WOTUS Expansion Moves

By Todd Neeley
DTN Staff Reporter

OMAHA (DTN) — The waters of the United States rule may be halted nationally by a federal court but a district of the U.S. Army Corps of Engineers in California already is and has been enforcing aspects of the rule, according to testimony given to a U.S. Senate committee Tuesday.

A California scientist claims in written testimony to the Senate Committee on Environment and Public Works Subcommittee on Fisheries, Water and Wildlife, that Corps officials in the Sacramento district have been inconsistent in the way they make Clean Water Act determinations and have required permits for agriculture activities that are exempt.

Jody Gallaway, a California Farm Bureau member and a regulatory biologist who works with the Corps in the Sacramento district, said she expects reprisal from the Corps for coming forward about problems faced by her clients when it comes to agency interpretations of farming exemptions.

Gallaway stated that the Clean Water Act is "being abused by regulators to thwart, interrupt and challenge" existing farming operations.

"It was a difficult decision for me to provide testimony to this committee," she stated in her written testimony. "I hesitated to put my name, company, and 12 employees at risk because our work depends on maintaining a professional relationship with California-based Corps staff in the Sacramento, Redding and San Francisco offices."

Throughout the hearing Gallaway sat next to Don Parrish, senior director of regulatory relations for the American Farm Bureau Federation, but did not testify live before the committee.

The change in the Clean Water Act defining waters of the U.S. by EPA and the Corps has been tied up because of federal court battles. In recent months the U.S. Court of Appeals for the Sixth Circuit in Cincinnati ruled it has jurisdiction to hear numerous legal challenges to the rule. Agriculture and other industry interest groups are concerned the rule expands federal jurisdiction on private land.

Gallaway stated Corps officials in Sacramento began "jumping the gun" in August 2015 in implementing the rule even before it was finalized.

"I saw it when the Corps started automatically regulating additional features not historically hydrologically connected," Gallaway stated in the written testimony. Corps regulators expanded jurisdiction to features that could not be seen on the ground with the human eye. Gallaway’s clients, who were in various planning stages of agricultural development and infrastructure projects became concerned, and frustrated.

When contacted by DTN for comment Tyler Stalker, deputy chief of public affairs for the Corps in Sacramento offered the following:

"The clean water rule has been stayed and we are interpreting the rules as defined prior to the clean water rule," he said.

William Buzbee, professor of law at Georgetown University Law Center, told the committee claims of regulatory overreach and expansion are "legally and factually erroneous" when it comes to the new rule.

"The clean water rule and connectivity report are directly responsive to the pleas and rulings of a majority of U.S. Supreme Court justices," he said. "Far from being illegal, they are directly responsive to Supreme Court law and well-grounded in peer-reviewed science and the long enduring Clean Water Act."

Farm groups have lamented EPA’s new attempts to regulate land features using satellite imagery, as a possible violation of due process.

"No majority of the Supreme Court has ever so held, and the science contradicts this view," Buzbee said. "After all, much of the United States is often dry if not suffering from drought; when waters do flow, those channeling and connecting geographic features are of critical importance and require protection against pollutant discharges that will degrade precious and scarce water."

AG EXEMPTIONS

Parrish told the committee the Corps is paying no heed to agriculture exemptions.

When asked by Sen. James Inhofe, R-Okla., about whether the federal agencies are requiring farmers to obtain permits to do work involving otherwise-exempt agriculture activities Parrish responded, "Yes, Mr. Chairman, they are."

The concern, Parrish said, is what is happening in California will be reality for farmers across the country. The Sacramento district is regulating plowing, for example, which also is exempt.

"In the Corps’ Sacramento district, any plowing no matter how shallow, in a WOTUS such as a vernal pool or ephemeral drain requires a permit," Parrish said. "The Corps issues threatening letters if farmers plow a fire break, change from alfalfa hay farming to cattle grazing and back to alfalfa hay farming or when the agency ‘thinks’ the farmer was plowing too deep or changing land use."

Damien Schiff, an attorney with the Pacific Legal Foundation pointed to the case of Fort Bridger, Wyoming, landowner Andy Johnson as an example of how the Corps and EPA may no longer follow the law with agriculture exemptions. Johnson had faced large penalties although he built a stock pond which is exempt from the Clean Water Act. Under a settlement, Johnson will not pay fines and won’t need a permit.

Buzbee said the only activities regulated are those that lead to discharges to regulated waters, meaning "neither ordinary farming activities nor basic uses of lands, wetlands, and other covered waters are prohibited."

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @toddneeleyDTN

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