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.

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.

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.

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.

Produced by Alexis Garcia. Camera by Zach Weissmueller and Todd Krainin.

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