EPA to California Farmer: Don’t Plow

California farmer John Duarte faces millions of dollars in penalties for refusing the Environmental Protection Agency’s order not to plow his own land.

Duarte, a fourth-generation Central California tree, vine, and wheat farmer, has been at odds with the EPA since 2011 when his farm was ordered closed after he planted his field despite regulators’ orders. Now, in part due to the EPA’s expanded authority over its interpretation of the Waters of the United States (WOTUS), Duarte and the EPA have filed dueling lawsuits over the land.

Brought forth with the libertarian Pacific Legal Institute and with the support of the American Farm Bureau Federation, Duarte’s lawsuit claims he was denied due process when the Army Corps of Engineers (the enforcer of the EPA’s water regulations) demanded Duarte stop farming. At issue is the clay table beneath the top soil which keeps wetlands from draining; the EPA claims the 18 inches between plow furrows constitutes the creation of new uplands, while Duarte points out that the wetland vegetation has not been affected.

WOTUS expands territory the EPA would regulate under the Clean Water Act somewhere between 2.8 to 4.65%. The new interpretation includes enumerated waterways (“prairie potholes”, “Carolina bays”, etc) and any waters that are in the floodplains of previously regulated waters at least once ever 100 years.

The expansion has been controversial, drawing a vote to repeal from House Republicans last week. (Speaker Ryan’s op-ed in the Omaha World News Herald includes the classic zinger “this rule, which has left so many Nebraskans out to dry.) The bill, expected to be vetoed, may be unnecessary as the 6th District Court of Appeals has suspended WOTUS nationwide.

Senators Isakson and Perdue have co-sponsored legislation to overturn the rule. From Senator Isakson: “Today’s decision is good news for Georgia farmers and landowners… Under President Obama, we have seen the growth of a fourth branch of government—the regulators—and I will keep fighting to rein in intrusive regulations like this ‘Waters of the United States’ rule.”

Safely ensconced within our metropolitan bubble, the intense opposition to expanding federal regulations from rural areas can seem, well, crazy. Duarte’s case reminds us of the lives and livelihoods at stake.

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