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Water battles will come to head in 2016, experts say

Battles of federal water regulations will shape the legal landscape for agriculture in 2016.
Mateusz Perkowski

Capital Press

Published on January 12, 2016 9:30AM

Last changed on January 12, 2016 10:12AM

Jonathan Wood, left, an attorney for the Pacific Legal Foundation property rights group, speaks about federal water regulation enforcement with an attendee at the American Farm Bureau Federations recent convention in Orlando, Fla.

Mateusz Perkowski/Capital Press

Jonathan Wood, left, an attorney for the Pacific Legal Foundation property rights group, speaks about federal water regulation enforcement with an attendee at the American Farm Bureau Federations recent convention in Orlando, Fla.

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John Duarte, second from right, speaks about the Clean Water Act lawsuit his California nursery company has launched against the U.S. Army Corps of Engineers at the recent American Farm Bureau Federal convention in Orlando, Fla.

Mateusz Perkowski/Capital Press

John Duarte, second from right, speaks about the Clean Water Act lawsuit his California nursery company has launched against the U.S. Army Corps of Engineers at the recent American Farm Bureau Federal convention in Orlando, Fla.

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ORLANDO, Fla. — Battles over water will likely shape agriculture’s legal landscape in 2016, with several high-profile lawsuits expected to come to a head over the next year, experts say.

Aside from litigation over the federal government’s new “waters of the U.S.” rules, which critics say will greatly increase jurisdiction over private lands, farmers in the West are also fighting federal enforcement of existing regulations.

In California, the Duarte Nursery is seeking to overturn a finding by the U.S. Army Corps of Engineers that switching from spring to winter wheat resulted in plowing activities that affected wetlands in violation of the Clean Water Act.

In Wyoming, farmer Andy Johnson is challenging a finding by the U.S. Environmental Protection Agency that construction of a stock pond unlawfully discharged pollutants into a stream without a Clean Water Act permit.

Meanwhile, the U.S. Supreme Court has agreed to review a case in which landowners want the right to contest a federal determination that their property is subject to Clean Water Act regulations.

The mounting legal turmoil over water is occurring for several reasons, said Jonathan Wood, an attorney with the Pacific Legal Foundation property rights non-profit, during the American Farm Bureau Federation’s recent convention.

One reason is that landowners can now dispute federal “compliance orders” that require them to rectify alleged Clean Water Act violations or face steep civil penalties.

Prior to a 2012 Supreme Court ruling, landowners could not challenge such compliance orders until the EPA brought a civil action against them seeking to enforce fines.

The nation’s highest court, in a case known as Sackett v. EPA, found that compliance orders are government actions that can be fought in federal court, which has emboldened other landowners to challenge the agency, Wood said.

The problem is that landowners still don’t have access to courts unless the EPA finds a violation, which is why the upcoming lawsuit over “jurisdictional determinations” is so important, he said.

“It takes a lot of confidence to challenge the EPA over a compliance order,” Wood said.

In that upcoming Supreme Court case, U.S. Army Corps of Engineers v. Hawkes, landowners want to fight determinations that they’re subject to the Clean Water Act, which are generally issued before the federal government ever imposes a compliance order.

Access to the court system when facing an adverse jurisdictional determination “means a lot if you’re a landowner that’s completely blindsided,” Wood said.

While ordinary farm practices such as plowing and stock pond construction are supposed to be exempt from the Clean Water Act, federal agencies reinterpret these exceptions narrowly to fit their agenda, said Danielle Quist, senior counsel for public policy at AFBF.

In the case of Duarte Nursery, for example, the EPA contends that the company fell outside this exemption because plowing at the depth of a foot constitutes “deep ripping” in violation of the Clean Water Act, she said.

“If that’s not plowing, then nobody is doing any plowing,” Quist said.

Enforcement actions by federal agencies that farmers consider to be excessive aren’t likely the result of a conspiracy, but the vagueness of the Clean Water Act, said Wood.

With the possibility of interpreting the statute broadly, government officials with environmentalist sympathies can impose their will with little fear of repercussions, he said.

“This is what happens when you create so much power then let 10,000 anonymous bureaucrats wield it,” said Wood.

Even so, many such bureaucrats are acting based on “guidance documents” issued by top federal officials that effectively set policy but are never subject to public notice and comment, said Quist.

“I think a lot of that comes from headquarters,” she said.



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