How Obama's EPA Nearly Bankrupted John Duarte's Farm

A controversial rule on water pollution allowed the agency to micromanage private land use.

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EPA Chief Scott Pruitt has set out to transform the agency he leads to a greater extent than any of Trump's other cabinet appointees, pledging to end what he dubbed the agency's "anti-energy agenda" by loosening requirements on carbon emissions and eliminating land use restrictions.

In his first speech to EPA employees, Pruitt laid out his goal of returning the agency to its core focus of protecting the environment while following what he called "the letter of the law."

"I believe that we as an agency, and we as a nation, can be both pro-energy and jobs and pro-environment," Pruitt told his staff.

Environmentalists vehemently opposed Pruitt's appointment, depicting him as a climate change denier determined to undermine the EPA's core mission of protecting the environment.

One of Pruitt's first targets is a controversial rule on water pollution put in place by the Obama administration that he deemed a "power grab" by environmental regulators.

To better understand why property rights advocates applauded the move, consider the case of fourth-generation farmer John Duarte, who has fought a protracted and costly legal battle with federal regulators over how to till his 450-acre farm in Tehama County, California.

In 2012, the Army Corps of Engineers, working in conjunction with the EPA, accused Duarte of damaging wetland features on his property. He was hit with $30 million in fines and restoration fees.

Duarte's troubles stemmed from a 2015 provision in the Clean Water Act known as the Waters of the United States rule that was meant to better protect large bodies of water by regulating use of the streams, ponds, and ditches that flow into them. The EPA has used this provision to micromanage private land use.

The agency accused Duarte of mismanaging the wetland areas located on his property, claiming that his four-inch plow furrows created small mountain ranges. They contend Duarte should have obtained a permit before tilling his own land.

"The average time to obtain a Clean Water Act permit is close to two years, and the average cost just to hire the consultants and do the studies to get permits approaches a quarter of a million dollars," says Anthony François, a lawyer with the Pacific Legal Foundation who represented Duarte in his case against the government. "Clearly if you had to undertake that kind of cost and time just to get the necessary permit to plow your fields every year you're not going to grow a lot of food."

In 2016, attorneys general from 31 states (including Pruitt) challenged the Obama administration's overreach on the Clean Water Act. The case is still active in federal court.

University of Virginia Law Professor Jason Scott Johnston, who is also an adjunct scholar at the libertarian CATO Institute, believes it's likely the Supreme Court would strike down the 2015 water regulation. He says that the Obama administration expanded the definition of wetlands beyond the parameters set by the Court in the 2007 Rapanos v. United States decision.

"The broad trend of environmental regulation during the Obama administration was to use the coercive threat or reality of regulation simply to try to shut down entire industries and entire types of economic activity," says Johnston. "They have promulgated a definition of wetlands which clearly contradicts what the Supreme Court said."

In February, President Donald Trump signed an executive order instructing the EPA to repeal the Waters of the United States rule, but getting the regulation off the books could take several years and be delayed by legal challenges from environmental groups.

Meanwhile, Duarte settled his case in August for $1.1 million to avoid paying a significantly larger fine. He hopes Pruitt's focus on regulatory rollback will restore farmers' property rights.

"We become peasants where these federal prosecutors can come in like the Sheriff of Nottingham, decide for themselves what they think a family can pay," Duarte says. "If the federal prosecutors can come on this land with this set of facts, there is no farm in America that is safe from this kind of prosecution."

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  1. In 2012, the Army Corps of Engineers, working in conjunction with the EPA, accused Duarte of damaging wetland features on his property. He was hit with $30 million in fines and restoration fees.

    Duarte’s troubles stemmed from a 2015 provision in the Clean Water Act known as the Waters of the United States rule that was meant to better protect large bodies of water by regulating use of the streams, ponds, and ditches that flow into them. The EPA has used this provision to micromanage private land use.

    Not following the timeline here.

    1. Linear time is white supremacy.

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    2. You’re exactly right to question the timeline, as it completely destroys the narrative that this case is about an Obama-era rule. The Clean Water Rule to which the article refers was adopted in 2015. The enforcement action in question started before the rule was even proposed. The court held that the case involved a straightforward application of the longstanding federal rules. Even the environmentally-unfriendly Trump administration didn’t drop the case, though urged to do so.

    3. The definition of Waters of the United States is a much longer-term issue that goes at least back to the Clinton era and through W.Bush.

      At issue here is the Waters of the United States definition. In short, the Clean Water Act states that the EPA can regulate “Waters of the United states”, navigable water and waterways that affect it. The EPA then went out and claimed jurisdiction over any place where rain pooled after a storm. In Ramos, the Supremes stated that the land must have a “significant nexus” to be considered regulated. However, it’s such a vague definition (any land that if you aggregated all land types would affect navigable waters) that it can apply to practically anything. All the drainage ditches behind in all the yards in America affect navigable water, so you aren’t allowed to plant a tree near it, because the loose dirt could pollute the Waters of the United States.

      What Obama did was put the Significant Nexus into the actual regulation, defining it somewhat to be less ambiguous, but this meant it was more explicit just how overreaching and all-encompassing it was.

  2. In February, President Donald Trump signed an executive order instructing the EPA to repeal the Waters of the United States rule, but getting the regulation off the books could take several years and be delayed by legal challenges from environmental groups.

    This is when you know your own branch has gotten away from you.

    1. They will drag their feet hoping for a ruling from some Resist Federal Judge who will twist the law so he can stump the Trump. Then they will report it as another defeat for the Trump administration until it is struck down. The Supremes are going to have a lot of work with these little dirtbags. These people are truly evil!

      Maybe there is someone out there pushing this so they can buy the land cheap for bigger agro business.

      1. “Maybe there is someone out there pushing this so they can buy the land cheap for bigger agro business.”

        This is often the case with regulations. The big businesses out there push for regulations, because they can more easily afford to pay the costs associated with compliance. This has been a barrier to entry to new markets for years, and you’ll often see that new businesses tend to thrive only in new technologies that haven’t been regulated.

        1. That haven’t yet been regulated.

      2. Commerce should be “regulated” via sorting out disputes in commerce in civil court using the common law and precedent. Instead, politicians love administrative law. That allows them to change the rules (rather than allowing judges to make the rules if common law hasn’t addressed the situation), pick winners and losers in commerce and sell their choice to their richest friends who are the most generous in contributing to their political campaigns.

        And if people owned water rights and we had the freedom to buy and sell them, then water would be used more efficiently and effectively. And guess what, polluters would be sued by the water owners and would have to pay compensation for doing it. And there wouldn’t have to be an EPA. And then the Sheriff of Nottingham wouldn’t be showing up demanding what he wants.

    2. Yeah, no kidding. It seems the bureaucracy is more powerful than the person who supposedly runs it at this point. Pretty sure that what comes next is a coup.

      1. 90% of the government runs on auto-pilot with a ton of momentum. The only way to stop it would be for Congress to stop cutting checks so that OPM couldn’t make payroll. Stopping it via politics would take decades of determined effort and a massive shift in voter priorities.

  3. They contend Duarte should have obtained a permit before tilling his own land.

    Don’t want to be treated like a thug? Don’t till the earth like a thug.

    1. Guy definitely had dirt on his hands.

      1. Fighting the government is a tough row to hoe.

  4. Meanwhile, Duarte settled his case in August for $1.1 million to avoid paying a significantly larger fine.

    No doubt it was to stop having to retain lawyers, actually.

    1. A $30 million fine on a 450-acre farm is ruinous. There’s no way you can come back from that. $1.1 million plus legal fees just means you spend the rest of your life fighting as hard as you can to stay above water.

      1. Burn it to the ground, a la Atlas Shrugged.

      2. The fine is per-day. Operating without a permit gets you the maximum. $37,500 per day. The fine is also retroactive to whenever you began operation without the permit. When you talk years, those numbers add up really quickly.

        The fee was explicitly designed to make Exxon flinch. For anyone that isn’t a large business, maximum fines are ruinous.

  5. “Duarte’s troubles stemmed from a 2015 provision in the Clean Water Act known as the Waters of the United States rule that was meant to better protect large bodies of water by regulating use of the streams, ponds, and ditches that flow into them.”

    Pretty sure that a run-of-the-mill slimy bureaucrat could easily interpret this as cause to ‘regulate’ the run-off from my driveway.

    1. Don’t you dare have your downspout aimed at your driveway. Can’t have all that rainwater running into the streets.

    2. That is precisely the problem, Sevo. This is why everyone is up in arms about the Significant Nexus definition, because it can easily be applied to essentially anything.

  6. It’s amazing how one group of human beings are willing to destroy another group of humans….over the environment via over zealous laws. I would have ZERO sympathy for people at the ACE and EPA who lose their jobs. None. For the families and businesses they’ve ruined by acting this way? They’re lucky they just get that.

    Obama. Not gone enough.

  7. This rule is bullshit, it is a rule not a law, only. Congress must pass laws.and because it is not a law it is UNCONSTITUTIONAL. If the feds were to step foot on my land and try to pull this bs those feds would leave in bags.

  8. claiming that his four-inch plow furrows created small mountain ranges

    It seems we have graduated from regulating micro-aggressions to regulating micro-mountain ranges.

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