This article is intended to provide an historical account of these actions and their impacts for the purpose of vindicating the many small and medium-sized farming communities nationwide whose generations-old family farming families have been devastated by these ultra vires actions.
Part 1 of 3
San Joaquin Agricultural Law Review, Vol. 27, Forthcoming
The Kogan Law Group, P.C.; Institute for Trade, Standards and Sustainable Development (ITSSD)
Date Written: February 1, 2018
This article describes in detail the prior carefully coordinated and choreographed, but little known, congressional, federal agency and environmental extremist group campaign to prevent and reverse USDA-determined and authorized “commenced conversions” of wetlands to farmlands entitled to but not requiring cost-sharing under the Food Security Act of 1985, that were subsequently (in 1990 and 1993) grandfathered retroactively as an exclusion from regulation under Clean Water Act Section 404. These actions were committed following the war within Congress over the 1977 Clean Water Act amendments, and amid the ensuing jurisdictional wars then taking place among several federal agencies (the U.S. Environmental Protection Agency, U.S. Army Corps of Engineers, U.S. Department of Interior Fish & Wildlife Service, and U.S. Department of Agriculture) during the final years of the Reagan administration, and throughout the Bush ’41 administration and the two Clinton administrations. They arguably resulted in regulatory “takings” of farmers’ private property for a public use (preservation/restoration of wetlands as “waters of the U.S.”) without payment of just compensation, in contravention of the Fifth Amendment of the United States Constitution.
This article is intended to provide an historical account of these actions and their impacts for the purpose of vindicating the many small and medium-sized farming communities nationwide whose generations-old family farming families have been devastated by these ultra vires actions. It also is intended to inspire those current fair-minded federal agency and congressional officials with a conscience to craft and effectuate the statutory and regulatory changes needed, both within the Clean Water Act and the evolving 2018 Farm Bill, to return these farmers to their prior status quo ante.
The Trump administration has repeatedly hailed how it has relieved America’s farmers of their prior regulatory burdens and “ended the regulatory assault on [their] way of life.” Nevertheless, merely delaying by two years the implementation of the former Obama administration’s “Waters of the U.S.” (“WOTUS”) rule which extends EPA and the Corps’ already expansive CWA Section 404 wetlands jurisdiction over private farmlands, while endeavoring to rescind it, doesn’t go nearly far enough to guarantee this relief. President Trump’s more informed advisers likely recognize that he is facing a deeply entrenched regulatory and law enforcement legacy bureaucracy linked to the “deep state;” but, they may not realize that they must go back much farther in time, perhaps to 1977, or at least, to 1984 or 1985, to properly address the wetlands regulatory juggernaut that has steadily decimated our nation’s small and medium-sized farms. Specifically, he must both work with Congress and direct the heads of those federal agencies that participated in the prior conspiracy/choreography of curtailing the completed or commenced conversions of wetlands to croplands (i.e., FWS, EPA, Corps and USDA), to reclaim, reestablish and reaffirm for all of America’s farmers, especially Mr. Brace, their former PC and CC exclusions from FSA funding ineligibility and CWA Section 404 wetlands jurisdiction. Doing less or simply ignoring the magnitude of this problem will spell the end of America’s traditional farming communities as we have come to know them.
JEL Classification: D01, D18, D61, D62, Q12, Q15, Q18, Q24, Q25, Q28, K11, K23, K32, K41
Reprinted with permission from the author.
Parts 2 and 3 to follow
Free Range Report
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