December 18, 2015
CapitalPress.com
Supreme Court to resolve Clean Water Act confusion
Case will determine if
landowners can fight
regulatory findings
Analysis
By MATEUSZ PERKOWSKI
Capital Press
Should landowners be al-
lowed to challenge whether
their properties are subject to
the federal Clean Water Act?
Currently, the answer to
that question depends on ge-
ography.
Landowners cannot fight
such regulatory findings in
court if they’re located within
the nine Western states over-
seen by the 9th U.S. Circuit
Court of Appeals or the three
Southern states overseen by
the 5th Circuit.
Both appellate courts have
rejected attempts by landown-
ers to contest “jurisdictional
determinations” issued by
the U.S. Army Corps of En-
gineers.
However, the 8th Circuit
Court arrived at the opposite
conclusion earlier this year.
In the seven Midwestern
states in that circuit, landown-
ers can ask federal judges to
reverse those determinations,
which carry the heavy regu-
Courtesy USDA
The U.S. Supreme Court will decide if landowners can challenge
whether their properties are subject to the Clean Water Act.
latory burdens of complying
with the Clean Water Act.
The answer is even murk-
ier in the remaining states,
where federal appellate courts
haven’t faced the question.
“It creates inequity around
the country and uncertainty
for a lot of landowners,” said
Ellen Steen, general counsel
of the American Farm Bureau
Federation.
The U.S. Supreme Court
has now agreed to clear up
this confusion by reviewing a
lawsuit in which a Minnesota
peat moss company disputed
the federal government’s de-
termination that its wetlands
come under federal jurisdic-
tion.
The company, Hawkes
Co., wanted to extract peat
moss from the wetlands, but
the U.S. Army Corps of Engi-
neers said it would first need
to apply for a Clean Water Act
permit.
According to the Farm Bu-
reau, the outcome of the case
is particularly important now
that the federal government
has tried to expand the defini-
tion of “waters of the U.S.” to
bring more land under CWA
jurisdiction.
“We think the government
applies its authority way too
broadly,” said Steen, the Farm
Bureau’s general counsel.
The nation’s highest court
will resolve an issue that’s
been interpreted different-
ly by the appellate courts:
Whether “jurisdictional de-
terminations” are final agen-
cy actions that carry legal
consequences.
The 8th Circuit held that
such determinations have a
major impact on what land-
owners can do with their
property and thus could be
challenged in federal court.
The federal government,
with which the 9th Circuit
and 5th Circuit agree, main-
tains that such determinations
are merely advisory opinions
about whether property is sub-
ject to the Clean Water Act.
If landowners disagree
with a jurisdictional deter-
mination, they can proceed
with planned activities and
then challenge the finding
when the government brings
an enforcement action against
them, federal attorneys argue.
Landowners can also
go through the costly and
time-consuming process of
applying for a Clean Water
Act permit.
If their request is denied
or they disagree with permit
conditions, landowners can
then file a lawsuit against the
Corps, the government said.
The Farm Bureau believes
the federal government’s ar-
guments are unrealistic, given
the amount of money at risk
with either option, said Steen.
“We want farmers to be
able to go to court to chal-
lenge that assertion of juris-
diction rather than defy a gov-
ernment order,” she said.
While the government
considers jurisdictional de-
terminations to be advisory,
defying that advice can result
in devastating financial and
criminal penalties, Steen said.
“It’s just not the way it
works in the real world,” she
said. “Even if the government
wants to call that an opinion,
it has dramatic real world con-
sequences for the farmer.”
Applying for a Clean Wa-
ter Act permit can cost hun-
dreds of thousands of dollars,
and landowners can’t recoup
those costs even if they’re
ultimately successful in chal-
lenging a denial or in altering
permit conditions, said Reed
Hopper, an attorney with the
Pacific Legal Foundation, a
property rights law firm that
represents the peat moss com-
pany.
“That’s not a meaningful
option for a landowner,” he
said. “If it’s wrong, the Corps
has nothing to lose and the
landowner has everything to
lose.”
Storms loosen drought’s grip on Washington state
By DON JENKINS
Capital Press
Storms are rolling back
the drought in Washington,
but the state also has seen
record-high temperatures in
some places, a wet-and-warm
weather combination that last
winter led to Washington’s
“snowpack drought.”
“For the drought situation,
in some ways, this week has
been very good,” Washington
State University meteorolo-
gist Nic Loyd said Dec. 11.
“My general outlook hasn’t
changed. I’m still thinking
that come next spring the
snowpack will be below nor-
mal.”
The U.S. Drought Monitor
reported Dec. 10 that the per-
centage of Washington in “ex-
treme drought” had dropped
to 34 percent from 44 percent
the week before. Some 60
percent of the state remains in
moderate to extreme drought.
The report was completed
two days before its release
and before some of the week’s
heaviest rains.
Precipitation in the past
few days has pushed the Ya-
kima River Basin’s five res-
ervoirs well above normal
levels.
The reservoirs were 47
percent full Dec. 11 and held
121 percent of the normal
amount of water for that date,
according to the U.S. Bureau
of Reclamation. Water stored
in the reservoirs has increased
Don Jenkins/Capital Press
Heavy rains have soaked fields in Western Washington, like this one in southwest Washington
pictured Dec. 11. The percentage of drought in the state has dropped to 34 percent from 85 percent in
last August, according to the U.S. Drought Monitor.
nearly fivefold since the end
of the irrigation season.
Elsewhere in the West, 88
percent of Oregon is either in
severe or extreme drought,
while 42 percent of Idaho is
in severe or extreme drought.
California also did not im-
prove. Some 92 percent of the
state is in severe, extreme or
exceptional drought.
Washington snowpacks
are still taking shape, swing-
ing wildly from above-aver-
age to below-average levels
every day as snow levels rise
and fall.
The Bureau of Reclamation
won’t project whether there
will be summer water shortages
until early March.
The U.S. Climate Pre-
diction Center predicts that
El Nino will take hold and
keep temperatures above nor-
mal. But that time has been
postponed.
The center predicted Dec.
10 that Washington, Oregon,
Idaho and California will
have wetter and colder weath-
er than normal through Dec.
24.
“The bottom line is we’re
still kind of waiting for the El
Nino,” Washington State Cli-
matologist Nick Bond said.
“We haven’t gotten into the
typical El Nino weather pat-
tern. There’s still strong indi-
cations that we will.”
Low snowpacks last winter
created drought conditions in
pockets of Washington. The
entire state fell into a drought
because of a hot and dry
spring and summer.
Bond said he doesn’t ex-
pect a repeat of last year’s ex-
traordinarily low snowpacks,
even though El Nino likely
will eventually raise tempera-
tures.
“It’s not like we can write
off the El Nino. Certainly, it’s
strong and very likely to have
a lot of the effects we’ve seen
before,” he said.
Washington’s
drought
peaked in late August with 85
percent of the state in extreme
drought and the other 15 per-
cent in severe drought.
In Western Washington,
drought conditions have been
washed away, replaced in
some places by flooding.
The drought is also yield-
ing in the Cascades and north-
central and northeast Wash-
ington.
Extreme drought continues
to prevail over all or portions
of 20 counties in Central and
Eastern Washington, where
long-term rain deficits have
not been made up.
While rain fell west of
the Cascades, temperatures
rose to the east. Spokane,
Wenatchee, Ephrata and
Omak set record highs Dec.
9, according to the National
Weather Service.
WSU’s AgWeatherNet re-
ported record highs that day
in Pasco, Prosser, Kennwick
and Walla Walla.
“In terms of the drought,
I’m still worried about next
year,” Loyd said. “I still think
some of the El Nino impacts
will be more obvious later.”
Oregon, Idaho and Cal-
ifornia’s drought status has
changed little, according to
the drought monitor, a part-
nership between the U.S.
Department of Agriculture,
the National Oceanic and
Atmospheric Administration
and the University of Nebras-
ka-Lincoln.
3
Omnibus
spending bill
nixes COOL
Farm state
legislators unable
to kill WOTUS
Staff report
WASHINGTON — A
compromise, $1.1 trillion
budget bill negotiated by
Congress Tuesday repeals
Country of Origin Labeling
rules just as Canada and Mex-
ico prepare to impose retalia-
tory tariffs.
The World Trade Organi-
zation this month authorized
Canada and Mexico to impose
more than $1 billion worth
of retaliatory tariffs on U.S.
products in response to the
labeling law, which requires
meat labels to show where the
animals were born, raised and
slaughtered.
Canada and Mexico have
charged since it was approved
in 2008 that the rule violates
the terms of trade agreements,
and the WTO has agreed. The
U.S. has exhausted all of its
appeals before the WTO in
defense of the rule.
The measure also includes
provisions to extend favorable
tax treatment on the purchase
of farm equipment and infra-
structure, increases funding
for sustainability research,
additional funding to imple-
ment new Food and Drug Ad-
ministration food safety rules,
according to a congressional
summary of the bill.
Specifically, the bill:
• Provides $2.94 billion for
agricultural research.
• Includes $898 million for
the Animal and Plant Health
Inspection Service.
• Includes $1.51 billion for
the Farm Service Agency.
• Provides $2.8 billion
for rural development pro-
grams.
The bill increases the
permanent cap on Section
179 small business expense
deductions from $25,000 to
$500,000. Under Section 179,
the cost of qualifying pur-
chases of new or used busi-
ness property can be deducted
all at once instead of being
depreciated over the course of
several years.
The bill extends for five
years a 50 percent bonus de-
preciation provision that al-
lows a taxpayer to deduct up
to half of the cost of new- only
business property above what
would normally be deduct-
ible.
Democrats pushed back
attempts by Republicans
to block implementation of
the Environmental Protec-
tion Agency’s “Waters of the
U.S.” regulations.
Auditors: EPA broke law in social media blitz
Associated Press
WASHINGTON — The
Environmental
Protection
Agency broke the law in a so-
cial media campaign intend-
ed to generate public sup-
port for a controversial rule
to protect small streams and
wetlands from development
and pollution, congressional
auditors said Monday.
The EPA’s campaign vi-
olated restrictions against
lobbying and propaganda by
federal agencies, the Govern-
ment Accountability Office
said in a 26-page report. The
agency blitzed social media
in a campaign that urged the
public to submit comments
on the draft water rule. The
effort reached at least 1.8
million people.
Republican Sen. James
Inhofe of Oklahoma said
the GAO finding confirms
what he has long suspected:
“that EPA will go to extreme
lengths and even violate the
law to promote its activist en-
vironmental agenda.”
The Obama administra-
tion says the water rule will
safeguard drinking water for
117 million Americans, but
Republicans and a handful of
Democrats from rural states
say they fear a steady uptick
in federal regulation of every
stream and ditch.
Inhofe and other lawmak-
ers have vowed to block the
rule as an example of over-
reach by the Obama adminis-
tration.
Federal courts have al-
ready put the regulations on
hold as they consider a num-
ber of lawsuits challenging
the water regulations. The
rules clarify which smaller
waterways fall under federal
protection after two Supreme
Court rulings left the reach of
the Clean Water Act uncer-
tain. Those decisions in 2001
and 2006 left 60 percent of the
nation’s streams and millions
of acres of wetlands without
clear federal protection, ac-
cording to the EPA, causing
confusion for landowners and
government officials.
More than half the states
have filed legal challenges.
The EPA said in a state-
ment that it disagrees with the
GAO’s assessment, but will
fulfill whatever reporting re-
quirements are necessary.
ROP-32-52-2/#17
By MATTHEW DALY
51-1/#14