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NOTE: This series looks at the agency’s overreach and how it affects the day-to-day operations of American businesses.
Jack Field’s world has long revolved around cattle. His parents were cattle ranchers, and Field and his wife bought some of their herd several years ago and have kept the family business going. Today, they run a herd of about 120 cows in Yakima County, Washington.
“We have too many to be a hobby and not quite enough to make a living,” Field joked in an interview. “We’re a small operation, but we’re trying to grow it into a something bigger.”
That will soon be much more challenging due to overregulation from (the other) Washington.
The Fields’ livelihood and those dreams depend on their cattle, so they depend on having land on which those cattle can graze. In the past, they have always leased nearby pastures from local landowners. However, due to a new rule that expands the definition of federally protected water and gives federal regulators unprecedented authority over local land use, Field isn’t sure he’ll be able to return to those fields in the years ahead.
Under the rule, which was finalized earlier this year by the Environmental Protection Agency, the agency can claim jurisdiction over any “waters” that are deemed to be adjacent to streams, wetlands and creeks, essentially stripping away broad regulatory power from states and local jurisdictions. In the process, the EPA has opened landowners and ranchers up to a host of new permitting requirements, as well as potentially devastating fines and lawsuits.
“For the price of a postage stamp, someone who disagrees with eating red meat could now throw me into court, where I will have to spend time and money proving that I am not violating the Clean Water Act,” Field told the House Small Business Committee at a hearing last year. “I don't think this is what anyone had in mind when Congress passed the Clean Water Act.”
With the added liability, it’s not surprising that landowners who have leased Field their property in the past have expressed concerns about his operations moving forward.
“It may very well end up that landlords decide that my cattle grazing activity now has too high a risk profile under this new rule, and they may no longer want to rent the land to me,” Field said in an interview. “If that’s the case, and I can’t find somewhere to run my cattle, I’ll have to get rid of them - that’s just the way it works. I’m not sure what we would do then.”
He later added: “It turns off landowners, farmers and livestock producers, because it just feels like a massive power grab. Frankly, it should scare everybody to death.”
It’s not merely scary, he said. It’s also counterproductive.
“Having this top-down directive coming from 3,000 miles away saying we in Washington, D.C., know what’s better for you in Washington state, or in Arizona or North Dakota or Idaho, that doesn’t sit well with folks, and as a result, it’s extremely ineffective, because the stakeholders didn’t have a say,” Fields added. “Does the EPA secretary really know what’s going on in my watershed here in Yakima, Washington? I doubt the secretary has ever even been here.”
His industry isn’t alone, either.
Jack Field, Cattle Rancher
“The WOTUS rule will choke and stymie a wide range of small businesses, not just livestock and agriculture,” he said, noting that construction companies, timber producers and a host of other sectors have come out against the rule. “It’s basically any small business that relies on the land that could be impacted by this, and that’s why you’re seeing so many people in so many industries stand up with a unified voice and oppose the rule.”
Not surprisingly, the Small Business Administration’s Office of Advocacy, which stands up for the interests of small businesses in the nation’s capital, has urged regulators to redo the rule, which federal estimates show will cost firms millions of dollars in permitting and mitigation costs.
The U.S. Chamber of Commerce has called on the EPA to throw it out, too. William Kovacs, the Chamber's senior vice president for Environment, Technology and Regulatory Affairs, testified before the House Science Committee, saying that “the rule will have a chilling effect on project development and force property owners to hire consultants, specialists, and lawyers.”
Ultimately, he said, it will have “significantly adverse impacts on the country's economy, the ability to create jobs in the U.S., and the ability of states to implement these new standards.”
So far, the EPA has ignored those warnings.
But then, that’s not all that surprising, either.
The WOTUS expansion is part of a broader regulatory overreach by the EPA in recent years, as environmental rulemakers in the nation’s capital continue to strip away powers once reserved for states and reach deeper into the day-to-day operations of private businesses around the country. In addition to WOTUS, EPA has recently proposed and finalized new rules that, for example, impose onerous new ozone standards and choke power suppliers with red tape.
The EPA’s increasingly long-armed approach to regulation not only threatens business owners like Field, it undermines otherwise effective environmental protection solutions that many states have crafted and adopted with the help of the private sector.
In Washington state, for instance, the Department of Ecology has over the past couple years moved away from what Field described as a once “litigious, heavy handed regulatory approach, not unlike what we’re seeing from the EPA.” Under the department’s new director, Maia Bellon, who took office in 2013, the state’s environmental regulators formed what became known as the agriculture and water quality advisory committee - comprised of business owners, trade groups, farmers, government officials, environmental groups and academics - to examine critical threats to water quality and other environmental issues and try to craft solutions.
“Trust me, at the beginning of the process, nobody was excited about sitting down to talk through water quality issues,” Field said of his peers in the livestock industry who showed up to the first meetings. “On the other hand, it was something that needed to be done, and at the end of the day, we knew we were getting a say and would have ownership in the outcome.”
And that’s exactly what happened. Over the course of about a year, as Field described it, the public and private sector “came together, identified the existing and potential problems, put our heads together, and came up with workable solutions.” Last month, with the help of researchers at Washington State University, the committee issued a guidance document for landowners and agricultural business owners to help them understand the risks to water quality, the protective measures that were needed, and how the industry arrived at those recommendations.
“Now, I can go out and talk with other livestock owners, explain the problems and how we came up with this plan, and they can easily understand what’s at stake and what’s needed,” Field said. “In my opinion, that’s the kind of collaborative solution we need to work toward, rather than the EPA’s heavy-handed ‘here’s our solution to all your problems’ directives.”
Instead, it appears the directives from the other Washington are going to keep on coming, drowning Field’s and many other small businesses in unnecessary and unproductive red tape.
“They need to take the rule, wad it up and throw it in the garbage, then let’s go back and do this correctly,” Field said of WOTUS. “Let’s have local discussions and listening sessions, identify the problems, have an educated discussion and come up with solutions in each state.”
Because those are the solutions that work.
“I’m not opposed to clean water; I want to drink the same water you do,” Field said. “I just think the best way to ensure that we have clean water is from a locally led effort, where we all have a say and we all have buy in from the beginning.”