ALTHOUGH the Sixth Circuit Court of Appeals has ordered a nationwide stay on enforcement of the Environmental Protection Agency's "waters of the U.S." (WOTUS) rule, a new report demonstrates that EPA is, in fact, enforcing the rule and expanding its jurisdiction.

Sen. Jim Inhofe (R., Okla.), chair of the Senate Environment & Public Works Committee, released a report detailing examples of the lengths to which EPA and the Army Corps of Engineers are going to expand their jurisdiction over U.S. waters beyond congressional intent. The report is the result of the majority staff's investigation into how EPA and the Corps are interpreting and implementing their authority under the Clean Water Act.

Zippy Duvall, president of the American Farm Bureau Federation, said EPA and the Corps "have persistently and unlawfully stretched the limited authority Congress gave them, even to the point of regulating ordinary plowing — a normal farming activity exempted by Congress. They have even claimed authority to regulate tire ruts and puddles found on the farm."

The report identifies how one farmer was ordered to abandon his field because his ordinary plowing was declared a violation of the Clean Water Act. Another was told he must preserve tire ruts caused by his own vehicle as a wetland, never to disturb them again. Still another farmer was ordered to abandon his plans to plant fruit trees because he had not planted trees on his land before. EPA also intervened when a rancher who created a stock pond was informed that the pond was too "aesthetic" and, therefore, fell outside the stock pond exemption.

John Duarte, whose court case was cited in the report, is standing up to EPA over its attempt to shut down his farm operation just for plowing his land to plant wheat on what was previously used to graze cattle. Duarte, a fourth-generation California farmer, is in a legal battle with federal regulators over whether he violated federal law by plowing his land. He faces fines of $8 million, and his legal costs are rising — currently estimated at $1.5 million.

House Agriculture Committee chairman Michael Conaway (R., Texas) took to the House floor to point out that at the same time EPA Administrator Gina McCarthy had been promising the farming community that it had nothing to fear from the new WOTUS rule, Duarte was being sued by the U.S. Department of Justice.

All that lip service by EPA administrators during this rule-making process about farm ponds and normal farming activities seems to be just that: lip service.

"The lawsuit brought against this producer claims that by plowing a field, which every farmer I know considers a normal farming practice, this farmer has created 'mini mountain ranges' in his field. These mountain ranges are furrows from normal farming," Conaway said on the House floor Sept. 12. "The suit also claims this producer discharged a pollutant into a water of the U.S. This so-called 'pollutant' was the soil he was plowing."

Conaway added that these perceived violations only came to the agency's attention when an overzealous Corps bureaucrat "just happened to be driving by the property" and discovered perceived "WOTUS" violations on the land.

"Farmers, ranchers and foresters believe the EPA is attacking them, and it is easy to understand why," Conaway said.

The report has led agricultural groups — including the Farm Bureau and others such as the National Corn Growers Assn. and the National Cattlemen's Beef Assn. — to increase their call for the Senate to pass its bill that would allow EPA, the Corps, farmers and others to collaborate on an improved WOTUS rule.

Previously, 11 Senate Democrats asked for additional clarification and did not support the bill. Had those 11 senators voted in favor of the bill, it would have passed.

The House also overwhelmingly passed a bill that would halt the EPA/Corps WOTUS rule.

Volume:88 Issue:10