By Daren Bakst

Discussions about agricultural policy usually focus on how the federal government should help farmers. However, the other side of the equation is also critical. How does the federal government intervene in ways that makes it more difficult for farmers to farm their land?

Through what seems like an endless number of regulatory obstacles, the federal government is making agricultural production extremely difficult for farmers. Legislators should address these obstacles from Clean Water Act regulations, the Endangered Species Act, to mandatory disclosure of genetically engineered food. While ideally these issues would be addressed right away, the farm bill may be an important vehicle for the necessary reforms.

One of the prime examples of this regulatory problem is the Environmental Protection Agency’s and U.S. Army Corps of Engineers’ “Waters of the United States” rule. At issue is the very definition of what waters these agencies can regulate under the CWA.

In many ways, calling these waters “waters of the United States” is problematic. The CWA covers “navigable waters,” which is further clarified to include “waters of the United States.” The precise terminology of “navigable waters” shouldn’t be ignored, which is something both agencies are keen to do.

The rule tries to regulate almost any water imaginable, from certain man-made ditches to ephemeral streams. The vagueness of the rule is also a critical problem. The rule is drafted in such a way that the agencies can make numerous subjective decisions, offering little clear objective guidance for farmers. As a result, it isn’t merely the breadth of the rule that is at issue, but now knowing how to comply with the rule that will scare off farmers from engaging in even normal farming activities.

This rule isn’t currently being enforced as a result of a stay from the Sixth Circuit Court of Appeals. However, Congress needs to take action and not expect the judiciary to provide the necessary clarity. Consistent with the plain language of the law and the statute’s own stated respect for cooperative federalism, Congress needs to define “navigable waters.”

This is far from the only CWA issue impacting agriculture. For example, the EPA is addressing water quality in the Chesapeake Bay, where the agency is effectively seeking to regulate agricultural runoff and other non-point sources of pollution (pollution coming from multiple sources over a wide area, as opposed to pollution from a point source that is a specific and identifiable source). The EPA is allocating specific limits of pollution for numerous segments of the Bay by source, including nonpoint sources. The concern is that this could lead to the EPA influencing where farming will be allowed across the country.

Congress should stop EPA micromanagement and allow states, communities and farmers to have significant flexibility as they work together in addressing their unique water quality issues. Congress should clearly prohibit the EPA from regulating, directly or indirectly, non-point sources of pollution.

Also of significant concern is the Endangered Species Act, which was enacted to promote the conservation of species. While there are numerous problems with the statute, there are some underlying flaws that need to be addressed. Society has determined that protecting endangered species is an important goal. A major problem is the costs of achieving that goal are borne by property owners alone, often through severe restrictions on the use of their property. As a societal goal, the costs should be paid by society as a whole. Farmers and ranchers frequently are the property owners bearing these costs.

Regulation is often a great way for government to avoid showing the true costs of its actions. This is precisely what’s happening with the ESA. This statute should be changed from a regulatory scheme that constantly tramples on property rights (such as by restricting certain development on private property) to a transparent program where taxpayers foot the bill to achieve the law’s objectives. States, many of which already have conservation programs, should be allowed to have a bigger role working in partnership with property owners.

Environmental regulations aren’t the sole regulatory obstacles. For example, the recent fight over mandatory labeling of genetically engineered food provides an excellent example of another regulatory obstacle and how modern agriculture is being attacked. Regardless of whether the recent passage of a federal national mandate was a wise tactical move to preempt Vermont’s mandatory labeling law, any mandate is flawed policy.

Through a mandate, the federal government is now requiring the disclosure of information that isn’t supported by the science and has nothing to do with the nutrition or health of the food. These disclosures are misleading to consumers, giving the impression that there’s something wrong with agricultural biotechnology and the crops grown by so many American farmers. The regulatory process implementing the law may reduce the harm somewhat, but this is just the beginning of the attack on genetically engineered food.

The preceding examples are just a small sample of the many regulatory obstacles facing farmers and ranchers. These obstacles need to be discussed further and thoughtfully addressed. Our nation’s farmers and ranchers shouldn’t be undermined by federal overreach and a disregard for property rights.

Daren Bakst is a research fellow in agricultural policy in the Thomas A. Roe Institute for Economic Policy Studies at The Heritage Foundation (


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