Tuesday, January 12, 2016

My Confusion on WOTUS and Ag Exemptions

In the past I've been puzzled over the conflicting stories told about WOTUS by the EPA and Farm Bureau. The EPA claims that the rule does not impact normal farming operations but will require permits for many non-day-to-day activities farmers might engage in that would affect a "water of the United States." Farm Bureau makes much stronger claims, indicating that many typical practices will be hindered by bureaucratic red tape.

I've not found any source that nails down precisely what is and is not a "water of the United States." That's more than a little bit unnerving, as the definition of that term is the basis of the regulatory authority. [A previous version of this post indicated that my colleague Tiffany Dowell-Lashmet claimed that the EPA's characterization of the WOTUS rule is more accurate than FB. I've been informed that this is not her view and have deleted the offending portion of the post.]

A recent DTN column entitled "Farming Under Regulatory Fear: California Farmer's Battle Spotlights Growing Fear of Government Overreach" sounds at first like clickbait, but brings to light a case that makes me think Farm Bureau's claims are more accurate than I first believed. The article is ungated for now, but might be behind a paywall in the near future.

The author, Chris Clayton, tells of California farmer John Duarte's run in with the Army Corps of Engineers over some wheat he planted in 2012.
Duarte bought 450 acres of wheat land and grazing land in 2012 in Tehama County in northern California; he planted wheat there in fall 2012. He got a call that December from the Army Corps of Engineers warning him that he was illegally "deep ripping" wetlands on the farm. The Corps later sent him a letter declaring he was violating waters of the U.S. Duarte points out the "wetlands" being discussed are largely known as vernal pools that hold water three or four times a year when it rains. They aren't streams or habitats, he said.
The legal proceedings have been quite costly for Duarte:
He's now involved in claims and counter-claims in federal court to determine whether he or the Army Corps is overstepping regulatory bounds. Duarte said he has spent $900,000 and he now has representation for at least some of the court cases by the Pacific Legal Foundation. He said the federal government has spent at least $1 million to pursue its claim against him. At a minimum, the Corps states Duarte should have filed for a 404 discharge or dredge permit to till that ground.
Clayton notes that plowing should be covered under the ag exemption in current EPA rules:
Yet, the Clean Water Act states plowing is considered an exempt farming practice that does not require any kind of discharge permit. "The act of plowing is completely exempt from the Clean Water Act," he said. Duarte added later, "The ag exemption is very broad and very clear."
The article only tells one side of the story, but the Corps has not been forthcoming during the process:
The Pacific Legal Foundation took up Duarte's case because the property-rights group argues the Army Corps of Engineers did not engage in any due process or hold an administrative hearing for Duarte on the situation.
Perhaps Duarte has good reason to be concerned. He mentioned another situation in Oregon that seems to me to be a case of a punishment that doesn't fit the crime:
Duarte sees increasing federal intrusion in to agriculture. He pointed to the criminal prosecution of Oregon ranchers Dwight and Steve Hammond, who are now in federal prison for as long as five years because of grassland fires they started on their ranch that spread to permitted ground managed by the U.S. Bureau of Land Management. Duarte said that case also demonstrates another federal agency seeking to aggressively demonstrate its regulatory oversight.

Duarte isn't alone in his concerns. At a town hall meeting Sunday, Montana rancher Bill Bergin asked Agriculture Secretary Tom Vilsack about the Hammond case and why the ranchers were charged under a terrorism act. "As a rancher, that scares me," Bergin said, who told DTN his ranch does include leasing a small piece of federal ground. "If I were to start a backfire and it got out of control, would I be considered a terrorist and be sent to prison?"
Clearly transparency and cooperation between regulators and producers would be a welcome alternative to the way these violations are being handled. I'd really like to hear the other side of the story.

This column reminds me of a recent paper by Shawn Regan at the Property and Environment Research Center. In his piece, Regan notes that:
In the United States, grazing conflicts such as Bundy’s are born out of a federal grazing system that encourages conflict, not negotiation. Competing user groups often have no way of coming together to resolve conflicting demands except through top-down political or judicial means.
This is by no means "anti-environment" or "anti-government." It seems to me to be an accurate identification of a bug in the current institutional arrangement that could be fixed or at least improved upon. While those improvements or fixes would certainly differ in their specifics for federal grazing lands and privately-held ground regulated by the EPA and other agencies, any reform that fosters negotiation over litigation is likely to reduce the costs these conflicts present to the parties involved and to others (e.g. taxpayers). 


  1. Oh I don't think that EPA is more right. I think that the statement that every drop of water is regulated is not true, but certainly the EPA's spin does not give with the language in the new reg. In my mind the EPA's goal of clarifying the definition was a good one, but the problem is they managed to make it even more convoluted and confusing, and also certainly broadened the definition in some areas

    1. Sorry Tiffany, I didn't mean to misquote you. I really just meant that the EPA's characterization of the rule is more correct (at least in theory) than FB's. That's what I got from our conversation and from your post.