What A Difference A Person Can Make – July/August 2010

This month’s Wyoming Agriculture includes the responses submitted

by a number of statewide and national office seekers to questions important to Wyoming Agriculture.  While these questions delve into some issues about agriculture, they don’t convey all there is about a candidate.  A little effort on the internet may also yield some information about the candidates; which will help people elect someone whom they feel best represents them.  Representation of the people is a republican form of government’s most basic foundational principle.  But how do we know if they really do represent us?

Over the years, as our society has gotten more complex, it has become more difficult to connect the people who write and the people who interpret laws with the consequences.  When Congress passes a broadly written law, the consequences of that action continue to manifest itself in ways most of those representatives never imagined.

Here is a recent example.  For those in the agricultural arena who apply pesticides near ditch banks, your life is about to become more complicated.  This isn’t due to any new legislation or action of an agency, but instead it is due to a judge in the 6th Circuit.  The judge decided the process the Environmental Protection Agency (EPA) had been using to heavily regulate pesticides for over 30 years is not what Congress meant when the body passed the Clean Water Act.

When the Clean Water Act was passed, Congress wanted to clean up sources of pollution from “point sources” by requiring entities that discharge pollutants into waters of the United States to obtain an NPDES (National Pollutant Discharge Elimination System) permit prior to taking that action.  The thinking of Congress was that if we limit the amount of pollutants from factories entering the nation’s waters via a “permission” system, and don’t grant permission if the amount is causing the waters to not be fishable or swimmable then eventually we will have cleaner water.

With the recent 6th Circuit decision we learned that apparently, according to the 6th Circuit, Congress considered a point source to be a spray nozzle on a backpack sprayer that could dispense a pesticide “on or near a water of the U.S.”  Thankfully this decision did not apply to application of pesticides to crops.  This is due to the early efforts of agriculture groups, including Farm Bureau, in getting exemptions when the legislation was first drafted.

If you thought all you had to do is apply the pesticide in accordance with the labeled directions, the 6th Circuit says you thought wrong.  So, in the near future, if a food producer wants to apply a pesticide “on or near waters of the U.S.” they will need to look into obtaining a permit from either our state of Wyoming Department of Environmental Quality or from EPA if you happen to live within the boundary of the Wind River Reservation.

This is one instance where a nameless, faceless bureaucrat deep within the bowels of EPA can’t be blamed, but instead it is one individual in the Judicial Branch who basically reinterpreted the Clean Water Act.

The solution of course would be for Congress to come back and clarify this Act so the judge doesn’t have as much ability to put his own spin on the words.  Instead Congress is busy trying to add on to the regulatory requirements by amending the Clean Water Act to take out the word “navigable” or in the recent Chesapeake Bay case seek to broaden the Act a little bit at a time and then come back for more.

This is an example of how the power of one person in the judicial branch can cause a significant economic impact on a large group of people by just reinterpreting a broadly worded law.  To an urban legislator this doesn’t mean much.  However, keep piling on the straw and the food production camel’s back will eventually break.

By Ken Hamilton, WyFB Executive Vice President

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