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EPA stretching limit of its authority, and farmers are getting caught in crosshairs.

Jacqui Fatka

September 22, 2016

4 Min Read
Inside Washington: EPA is going too far

There have been several significant mentions of the Environmental Protection Agency this week and its actions pertaining to farmers — and it hasn’t been positive.

Case studies in a new report released by the Senate Environment & Public Works (EPW) Committee Monday 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.

The report identifies how one farmer was ordered to abandon his field because his ordinary plowing is 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 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.

EPA and the Army Corps of Engineers “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,” Zippy Duvall, president of the American Farm Bureau Federation (AFBF), said.

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.

One farmer, 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. John 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.

While Duarte is making a stand, he also is asking the broad agricultural community to stand with him because of the very important legal issues at stake for all farmers and ranchers. To help fund his legal defense effort, Duarte has established a page telling his story on the GoFundMe platform. Click on the link if you’d like to help him financially with the court battles.

“John Duarte isn’t that much different from most farmers,” Duvall said. “He works his land, plants his crop and works with nature to take care of it to the best of his ability. What makes his story different is the fact he ran head-on into regulators wanting to make him an example by calling into question his use of normal farming practices in an area they have identified as a 'water of the U.S.' It is important that we challenge these issues, and John is boldly standing up to do that.”

Last year, 11 senators wrote to EPA and the Corps that they reserve the right to support efforts to revise the WOTUS rule, should EPA enforcement erode traditional exemptions. The Senate EPW Committee report makes it clear that the agencies are not following the law.

This week’s report has increased the call from agricultural groups, including AFBF and others such as the National Corn Growers Assn. and National Cattlemen’s Beef Assn., for the Senate to pass its bill that would allow EPA, the Corps, farmers and others to collaborate on an improved WOTUS rule. Had those 11 senators voted in favor of the bill, it would have passed.

What’s Upstream campaign

EPA also came under fire this week for not responding to a request from House legislators on EPA Region 10 funding of the What’s Upstream website that attempts to influence legislators for greater regulation of farmers and ranchers. Rep. Dan Newhouse (R., Wash.) led a letter to EPA Administrator Gina McCarthy requesting an update on the agency’s review of the anti-farmer “What’s Upstream” campaign in Washington state.

In April of this year, McCarthy acknowledged that EPA was “distressed by the use of the money and the tone of [the What’s Upstream] campaign” and called for a full review of the use of taxpayer funds for the campaign. The letter sent was signed by House Agriculture Committee chairman Mike Conaway (R., Texas) and Reps. Rick Crawford (R., Ark.), Bob Gibbs (R., Ohio), Collin C. Peterson (D., Minn.) and David Scott (D., Ga.).

“In light of the Government Accountability Office’s finding that EPA violated the Antideficiency Act and federal appropriations law by promoting the (WOTUS) rule, followed so closely by the revelation of misuse of funds to lobby state legislators through the ‘What’s Upstream’ campaign, we are growing increasingly concerned about EPA’s use of taxpayer dollars,” the members wrote. “As we await the Office of Inspector General’s report on the ‘What’s Upstream’ campaign and discuss the need for and scope of potential legislative reform, an update from EPA on what proactive steps have been taken to address this disturbing trend could help better direct our conversations.”

About the Author(s)

Jacqui Fatka

Policy editor, Farm Futures

Jacqui Fatka grew up on a diversified livestock and grain farm in southwest Iowa and graduated from Iowa State University with a bachelor’s degree in journalism and mass communications, with a minor in agriculture education, in 2003. She’s been writing for agricultural audiences ever since. In college, she interned with Wallaces Farmer and cultivated her love of ag policy during an internship with the Iowa Pork Producers Association, working in Sen. Chuck Grassley’s Capitol Hill press office. In 2003, she started full time for Farm Progress companies’ state and regional publications as the e-content editor, and became Farm Futures’ policy editor in 2004. A few years later, she began covering grain and biofuels markets for the weekly newspaper Feedstuffs. As the current policy editor for Farm Progress, she covers the ongoing developments in ag policy, trade, regulations and court rulings. Fatka also serves as the interim executive secretary-treasurer for the North American Agricultural Journalists. She lives on a small acreage in central Ohio with her husband and three children.

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