Water rule rollback gives growers what they wanted from Trump

By Geoffrey Mohan

March 1, 2017 3:40 PM PT

To hear John Duarte tell it, farmers knew the cavalry was coming to their rescue on election night. It’s one reason agricultural areas voted heavily for Donald Trump.

On Tuesday, Trump ordered his new head of the Environmental Protection Agency, Scott Pruitt, to scale back the agency’s interpretation of the Clean Water Act.

The 1972 law is widely credited for reversing the decline in drinking water quality nationwide by controlling pollution to navigable waters.

A set of regulations known as the Waters of the U.S. rules, which extended the authority of the Clean Water Act to many small upstream tributaries and isolated wetlands, led growers to worry that a law aimed at developers and heavy industry would be applied to their ditches, canals and wetlands.

Trump had been uncharacteristically specific during his campaign about reversing the rules, and calls to “Repeal WOTUS” were as common a rallying cry among growers as “Build the Wall” was to his followers in rural manufacturing areas.

Duarte’s nursery operation raises root stock for grapes and other crops in the San Joaquin Valley near Modesto. The Army Corps of Engineers, and later the EPA, accused Duarte in 2012 of damaging wetlands on low spots of the 450 acres of rolling grassland he was plowing up in Tehama County, in preparation to plant wheat.

A protracted legal battle ensued over whether 5-inch furrows amounted to enough of an alteration of the land to “pollute” the pools.

“The wetlands in my case amount to very minor depressions — they’re vernal pools — far away and disconnected from any stream or navigable waters,” Duarte said. “Sometimes they’re just dark spots in the grass to the layperson.”

Duarte said Trump’s actions “are absolutely timely and very important, and I hope they’re very broad because what’s happening to my family and myself is just an example of the kind of escalation we’re seeing nationwide.”

Conservation and recreation groups blasted the proposed rollback of the guidelines, which have been stalled in courts.

Jon Devine, senior water attorney for the Natural Resources Defense Council, an environmental advocacy group based in Washington, D.C., lashed out at assertions by Trump that the rules would govern virtually every ditch and puddle.

“President Trump may have set some kind of record on Tuesday, making eight false statements about a single rule in the span of just a few minutes,” Devine wrote on a blog posted Wednesday.

Rescinding the rule, Devine said, would prove to be “rough sledding for the new administration, because the rule relies on an extensive scientific record, and its protections are easily consistent with what Congress required in the Clean Water Act.”

The Clean Water Act’s provisions were narrowly upheld in 2006 by the Supreme Court in a case that produced multiple written opinions, including a dissent by the late Justice Antonin Scalia to which three other justices added their names.

The Trump executive order directs the agency to follow Scalia’s narrower interpretation of the Clean Water Act, which explicitly exempts most agricultural activities.

Pruitt, who had used similar arguments to sue the agency over the Clean Water Act while he was attorney general of Oklahoma, applauded Trump’s executive order Tuesday. By Wednesday morning, the agency had re-jiggered its website, relegating the Waters of the U.S. rule to a lower rank and substituting a statement that the agency will “withdraw and replace the rule.”

“The President’s action preserves a federal role in protecting water, but it also restores the states’ important role in the regulation of water,” the statement said.

“The Environmental Protection Agency failed to listen to farmers’ and ranchers’ concerns when drafting the rule and instead created widespread confusion for agriculture,” said Zippy Duvall, president of the American Farm Bureau Federation, an advocacy group for U.S. agriculture that had pushed hard against the rule.

Although Duarte’s case preceded the 2015 publication of the Waters of the U.S. rules, it soon become a poster child for opponents of federal regulation. The Pacific Legal Foundation, a conservative land-rights group, championed the case, which was rebuffed twice in federal courts.

During the Senate hearing on Pruitt’s nomination, Iowa Sen. Joni Ernst used a photograph of Duarte’s furrows as a backdrop, mocking a federal brief that said “the furrow tops now serve as small mountain ranges.” She asked Pruitt if he would “make sure that federal agencies stop trying to regulate ordinary farming practices.”

Pruitt had a two-word answer: “Yes, senator.”

Duarte and his Pacific Legal Foundation attorney, Anthony L. Francois, are optimistic that the Justice Department under Jeff Sessions will halt some of its prosecutions and find a quiet way out of the Duarte case, which is under appeal.

With the new executive order, Francois said, “the Justice Department’s prosecution theory is collapsing.”

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