Hearing looks at Clean Water Act enforcement

Issue Date: June 1, 2016
By Christine Souza
Josh Rolph of the California Farm Bureau Federation, Butte County Farm Bureau member Jody Gallaway and Don Parrish of the American Farm Bureau Federation discuss Clean Water Act enforcement problems.
Photo/Chelsea Molina

The U.S. Army Corps of Engineers is making it tough to farm and ranch as it interprets the federal Clean Water Act, a Farm Bureau member from California said in an appearance before a U.S. Senate subcommittee.

Butte County Farm Bureau member Jody Gallaway, president and senior regulatory biologist for the Chico-based environmental consulting firm Gallaway Enterprises, described to senators the difficulty in obtaining a Clean Water Act agricultural permit in California. She appeared at a Senate Environment and Public Works Subcommittee on Fisheries, Water, and Wildlife hearing in Washington, D.C., last week on expansion of federal control through the "waters of the United States" rule, also known as WOTUS.

The WOTUS rule is expected to bring more waterways under protection of the Clean Water Act. Farm Bureau and other opponents say it greatly expands the regulatory authority of the U.S. Environmental Protection Agency and the Corps by increasing the number of waters that fall under their jurisdiction and expanding the lands surrounding those waters into their jurisdiction, due to the inclusion of new definitions and categories of regulated waters.

A federal court halted enforcement of the WOTUS rule nationwide last year, but Farm Bureau says the Corps has interpreted a farming exemption in the Clean Water Act so narrowly that, as a practical matter, it now mirrors the intent of the new WOTUS rule.

In assisting farmers and municipal clients in navigating the Clean Water Act process, Gallaway explained that in her interactions with the Corps, "each regulator has a different interpretation of what is or isn't waters of the United States, and that creates a lot of confusion on the ground." She added that even though ordinary farming practices are supposed to be exempt, the Corps "has considered changing from one crop to another (to be) a land-use change, and when you incur a land-use change, that becomes under their jurisdiction."

For example, Gallaway said, if a farmer decides to transition from rice to walnuts, "the Corps considers that a land-use change and has submitted letters of inquiry, notifying my clients that they are under investigation for potential violations of the Clean Water Act."

Gallaway said she has consulted on numerous discussions between farmers and the Corps, which interprets and executes environmental regulations that are largely determined by the EPA.

Don Parrish, senior director of congressional relations for the American Farm Bureau Federation, told the subcommittee the Corps' interpretations of environmental law threaten the livelihoods of ordinary, middle-class Americans who farm for a living.

"Based on what we see in California, it is clear that the expansions in jurisdiction over land and water features on the farm are already happening," Parrish said. "Most ordinary farming activities conducted in areas under jurisdiction will require permits if and when the Corps chooses to demand them. And when they demand permits, delays and costs will mount until most farmers simply give up."

He urged Congress "to step in and give farmers some real certainty, so they can plan their farming operations and protect the environment at the same time."

Parrish cited numerous examples.

He said the Corps has made jurisdictional determinations and tracked farming activities based on classified aerial photographs and imagery that is not publicly available, even to farmers under investigation. He also said Corps officials have forced farmers to sign nondisclosure agreements, which he likened to gag orders, as part of their enforcement actions.

One California farmer invested tens of thousands of dollars to map potential waters of the U.S. on his private property, Parrish said, to ensure his farming activity would avoid affecting local watersheds, but the Corps responded by threatening enforcement proceedings over construction of roads and ponds completed years before the farmer owned the property.

In the Corps Sacramento district, Parrish said, any plowing through a wetland is considered a "discharge," requiring permits that typically cost hundreds of thousands of dollars in engineering fees and technical studies, even though the Clean Water Act exempts plowing from permitting. He said the Corps has issued menacing letters to farmers who have changed crops, despite the absence of any law to support such objections.

Parrish said the Corps has told farmers to stop working when it merely suspected they were plowing too deeply or changing land use.

"The way in which the Corps enforces the Clean Water Act, they scare the dickens out of farmers," he said.

Damien Schiff, principal attorney at the Pacific Legal Foundation, described the way agencies interpret the Clean Water Act as a "regulatory taking."

"The Constitution says that the government cannot take your property for public use without just compensation," Schiff said. "With respect to the Clean Water Act, that is the result."

Josh Rolph, federal policy manager for the California Farm Bureau Federation, attended the subcommittee hearing and said it showed how the new WOTUS rule, if allowed to take effect, would legitimize approaches taken by the Corps in recent years to restrict production agriculture.

"California farmers and ranchers remain burdened by inconsistent interpretation of the normal farming exemption of the Clean Water Act," Rolph said. "This hearing brought the California perspective to the national conversation."

Following her appearance at the hearing, Gallaway said she hoped the proceeding illustrated "the disconnect" between what proponents of the regulation say and what actually happens on the ground.

"I would hope it would encourage more people to come forward and tell their stories," she said, "because there are so many stories up and down the state of regulatory overreach that affects agriculture."

Rolph encouraged farmers and ranchers who have faced challenges with Clean Water Act enforcement to contact him at jrolph@cfbf.com.

(Christine Souza is an assistant editor of Ag Alert. She may be contacted at csouza@cfbf.com.)

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