Clean Water Act: Report details how agencies expand authority


Issue Date: September 28, 2016
By Dave Kranz

Emphasizing the need for congressional action, farm groups renewed their call for reform of Clean Water Act enforcement, following release of a report documenting how federal agencies overreach their authority to regulate farmland.

The report, issued last week by the majority staff of the U.S. Senate Environment and Public Works Committee, describes numerous incidents in which the U.S. Army Corps of Engineers and 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 act.

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 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.

California Farm Bureau Federation President Paul Wenger noted that "a disturbing number of cases" described in the Senate committee report came from California.

"Farmers and ranchers here have seen firsthand that the abuses outlined in this report aren't theoretical—they're real," Wenger said.

The chairman of the Senate committee, James Inhofe, R-Okla., said the EPA and Corps have been "eroding traditional exemptions" contained in the Clean Water Act for normal farming activities. Several specific examples in the report occurred in California:

  • A Northern California landowner, John Duarte, has been cited by the Corps for plowing his land. In that case, the agency described the tops of furrows as "uplands"; therefore, plowing is not exempt because it converts wetlands to uplands. (See related story below.)
  • Another California landowner received an investigation letter from the Corps, informing him that disking performed on the land might have resulted in an unauthorized discharge into waters of the U.S. The landowner had been disking the land for 15 years to benefit grazing conditions for cattle. According to the report, the landowner ultimately decided to sell his property and discontinue farming in response to the Corps action.
  • In a third California case, the Corps told a landowner last year that changing the use of a field from growing alfalfa to orchards would constitute a land-use change, allowing regulators to pursue an enforcement action if they thought plowing the field to plant trees involved a discharge to wetlands.

"The Corps regulator informed the landowner that despite an extensive farming history, orchards were never planted on the ranch so they are not the same kind of farming and might not be considered a normal farming activity," the report said.

The report also cited cases—including from California—where regulators have sought to classify tire ruts or puddles in gravel parking lots as wetlands.

"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."

American Farm Bureau Federation President Zippy Duvall said the report exposed "reckless and unlawful actions" in enforcing the Clean Water Act.

"The agencies have persistently and unlawfully stretched the limited authority Congress gave them," Duvall said, adding that the WOTUS rule "will cement that lawless expansion of authority unless Congress acts to stop it."

Wenger called on California's two senators 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," he said. "We urge our California members to help farmers grow food and protect the environment, free from fear of overreaching regulation."

Duvall noted that 11 senators wrote to the EPA and Corps last November, saying they would watch carefully how the agencies implemented existing law, even before the WOTUS rule takes effect. The senators who signed the letter included Sen. Dianne Feinstein, D-Calif.

At the time, the Senate failed by three votes to adopt a motion to consider a bill that would have sent the WOTUS rule back to the agencies.

In their letter, the 11 senators said if the EPA failed to clarify the rule or if it enforced it in a way that erodes traditional exemptions, "we reserve the right to support efforts in the future to revise the rule."

Inhofe, in releasing the Senate committee report, said it should meet the test set forth in the letter, and called on the senators to work with the committee "on tailored legislation to end agency overreach."

Duvall called upon the Senate to reconsider the bill "at its earliest opportunity."

(Dave Kranz is editor of Ag Alert. He may be contacted at dkranz@cfbf.com.)

Permission for use is granted, however, credit must be made to the California Farm Bureau Federation when reprinting this item.