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.”
#30
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