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|

EPA on Farming

EPA: Domestic Farming is Critical

Importing All Food from Other Countries is Risky, Part 1

By Laurie Greene, Editor

Editor’s note: California Ag Today was granted an exclusive interview with Ron Carleton, counselor to the U.S. Environmental Protection Agency (EPA) Administrator Gina McCarthy for agricultural policy. While we know that air and water quality are top priorities for the EPA, we asked Carleton to describe the outlook of the EPA on farming.

“The importance of our agricultural sector to our country, to our consumers, to our economy, to our job creation, to our rural communities: Absolutely, we have to preserve that,” said Carleton.

“We used to have discussions in the ’70’s, and the 80’s and the 90’s about energy independence,” he said, “because of the problems caused by importing so much of our energy from abroad, particularly in instances from countries that weren’t necessarily friendly to us.”

Carleton noted the same can be said with food imports. “Imagine we have that same situation for most of our food. I think that poses a serious risk to food safely. I think that poses a serious risk to affordability. I think that poses a serious risk to quality and quantify, and we can’t do that,” Carleton said. “It is incredibly important that we preserve our agricultural productive capability in this country.”

“I believe our country can preserve our agricultural base, and I think we can do that in a way that is also environmentally friendly,” noted Carleton. “So, interesting times; interesting challenges. But I firmly believe the men and women who farm in our country are up to the challenge.”

California Ag Today2016-05-31T19:24:13-07:00February 3rd, 2016|

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|

Clean Water Act: Farm Bureau Takes Its Case to Head of EPA

Source: Christine Souza; Ag Alert

As momentum builds encouraging federal agencies to abandon a proposal to expand their enforcement authority under the Clean Water Act, California Farm Bureau Federation leaders met with the head of the U.S. Environmental Protection Agency, urging her to see firsthand the impact the proposal would have on family farmers and ranchers.

During an annual federal policy trip to Washington, D.C., last week, a Farm Bureau delegation met with EPA Administrator Gina McCarthy, whose agency—along with the U.S. Army Corps of Engineers—proposed the rule changes last month.

The proposal would expand the definition of the term “waters of the United States” under the Clean Water Act, potentially allowing EPA and the Corps to regulate virtually every area of ground that gets wet or has flow during rainfall.

The change would expand regulatory authority to many land features including puddles, ponds, ditches, temporary and small wetlands, giving the agencies the power to regulate and potentially prohibit land-use and farming practices in or near them.

During her meeting with the Farm Bureau delegation, McCarthy said she is interested in understanding the concerns of agriculture and that she would like to maintain an open dialogue with those who would be affected by the proposed rule.

CFBF President Paul Wenger suggested to McCarthy that EPA officials take time to tour California farms and ranches, perhaps tying in the visits with a planned EPA outreach meeting on the proposed rule, tentatively scheduled for mid-July in Berkeley.

“We think it’s critical that people from the EPA see for themselves how this rule could hamstring routine farming and ranching activities,” Wenger said after the meeting. “We appreciate Administrator McCarthy taking the time to visit with us in Washington to hear directly from people who would be affected by the rule, and having EPA officials visit farms and ranches would provide them with information that no amount of written or verbal comments could provide.”

Aimee Meidinger, operations manager of Brokaw Nursery in Ventura, said the expanded definition of waters of the U.S. “could affect our ability and decisions to farm on my family’s avocado orchard. The definition of navigable waters is being changed to encompass almost all areas where water settles, regardless if they are seasonally wet or not.”

Farmers in California are very proactive in working with the current Clean Water Act regulations, Meidinger said, through use of irrigated-lands groups, surface and groundwater monitoring, pesticide use reporting and continuing education.

“We are good stewards of the land,” Meidinger said. “This proposal cannot be a one-size-fits-all national policy.”

Patrick Cavanaugh2016-05-31T19:35:29-07:00May 31st, 2014|