TheFirstFurrow

It’s no secret that farmers nationwide oppose the Obama Administration’s 2015 Waters of the U.S. (WOTUS) Rule. As we’ve written here before, the 2015 Rule would significantly expand the area where the federal government has the authority to regulate water. Why? Because under the 2015 Rule many tracts of land would become newly regulated “waters,” even land that is only wet for a couple of hours after it rains.

If implemented, farmers would have to apply for costly federal government permits to engage in even the most basic farming practices on these lands. And there is no guarantee that those permits would be approved. Accordingly, numerous federal lawsuits were filed in 2015, including one brought by American Farm Bureau, in the hopes of stopping the WOTUS Rule.

On Monday, the Supreme Court of the U.S. (SCOTUS) once again waded into the WOTUS Rule waters, issuing an opinion in one of those lawsuits, National Association of Manufacturers v. Department of Defense (NAM). The Court’s decision wasn’t a blockbuster (or a page turner, for that matter). It merely stated that opponents of the Rule had to file their legal challenges in the federal district courts, not the federal appellate courts. That’s the result the opponents of the Rule were hoping for. So, let’s call it a narrow win for farmers and other landowners.

But, ironically, the Court’s decision may be a double-edged sword. To explain why, we’ve got to look back at those 2015 lawsuits we mentioned above.

Remember that, until Monday, opponents of the WOTUS Rule weren’t exactly sure where to file their lawsuits. Should they file in federal district court or federal appellate court? To hedge their bets, multiple lawsuits were filed in both courts. Of the cases filed in federal district court, most were dismissed by federal trial judges who said they didn’t have authority to hear the challenges because the cases should have been—wait for it—filed in the federal appellate courts! But a district court judge in North Dakota said otherwise and blocked the 2015 Rule from taking effect. However, that ruling only applied to 13 states: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming. Therefore, North Carolina farmers were not protected by the judge’s order.

Meanwhile, the cases filed in the federal appellate courts were consolidated in the Sixth Circuit, U.S. Court of Appeals. The Sixth Circuit ultimately blocked the Rule from taking effect while it wrestled with the procedural question that SCOTUS answered earlier in the week. Unlike the North Dakota decision, the Sixth Circuit’s order took effect nationwide and it has been in effect since October 2015. As a result, North Carolina farmers haven’t had to comply with the 2015 Rule.

But the nationwide order blocking implementation of the 2015 Rule will go away soon. That’s because, at the end of its Monday opinion, SCOTUS sent the NAM case back to Sixth Circuit, directing it to dismiss the all of the cases challenging the rule. If the Sixth Circuit doesn’t have the power to hear those cases, it can’t continue to block the WOTUS Rule. The process of sending NAM back to the Sixth Circuit will take a little over thirty days. So sometime in late February the national stay that has protected North Carolina farmers from the 2015 Rule will evaporate.

Via American Farm Bureau Federation

On January 8 President Donald Trump unveiled a major initiative designed to strengthen a rural economy that has lagged urban areas in recovery from the Great Recession of 2007-2008. Trump signed two executive orders that fund and streamline the expansion of rural broadband access after an address to 7,400 farmers and ranchers gathered at American Farm Bureau Federation’s 2018 Annual Convention.

In addition to economic development, Trump touched on issues of particular importance to agriculturists such as regulations, labor and trade. He praised farmers for their enduring values. “We are witnessing a new era of patriotism, prosperity and pride—and at the forefront of this exciting new chapter is the great American farmer.” Farmers, Trump said, “embody the values of hard work, grit, self-reliance and sheer determination.”

The president spent much of his address decrying the costs of excessive regulation and tallying the rules his administration has moved to eliminate.

“We are also putting an end to the regulatory assault on your way of life. And it was an assault,” he said. Trump singled out the Waters of the United States rule, now being withdrawn following an executive order he signed in the first weeks of his administration. “It sounds so nice, it sounds so innocent, and it was a disaster. People came to me about it and they were crying – men who were tough and strong, women who were tough and strong – because I gave them back their property and I gave them back their farms. We ditched the rule.”

Trump acknowledged controversy over the North American Free Trade Agreement and other trade agreements that account for roughly a quarter of U.S. agriculture revenues. “To level the playing field for all of our farmers and ranchers as well as our manufacturers we are reviewing all of our trade agreements,” he said. “On NAFTA I am working very hard to get a better deal for our farmers and ranchers and manufacturers.”

Trump promised the farm bill would continue to lend stability to farmers who are now entering their fifth year of declining incomes. “I look forward to working with Congress to pass the farm bill on time so that it delivers for all of you, and I support a bill that includes crop insurance,” he said.

AFBF President Zippy Duvall said Trump’s visit marked a watershed in D.C. politics.

“Farmers and ranchers have too long faced burdensome regulations,” Duvall said. “This president understands the toll government overreach has taken on ordinary business and is moving swiftly to clear the way for prosperity. We are moving into yet another year of economic difficulty. Relief could not have come at a better time.”

Brent Jackson was elected to the North Carolina Senate in 2010 and is currently serving his fourth term representing Duplin, Johnston, and Sampson counties. He is the co-chairman of the Senate Appropriations/Base Budget Committee and serves on numerous other committees as well.

Jackson and his wife Debbie are first generation farmers, starting Jackson Farming Company in Sampson County in 1981. They currently grow watermelons, cantaloupes, honeydews, strawberries, pumpkins, corn, wheat, soybeans, peanuts, flue-cured tobacco, occasionally cotton, and various other crops.

Question #1: There are only five North Carolina legislators (about 2% of the General Assembly) who list farming as their occupation. As a farmer, what perspective do you bring to the General Assembly? Conversely, is there anything you’ve learned as a legislator that has given you new perspective on the farm?

There are a wide variety of backgrounds amongst my fellow legislators, and I believe that everyone’s individual and unique experiences are a source of value. As a farmer, I have tried to ensure that my colleagues know where their food comes from and the work that goes into putting food on the shelves. I have also made it a point to stress the goodness of American agriculture and the wonderful and exciting career opportunities that exist, especially for young people.

Question #2: In your opinion, what is the most significant state-level issue facing farmers in North Carolina? And what is one issue that may not be on the front-burner for farmers that you think they need to pay more attention to? Why?

I think there are several main issues that we will have to continue to work on at the state level. The first is labor, although mainly a federal issue and President Trump and Congress are working on a solution. However, it is important that from a state level, we are careful not to pass laws making it more difficult for farmers to use a legal workforce. Without a reliable and legal workforce, crops cannot be harvested.

We must also make sure that our regulatory framework is set up to foster growth in the industry and recognize that one-size-fits-all regulations rarely work in farming. Water rights will continue to be an issue that we must remain vigilant on. It will be important for farmers to make their voices heard as the EPA goes about reviewing and rewriting the Waters of the US (WOTUS) rule.

Farming is a way of life in rural North Carolina, and we must do a good job working with our urban citizens to ensure that rural and urban North Carolina works in harmony.

Another issue that we must tackle to ensure the future of farming is the average of the farmer, which in North Carolina is in the mid-50s. Too many of our children in rural communities are moving off the farm and to the cities. It is crucial that we make sure we inspire the next generation of farmers and expose our children to the career options that the ag industry offers. We must also make sure that we help first-generation farmers overcome the barriers to entry, especially given the price of equipment and land.

Question #3: Obviously, you’re very involved in agriculture policy at the legislature. What is another policy area you spend a lot of time working on?

With Congress back in their districts for August Recess, we thought it’d be a good time to talk about some federal issues that are a high priority for Farm Bureau. This week: WOTUS.

So what is WOTUS? Back in 2015 the Environmental Protection Agency (EPA) and US Army Corps of Engineers (Corps) adopted a rule defining the scope of “waters of the US” (WOTUS) protected under the Clean Water Act (CWA). That rule, the WOTUS rule, expands federal authority beyond the limits approved by Congress and affirmed by the U.S. Supreme Court.

But you may be thinking, ‘didn’t courts strike down the WOTUS rule?’ Yes and no. The rule has never been implemented because it was stayed in both federal district court and a federal court of appeals. But those court orders are only temporary. And while the EPA’s current plan is to eliminate the 2015 rule and work on crafting a better WOTUS definition, environmental activists desperately want to preserve the 2015 land grab.

The impact of the 2015 rule on farmers will be enormous. That’s because the rule effectively eliminates any constraints the term “navigable” previously imposed on the Corps’ and EPA’s CWA jurisdiction, and the list of waters deemed “non-navigable” is exceptionally narrow—providing that few, if any waters, would fall outside federal control. This kind of shift in policy means that EPA and the Corps can regulate any or all waters found within a state, no matter how small or seemingly unconnected to a federal interest.

Last week, the Supreme Court of the United States heard oral arguments in US Army Corps of Engineers v. Hawkes Co., Inc. The case is significant for a number of reasons: it could have major implications on how landowners are allowed to use their property; it could strike a blow to regulatory overreach by government bureaucrats; and it could provide insight into how the Court will view environmental regulation in future cases.