Senate Committee Report Says WOTUS Reforms Needed

A report issued from the Senate Environment and Public Works (EPW) Committee says federal agencies overreach their authority to regulate farmland.

The report from the EPW describes numerous incidents in which the U.S. Army Corps of Engineers and EPA have tried to expand their authority to regulate what crops farmers grow and how they grow them, based on the agencies’ interpretation of the Clean Water Act.

“A disturbing number of the cases described in the Senate report came from California,” Paul Wenger, president of the California Farm Bureau Federation says. “Farmers and ranchers here have seen firsthand that the abuses outlined in this report aren’t theoretical — they’re real.”

“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,” U.S. Sen. Jim Infofe (R-OK), chairman of EPW said. “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.”

Landowners’ concerns stem from a rule the agencies finalized last year, known as the “waters of the United States” or WOTUS rule, which would bring more waterways under jurisdiction of the Clean Water Act. Although a federal court has temporarily halted enforcement of the WOTUS rule, landowners and their representatives say the Corps continues to enforce the act so narrowly that, as a practical matter, its actions mirror the intent of the new rule.

“Farmers and ranchers want to do the right thing and protect the environment as they farm. But they shouldn’t be tied up in knots by regulators for simply plowing their ground or considering a new crop on their land, and they shouldn’t have their land declared off limits if they must leave it idle due to drought or other conditions beyond their control,” Wenger says.

The report summarizes case studies that demonstrate the following:

  • EPA and the Corps have and will continue to advance very broad claims of jurisdiction based on discretionary authority to define their own jurisdiction.
  • The WOTUS rule would codify the agencies’ broadest theories of jurisdiction, which Justice Kennedy recently called “ominous.”
  • 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 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,” and “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.
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