EPA Disregard for 'WOTUS' Prior Converted Cropland Exclusion Kills Ag Jobs and Contributes to National Security Risk

Canada Free Press 2017 (A shorter distinct version of this paper was published by the WLF Legal Pulse)

9 Pages Posted: 2 May 2017

See all articles by Lawrence A. Kogan

Lawrence A. Kogan

The Kogan Law Group, P.C.; Institute for Trade, Standards and Sustainable Development (ITSSD)

Date Written: April 29, 2017

Abstract

The Federal government has incrementally extended its control over agricultural lands during the past forty years, by expanding the definition of “waters of the US” (WOTUS) under the Clean Water Act (CWA) and asserting broad legal jurisdiction over WOTUS-adjacent “wetlands.” Such activities have triggered Congressional investigations and significant public litigation. They also have facilitated the CWA’s growth into a “regulatory hydra” and caused a “reversal of terms [in our unique relationship with government] that is worthy of Alice in Wonderland.”

[...] The Obama administration regulation inter alia treats all “wetlands” adjacent to WOTUS as “jurisdictional waters” for purposes of enforcing CWA’s controversial Section 404 (dredge and fill permitting requirements). It does so by dispensing with the traditional case-by-case evaluations used to determine if jurisdiction applies to specific delineated wetlands. Although this regulation also states that the longstanding “prior converted cropland” (“PCC”) exclusion from WOTUS jurisdiction will be upheld, this result is not certain, and can be assured only through active ongoing White House oversight.

[...] In sum, if the Trump administration is truly serious about substantially rewriting the Obama WOTUS rule and bringing a rogue EPA (and Army Corps) bureaucracy to heel, ongoing White House oversight and supervision of EPA wetlands-related rulemaking and enforcement will be indispensable.

[...] No doubt, there is an urgent need to curtail foreign disguised regulatory trade barriers that harm U.S. agricultural exports. Nevertheless, U.S. domestic agriculture, wildlife and environmental regulations have, since 2009, steadily incorporated unscientific international law standards contributing significantly to the economic pain now being experienced by dairy and other farmers. [...]

Keywords: 'WOTUS,' prior converted cropland exclusion, clean water act section 404, USEPA, US Army Corps, Obama, Trump, economic freedom, family farms, US agriculture, national security, ag jobs, private property, over-regulation, over-enforcement, regulation without representation, US constitution

JEL Classification: A20, B53, B51, D13, D23, D43, E24, E61, F13, F18, I28, J21, J43, K11, K23, L53, N50, O13, Q00

Suggested Citation

Kogan, Lawrence A., EPA Disregard for 'WOTUS' Prior Converted Cropland Exclusion Kills Ag Jobs and Contributes to National Security Risk (April 29, 2017). Canada Free Press 2017 (A shorter distinct version of this paper was published by the WLF Legal Pulse). Available at SSRN: https://ssrn.com/abstract=2961794

Lawrence A. Kogan (Contact Author)

The Kogan Law Group, P.C. ( email )

100 United Nations Plaza
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New York, NY 10017
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2126449240 (Phone)

HOME PAGE: http://www.koganlawgroup.com

Institute for Trade, Standards and Sustainable Development (ITSSD) ( email )

P.O. Box 223
Princeton Junction, NJ 08550-9998
United States
6096587417 (Phone)

HOME PAGE: http://www.itssd.org

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