Recent Developments

New Office Location

In the last year, Demar’s adult children moved to northern Idaho, and they invited their parents to follow. After living at the same Sacramento address for a third of a century, a move was no small thing, but existing clients are all comfortable with the move, since almost all work is done through electronic/internet media. Demar already had southern California clients for whom all legal work was conducted without ever meeting face-to-face. The result has been an October 2018 move to the town of Priest River, Idaho, about an hour northeast of Spokane, Washington. Demar’s web address, work email, and mobile telephone number remain unchanged, and he looks forward to assisting clients with the same vigor as occurred during his Sacramento tenancy. Feel free to call or email Demar if you have questions about his ongoing practice.

Plowing Regulation

The U.S. Army Corps of Engineers (Corps) Sacramento District office, which is responsible for day-to-day administration of federal Clean Water Act (CWA) §404 authorizations within its boundary, is now attempting to regulate discing and plowing of agricultural fields. The Corps claims this authority under CWA regulations that limit agricultural exemptions for plowing and discing to “ongoing” production. When agricultural production has been interrupted by any period of non-use, for whatever reason, the Sacramento Corps considers discing to be regulated, not exempt, and asserts that the landowner must secure a §404 permit before plowing or discing through any §404 jurisdictional “waters of the United States.”

A simple reading of Corps regulations, however, reveals that once agricultural production has been established, the agricultural exemption for plowing continues unless “hydrologic modification” is necessary to re-commence production. Other Corps regulations clarify that mere plowing is not “hydrologic modification.”

The Sacramento District Corps’ new interpretation is resulting in investigations and enforcement actions against farmers throughout California’s Central Valley. Farmers are hopeful that input from Congress and from Corps headquarters in Washington, D.C., will reestablish the farming exemption for plowing and discing of previously farmed fields.

To that end, Rep. Doug LaMalfa, whose congressional district includes the upper Sacramento River valley, asked questions of Environmental Protection Agency Administrator Gina McCarthy at a February 11, 2016, congressional hearing. Among his inquiries was a line of questions regarding whether plowing was and would remain exempt from section 404 regulation based on existing law and regulation. McCarthy’s immediate answers suggested that plowing would remain exempt, but she promised further off-line clarification. It remains to be seen if that clarification will resolve whether the Sacramento Corps will continue or suspend its regulation of plowing in existing agricultural areas.

Mr. Hooper prepared an article addressing this regulatory confusion, which the National Wetland Newsletter has published in its March/April edition. Hooper-PlowingRegulation

The article concludes with a warning:

Farmers throughout the country will be watching this California issue develop. If the Sacramento District approach is endorsed by Corps Headquarters, watch for its extension into a field near you. (p. 18)

Regulatory relief for farmers appears to be on the way! On February 28, President Trump signed an executive order directing the EPA and Corps to revisit the controversial “Waters of the United States” (wotus) rule published in 2015. The EPA published a Notice of “Intention To Review and Rescind or Revise the Clean Water Rule” in the March 6, 2017 Federal Register. CWArescind-reviseNotice2017-04312 The Notice explains that the agencies will be considering application of the Scalia opinion from the Rapanos U.S. Supreme Court case, which is much more restrained than the Kennedy opinion regarding the extent of jurisdictional waters.