U.S. Senate Tells EPA/Army Corps to Back Off Farmers re: WOTUS Clean Water Act

Edited by California Ag Today Staff

A report issued TODAY by a U.S. Senate committee documents how federal agencies overreach their authority to regulate farmland, according to the California Farm Bureau Federation (CFBF), which said the report underlines the need for congressional action to reform the agencies’ practices, particularly regarding the WOTUS Rule.

The report from the Senate Environment and Public Works Committee describes numerous incidents in which the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency have tried to expand their authority to regulate what crops farmers grow and how they grow them, based on the agencies’ interpretation of the Clean Water Act.

“A disturbing number of the cases described in the Senate report came from California,” CFBF President Paul Wenger said. “Farmers and ranchers here have seen firsthand that the abuses outlined in this report aren’t theoretical—they’re real.”

One case in California is particularly troublesome. The U.S. Army Corps of Engineers (Corps) ordered John Duarte, a farmer and nurseryman to cease farming his land after he plowed 4-7 inches deep to plant a wheat crop in his field. Duarte, in turn, filed a lawsuit to vindicate his right to farm his land. The U.S. Department of Justice fired back with a countersuit.

Duarte has spent over $1 million in legal fees to date, yet the government is seeking $6-8 million in fines and “wetland credits.” Duarte now faces a costly appeal and legal battle, the outcome of which will set precedence on important issues affecting farmers and ranchers nationwide.

Landowners’ concerns stem from a rule the agencies finalized last year, known as the “Waters of the United States” or WOTUS rule, which would bring more waterways under the jurisdiction of the Clean Water Act. Although a federal court has temporarily halted enforcement of the WOTUS rule, landowners and their representatives say the Corps continues to enforce the act so narrowly that, as a practical matter, its actions mirror the intent of the new rule.

“We’re grateful the Senate committee has highlighted the impact on farmers and ranchers caused by overzealous interpretation of the Clean Water Act,” Wenger said. “Farmers and ranchers want to do the right thing and protect the environment as they farm. But they shouldn’t be tied up in knots by regulators for simply plowing their ground or considering a new crop on their land, and they shouldn’t have their land declared off limits if they must leave it idle due to drought or other conditions beyond their control.”

Wenger called on California Senators Barbara Boxer and Dianne Feinstein to join efforts to clarify Clean Water Act enforcement and reform agency practices. “Congress has the ability to restore balance to Clean Water Act enforcement,” said Wenger. “We urge our California members to help farmers grow food and protect the environment, free from fear of overreaching regulation.”

Details of Senate Statement

U.S. Senator Jim Inhofe (R-Okla.), chairman of the Senate Environment and Public Works (EPW) Committee, released an EPW Majority Committee report titled “From Preventing Pollution of Navigable and Interstate Waters to Regulating Farm Fields, Puddles and Dry Land: A Senate Report on the Expansion of Jurisdiction Claimed by the Army Corps of Engineers and the U.S. Environmental Protection Agency under the Clean Water Act.”

The report releases findings from the majority staff’s investigation into how the Environmental Protection Agency (EPA) and the Army Corps of Engineers are interpreting and implementing their authority under the Clean Water Act.

“This new majority committee report demonstrates in detail that the EPA and the Army Corps of Engineers, under the Obama administration, are running rogue,” Inhofe said. “Case studies in this report show that the Obama administration is already asserting federal control over land and water based on the concepts they are trying to codify in the WOTUS rule, even though the courts have put that rule on hold. Congress shouldn’t wait on the Supreme Court to make the inevitable decision that this agency overreach is illegal.

“This report should be evidence enough that it’s time for Democrats and Republicans to work together rein in EPA and the Corps. Over the course of the past year, 69 Senators – a veto proof majority – have gone on the record about their grave concerns regarding the WOTUS rule. It’s time to come together to protect farmers, ranchers, water utilities, local governments, and contractors by giving them the clarity and certainty they deserve and stopping EPA and the Corps from eroding traditional exemptions.”

The report summarizes case studies that demonstrate the following:

EPA and the Corps have and will continue to advance very broad claims of jurisdiction based on discretionary authority to define their own jurisdiction.

The WOTUS rule would codify the agencies’ broadest theories of jurisdiction, which Justice Kennedy recently called “ominous.”

Landowners will not be able to rely on current statutory exemptions or the new regulatory exemptions because the agencies have narrowed the exemptions in practice and simply regulate under another name.

For example, the report highlights instances where if activity takes place on land that is wet: Plowing to shallow depths is not exempt when the Corps calls the soil between furrows “mini mountain ranges,” “uplands,” and “dry land;”

Disking is regulated even though it is a type of plowing:

Changing from one agricultural commodity constitutes a new use that eliminates the exemption; and puddles, tire ruts, sheet flow, and standing water all can be renamed “disturbed wetlands” and regulated.

On Tuesday, Inhofe delivered a copy of the report with a letter to 11 Senate Democrats who, in a letter on Nov. 3, 2015 to Gina McCarthy, administrator of the Environmental Protection Agency, and Jo-Ellen Darcy, assistant Secretary of the Army (Civil Works) on WOTUS, stated that: “Farmers, ranchers, water utilities, local governments, and contractors deserve clarity and certainty. Should the EPA not provide this clarity or enforce this rule in a way that erodes traditional exemptions, we reserve the right to support efforts in the future to revise the rule.”

In Inhofe’s letter to the 11 Senators, he said the new committee report should meet the test set forth in their Nov. 3 letter, and he called on the members to live up to their commitment and work with the committee on tailored legislation to end agency overreach.