WASHINGTON, June 1, 2016 - EPA Administrator Gina McCarthy has repeatedly assured the agriculture community that the new Clean Water Rule (currently stayed by the 6th Circuit Court of Appeals) continues to exempt normal farming and ranching practices, including planting, harvesting, and moving livestock.
“The Clean Water Rule will protect streams and wetlands and provide greater clarity and certainty to farmers, all without creating any new permitting requirements for agriculture and while maintaining all existing exemptions and exclusion,” McCarthy and Assistant Secretary of the Army Jo-Ellen Darcy say in a blog post on the rule.
But Jody Gallaway, president of Gallaway Enterprises in Chico, California, begs to differ. Gallaway presented testimony to a Senate Environment and Public Works subcommittee last week, aided by Don Parrish, senior director for regulatory relations at AFBF, who testified at the hearing. Among the highlights:
The Corps’ Sacramento district requires a Clean Water Act permit for any plowing, no matter how shallow, in classified “waters of the U.S.” (WOTUS) such as a vernal pool or ephemeral drain. “The Corps issues threatening letters if farmers plow a fire break, change from alfalfa hay farming to cattle grazing and back to alfalfa hay farming or when the agency ‘thinks’ the farmer was plowing too deep or changing land use,” Parrish said in written testimony. “The Corps selectively enforces this interpretation and the result is that the Corps now exerts the power to tell farmers where they can and cannot farm, and what they can grow.”
“One farmer invested tens of thousands of dollars to map his private property to ensure his farming activity would avoid WOTUS and any impacts to WOTUS, only to have the Corps threaten enforcement proceedings for activities related to road building and construction of stock ponds years before the farmer owned the property,” Parrish said.
“The Corps uses classified aerial photography, LIDAR images, and other resources that are not publicly available to track farming activities and interpret the potential for waters to occur,” Gallaway said. “In one recent situation, we needed to have aerial photos de-classified in order to understand what the Corps was claiming to be waters.”
More from Gallaway: “My clients typically experience a delay of three to four months before a Corps regulator will even acknowledge receipt of a permit application or request for a jurisdictional determination (JD). It is common practice for a JD request to take more than 12 months to complete. More often than not, our clients are so discouraged by the Corps’ lack of progress and inconsistencies that they withdraw their JD requests.”
Gallaway added that recently, “many of our projects were delayed because Corps staff said they were waiting on implementation guidance from the EPA and others told us it was ‘too dry’ and that our project should wait until it rained again.”
She also said that “across much of northern California, the Corps still asserts jurisdiction over isolated waters. Regulators in our region have required delineators to map puddles in dirt roads, tire ruts, and depressions in gravel parking lots as waters of the U.S., claiming they provide habitat for endangered species.”
Sen. Sheldon Whitehouse, D-R.I., asked Parrish to substantiate the charge about puddles and tire ruts; Parrish said he could “bring forth a technical witness who can support that.” Whitehouse also sparred with Parrish about the use of LIDAR, which stands for Light Detection and Ranging, a surveying technology.
“We use LIDAR all the time,” Whitehouse said, citing the Federal Emergency Management Agency as an example.
Parrish said he had no problem with the government’s using LIDAR, but that the Corps was “using it to identify features that the human eye cannot identify or detect.”
No one from the Corps testified at the hearing. "We wanted to hear from affected stakeholders," said Mike Anderson, an aide to Sen. Dan Sullivan, R-Alaska, the chairman of the EPW subcommittee on Fisheries, Water, and Wildlife. "We’ve already had the administration before the committee or subcommittee multiple times to discuss WOTUS."
In an email, Tyler Stalker, a spokesman for the Corps’ Sacramento District, would say only, “The Clean Water Rule has been stayed and we (the Sacramento District) are interpreting the rules as defined prior to the Clean Water Rule. Any other questions related to the Clean Water Rule would need to go through Corps headquarters.”
Corps headquarters did respond, late Tuesday, to questions posed by Agri-Pulse based on Gallaway’s testimony: “There is no required timeframe for completing a jurisdictional determination,” Corps HQ said, meaning that it could take 12 months or more as Galloway noted in her written testimony. . (The full Q&A is here. For more on the recent SCOTUS ruling allowing landowners to sue over wetlands determinations, click here.)
On the “exemption” question, the Corps cited Corps regulations to define plowing as “all forms of primary tillage … for the breaking up, cutting, turning over, or stirring of soil to prepare it for the planting of crops,” but does not include “redistribution of soil, rock, sand, or other surficial materials, in a manner which changes any area of the waters of the United States to dry land.”
Gallaway called her decision to provide testimony to the committee a difficult one. “I hesitated to put my name, company, and 12 employees at risk because our work depends on maintaining a professional relationship with California-based Corps staff in the Sacramento, Redding, and San Francisco offices,” she said in written testimony. However, encouragement from her employees and clients “empowered” her, she said. “Our collective frustration, concern, and the challenges we face are at the highest I can remember at any time over the last 15 years.”
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