Kewaunee County farmer Lynn Utesch was invited to testify before a congressional subcommitte last week against a bill that would limit the right to file a citizen suit against agricultural entities under the Resource Conservation and Recovery Act (RCRA).

The bill – dubbed the Farm Regulatory Certainty Act – was introduced by U.S. Rep. Dan Newhouse, R-Wash., in response to a citizen suit against four Yakima County, Washington, farms that entered into a consent order with the U.S. Environmental Protection Agency to address groundwater contamination issues.

“The goal of environmental rules should be to assist agricultural producers to improve nutrient management and reduce their environmental footprint, not to subject them to lawsuits that threaten to put them out of business,” Newhouse told the House Subcomittee on Environment. “This legislation would not prevent EPA from enforcing regulations under the Safe Water Drinking Act, the Clean Water Act, or any other applicable laws. Nor would this legislation exempt livestock producers from any laws or regulations intended to govern agricultural operations.”

Citing Kewaunee County’s example, Utesch said laws will not work unless citizens have the right to enforce them.

“My community has asked, over and over again, that state and federal agencies enforce laws designed to protect communities from the risks and pollution stemming from improperly managed agriculture; but over and over again, the governments have failed to protect us,” he said. “They lack the resources and the political will to take this animal agricultural industry on, and so communities like mine in Kewaunee County are left to deal with the mess, repetitively exposed to bad management practices that poison and pollute, even when that means we lack safe drinking water.”

Utesch said his greatest concern is that citizens would be unable to take action to enforce environmental law simply because agencies are taking some action, even if it’s ineffectual.

“Many community members no longer report brown water or contamination events to WDNR (Wisconsin Department of Natural Resources) because the state provides no help,” he said. “I worry that the effect of the Farm Regulatory Certainty Act would allow agencies to sit on their hands, and for my community, and communities like ours, to have no recourse when we need it most.”

A citizen lawsuit is always a last resort option, Utesch said.

“Anyone who breaks the rules and hurts an entire community – especially children – should be held accountable for their actions,” he said. “This can be painful because no one in a rural community wants to take their neighbor to court. We go to church together, and our kids go to school together, and we depend on one another in a way that is like nowhere else. But if someone pollutes the water our entire community relies on, and they refuse to change, and the government refuses to adequately fix the problem, this bill would destroy our last resort to protect our own drinking water.”

Dan Wood, Washington State Dairy Federation, said the consent order in Yakima County “required the farms to adhere to rigorous environmental operating conditions, such as increasing soil testing and submitting more frequent, detailed reports on soil and water conditions to the EPA.”

But the lawsuit forced the farms to spend millions more in legal fees, Wood said.

“Citizen lawsuits were intended to allow citizens to step into the role of the regulator when the government agency failed to fulfill its responsibilities,” he said. “These lawsuits were not intended to double down on penalties and costs, or place farms in double jeopardy when they are already trying to solve a problem collaboratively and cooperatively.”

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