BREAKING NEWS: John Duarte Settles TODAY Prior to Court Proceedings

By Patrick Cavanaugh, Farm News Director

Northern California farmer John Duarte spent years fighting the federal government after being fined for routine plowing on his wheat field which included protected wetlands. He attracted a nationwide army of conservative supporters who saw it as government overreach and hoped the Trump administration would order federal officials to back off.

But just before his trial was set to start Tuesday in U.S. District Court in Sacramento, Duarte settled, admitting no liability, but agreeing to pay $330,000 in civil penalty fines and another $770,000 for “compensatory mitigation,” in vernal pool mitigation credits.

In a press release TODAY by John Duarte and Pacific Legal Foundation (PLF), John Duarte said, “This has been a difficult decision for me, my family, and the entire company, and we have come to it reluctantly. But given the risks posed by further trial on the government’s request for up to $45 million in penalties, and the catastrophic impact that any significant fraction of that would have on our business, our hundreds of employees, our customers and suppliers, and all the members of my family, this was the best action I could take to protect those for whom I am responsible.”

“John would have preferred to see this case through to trial and appealed the court’s liability ruling, which holds that plowing a field requires federal permission — despite the clear text of the Clean Water Act and regulations to the contrary,” said Tony Francois, senior attorney, PLF. “John and his counsel remain concerned that legal liability for farming without federal permission undermines the clear protections that the Clean Water Act affords to farming and poses a significant ongoing threat to farmers across the nation.”

The court will hold a hearing in approximately 45 days to approve the settlement. In the meantime, the trial that was to begin today has been canceled.

California Ag Today2017-08-15T19:24:36-07:00August 15th, 2017|

Embattled Farmer John Duarte Defends Farming in Federal Court

Farmer Must Defend Plowing His Wheat Field

By Patrick Cavanaugh, Farm News Director

John Duarte, a California farmer who gained national attention after the United States Army Corps of Engineers (USACE or Army Corps) sued him for plowing his Tehama County wheat field, will defend himself in a federal courthouse in Sacramento on Tuesday, August 15.

“Agriculture is at a very dire crossroads right now,” said Duarte, imploring all farming stakeholders and food consumers across the country “to get loud with their Senators, Representatives and USACE. And if you know how to get ahold of President Trump, give him a call.”

In February 2013, with no warning or opportunity to discuss the matter, USACE sent Duarte a cease and desist letter to suspend farming operations, claiming that he had illegally filled wetlands on his wheat field simply by plowing it.

“I am being prosecuted for planting wheat in a wheat field during a global food crisis,” Duarte said. “They’re claiming I should have pulled a [Clean Water Act] permit that nobody has ever pulled and conducted practices that nobody has ever conducted to grow wheat.”

Duarte who is also the owner of Duarte Nursery, argues that the Army Corps violated his constitutional right to due process. He said the agency came down on him hard and never gave him an opportunity to defend himself against the accusations before levying the fine. Duarte now faces $2.8 million in government fines.

“The Army Corps of Engineers is prosecuting us,” Duarte said, “and the Army Corps does not even have subject matter jurisdiction to conduct this prosecution.”

In a June 14, 2017, news release, Tony Francois, senior attorney for Pacific Legal Foundation, explained, “Prosecutors and bureaucrats are seeking to establish, for the first time, that farmers with seasonal puddles need a federal wetlands permit in order to plow their own private land—even though plowing is exempt from Clean Water Act (CWA) coverage.”

Duarte believes if he were to lose the upcoming trial, it would change the way farmers in America farm. “This battle may never be resurrected in court. Taking this battle to the Supreme Court on several fronts is the only way to give farmers the long-term security they need, the right to farm and property rights protections, to deliver food security to America.”

The American Farm Bureau Federation, the California Farm Bureau Federation, the farm bureau in Duarte’s backyard and farm bureaus across the country are behind him.

“The Butte County Farm Bureau has 1065 members,” Duarte stated, “and they donated a check for $10,650 to the Duarte Defense Fund at California Farm Bureau Federation. That’s $10 a member! Thanks to the challenge from Biggs, CA, farmer, Clark Becker (President of the Butte County Farm Bureau) that defense fund has already collected over $100,000 in support of our lawsuit. We are hoping to collect hundreds of thousands more.”

Duarte said, “Although this lawsuit for planting wheat in a wheat field has gained a lot of attention, we need more help to fight it.”

While Duarte is grateful for the political support in favor of Duarte Nursery’s position in this wetlands prosecution, he wants to settle this case before trial. “We need complete rights to appeal, and if necessary, to take it to the Supreme Court of the United States. We must protect food security as well as farmers’ right to farm.”

“My greatest nightmare is if Duarte Nursery is forced into settling this case without the right to appeal. If we cannot get such a release, American farming could be oppressed by federal agencies into the future, and there won’t be another fool to follow us and stand up to them again.”

“Any farmer can see the kind of abuse—the misstatements, the falsehoods, the misquoting of laws that the Department of Justice is using in this case against us—and the $2.5 to $3 million we’re spending to fight this battle. There won’t be another family to come along and fight like this in the future.”

California Ag Today2017-09-02T23:46:02-07:00August 12th, 2017|

Senate Tells Gov. Agencies to Back Off WOTUS Rule

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.

California Ag Today2021-05-12T11:05:47-07:00September 20th, 2016|

Duarte Nursery v. U.S. Army Corps of Engineers Update

PLF Attorney Reports Duarte Appeals Court Decision—Once Again

By Patrick Cavanaugh, Farm News Director

Damien Schiff, principal attorney at Pacific Legal Foundation (PLF) who has been representing the Duarte family in their legal battle with the U. S. Army Corps of Engineers (Corps), provided this update after Judge Kimberly J. Mueller, U.S. District Court for the Eastern District of California dismissed their summary judgment motions on June 10, 2016, and ruled the Corps’ February 23, 2013 cease and desist order did not deprive Duarte of liberty or property. Schiff said his client’s next course of action is filing for an appeal of the judgment.

“It’s disappointing, in particular, because earlier in the case, we had received a very favorable decision from U.S. District Judge Lawrence K. Karlton, the original Federal Judge assigned to our case who ruled in our favor on our due process challenge to the Army Corps’ cease and desist order.” Judge Karlton retired from the bench in 2014 and passed away in 2015. “It was particularly disappointing to see Judge Mueller reverse Judge Karlton’s decision.”

“Launching the appeals process will take some time,” Schiff explained. “Unfortunately, the case is complicated because there are a lot of claims going on and not all of them have been resolved by Judge Mueller’s decisions. The general rule in Federal Court is that you cannot appeal until a final decision has been made that decides all the claims against all the parties.”

Damien M. Schiff, Principal Attorney, Pacific Legal Foundation’s National Litigation Center

Considering the preponderance of hills and valleys across the United States, the magnitude of this case has growers—not just from California, but nationwide—concerned about the outcome and precedents resulting from this case, as well as the significance of future Army Corps-issued cease and assist orders. “It is an amazing assertion of power by the United States Environmental Protection Agency (EPA) and the Corps,” Schiff said, “and I think that’s why we see not just farming groups and property rights groups, but also a majority of the states, challenging the Agency’s Waters of the U.S. (WOTUS) Rule.”

A significant point of contention in the case, Schiff explained, stems from Judge Mueller’s ruling that because the Duarte property had not seen any farming activity since 1998, the Clean Water Act’s farming exemption was no longer applicable. “That’s, in part, why we challenged the cease and assist orders,” said Schiff, “because the Corps issued this directive without giving any prior notice, much less any opportunity to present contrary information. The reality is, this property, and the other properties in the entire area, have traditionally been used for agriculture, and are, in fact, zoned for agricultural use.”

The Duarte case is so multifaceted,” Schiff said. “The land was always agricultural, and what was done on the property is consistent with normal agricultural farming practices; there is really nothing exceptional about what went on. What’s particularly problematic for the Corps here is that Duarte went above and beyond the call of duty by having a wetlands consultant ensure that all of the areas assessed to have vernal pool or wetlands characteristics were marked and avoided entirely.”

Whatever the outcome, the Duarte case will have far reaching effects on legal precedent throughout the agricultural community as well as on the cease and assist orders issued by the Army Corps to families throughout the country. “Surprisingly, there isn’t very much case law on what process, if any, is owed to the landowner before the agency issues these orders,” Schiff remarked. “However the Duarte case ends up, I think that will have to be litigated in other parts of the country.”

California Ag Today2021-05-12T11:05:50-07:00August 2nd, 2016|

Duarte Nursery Loses Battle Against Army Corps Of Engineers

Ruling in Favor of Army Corps is Game Changer for Agriculture

By Patrick Cavanaugh, Farm News Director and Laurie Greene, Editor

Startling California family farmer, John Duarte, president of Duarte Nursery, Inc., his attorneys, and others who have also kept a close watch on the case, Duarte was dealt a serious blow recently in the biggest fight of his life—the right to farm his own property. This legal outcome may portend a game changer for American agriculture as a whole.

Background

Duarte Nursery and the U.S. Army Corps of Engineers (Army Corps) have been engaged in a long legal dispute over private property rights since the family purchased a 450-acre agricultural property in Tehama County in 2012 and planted wheat that fall.

As reported in, “Duarte Farmland Under Siege,” (California Ag Today, March 11, 2016), John Duarte recalled, “The property is in some slightly rolling grasslands, and has some minor wetlands on it, vernal pools, vernal swales. Like most grasslands, wheat areas and wheat plantings, we had a local contractor go out and plow the field for us, 4-7 inches deep, and we flew on some wheat seed for a winter wheat crop in 2012.”

The U.S. Army Corp of Engineers accused the farm of “deep ripping” the property (three feet deep), “which we were not,” Duarte said. Legal action ensued with the Army Corps issuing a cease and desist notice in early 2013, according to Duarte, without evidence or basis for their accusation. Duarte Nursery attorneys, under the Freedom of Information Act, requested evidence of deep ripping, the assumption that apparently warranted a cease and desist notice.

Without responding, according to Duarte, the Army Corps sustained the cease-and-desist notice without a hearing and without evidence. “They obstructed our farming operations indefinitely,” Duarte said in March 2016.

Current Scenario

Duarte’s attorneys are now scrambling to prepare and file appeals to Eastern District Federal Court Judge Kimberly Muller’s June 10 ruling that by plowing his land to grow wheat, Duarte could pollute vernal pools on his land, violating the Clean Water Act.

On behalf of Duarte Nursery, Pacific Legal Foundation attorneys have moved for reconsideration or certification for immediate appeal on several Clean Water Act issues. “We expect a decision from the court any day on this motion, which will determine whether Duarte Nursery can immediately address the trial court’s legal errors in the appellate court, or will have to go through a trial first on whether the government is entitled to a penalty.” (Source: “Duarte Nursery seeks immediate appeals in Clean Water Act case,” Tony Francois, Pacific Legal Foundation, June 30, 2016)

Reaction to the Ruling

California Farm Bureau Federation and Pacific Legal Foundation attorneys had great confidence that Duarte would be vindicated in the action brought by the Army Corps several years ago. “They are just astounded,” Duarte said. “I thought we might have to go to trial on some of our issues, but I did not think we would lose our issues and have the judge rule against us on the other side,” he said.

Duarte clarified, “We are talking about farming activity that only occurred on rolling land—land with dismal vernal pools and flails.” Duarte noted there is no controversy as to whether this tillage was four to six inches deep. “Both sides agreed this is four to six inch deep tillage. Both sides agree that this property had farmed wheat before,” he said.

Legal Implications

“The Army Corps’ position is they don’t know how long is too long, but at some point if you haven’t farmed wheat, you lose your ability to continue farming wheat,” Duarte continued. “As it is a rangeland, you cannot plow your ground without a permit from the Army Corps, which they’re not going to grant because there are wetlands,” he said.

John Duarte, president of Duarte Nursery.

“All of the Food Security Act protections for farming—our ability to idle ground and then bring it back into production—to ensure available food production resources—are gone,” Duarte said. “This is a very extreme ruling. It’s extreme of the law in a lot of different ways. It’s a game changer for agriculture. We’re meeting with Paul Wenger, the president of the California Farm Bureau and seeing what they want to do. I think it’s on a lot of folks’ radar,” said Duarte.

“According to the Clean Water Rule definition of “Waters of the United States” (WOTUS), everything is a wetland and farmers are not exempt,” Duarte stated. “Any tillage that the Army Corps, by their own standards, does not deem to be an ongoing agricultural operation, farmers have liability. Their settlement discussions were in the $5 million to $6 million range, and we’re talking about shallow tillage through vernal pools that covered maybe fourteen or sixteen acres over this property. We can show that those vernal pools are completely intact,” noted Duarte.

Duarte noted that consultants have been at the land to inspect the vernal pool wetlands that concern the Army Corps of Engineers, and have confirmed that all the biology has been restored. “It’s all wetland plants across the vernal pools. They’re not topographically damaged,” said Duarte. “We didn’t re-contour them, we didn’t till them, we didn’t grade them, we didn’t deep rip them such that the restrictive layers of soil no longer perched water—none of that,” he emphasized.

A Game Changer for Ag

“Every property owner should be concerned,” Duarte warned. “Basically, what they’re saying is if wheat is profitable for a window of time because of whatever market or geopolitical reasons, you can farm wheat. If you stop farming wheat for a decade because it’s not profitable, or because you have a lease with a cattleman who’s paying you decent money, or you just don’t have the capital to plant wheat, or you just don’t want to plant wheat, then you will lose the right to farm it in the future. You cannot adjust your farming enterprises to the markets or to your business plans or you will lose your right to farm.”

Clean Water Rule, EPA

Duarte believes that the ultimate goal of the Army Corps of Engineers is to be able to tell you what you can and can’t do with your land on any given day. “They want simple control over how you use your property and discretion over what property is put into permanent habitat and what property remains rangeland. They do not believe that private landowners have any inherent right to farm their property to meet market demands.”

As for the ruling, Duarte said he plans to appeal it. “This ruling is in many ways right in the face of several completions that have come down in court last week,” he said. “A lot of this ruling hinges on the opinion in Rapanos v. United States, where senior Associate Justice of the Supreme Court of the United States Anthony Kennedy said wetlands either have to be navigable waters of the United States or tributaries or related.

As summarized in, “The Practical Application of the Significant Nexus Test: The Final Waters of the US Rule,” (by Lowell M. Rothschild, National Law Review, June 8, 2015):

The significant nexus test requires a determination of whether the water in question – alone or in aggregation with other similarly situated waters in the region – significantly affects the chemical, physical or biological integrity of a traditionally navigable or interstate water or the territorial sea (with “significant” meaning “more than speculative or insubstantial.”). The “region” is the watershed that drains to the nearest traditionally navigable or interstate water or the territorial sea, and waters are “similarly situated” when they function alike and are sufficiently close to function together in affecting downstream waters.

“That was one judge, who had none of the other eight judges agreeing with him,” said Duarte. Nevertheless, Duarte said Justice Kennedy was not correct. “We had four judges that said navigable is navigable. If the Clean Water Act says it exempts, it defines what jurisdictional waters are navigable waters in the United States, and then it defines what jurisdictional waters are. If you look in the Clean Water Act, it says that plowing shall never result in a discharge into waters of the United States,” said Duarte.

“The language in the exclusion of the Clean Water Act is very clear. What this case tells us is that no regulatory legislation can be created with language that is durable to give private parties any protection with the government,” Duarte explained. “There’s no language clear enough that over time will be undermined by agency rule making and judges that give American public any protection against the government.”

“I don’t know how we will solve problems legislatively in the future,” he remarked. “I don’t know that any responsible Congress can pass a law that restricts activity, no matter what the protections,” Duarte said, clearly frustrated. “The Clean Water Act’s protections are incredibly clear. It is not badly worded. The protections are in there. The protections are careful; they’re clearly articulated; they’re very strong, and they’re completely obliterated,” he said.

Duarte is disappointed and has a long way to go in the appeals process. “All I can say is: Warning to all farmers across the land—this is what can happen. We’re just not strong enough, nor is it right for us to carry this entire thing; my family has already spent $1.5 million defending this case, and it’s likely to go to $2 million. We are going to be looking for help.”

___________________

California Ag Today2016-07-23T17:16:17-07:00July 7th, 2016|

Twin Tunnels Could Produce Friant Dry Year Water Woes

Source: Friant Waterline

While “progress” on the Bay-Delta Conservation Plan’s ambitious and controversial twin tunnels planning continues to mostly be marked by delay, Friant Division contractors and the Friant Water Authority are looking long and hard at findings in troubling computer modeling.

Friant Water Authority directors were told at their August 28 meeting in Visalia that the twin tunnels proposal to bypass the fragile Delta not only lacks benefits for Friant users, it could actually make Friant’s future dry year water supply problems worse.

‘LOSING PROPOSITION’

“Computer modeling shows it is a losing proposition with less water supply reliability to Friant, particularly in dry years,” said Ronald D. Jacobsma, FWA General Manager.

The FWA and its member districts have been evaluating the state’s twin tunnels plan to determine if Friant users would benefit from the two tunnels’ development. That includes San Joaquin River Exchange Contractor water, Cross Valley Canal water and San Joaquin River Restoration Program recirculation in addition to assumptions as to allocation of costs amongst water contractors.

All of this is crucial in Friant’s BDCP consideration because the tunnels, expected to cost many billions of dollars, are to be financed on a “beneficiary-pays” basis. Jacobsma said project proponents have indicated Friant’s share could be about $3 billion.

“The current process has lots of uncertainty,” Jacobsma said. “The bottom line is they won’t be starting construction any time soon on those twin tunnels.”

MORE DELAY

Delay, in fact, popped up again in late August when the California Department of Water Resources indicated that the BDCP needs more work as a result of the massive volume of public comments received on a draft environmental impact report.

Nancy Vogel, DWR spokeswoman, told the Sacramento Bee, “We’re going through it and we’re going to revise and send it back out for public review. We continue to look for ways to reduce the impacts to Delta residents and landowners.”

With a revised BDCP now scheduled to be released early next year, the newest delay is certain to consume several months. The plan has been seven years in the making.

The entire program’s cost is estimated at $25 billion. The BDCP is not to be funded through the pending state water bonds, should Proposition 1 be approved by voters. The Legislature intentionally kept the bond “Delta neutral” because of controversy surrounding the BDCP and twin tunnels.

The tunnels would be an isolated water conveyance system under the Delta between Courtland and state and federal water export pumping plants near Byron, northwest of Tracy.

EPA CONCERN

Meanwhile, a new wrinkle in the twin-tunnels plan popped up August 28 when the U.S. Environmental Protection Agency suggested the project could violate the Clean Water Act and increase harm to endangered species. EPA said the project could increase Delta concentrations of salinity, mercury, bromide, chloride, selenium and pesticides.

Patrick Cavanaugh2016-05-31T19:33:27-07:00September 5th, 2014|

Commentary: Proposed EPA ‘waters’ rule hangs farmers out to dry

Source: Don Parrish; Ag Alert

The U.S. Environmental Protection Agency proposal to expand the scope of “navigable waters” subject to Clean Water Act jurisdiction was drafted, according to the agency, to reduce uncertainty. It’s very clear the proposed waters of the U.S. rule is designed to allow the federal government to regulate every place water flows when it rains, including small and remote “waters” and ephemeral drains and ditches.

We all know that water flows downhill and that at some point, some of that water eventually finds its way into a creek, stream or river. Yet, based on nothing more than the flow of rainwater along a natural pathway across the land, the EPA wants to call vast areas of otherwise dry land “tributaries” and therefore “navigable waters.”

With its proposal to regulate land that is dry most of the year and miles from the nearest truly navigable water, EPA is putting farmers in a tenuous position. EPA and other supporters of the proposed rule have made much of a long-standing exemption for agriculture, and claim that it still stands; however, the proposed rule narrows that exemption and opens it up to litigation. The “normal farming and ranching” exemption only applies to a specific type of Clean Water Act permit for “dredge and fill” materials. There is also no farm or ranch exemption from Clean Water Act permit requirements for what EPA would call “pollutants.”

Ultimately, the new permitting requirements that would come with this proposal would mean that common farm activities could trigger Clean Water Act liability and the need for Section 402 National Pollutant Discharge Elimination System permits if pollutants could incidentally be deposited into ditches, ephemerals and other features that will now fall under federal jurisdiction.

At the same time EPA and the U.S. Army Corps of Engineers are telling farmers and ranchers they’re got nothing to worry about because the exemption puts them in the clear, the agency is moving forward with a guidance document that will govern how it interprets the “normal farming” exemption contained in Section 404 of the Clean Water Act.

This interpretive rule makes fundamental changes in how the exemption for normal agricultural activities at “established” farms will be applied and enforced. Contrary to assertions by proponents, this interpretive rule narrows how the exemption is applied and increases farmers’ liability by requiring that farmers comply with Natural Resources Conservation Service conservation standards, which were previously voluntary, in order to be exempt from Section 404 permitting.

Like the proposed waters of the U.S. rule, the interpretive rule conflicts with congressional intent. In 1977, Congress amended the Clean Water Act to exempt “normal” farming, ranching and silviculture from Section 404 “dredge and fill” permit requirements. However, EPA and the Corps are now asserting that farmers are exempt from Section 404 permits so long as any of 56 listed practices comply with NRCS standards, despite the fact that those practices have qualified as the “normal” farming, ranching and silviculture activities for 37 years.

The newly proposed interpretation of “normal farming and ranching” would apply only to farms and ranches that EPA determines to be “established” and “ongoing”—not newer or expanded farms and ranches. Where does this leave the children and grandchildren of farmers and ranchers who want to work the land but need to grow the operation to support an expanding family? What does this mean for the billions of people who will need to be fed in the future?

Worried about the answers to those questions and the many threats the proposed rule poses to agriculture, the American Farm Bureau Federation launched a website at ditchtherule.fb.org to help farmers, ranchers, landowners and others express the need for EPA to “Ditch the Rule.” Focused on topics and analysis related to the proposed rule, the site includes several sections: Take Action, Go Social, Find Answers and Get Resources. We encourage you to visit the site, sign up to learn more, comment on the proposed rule and send tweets using the hashtag #DitchTheRule. You should also voice your concerns to your state and local officials and your U.S. representative and senators.

Patrick Cavanaugh2016-05-31T19:33:31-07:00August 15th, 2014|

Debate Heats up on Proposed EPA Water-Quality Rule

Source: Kate Campbell; Ag Alert

Discussion has intensified about proposed changes to the Federal Clean Water Act. As farmers and ranchers express increasing concern about enhanced permitting requirements, land-use restrictions and legal liability that the proposal could cause, the U.S. Environmental Protection Agency launched its own campaign to defend the proposal.

Agricultural leaders want the EPA to scrap the proposed rule changes, terming them a poorly orchestrated attempt to expand agency jurisdiction. The proposed rule was published in April, and remains open to public comment until October.

County Farm Bureaus in California are joining the national push to have the proposed rule changes withdrawn, reaching out to members of the state’s congressional delegation and urging the proposal be stopped.

Meanwhile, the EPA called its proposals merely an effort to clarify regulatory jurisdiction, which was called for in two U.S. Supreme Court decisions that ruled against the agency’s attempt to expand its jurisdiction over “waters of the United States.” EPA said the proposed rule would have minimal economic impact and would not affect many acres—only about 1,300 acres nationwide.

The American Farm Bureau Federation called that assertion “laughable,” considering the amount of land nationwide that has the capacity to retain seasonal moisture, a condition covered by the proposed rule. Under the proposal, legal experts say, wet spots could be deemed “waters of the U.S.”

AFBF said the EPA effort to expand its jurisdictional authority over most types of waters and lands is regulatory overreach that has the potential to impose costly and time-consuming federal permit requirements, as well as place limits on routine farming practices, such as building a fence across a ditch or pulling weeds. Essentially, EPA has proposed regulations that fundamentally redefine “waters of the U.S.” and eliminate the term “navigable” from the law, AFBF said.

“We’re urging Congress to take a look at the proposed rules and we’re urging the agency to withdraw both of them,” California Farm Bureau Federation Federal Policy Manager Rayne Pegg said, referring to both the main EPA proposal redefining “waters of the U.S.” and an “interpretive rule” that focuses on agricultural activities.

Pegg stressed that farmers recognize the need to protect water quality, and already abide by a number of water-quality regulations.

“Adding another layer of regulation does not mean you will get better results,” she said. “Instead, the rule will create more paperwork. It’s a poorly conceived rule. EPA should meet with farmers and listen to its own Scientific Advisory Board to craft something that is practical.”

There are a number of things going on in Congress right now related to these rules, she said, and CFBF has been responding to questions from members of congressional committees—including the House Appropriations Committee, which is considering legislation to remove funding for implementation of the proposed waters of the U.S. rule.

In response to the uproar over the proposal, EPA Administrator Gina McCarthy took to the road last week—touring a Missouri farm and meeting with a number of Kansas farm groups. She acknowledged during a lunch discussion with agricultural leaders the waters of the U.S. proposal has “fallen flat on its face.”

But during a speech in Kansas City, she charged that the EPA proposal has been beset by “D.C. myths.”

“Misinformation is becoming the story, while the legitimate, serious issues that we need to talk about are taking the back seat,” McCarthy said.

At the same time McCarthy visited the Midwest, the Natural Resources Defense Council—an environmental organization—took out advertisements supporting the EPA proposal.

Confusion about what the proposed rule may actually cover and conflicting interpretations of the rule changes may leave political leaders with the impression the proposal is benign and that farmers don’t need to worry, said CFBF associate counsel Kari Fisher.

“EPA would like political leaders and the public to believe that all farmers need to do is go ahead with normal farming practices and not worry about the proposed changes,” she said. “Unfortunately, that’s incorrect.”

Fisher said the interpretive rule on agriculture would require certain farming practices—such as putting in a new fence or maintaining a ditch—to comply with U.S. Department of Agriculture standards administered by the Natural Resources Conservation Service. She noted that the interpretive rule would apply only to Section 404 of the Clean Water Act, which covers dredging and infilling land that could affect wetlands.

But the proposed rule to expand the definition of “navigable waters” applies to the entire Clean Water Act, she said, and would expand EPA jurisdiction over water.

“If the proposed rule redefining waters of the U.S. is adopted, farmers with land that features a depression or low spot that’s adjacent to a tributary flowing to navigable water could be brought under the rule’s jurisdiction,” Fisher said.

Although the interpretive rule might provide a limited layer of protection for farming and ranching activities from the need to obtain Section 404 permits, she said, “it will not provide protection from other necessary Clean Water Act permits, such as those for the discharge of pollutants.”

Farm Bureau leaders continue to urge members to help prevent the proposed rule from becoming final by commenting about the impact the proposal would have on their farms and ranches.

Information from EPA on the proposed changes to the CWA can be found online at www2.epa.gov/uswaters. Background information on the issue from AFBF is online at http://ditchtherule.fb.org/.

For information on arranging local farm tours, grower roundtables and informational meetings with members and staff of California’s congressional delegation, contact county Farm Bureau offices or the CFBF Federal Policy Division at 916-561-5610.

Patrick Cavanaugh2016-08-03T21:07:42-07:00July 18th, 2014|

Commentary: Cutting Regulations Would Stimulate the U.S. Economy

OpEd by Stewart Truelsen; Ag Alert

Billionaires don’t always say the smartest things, but one of them has a smart idea. At the Forbes Reinventing America Summit, billionaire real estate developer Sam Zell said, “If you want to see the economy go wild, just cut all the regulations in half.”

Zell is known for his contrarian views and more often than not has been a successful investor. Cutting regulations is certainly contrary to what generally takes place in Washington. Regulations, especially environmental regulations, just keep piling up and up.

“We’re in a society where we think all risk can be regulated out,” Zell said. “There are just unending interpretations, revisions, legal fees to the sky—when you’re focused on that, you’re not focused on growing and getting new customers.”

Farmers know that feeling all too well. When they should be focused on growing this season’s crops and tending livestock, their attention is diverted by the Environmental Protection Agency “waters of the U.S.” proposed rule.

The rule broadens federal jurisdiction under the Clean Water Act and could extend permit requirements to ditches, small ponds and even depressions in fields that are only wet during a heavy rain. Farms, ranches, businesses and new construction could be affected.

EPA claims the proposed rule is a clarification of which waters fall under its jurisdiction. But in tracing the history of major regulatory acts like the Clean Water Act and Clean Air Act, the words that stand out on the EPA’s own timeline are “expanded,” “increased,” “authorized” and “established.”

The Office of Management and Budget reviews pending federal regulations, and it comes as no surprise that EPA has the most regulatory activities under review at the present time.

It is only a natural tendency for federal regulatory agencies to extend their reach by adding more and more regulations to the laws that Congress writes. The last president who really tried to stop them and tackle regulatory overkill was Ronald Reagan.

A reduction in regulations was one of the major policy objectives of his 1981 economic recovery program. Deregulation was applied primarily to regulations that restricted economic activity, like price controls on oil and natural gas.

Every administration since Reagan’s, including the Obama administration, has expressed a desire for regulatory reform, but the results have been slow to materialize. Cost-benefit analysis is done on only a fraction of new regulations.

The Competitive Enterprise Institute estimates the annual cost of regulations to be about $1.8 trillion.

On a household basis, regulations cost more than every budget item except housing; that’s more than health care, food, transportation, etc. Cutting regulations in half, as Zell suggests, would indeed cause the economy to go wild.

There are alternatives to regulations that can get the same or better results. The American Farm Bureau Federation advocates market-based solutions and incentives as preferable to government mandates. Incentives have proved successful with conservation efforts. Regulation can also be accomplished without the government through competition, reputation, contracts, insurance and other means.

Sam Zell probably won’t get his wish, but he is correct about the need to throttle back government regulations. They are stifling innovation and economic growth.

Patrick Cavanaugh2016-05-31T19:35:23-07:00June 23rd, 2014|

Pressure Builds Against EPA Water Proposal

By: Kate Campbell; Ag Alert

Proposed changes to the federal Clean Water Act have roiled farmers across the nation and created an uproar among many other water users—including cities and counties with parks and recreation areas, golf courses and local water agencies.

If adopted, the proposed rule changes would expand the definition of “waters of the United States” to potentially allow federal agencies to regulate virtually every area of ground in the nation that gets wet or has flow during rainfall.

California Farm Bureau Federation leaders were in Washington, D.C., in mid-May to explain to lawmakers face to face the damage the proposed changes could have on food production. They called for more time to review and comment on the proposal.

The U.S. Environmental Protection Agency said last week it will extend the comment deadline on the proposed rule, allowing farmers, ranchers and other interested stakeholders more time—until Oct. 20—to comment on its proposed redefinition of waters of the U.S. The extension adds almost three additional months to the comment period, which had been scheduled to end July 21.

Comment on a companion interpretive rule governing agricultural exemptions that accompanied the waters of the U.S. rule also will be extended—from June 5 to July 7.

The Clean Water Act was signed into law in 1972 to protect the nation’s “navigable” waters from pollution. The current proposal to amend the act would greatly expand EPA’s regulatory powers. Farm policy experts say Congress gave states, not the EPA, primary responsibility for land use oversight.

Farm Bureau, together with dozens of other business groups, is protesting the proposed changes.

Farmers and ranchers say the proposal would expand regulatory authority to many common land features including puddles, ponds, ditches, and temporary and small wetlands. The proposal would give federal agencies power to regulate and potentially prohibit many common land-use and farming practices on or near privately owned land.

Solano County hay and forage farmer Sean Favero said the proposed rule change gives him serious cause for concern. Fields where he plants alfalfa, wheat and triticale can retain seasonal moisture in low spots, which under the proposed changes could trigger additional permits and fees, including prohibitions against planting at all.

These are naturally occurring land contours that don’t connect to streams or other bodies of water, he said, adding that he’s concerned about regulations made thousands of miles away by people who don’t know what’s going on at ground level that could further complicate or prevent him from farming. Favero made those points as part of the CFBF federal policy delegation to Washington.

“Judging by the amount of interest from legislators in what we had to say about the proposed changes to the Clean Water Act, I’d like to think our office visits had something to do with the extension announced last week,” Favero said.

CFBF Federal Policy Division consultant Erin Huston said extension of the comment periods “allows us more time to flesh out our objections and explain how the proposal sits on top of the regulatory layers California already has to protect water quality.”

The House Transportation and Infrastructure Committee held a hearing last week on the proposed changes, and the House Agriculture Committee is scheduled to hold a hearing this week on the possibility of an agricultural exemption under the proposed rule changes, Huston said.

“That hearing will address our concerns about how the proposed rule would specifically tie in with the U.S. Department of Agriculture’s voluntary conservation practices established by farmers and ranchers through the Natural Resources Conservation Service,” she said.

“We spent a lot of time talking to legislators while we were in Washington and I felt they listened closely to what we had to say,” said Kris Gutierrez, partner in a San Joaquin County vineyard management company and a participant in the CFBF Washington trip. “I believe we got our points across and appreciate the thoughtfulness of our lawmakers.”

American Farm Bureau leaders said the EPA has “misrepresented” its proposed rule changes and downplayed impacts on land use.

“If more people knew how regulators want to require permits for common activities on dry land, or penalize landowners for not getting them, they would be outraged,” AFBF President Bob Stallman said, noting that the proposal “broadly expands federal jurisdiction and threatens local land-use and zoning authority.”

Stallman described the EPA proposal as “an end-run around Congress and the Supreme Court.”

The proposal to regulate everyday farming practices isn’t just impractical, it’s illegal, Stallman told the House Subcommittee on Water Resources and Environment last week.

The EPA has said farmers would face less regulation under its proposal. In response, Stallman said the rule would micromanage farming via newly mandated procedures for fencing, spraying, weeding and more. Obtaining permits, meanwhile, could delay time-sensitive tasks for months, potentially ruining crops in the process.

“EPA is deliberately misleading the regulated community about the impacts on land use,” Stallman said.

Patrick Cavanaugh2016-05-31T19:35:23-07:00June 20th, 2014|

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