Video can be found here.
Floor Statement of Senator Chuck Grassley
Can Farmers Trust the EPA with Even More Power?
Delivered Thursday, February 25, 2016
Mr. President, I rise for the purpose of showing how one bureaucracy, the Corp of Engineers, and to some extent the EPA working with them has already made farming very difficult, and how if the Waters of the U.S. Rule goes into effect, it can be much worse than even what I'm going to be referring to. Now I'm going to quote word for word a farmer's problem from the "Iowa Farm Bureau Spokesman" dated January 27, 2016. And then I'm going to make some comment on it.
Before I start quoting, this is a story about a California farmer by the name of John Duarte of Tehama County, California. The title, "One Farmer's Ordeal May Signal Agency's Actions Under Waters of the U.S."
“All John Duarte did was hire a guy to plow some grazing land so that he could raise wheat on 450 acres that his family had purchased in California's Tehama County, north of Sacramento. The land had been planted to wheat in the past, the wheat market was favorable and the farmer made sure to avoid some wet spots in the field, called vernal pools, which are considered wetlands.
“But that plowing, which disturbed only the top few inches of soil, unleashed a firestorm from the U.S. Army Corp of Engineers, the Environmental Protection Agency (EPA) and other regulators against the California Farm Bureau member. The regulators' actions stopped Duarte from raising wheat, tried to force him to pay millions of dollars to restore wetlands in perpetuity- although there was no evidence of damage- and sparked lawsuits and countersuits.
“Duarte's experience could well turn out to be an example of how the agencies will treat farmers in Iowa and all over the country under the expansive Waters of the U.S. rule, according to Duarte, his attorneys and experts at the American Farm Bureau Federation (AFBF).
“‘This really shows how these agency actions can play out on a specific family farm,’ Duarte said recently during a press conference at the AFBF annual convention in Orlando. ‘We aren't concerned about it because John Duarte is having a bad time with the feds. We are concerned because this is a very serious threat to farming as we know it in America.’
“Although the EPA and other agencies continue to say to farmers that the WOTUS rule will not affect normal farming practices, such as plowing, Duarte's case shows that it will, said Tony Francois, an attorney with the Pacific Legal Foundation, which is representing Duarte.
“‘Anyone who’s being told not to worry about the new WOTUS rule, they should be thinking about this case,’ Francois said. ‘The very thing they are telling you not to worry about is what they are suing Duarte over- just plowing.’
“Don Parish, AFBF senior director of regulatory relations, said a big problem is the wide parameters that the agencies have placed in the WOTUS rule. He noted the rule is filled with vague language like adjacent waters and tributaries, which are difficult to clarify.
“As broad as possible.
“‘They want WOTUS to be as broad as they can get it so it can be applied to every farm in the country,’ Parish said.
“Iowa Farm Bureau Federation (IFBF) and other organizations have worked hard to stop the WOTUS rule, which was imposed last year but has been temporarily suspended by court rulings. The rule was designed to revise the definition of what is considered a ‘water of the United States’ and is subject to federal regulation under the Clean Water Act (CWA).
“But instead of adding clarity, IFBF and others contend the rule has only added ambiguity, leaving farmers, like Duarte, facing the potential of delays, red tape and steep fines as they complete normal farm operations, such as fertilizing, applying crop-protection chemicals or moving dirt to build conservation structures.
“Another problem, Duarte said, is that the agencies are piling the WOTUS law with other laws, such as the Endangered Species Act, to dictate how farmers use their own land or to keep them from farming it at all.
“Trying to stop farmers.
“‘They aren't just trying to micromanage farmers. They're trying to stop farmers,’ Duarte said. ‘They're trying to turn our farmland into habitat preservation. They're simply trying to chase us off of our land.’
“Duarte, who operates a successful nursery that raises grape vines and rootstock for nut trees, was first contacted by the Corps of Engineers in late 2012. In early 2013, the Corps sent a cease-and-desist letter to Duarte, ordering suspension of farming operations based on alleged violations of the CWA.
“The Corps did not notify the farmer of the allegations prior to issuing the letter or provide Duarte any opportunity to comment on the allegations.
“The agency, Duarte said, wrongly accused him of deep ripping the soil and destroying the wetlands in the field. However, he had only had the field chisel plowed and was careful to avoid the depressions and vernal pools.
“It's also important to note, Duarte said, that plowing is specifically allowed under the CWA. Congress specifically added that provision to keep farmers from having to go through an onerous permitting process for doing fieldwork, he said.
“Deciding to Fight.
“Instead of capitulating to the Corps, Duarte decided to fight the case in court.
“His lawsuit was met by a countersuit from the U.S. Justice Department, seeking millions of dollars in penalties. The case is expected to go to trial in March.
“The case, Duarte said, has raised some absurd charges by the agencies. At one point, the government experts claimed that the bottom of the plowed furrows were still wetlands, but the ridges of the furrow had been converted to upland, he said.
“In another, an agency official claimed that Duarte had no right to work the land because it had not been continuously planted to wheat. However, he said, the previous owner had stopped planting wheat because the prices were too low.
“‘They said it was only exempt if it was part of an ongoing operation,’ Duarte said. ‘There is no law that says farmers have to keep growing crop if there is a glut and prices are in the tank. But by the Corps thinking, if you don't plant wheat when it is unprofitable, you lose your right to ever grow it again.’
“Duarte also noted that when federal inspectors came out to his farm, they used a backhoe to dig deep pits in the wetlands. ‘If you do that, you can break through the impervious layer and damage the wetland, but it does not seem to be a problem if you are a government regulator.’
“To date, his family has spent some $900,000 in legal fees.
Let me say something parenthetically here. If we had to spend $900,000 in legal fees, the Grassleys might as well get out of farming. Now I want to go back to quoting. So I'm going to start that paragraph over.
"To date, his family has spent some $900,000 in legal fees. That is separate from the work by the Pacific Legal Foundation, which represents the clients it takes for free and is supported by foundations.
“It would have been easier, and cheaper, to comply with the wishes of the federal agencies and given up use of the land. Many California farmers who found themselves in a similar situation have done just that, Duarte said.
"Banding Together.
“However, it is important to stand and fight the agencies’ attempts to bend the CWA, Endangered Species Act and other laws to take control of private lands. And it’s important for farmers to band together with Farm Bureau and other groups that oppose the WOTUS rule.
“‘We are not against the Clean Water Act or the Endangered Species Act as they were intended,’ Duarte said. ‘But this is not how those acts are supposed to be enforced. We are getting entangled in regulation, and the noose seems to get tighter every year."
I said that I would comment after I read that. So for people that just are listening, I just read an article that ran on the front page of the Iowa Farm Bureau Spokesman. The problems illustrated by this article are all occurring under current law, with regard to farmers wanting to make a living by planting wheat his field. In the case of Mr. Duarte, government regulations from the EPA and the Corp of Engineers are making his life miserable with the threats of millions of dollars of fines. As the article stated, regulators at one point tried to claim "the bottom of the plowed furrows were still wetlands, but the ridges of the furrows had been converted to upland."
Now, that's ridiculous.
The EPA is out of control.
You might remember the fugitive dust rule of a few years ago, that I don't think now they’re trying to push it, but the EPA was going to rule that when you’re a farming operation, you got to keep the dust within your property lines. So I tried to explain to the EPA director- you know that only God determines when the wind blows? And when you're a farmer and your soybeans are at 13 percent moisture, you’ve got about two or three days to save the whole crop, get it harvested. And the farmer doesn't control the wind, the farmer doesn't control when the beans are dry and ready for harvest. And when you combine soybeans, you have dust, and there is no way you can keep that dust within your boundaries.
But, like Washington is an island surrounded by reality, you can see the fugitive dust rule doesn't meet a common sense test. And you can see that what they are doing to Duarte doesn’t reach a common sense test.
Again, referring to the newspaper article I just read, if the EPA and the Corp of Engineers are going around to the farmer’s fields making determinations about wetlands based on tillage practices under current law, imagine what they might do when this new Waters of the United States rule goes into effect, now being held up by the courts.
Just think how you would feel if your family farm had survived for decades, overcoming droughts, overcoming flooding, overcoming price declines, and you can name ten other things that a farmer has no control over, and then you have to put up with this nonsense.
However, one day a government regulator could show up at your farm and hit you with excessive fines, and the next thing you know, your family farm is being auctioned off. Now, this may sound absurd, but that is the reality of threats posed by the EPA, Mr. Duarte's case is the proof.
We have no shortage of assurances from the EPA administrator that the vague language in the Waters of the United States rule will be not interpreted in a way that interferes with farmers. It's hard to take some assurances seriously when they are interpreting current law in such an aggressive way.
So, Mr. President, we have to stop the Waters of the U.S. rule so that bureaucrats don't become even more powerful. The Waters of the U.S. rule is too vague and allows way too much room for regulators to make their own interpretation about jurisdiction. So we should all continue to fight against the Waters of the U.S. rule and all other actions the EPA is taking that's ridiculous actions against farmers.
We have checks and balances of government. The Congress tried three times to stop the Waters of the U.S. rule. Senator Barrasso tried to pass legislation taking away the authority or modifying the authority. That got about 57 votes, but not 60 votes, so that couldn't move forward. My junior Senator from Iowa, my friend Senator Ernst, she got a congressional veto through here, a resolution of disapproval, with 52 votes. It went to the president; he vetoed it. So we didn’t override that way. Then of course we tried an amendment on the appropriations bill, but we couldn’t get that into the appropriations bill before Christmas. And so we tried three things, but thank God the courts have held up Waters of the U.S. through the Sixth Circuit Court of Appeals. So, temporarily at least, Waters of the U.S. can't move ahead.
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