Case studies in a new report released by the Senate Environment & Public Works (EPW) Committee show that the Administration is already asserting federal control over land and water based on the concepts it is trying to codify in the waters of the U.S. (WOTUS) rule, even though the courts have put that rule on hold.
Although the new regulation is currently stayed pending the outcome of litigation challenging the rule, the report notes that these case studies demonstrate that “assurances given by the Environmental Protection Agency and the Army Corps of Engineers regarding the scope of the WOTUS rule and its exemptions to the positions taken by these agencies in jurisdictional determinations and in litigation are factually false.”
U.S. Sen. Jim Inhofe (R., Okla.), chairman of the Senate EPW Committee, released an EPW Majority Committee report titled “From Preventing Pollution of Navigable & Interstate Waters to Regulating Farm Fields, Puddles & Dry Land: A Senate Report on the Expansion of Jurisdiction Claimed by the Army Corps of Engineers & the U.S. Environmental Protection Agency under the Clean Water Act.” The report releases findings from the majority staff’s investigation into how EPA and the Corps are interpreting and implementing their authority under the Clean Water Act.
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” or “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.
EPA Administrator Gina McCarthy has claimed, “We will protect clean water without getting in the way of farming and ranching. Normal agriculture practices like plowing, planting and harvesting a field have always been exempt from Clean Water Act regulation; this rule won’t change that at all.”
The report notes that, as discussed in the case studies, “EPA, the Corps and the Department of Justice currently take the position that plowing, disking and changing crops all are regulated. Undoubtedly, attempts to regulate these agricultural practices will increase under the WOTUS rule as more land falls under federal control.”
For cattle producers, the report highlights two cases where EPA took enforcement action against normal farming and ranching activities that are exempt from the Clean Water Act. In one instance, EPA intervened when a California rancher plowed cropland that was previously used for cattle grazing. In that matter, EPA noted that by plowing, the rancher created furrow tops that served as "uplands" and as "small mountain ranges," which disqualified the plowing from the agricultural exemption. In the second instance, a rancher who created a stock pond was informed that the pond was too "aesthetic" and, therefore, fell outside the stock pond exemption.
“While EPA has consistently claimed that the WOTUS rule preserves the exemptions for normal farming and ranching activities, their regulatory track record proves the exact opposite,” National Cattlemen’s Beef Assn. (NCBA) president Tracy Brunner said. “The broad and undefined terms of the WOTUS rule have created regulatory uncertainty for producers and given EPA complete subjective control in defining their jurisdiction over every drop of water in the United States.”
Zippy Duvall, president of the American Farm Bureau Federation, said, “The case studies presented in the report reflect the serious concerns we have raised for more than two years now: The new ‘waters of the U.S.’ rule takes the EPA’s and Corps’ long-standing regulatory overreach and gives it a new name. The agencies 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 waters of the U.S. rule, now stayed in federal court, will cement that lawless expansion of authority unless Congress acts to stop it. The time to rein in these agencies is now,” Duvall added.
Prior to a Senate vote on legislation to fix the WOTUS rule, 11 senators sent a letter to EPA and the Corps asserting that they reserve the right to support efforts to revise the rule, should EPA enforcement erode traditional exemptions. NCBA called on these 11 senators to work together with the EPW Committee to forge a compromise that will bring regulatory certainty to cattle producers and preserve the agricultural exemptions of 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. “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 to 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."