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WOTUS Reform Urged
Wednesday, September 21, 2016 1:49PM CDT

By Todd Neeley
DTN Staff Reporter

OMAHA (DTN) -- The time may have come to reform the Clean Water Act, a leading Senate Republican said Tuesday following the release of a report that outlines what Republicans say is evidence the U.S. Environmental Protection Agency already is enforcing the waters of the United States rule.

Sen. James Inhofe, R-Okla., chairman of the Environment and Public Works Committee, called on a group of 11 Democratic senators to join reform efforts in what Inhofe said would create a veto-proof 69-vote majority in the Senate.

Inhofe's committee released a 38-page report Tuesday that outlines examples the committee collected of how the WOTUS rule already is being implemented despite a national injunction in place preventing the rule's enforcement.

"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 in a statement. "... 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."

The Senate committee's report outlines a number of instances showing Clean Water Act exemptions that farmers and ranchers rely on to run their operations. Those exemptions may be in jeopardy under the new rule.

The report said "case studies" collected by the Senate committee show the federal agencies already are enforcing the rule that will "codify many of the most extreme overreaches of federal authority asserted by these agencies."

In one example, in 2014, an Indiana farmer cleared trees from his property to expand his farming operation. The Corps claimed the farmer's activity destroyed an ephemeral drainage characterized as a regulated tributary.

"The Corps claimed jurisdiction based on a soil survey (although the Corps did not claim wetlands were present), Google Earth aerial photographs taken before the trees were cleared, and speculation that a drainage existed beneath the tree canopy," the report said.

In another example from the report, in 2015, the Corps told a landowner that changing the use of a field from alfalfa to orchards would "constitute a land-use change and that Corps regulators could pursue an enforcement action against the landowner if they thought plowing the field to plant trees involved a discharge to wetlands."

The report said the agency told the landowner that despite an "extensive farming history, orchards were never planted on the ranch so they are not the same kind of farming and might not be considered a normal farming activity."

In a Nov. 3, 2015, letter to EPA Administrator Gina McCarthy and Jo-Ellen Darcy, assistant secretary of the Army for Civil Works, a group of one Independent and 10 Senate Democrats said they would pursue reforms to the water of the U.S. rule if the agencies didn't provide clarity to farmers, ranchers and others. That letter was signed by Independent Sen. Angus King of Maine; Democratic Sens. Bill Nelson, Fla.; Tim Kaine, Va.; Mark Warner, Va.; Dianne Feinstein, Calif.; Brian Schatz, Hawaii; Chris Coons, Del.; Tom Carper, Del.; Jon Tester, Mont.; Michael Bennet, Colo.; and Amy Klobuchar, Minn.

In a letter to those senators this week, Inhofe said he believes the report should serve as a basis for pursuing reform.

"Given the facts set forth in the attached report, it is clear to me that the test set forth in your Nov. 3 letter has been met," Inhofe said in the letter. "There is no certainty or clarity regarding CWA jurisdiction and EPA and the Corps have eroded traditional exemptions ... I hope that you live up to the commitment you made last November and work with me on tailored legislation to end the abuses identified in the case studies presented ..."

When contacted by DTN Tuesday, EPA said, "We will review and respond" to the Senate report.

The fate of the WOTUS rule remains tied up in the U.S. District Court for the Sixth District in Cincinnati. According to court documents, the legal battle will continue on into 2017.

Earlier this month, the American Farm Bureau Federation petitioned the U.S. Supreme Court to consider whether the WOTUS cases should be heard by an appeals court or a district court.

"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' longstanding regulatory overreach and gives it a new name," AFBF President Zippy Duvall said in a statement.

"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."


In its report, the Environment and Public Works Committee said it was drawing a number of conclusions about how the EPA and the Army Corps of Engineers may be treating ag exemptions based on the case studies it collected.

"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 ... 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."

In particular, the Republican majority on the EPW Committee express concern about the loss of exemptions for plowing, crop-switching and puddles.

"If Congress does not act, the newly won ability to challenge Corps jurisdictional determinations and claim exemptions will be moot because the WOTUS rule establishes jurisdiction by rule that will extend to all the activities described in the case studies," the committee report said.

National Cattlemen's Beef Association President Tracy Brunner said the EPW report was "conclusive evidence" of EPA's efforts to expand jurisdiction.

"While the courts have temporarily suspended enforcement and implementation of the rule, the EPA continues to exercise federal control over private land in a way that erodes the agricultural exemptions in the Clean Water Act," Brunner said in a news release.

"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," Brunner said.

Read the Senate report here: http://bit.ly/…

Read the Senate Democrats' letter to EPA and the Corps of Engineers here: http://bit.ly/…

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @toddneeleyDTN


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