If you have been following the proposed “New Rules” from the Environmental Protection Agency regarding the Clean Water Act you may have seen the release of the “Litigation Sensitive” memos. These memos detail how the proposed “New Rules” ignore sound science, lack legal authority, and are not supported by the Army Corps of Engineers.
Read Corps gives plaintiffs a hand on WOTUS from Capital Press:
The American Farm Bureau Federation (AFBF) released documents outlining how EPA’s Waters of the U.S. rule will give the agency sweeping powers to regulate land use despite a body of law clearly prohibiting such overreach. “Our analysis shows yet again how unwise, extreme and unlawful this rule is,” AFBF President Bob Stallman said. “Our public affairs specialists and legal team have assembled the best analysis available, and their conclusions are sobering: Despite months of comments and innumerable complaints, the Waters of the U.S. (WOTUS) proposal is even worse than before.”
The WOTUS rule, first released in draft form in April, 2014, has garnered fierce opposition from farmers, ranchers, and land owners of all kinds. Dozens of states and countless municipalities oppose the measure.
One of the most concerning aspects of the new rule is the ability of CWA regulators to ignore scientific indicators of jurisdictional waters and instead rely purely on aerial photos, opinions and past conditions.
The redefinition of “waters of the U.S.” under the Clean Water Act will severely impact farming activities making it more difficult farm by creating a broader regulatory scheme, no certainty to farmers and few exemptions.
Washington, DC – Rep. Doug LaMalfa (R-CA) voted for a measure last evening that rolls back the Environmental Protection Agency’s controversial “Waters of the United States” regulatory proposal. HR 1732, which passed by a vote of 261-155, prevents the EPA from implementing the rule and directs it to work with stakeholders on a new rule. The EPA has refused to make any significant changes to its proposal, despite receiving approximately a million comments from across the country identifying the negative impacts the rule would have on farms, small businesses, and local governments.
“The EPA and other federal bureaucracies already ignore clear exemptions in order to attack farmers and ranchers, and they now want even more authority? The Waters of the US regulation would expand the federal government’s jurisdiction over vast swathes of Northern California, including gullies which contain water only during rainstorms and wet depressions in fields,” said LaMalfa. “Congress has made it clear that it never intended to provide these powers to the EPA, has demonstrated bipartisan opposition to the proposal, and has acted to defund it. It’s time that the EPA remembers that Congress writes our nation’s laws, not federal bureaucrats.”
LaMalfa referred to the EPA’s existing interpretation of the Clean Water Act, in which it ignores clear, explicit exemptions of agricultural activities in order to penalize farmers for changing crops or replanting fallowed fields. LaMalfa has successfully passed several measures to limit and defund this interpretation, most recently in the Energy & Water Appropriations bill the House passed earlier this month.
Tricolored Blackbirds Receive Emergency Protection Under the California Endangered Species Act
The emergency protections prevent the killing, harassing, or harming of tricolored blackbirds for the next 180 days, while the California Fish and Game Commission considers a petition to formally list the birds under the state’s Endangered Species Act. Tricolored blackbird populations have declined throughout the State with only 145,000 birds counted in 2014-the lowest ever recorded. Formal listing of this bird will primarily affect agricultural operations as tricolored blackbirds nest in large colonies located within irrigated pasture, silage fields, and other agricultural crops. “It’s critical that harvesting and plowing activities on private lands used for tricolor breeding are prohibited or delayed during the upcoming 2015 nesting season”, Jeff Miller from the Center for Biological Diversity.
Since the new rule was proposed, our office has been receiving 3-4 calls a week from farmers and those considering acquisition of lands for farming. The EPA and US Army Corps of Engineers have proposed rule changes to the Clean Water Act that provide “clarifications to the scope of the CWA”. Those opposed to the new rule assert that the rule expands the jurisdiction of the agencies via the Clean Water Act and provides a broad expansion of the types of waters and lands that would be subject to a federal permit. In our humble experience, the new rule formalizes what the San Francisco and Sacramento office of the US Army Corps of Engineers have been taking jurisdiction of gradually over the last 6 years.
On Wednesday, February 5, 2014 the US Army Corps of Engineers (COE) posted a Public Notice on conducting wetland delineations during drought conditions to their website. Due to the drought conditions that have developed over the past few years in California, the COE is recommending, when applicable, that delineators use the difficult Wetland Situations protocol. In the guidance posted, the COE identify two documents which describe approaches that may be useful in completing wetland delineations during periods of below-normal rainfall, drought conditions and unusually low winter snowpack. The documents identified include two Regional Supplements to the Corps of Engineers Wetland Delineation Manual, one for the Arid West Region and one for the Western Mountains, Valleys, and Coast Region.