There are a couple of things that can fix this problem. First of all, Congress can get clearer in its adoption of the Clean Water Act. That farming is exempt, is not covered by these authorities that the EPA acts under. And the courts could also limit the degree to which EPA can use its authority to regulate dirt being moved or out on farms.”
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’s dredge-and-fill bureaucrats disagree with Congress’s 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’s permission to resume. The Corps has gone rogue!