Using Water to Take the Land (again)

Since its enactment, the Clean Water Act of 1972 has led to significant and continued improvement in the quality of the nation’s waters.  By in large, it has been a successful piece of legislation. Among other things, it has lead to stronger silt control legislation for construction sites and has made factories clean up their waste before it is put back into the water cycle.
The current law does rightly limit government authority over folks private property, and, as always, some government agencies have made attempts to overstep these boundaries. The US Supreme Court has made at least 2 decisions that Federal Agencies exceeded the authority granted them by this act. Rather than accept the High Court’s decisions in these cases, some advocates have decided to change the language of this law.

landgrab.gameIn 2009, I published an article about a couple of bills that had moved through the US House and Senate that would have changed the word “navigable water” to “waters of the United States”.  Although it may be well-meaning, from an environmental protection standpoint, it is a dangerous proposition- since the act says that the US Government OWNS the navigable water- this change actually gives the US Government ownership of EVERY drop of water that falls on US soil.  This would include that water that is contained in the soil (and therefore the soil itsself) and could easily be used to force land owners to stop harvesting rain or restrict use of private wells, if not out-and-out remove owners from the land they live on.  This is why many private property advocacy organizations as well as farmers across the nation were so outspoken against this idea back then, and their efforts killed the respective bills.

Today, the EPA is asking for the same change, and they are enlisting all sorts of well-meaning folks for help.  Here in Georgia, where I help operate a small farm, we are members of Georgia Organics, an organization which provides advocacy and support for farms of all size who are interested in sustainable and natural farming practices.  Georgia Organics publishes contact information for all its member farms.
We recently got a message from a young man representing an organization called Environmental Georgia asking us to sign a “food producers petition for clean streams in Georgia”.  It is a petition affirming the dangerous change in wording that is now proposed by the EPA.

Small farmers, well-owners, rain harvesters, and other responsible landowners are on the right side of this issue- we understand that the water resources we have is all we get, and we do whatever we can to protect and preserve it.  I would be terribly upset if a public or private utility contractor were allowed to drill wells on my property without my consent, and remove that water to sell to its customers.

I don’t suppose Environmental Georgia really wants the federal government to take land from private citizens.  I believe these folks are honestly trying to do what is best for the environment, but as with so many pieces of legislation, unintended consequences are not always considered.  We hope Environmental Georgia and other similar groups across the country will think about all the known and well-documented problems with this revision and help push the EPA to find a way to protect wetlands without leaving an open loophole for corporate interests to use their lobbying power to take resources away from us- the small farmers of America.


FavoriteLoadingAdd to favorites
Posted in:
About the Author

Rob Miller

Rob's background in Environmental Horticulture and the green industry, as well as time working as a Legislative Aide and Private Property Rights Advocate at the Georgia General Assembly, informs his unique perspective on metro Atlanta water issues, as well as water and its management as a global issue.

One Comment

  1. Here is the email we received from Environment Georgia, as well as my response:



    My name is Cal van Willigen and I’m with Environment Georgia. We’re a non-profit organization that fights for clean water in Georgia.

    I’m contacting you today because the EPA is working to close loopholes in the clean water act that would protect small streams and wetlands that aren’t currently protected. The opposition to this extension is trying to say that farmers aren’t interested in protecting small streams because big agribusiness doesn’t want to take responsibility for their chemical runoff getting into Georgia’s waterways. Environment Georgia is trying to find farmers and other food producers who do want these small streams protected to show that big agribusiness doesn’t represent the views of all Georgia farmers and the food producers who work with them.

    Would you be interested in signing on to our food producers petition for clean streams in Georgia? The attached and below letter is the cover letter we’ll be sending to the White House with our list of food producers who support clean water in Georgia. It gives a more detailed explanation of our petition.

    All you have to do to sign on to the petition is email me back the following information:

    -Your name
    -The name of your farm or business
    -Your phone number
    -The county your farm or business is in

    Thank you,

    Cal van WIlligen
    Environment Georgia State University
    108 E. Ponce de Leon Ave., Ste. 210
    Decatur, GA 30030

    The Honorable Barack Obama
    The White House
    1600 Pennsylvania Ave. NW
    Washington, DC 20500

    Dear Mr. President:

    As farmers in Georgia, we write to you to urge you to quickly move forward with a rule to restore critical Clean Water Act protections to Georgia’s waterways and waters nationwide.

    We all know how critically important clean water is to our livelihoods in Georgia and the vitality of our communities. Across Georgia, farmers depend on clean water for crops, livestock, drinking water, and the wellbeing of our families. We have a close relationship with the tributaries and wetlands that feed into iconic waterways like the Chattahoochee River and stewardship of Georgia’s water resources is integral to our economic success.

    Rivers, like the Chattahoochee, the Flint and the Savannah are hallmarks of what make Georgia special and they provide our state with water for agriculture and livestock, drinking water, and recreation. But the health of Georgia’s rivers are in crisis.

    Beginning in 1972, the Clean Water Act protected all of the nation’s waters, from small, unnamed streams to the mighty Altamaha River. But now, because of two bitterly divided Supreme Court decisions (SWANCC in 2001 and Rapanos in 2006) and policies stemming from these decisions, uncertainty threatens countless critical resources with unregulated pollution, including headwater streams, lakes, tributaries, and wetlands.

    The threat is enormous. Here in Georgia, according to EPA data, the drinking water sources of over 4.9 million Georgians may no longer be protected because the streams that feed these sources are seasonal or intermittent. Similarly, our major waterways are only as clean as the streams and wetlands that feed into them, and 57 percent of streams across Georgia are now inadequately protected from pollution.

    Another major concern for farmers across Georgia is that of wetland conservation. Wetlands are crucial to lessen the severity of flooding. An acre of wetlands can typically hold at least 1 million gallons of flood water. Over the last few years, severe floods have struck farmers and rural communities across the heartland and in New England, devastating crops and families’ homes. These floods could become more severe unless our wetlands are clearly protected by the Clean Water Act.

    To protect our cherished waters like the Flint, the Chattahoochee and the Savannah we urge you to move forward with a rulemaking to restore critical protections to these waters under the Clean Water Act and reaffirm the scope of the Clean Water Act that existed for more than three decades.

    We believe, by restoring the Clean Water Act, that your administration can put us back on track to be a country where all farmers can depend on clean water for their crops and livestock, and all Americans will have access to water that is safe for swimming, fishing, and drinking.

    We appreciate your commitment to protecting Georgia’s waterways, and we hope you will move quickly to ensure they are protected for years to come.

    The following is a list of farms that have already signed on to the petition:
    Skylight Farm, Goolsby Produce, The Funny Farm, Grandma Brocks Country Farm, Mountain Earth, Farmhouse Beef, Woodland Gardens, Cimino Farm, D+A Farm, and Crystal Organic Farm.

    We would love to add your name to the list! Thanks again.



    Thank you for contacting Trefoil Gardens with this concern. I can tell that you are highly motivated to help protect the Nation’s wetlands and streams. That is an extremely noble goal.

    As a well driller, I am deeply concerned about not only protecting water resources, but also the rights of individuals to access the water on their own property.
    I have been watching various attempts to change this bill since 2006, and actually first wrote about it in 2009, when 2 separate bills (one in the House and one in the Senate) had proposed these same changes. I have even published a few articles on the subject. Here is a recent post.

    The change in wording from “Navigable Waters” to “Waters of the United States” would give the United States Government OWNERSHIP of every drop of water that is within its boarders. Although this might be used to protect wetlands and streams, it could also be used by corporate interests and their lobbyists for a plethora of potential misdeeds.
    For example:
    I do not see any new protection for small farms and landowners against private or public utilities being allowed to drill wells on someone’s private land without their consent, then selling that water to their customers.

    For this reason, among others, I cannot support your effort. In fact, I must beg you to reconsider your position. I am happy to sit down with you any time to discuss our mutual concerns, and hope we can work together toward some better goal in the future.