San Joaquin Farm Bureau Federation

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By Craig W. Anderson

The Waters of the United States (WOTUS) rule proposed by the EPA and U.S. Army Corps of Engineers that would expand the agencies' authority to regulate most of the country, is currently on hold. It's prevented by court orders from being implemented. 

In a move that could eventually bring about its demise, President Donald Trump has issued an executive order mandating WOTUS, a Clean Water Act rule – be reviewed and revised, an order that has farmers, ranchers and other businesses heaving sighs of relief.

New EPA Administrator 
speaks at AFBF event
Environmental Protection Agency Administrator Scott Pruitt told attendees at the AFBF Advocacy Conference that WOTUS "would have transformed the authority, the jurisdiction, the power of the EPA in regulating water. People across the country can rest assured that we're going to get that fixed."

California Farm Bureau President Paul Wenger said, "Ultimately, the goal should be to provide farmers and ranchers, in California and elsewhere, the freedom to farm their land productively and with environmental certainty while pursuing compliance with the Clean Water Act through incentives rather than coercion."

He also said, "We recognize the executive order as the first step in what could be a long process to undo the confusion brought by the WOTUS rule."

Farmers free to farm
"Farm Bureau sees this action by President Trump as positive and one that moves us in the right direction, unlike the previous administration," said SJFB Executive Director Bruce Blodgett. "Farmers will be able to farm their own property instead of getting permits to grow food."

He noted that Farm Bureau will do whatever is needed to keep the process on track and to ensure the agricultural community and the population in general that depends on agriculture for safe, affordable food, is likewise kept informed.

Hearings are anti-ag
Now held in suspense by legal decisions, the current WOTUS proposed expanding the EPA and US Army Corps of Engineers (USACE) jurisdiction into areas over which the federal government had no jurisdiction, making it nearly impossible for a landowner to determine if or how a parcel of land would be regulated by the rule. 

WOTUS expanded
"The waters and lands that could be regulated expanded greatly under WOTUS," said SJFB President Andrew Watkins. "It was intended to clarify which streams, wetlands, ponds, vernal pools, ditches, sloughs and adjacent lands would be protected under the Clean Water Act."

Those regulated lands include areas where water once flowed, might once have flowed, could flow in the future, or never has flowed but might do so at some undetermined future time.

Eventually, under WOTUS, about 95 percent of the nation's land and water would fall under the control and regulation of the two federal government agencies, a situation that could end with the implementation of President Trump's executive order.

SCOTUS decision
Trump's executive order also requests that the term "navigable waters" be considered by the EPA and Corps referring to a U.S. Supreme Course case, "Rapanos v. United States." 

The late Supreme Court Justice Antonin Scalia said in his decision that Congress never intended non-navigable waters to be regulated by the Clean Water Act. That Trump wants to create a new rule based on Scalia's opinion is encouraging for agriculture, landowners and business in general.

Duarte saga
John Duarte's nursery, headquartered in Hughson, has felt the wrath of WOTUS as the USACE and EPA accused him of damaging wetlands on Duarte-owned land in Tehama County by plowing it, readying it for planting wheat.

The five-inch tall furrows were deemed sufficient alteration to the land – mini-mountain ranges – to pollute the wetlands. These very minor depressions – vernal pools – are "far away and disconnected from any stream or navigable waters," Duarte said. "Now, I'm being fined $8 million, and the government has threatened to take my home." "Federal regulators want to control ordinary farming," Duarte said. "We need to stop them before they put more farm families in economic peril — before they make farming a federal offense."

First step
"This executive order was the first step that needed to happen," said Brad Goehring, Clements winegrape grower whose battle with the USACE began more than 10 years ago when the corps issued him a cease and desist order for "filling wetlands" when "I was just routinely disking on the family land," he said.

Team formed
That and other run-ins with government agencies regarding WOTUS encouraged Goehring and 11 others to form a team "…of experts, the best minds in the nation…" that's been meeting and being creative about the Clean Water Act, WOTUS and the EPA for more than a decade.

"We've rewritten the necessary language to introduce a Clean Water Act that's concise, terse and deliberate that describes in six succinct pages a plan that contains protections for ag that are better than when the act was initially written," Goehring said. 

California defying feds
However, Gov. Brown and the California Legislature are getting ready to employ roadblocks to the implementation of Trump's WOTUS changes in the form of SB 49, sponsored by Senate President Pro Tempore Kevin de Leon (D-Los Angeles). One of three bills – SB 49, California Environmental Defense Act; SB 50, Public Lands Protection Act (Ben Allen, D-Santa Monica) and SB 51 the Whistleblower and Public Data Protection Act (Hannah-Beth Jackson, D-Santa Barbara) – is designed to block any federal regulations affecting the state.

State could ignore federal government "SB 49 makes existing federal laws…enforceable under California law, so we can preserve the state…regardless of what happens in Washington," de Leon said. "It makes current federal clean air, climate, clean water, worker safety and endangered species standards enforceable under state law, even if the federal government rolls back and weakens those standards."

Watkins said, "Federal changes in WOTUS could be rendered moot by SB 49 superseding federal law."

Optimism reigns
Optimism was the order of the day, at least from the agricultural point of view, as AFBF President Zippy Duvall said the executive order was "a welcome relief…as much a beginning as an end. There is much work to do to ensure that any revised rule is transparent and fair for America's farmers and ranchers."

"California's stated attempt to impose its own laws is ongoing and it is, like WOTUS, an extreme overreach of government authority," Vogel said. CFBF contributed to this story.