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Environmental agencies have grown in darkness

Environmental Protection Agency Administrator Scott Pruitt visited North Dakota last week. The purpose of his visit was to seek input from North Dakotans on the present state of the EPA's Waters of the U.S. rule. His visit was also meant to draw attention to North Dakota's energy research programs, particularly those facilitated by the Energy and Environmental Research Center, which is located in Grand Forks, N.D., on the UND campus.

His visit was criticized by the media. Former Grand Forks Herald Editor and Publisher Mike Jacobs wrote about the matter, calling the visit an "imposition and an embarrassment."

Jacobs' comments are consistent with other media criticism of Pruitt. The general theme in the media is that Pruitt isn't open and transparent with how he administers his agency. An exemplar of this point of view was recently published in the New York Times, entitled "Scott Pruitt Is Carrying Out His EPA Agenda in Secret, Critics Say," can be found at https://www.nytimes.com/2017/08/11/us/politics/scott-pruitt-epa.html?mcu....

Farmers know Pruitt's agenda is no secret at all. Pruitt built a career on opposing, and even suing the EPA. And he was a popular attorney general in a state — Oklahoma — with significant agricultural interests. There is no arguing that the EPA has grown in size, scope and authority over the past 40 years and has done so in a stealthy, but consistent, manner.

It is fair to say that the implementation of Pruitt's agenda should be done so in a public fashion. And North Dakota's congressional delegation has worked hard to facilitate the openness of such important governmental business. In addition to Sen. John Hoeven, Sen. Heidi Heitkamp and Rep. Kevin Cramer Cramer, so has North Dakota Attorney General Wayne Stenehjem, through his advocacy of expanding North Dakota's Open Records and Open Meetings laws.

Two wrongs don't make a right, but it's important to recall that farmers were burned back in the 1980s when "Swampbuster" became a topic of legal importance. The 1985 Farm Bill introduced the "Swampbuster" program.

Swampbuster began as a concept whereby aquatic areas were protected from being drained or destroyed. It was introduced partly because of the background work by the National Wildlife Federation and the National Audubon Society. The first concept was to permit drainage of non-aquatic areas, and to permit continuing drainage in such areas where such work had already begun. There was no meaningful congressional opposition to such concept. The Swampbuster legislation was introduced in the House Ag Committee as denying federal farm program benefits if a wetland was impermissibly converted into a non wetland. Local decision makers were to be given heavy deference to protect local farmers from unfair determinations.

But the final rules of Swampbuster, which were passed a couple of years later, were vastly different from what was advertised. Since then, several federal agencies that impact farmers and their efforts to drain their land — the EPA, U.S. Army Corps of Engineers, Farm Service Agency and the Natural Resources Conservation Service — have grown in scope, funding and authority. Farmers have been "playing defense" in this chess game for 30 years.

Farmers who find themselves on the wrong side of the law with the Clean Water Act are aware that there are criminal enforcement provisions to the CWA. In fact, in a Florida case from the late 1980s and early 1990s, United States v. Mills, 817 F.Supp. 1546 (N.D. Fla. 1993), the defendants were sentenced to two years in prison for cleaning a drainage ditch and filling it in after receiving permission from the State (Florida) Department of Environmental Resources.

The judge in that case wrote "[a] jurisprudence which allows Congress to impliedly delegate its criminal lawmaking authority to a regulatory agency such as the Army Corps — so long as Congress provides an "intelligible principle" to guide that agency — is enough to make any judge pause and question what has happened."

If you want to drain farmland, consider seeking legal counsel.

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