Recognizing the Continual Improvement of Water Quality


I had not realized that my landlocked farm was in fact a waterfront property.

Yet that’s what federal regulators were on the verge of insisting, until the Supreme Court set them straight last month, in an important ruling that will stop an attempted audacious land grab by the Environmental Protection Agency—and preserve my freedom to farm.

In Sackett v. EPA, the justices blocked an aggressive re-interpretation of the Clean Water Act that threatened the property rights of millions of Americans. The 9-0 decision is a huge victory for farmers, who are the best stewards of their own land.

“I cannot overstate how big a win this is,” wrote Stephen D. Anderson, President and CEO of the Pacific Legal Foundation, the public-interest law firm that brought the case. “[It] clears up 50 years of confusion and puts a check on the EPA’s decades-long mission creep by restoring the scope of the Clean Water Act to what Congress intended.”

The PLF represented a married couple who had tried for years to build a home. Regulators at the EPA blocked them, claiming, in the words of a Wall Street Journal editorial, that “the Sacketts’ property was connected to a wetland some 30 feet away, which was connected to a ditch that connected to a non-navigable creek that connected to a lake.”

The editorialist then added, facetiously: “Follow that?”

Only a bureaucrat would try to follow this line of illogic. The rest of us can laugh. Yet the EPA’s activities had me worried for a while because the agency created enormous uncertainty about what I could do on my own land.

During the Obama administration, the EPA tried to use unprecedented powers by claiming that the Clean Water Act gave regulators in Washington, D.C., the authority to dictate what happens on countless acres of the private property owned by farmers and other ordinary Americans. Officials in the Trump administration squelched it, but the Biden administration revived it two years ago.

In a column back then, I explained how the EPA might even determine that it has jurisdiction over my corn and soybean fields because of my farm’s grass waterways.

These drainage paths protect my farm from soil erosion. They’re dry about 98 percent of the time, but they carry water following a hard rain—and the EPA’s astonishing re-interpretation of what constitutes a navigable waterway possibly could have meant that I’d need to seek federal permission to make basic farming decisions.

The irony is that we built these waterways for reasons of agricultural sustainability. They conserve the healthy black soil that my crops need and help hold crop protection products and fertilizer where it is needed, on my crops. The EPA, however, threatened to turn these positive sources of conservation into potential paths of regulatory destruction.

I suggest a different approach: Instead of attempting to push an agenda based on an ideological interpretation of the Clean Water Act, federal officials ought to pause and recognize how far we’ve come.

Legislated in 1972, the Clean Water Act seeks to prevent water pollution. It’s a worthy goal that we all share—and since its passage, the quality of America’s waterways has improved enormously. Even President Biden has said so. “Our nation’s waters are dramatically cleaner,” he said last fall in proclamation to commemorate the law’s 50th anniversary. “Once dead rivers and lakes are now flourishing with wildlife.”

Experts disagree about how much credit for this accomplishment belongs to the Clean Water Act. I believe farmers should share at least some credit. We think about water all the time, and we care about its quality as much as anybody.

And the fact remains that we’re doing a lot better now with water quality than we were when I was a young man.

In other words, our current laws and rules are working as intended. We don’t need stricter regulations based on personal interpretations of the Clean Water Act, or the unreasonable demands of political activists.

The policy of the EPA and the rest of the federal government should be to join the Supreme Court in supporting and trusting farmers and landowners to do the right thing.

Let’s celebrate our success and keep on improving.

Daniel Kelley

Daniel Kelley

Daniel grows corn and soybeans in partnership with his brothers and son. Long history with agriculture cooperative systems, providing leadership to GROWMARK and CoBank.

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