Congress calls on Sessions to investigate DoJ abuses in WOTUS case

House Agriculture Committee Chairman K. Michael Conaway (TX-11) and House Judiciary Committee Chairman, Bob Goodlatte (VA-6) sent a letter to U.S. Attorney General Jeff Sessions calling for a review of the Department of Justice’s (DOJ) decision to prosecute a California court case alleging violations under the Clean Water Act (CWA) – directly related to both the statutory exemptions for farming and Obama administration’s waters of the U.S. (WOTUS) rule.

The letter requests information about DOJ’s process for prosecuting violations of the CWA, citing specific concerns about the case of Duarte Nursery v. Army Corps of Engineers. In the letter, the chairmen note both committees’ concerns that the court’s opinion is “not consistent with legislative intent behind the farming exemptions under the CWA.” The letter also seeks to clarify whether a legislative fix is required to protect farmers, such California farmer John Duarte, from similar prosecution in the future. 

Mr. Duarte’s case clearly highlights the need to keep the federal government out of America’s backyards, fields and ditches. Little-by-little we watched the previous administration chip away at the rights of land and property-owners, aiming to expand its authority through broad new rules under WOTUS, all while providing little clarity to farmers and ranchers about what qualifies for exemptions. Our letter aims to work with the new administration to better define current interpretations of both WOTUS and farming exemptions so we can begin to set new rules of the road that will protect our farmers and ranchers from onerous fines, penalties and regulations,” said Chairman Conaway.

“The regulatory overreach of the previous administration is having a negative impact on the lives of hardworking Americans. Congress made its intentions of how the Clean Water Act was to be applied for the health and safety of Americans, but the Obama administration has twisted law to serve a political agenda. We will work with President Trump and the new administration to reverse Obama-era regulations that are hurting American farmers, as well as other industries, and private citizens alike,” said Chairman Goodlatte.

Mr. Duarte’s case stems from a February 2013 U.S. Army Corps of Engineers (the Corps) allegation that the vernal pools on Mr. Duarte’s land are considered WOTUS, thus subject to CWA authority. The Corps argued that based on inconsistent agriculture production patterns on Mr. Duarte’s land prior to his purchase in 2012 he did not qualify for farming exemptions and had violated the CWA when he plowed his field in late 2012. Mr. Duarte now faces fines of roughly $2.8 million and additional costly mitigation measures.

Full text of the letter is available below.
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May 26, 2017

The Honorable Jeff Sessions              
Attorney General of the United States          
Department of Justice
950 Pennsylvania Avenue, NW         
Washington, D.C. 20530

Dear Attorney General Sessions:

As Chairman of the House Committee on Agriculture and Chairman of the House Committee on the Judiciary (“Committees”), we have been following the case of Duarte Nursery v. Army Corps of Engineers very closely. As you may know, the interpretations of the Clean Water Act (CWA) and its farming exemptions are critical to farmers and ranchers across the nation and, thus, are of particular interest to the Agriculture Committee, especially given the Committee’s jurisdiction over agriculture generally. The Judiciary Committee’s oversight responsibilities include ensuring that the Justice Department enforces the law as Congress intended.

The prosecution of Mr. Duarte raises concerns that the Congressional intent behind the farming exemptions in the statute is misunderstood. Specifically, it is the Agriculture Committee’s view that even occasional farm activities, including grazing, qualify as “normal” farming under the statutory exemption, and also are part of an established operation for purposes of the exemption. Further, it is the Committee’s view that the activity at issue in this case constitute plowing for the purposes of the exemption.

To better understand the Department of Justice’s (DOJ) process for prosecuting potential violations of the CWA and in order to determine whether or not legislation is required to correct potential misinterpretations of the law, the Committees request the following information:

  • What does the DOJ consider in determining whether or not to prosecute a violation of the CWA?
  • Is it appropriate to seek reduced penalties where the alleged violation is based on a novel or strained interpretation of the underlying statutory authority?
  • Have there been any cases where DOJ has entered into contingent settlements pending an appeal of a CWA case? If so, please describe the circumstances of those cases.
  • Has DOJ ever declined on appeal to advance CWA arguments that were successful at the district court level? If so, please describe the circumstances of those cases.

If you have any questions about this request, please contact Agriculture Committee staff at (202) 225-2171 and the Judiciary Committee at (202) 225-3951.

Sincerely,

K. Michael Conaway                                                             
Chairman        
House Committee on Agriculture      

Bob Goodlatte           
Chairman
House Committee on the Judiciary                 

cc:        The Honorable Scott Pruitt, Administrator, U.S. Environmental Protection Agency

EPA seeking input on WOTUS rewrite

The U.S. Environmental Protection Agency and the U.S. Army sent a letter to governors Tueday soliciting input from states on a new definition of protected waters that is in-line with a Supreme Court Justice Antonin Scalia’s opinion in the 2006 Rapanos v. United States case. Scalia’s definition explains that federal oversight should extend to “relatively permanent” waters and wetlands with a “continuous surface connection” to large rivers and streams.

“EPA is restoring states’ important role in the regulation of water,” said EPA Administrator Scott Pruitt. “Like President Trump, I believe that we need to work with our state governments to understand what they think is the best way to protect their waters, and what actions they are already taking to do so. We want to return to a regulatory partnership, rather than regulate by executive fiat.”

“The Army, together with the Corps of Engineers, is committed to working closely with and supporting the EPA on these rulemakings.  As we go through the rulemaking process, we will continue to make the implementation of the Clean Water Act Section 404 regulatory program as transparent as possible for the regulated public, ” said Douglas Lamont, senior official performing the duties of the Assistant Secretary of the Army for Civil Works.

The Clean Water Act asserts federal control over “navigable waters” without providing clarity or details about the law’s scope. President Donald Trump signed an executive order on February 28, 2017 to direct federal agencies to roll back and replace the Obama Administration’s Clean Water Rule – also known as the “Waters of the U.S.” or WOTUS – to ensure that the nation’s navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of Congress and the States under the Constitution.

To meet the objectives of the executive order, federal agencies are following a two-step process that will provide as much certainty as possible, as quickly as possible, to the regulated community and the public during the development of the replacement rule.

The first step is to revise the Code of Federal Regulations to re-codify the definition of “Waters of the United States” which currently governs administration of the Clean Water Act, in light of a decision by the U.S. Court of Appeals for the Sixth Circuit staying a definition of “Waters of the United States” promulgated by the agencies in 2015. This action will simply make the text of the Code of Federal Regulations reflect the definition currently in effect under the Sixth Circuit stay. This action, when final, will not change current practice with respect to the how the definition applies, which is consistent with Supreme Court decisions, agency guidance documents, and longstanding practice.

The second step will be a public notice-and-comment rulemaking involving a substantive reevaluation and revision of the definition of “Waters of the U.S.” in accordance with the executive order. The letter sent to governors today is seeking input on the second step of the process.

Source: EPA

Barrasso: WOTUS Rule is Fundamentally Flawed and Must be Withdrawn

U.S. Senator John Barrasso (R-WY), chairman of the Senate Committee on Environment and Public Works (EPW), delivered the following remarks at a committee oversight hearing on “A Review of the Technical, Scientific, and Legal Basis of the Waters of the United States (WOTUS) Rule.”

The hearing featured testimony from Major General John Peabody (Ret.); Dr. Michael Josselyn, the principal of Wetlands Research Associates; Mr. Misha Tseytlin, solicitor general for the State of Wisconsin; Mr. Ken Kopocis, associate professor at American University Washington College of Law; and Mr. Collin O’Mara, president and CEO of the National Wildlife Federation.

For more information on their testimonies click here.

Senator Barrasso’s remarks:

“On February 28th, President Trump signed an Executive Order directing EPA and the Army Corps of Engineers to review the Obama Administration’s Waters of the United States or WOTUS Rule and publish a proposed rule that would rescind or revise that rule.

“While this action was both correct and important, the long saga of the WOTUS rule is not yet over.

“This fundamentally flawed rule is still on the books and needs to be withdrawn. 

“The Supreme Court has decided to rule on whether or not circuit courts have the jurisdiction to hear challenges to the rule.

“If the Supreme Court decides that these cases belong in District Courts, then the nationwide stay that the Sixth Circuit Court of Appeals issued will go away.

“If that happens, this terrible, unlawful rule, will go into effect and EPA and the Corps will be able to regulate isolated ponds and dry stream beds that have no impact on navigable water and were never intended to be covered under the Clean Water Act.

“As we will hear from our witnesses today, the justification for withdrawing the rule is overwhelming.

“General Peabody is a decorated retired member of the military who was the Commanding General for Civil and Emergency Operations at the Corps of Engineers until he retired in the fall of 2015. 

“He will tell us that the definitions in the WOTUS Rule are not based on the Corps’ expertise and experience. 

“In fact, the Corps was shut out of the process of writing the final rule and the support documents for the final rule.

“The Corps is the agency that performs the on the ground inspections that identify what water is federally regulated.

“If the rule is not based on their experience, that means it has no technical basis.

“It is, instead, a blatant government power grab.

“Dr. Josselyn is a PhD and a professional wetland scientist who was a member of the Science Advisory Board panel put together by the EPA that reviewed EPA’s ‘Science Report.’

“This report is a scientific literature review on water connectivity. 

“The Obama EPA claimed that the WOTUS rule is based on the conclusions of this report. 

“Dr. Josselyn will tell us that, in fact, this report does not address the issue of where federal regulators should establish jurisdiction. 

“EPA’s Science Report looks at connections to water, but fails to examine whether connections are significant and most of the studies in the report do not address navigable water.

“Instead, this report concludes that all water is connected.

“Our children learn that in 4th Grade when they learn about the water cycle.

“But that has nothing to do with federal jurisdiction.

“And it means that EPA’s Science Report cannot be used to justify the WOTUS Rule. 

“Mr. Tseytlin  is the solicitor general for the State of Wisconsin and works with the 31 states that are challenging the WOTUS Rule.

“Mr. Tseytlin will tell us that the final rule included new definitions that were created without public input, and even without public notice. 

“This means that the WOTUS rule is arbitrary and capricious and violates the Administrative Procedure Act.

“We also will hear from Mr. Kopocis. 

“He was the deputy assistant administrator for the Office of Water in the Obama Adminstration.

“Mr. Kopocis will tell us that the Obama Administration met with states and other stakeholders during the rule making process. 

“But that does not change the fact that between the proposed rule and the final rule, the Corps was arbitrarily or deliberately shut out of the process.

“The end result is the Obama Administration wrote a rule that is not supported by agency expertise, by agency experience, by the science, or the law.

“Finally, we will hear from Collin O’Mara, President & Chief Executive Officer, National Wildlife Federation.

“The National Wildlife Federation is very interested in protecting wildlife habitat. 

“The right way to do that is to form partnerships with landowners, not to expand federal control over private property.

“In fact, in 2014 the Fish and Wildlife Service issued a report that notes that the service works with landowners to employ cooperative conservation measures to preserve isolated wetlands like prairie potholes, measures that let farming continue. 

“If the WOTUS rule goes into effect, instead of working cooperatively, the federal government could simply take control of private land and shut down farming activity.

“We have already had attempts to do this in my home state of Wyoming where Mr. Andy Johnson who EPA threatened to fine $37,500 per day for simply building a stock pond on his property.

“After looking at this record, the only course of action that makes sense is to withdraw the rule and start over.

“I hope we see quick action to lift this threat to farmers and other land owners that has been created by the WOTUS rule.” 

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Chairman Roberts: Relief from WOTUS Rule Is Coming

U.S. Senator Pat Roberts, Chairman of the Senate Committee on Agriculture, Nutrition, and Forestry, released the following statement after President Donald Trump signed an executive order providing relief from the U.S. Environmental Protection Agency’s (EPA) ‘Waters of the U.S.’ (WOTUS) rule.

“The WOTUS rule has been a thorn in the sides of rural America for too long, and I’m thrilled President Trump has taken swift action to get rid of it.

“The Obama Administration’s EPA claimed they listened to farmers when writing this rule; they did not. I’m pleased to see the Trump Administration is actually listening to rural America with this executive action.”

The WOTUS rule was developed by the Obama Administration’s EPA and the U.S. Army Corps of Engineers. It greatly expanded the EPA’s federal jurisdiction and scope of waterbodies subject to Clean Water Act requirements. 

Prior to President Trump’s executive order, the rule was stayed pending legal challenges. 

Chairman Roberts held a hearing on the WOTUS rule in the Senate Committee on Agriculture, Nutrition, and Forestry and cosponsored legislation to repeal the rule in the 114th Congress. Roberts joined the President at the White House for the signing of the executive order. 

Click here to watch President Trump deliver remarks and sign the executive order.

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