California farmer fights US in court
It all started when California farmer John Duarte plowed a wheat field in Tehama County, about two hours north of Sacramento, and wound up paying a $1.1 million fine to the federal government for his efforts.
On Tuesday, Duarte, who was embraced by conservatives nationwide as a victim of government over-reach, got vindication of sorts.
In a victory for farmers and land developers throughout the West, the Trump administration announced a broad rollback of rules designed to protect wetlands and other small bodies of water. The decision means regulations put in place in 2015 by the Obama administration will fall by the wayside.
Andrew Wheeler, acting administrator of the Environmental Protection Agency, said the new rules will give property owners greater flexibility to manage their lands without having to worry about federal intervention.
“Property owners will be able to stand on their property and determine what is federal water without having to hire outside professionals,” Wheeler said.
The impact on California, which has millions of acres of wetlands, vernal pools and other waterways subject to federal regulation, wasn’t clear. Tim Moran, a spokesman for the State Water Resources Control Board, said, “Regardless of the proposed federal action, the state’s waters and wetlands continue to be protected under state laws.”
Wendy Manley, an environmental attorney with the Wendel Rosen Black & Dean law firm in Oakland, agreed that the state’s laws should “fill the gap” as the feds back away from regulation.
The state water board has been working for several years on new rules to guard the wetlands, but isn’t expected to finalize them until sometime in 2019, said board Chairwoman Felicia Marcus.
Despite the state protections, environmentalists said they’re still worried that Wheeler’s announcement could spell trouble for wetlands. “It’s potentially a huge deal for the state of California,” said Rachel Zwillinger, water policy advisor at Defenders of Wildlife. “It would remove federal protections for a huge number of ... streams that are critical for the water we drink and sustain fish and wildlife.”
California’s farm groups hailed the decision. Jamie Johansson, president of the California Farm Bureau Federation, said the existing regulations have “produced little beyond confusion and litigation, and has undermined farmers’ efforts to work cooperatively with government agencies to protect water and land.”
The controversy involves a provision of the federal Clean Water Act known as “Waters of the United States,” or WOTUS, which protects “navigable” rivers and streams. Over the years, federal agencies have broadened the definition of “navigable” to include small wetlands that feed into rivers.
The rules also protect vernal pools — seasonal wetlands that are dry in summer but provide crucial habitat for plants and animals in the rainy season. The Obama administration expanded the rules once more in 2015, although court injunctions have blocked implementation of the Obama rules in many states.
Millions of acres of vernal pools in California have disappeared in the past 150 years, including 95 percent of the pools in the Central Valley. At the same time, farmers and suburban land developers in California have chafed against the regulations for decades.
In 1999, Sacramento land baron Angelo K. Tsakopoulos was fined $500,000 for “deep ripping” wetlands on a south Sacramento County property he was turning into vineyards. Tsakopoulos took his case to the U.S. Supreme Court and lost.
Then came the Duarte case.
In 2012 Duarte, owner of a nursery in the Modesto area, bought a 450-acre farm in Tehama County and began plowing the field with a Case IH tractor in order to plant wheat. Before long he was hit with a cease-and-desist order from the U.S. Army Corps of Engineers, which said he had “deep ripped” the land and deposited the dredged soil illegally onto the farm’s wetlands.
Duarte sued the government. The government sued him back and won a ruling from a federal judge in Sacramento saying Duarte had broken the law. The government proposed to fine him $2.8 million.
The decision triggered a national controversy over the Clean Water Act, the WOTUS rules and property rights. Republican members of Congress appealed to the Trump administration to drop the case. During former EPA Administrator Scott Pruitt’s confirmation hearing in early 2017, Sen. Joni Ernst of Iowa had her aides hold up oversized photos of Duarte’s farm and asked Pruitt whether he would halt to interference in “ordinary farming practices.” He pledged to do exactly that.
Even as the Trump administration said it was planning to relax the WOTUS rules, the court case went ahead. The judge in Sacramento was about to begin a trial in August 2017 on the financial penalties Duarte would have to pay.
At the last minute, Duarte agreed to a $1.1 million fine instead. Duarte said the government was seeking tens of millions of dollars in additional penalties and he couldn’t take the risk of being wiped out financially.
On Tuesday, he said he was pleased with the EPA’s announcement.
“I think the Trump administration rollback ... is going to be good for landholders and for farmers and for that matter anybody who wants to eat affordably,” he said in an interview. He decried federal agencies that for years have been “expanding the definition of what’s a wetland” and narrowing the rights of farmers to do their jobs.
“Those two things together have left our food system in jeopardy,” he said.
He added that he believed he was fighting “for farmers throughout the country” but couldn’t afford to keep pressing his case in court.
“I had to make an adult decision, it was disappointing,” he said.
He said he blames Trump’s first attorney general, Jeff Sessions, for not pulling the plug on the government’s case. He said Sessions “stood by his swamp rats” instead of siding with agriculture.