Grapegrowers Applaud WOTUS Rollback

California could still choose to implement Obama-era action on wetlands

by Paul Franson
wine grape vineyard clean water rule WOTUS sales
A 2015 order redefined bodies of water in a way that made more private land subject to government oversight, worrying many farmers.
Washington, D.C.—While members of the wine industry have stepped forward to denounce expedited deportation since U.S. president Donald Trump assumed the presidency, his administration’s move to curtail water regulations has been met with a different response.

Trump signed an executive order Feb. 28 that directs the U.S Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (ACE) to roll back the Obama Administration’s Clean Water Rule of the Waters of the U.S. (WOTUS) regulations that were published in 2015 and imposed many new restrictions on farming.

In one example, John Duarte, a major grapevine nursery owner and farmer, was issued a fine of $8 million for violations of the WOTUS act. The infraction didn’t involve grapevines, but the scenario would be familiar to any grapegrower.

“In our Tehama wheat field case, a federal field agent suspended my farming operations after incorrectly understanding the operations,” Duarte said.

“When we allowed federal experts onto the property to fully understand our activities, they found that they were clearly in error—and then, somewhat comically, morphed their claims against us. Our 5-inch tall furrows are ‘mini mountain ranges,’ and we have created ‘micro topographic hotspots.’ 

“The federal government is fining us over $8 million for planting wheat in a wheat field.”

Origins of the problem

The Obama administration’s WOTUS rule went beyond the 2006 Supreme Court ruling by Justice Antonin Scalia on the scope of the Clean Water Act.

Duarte acknowledges that the Clean Water Act was and is a necessary and effective piece of legislation. “It focused on drinking water safety and protection of navigable waters. CWA protections for normal farming activities are clear and broad. Farmers can farm wetlands. Nobody can destroy wetlands. The CWA was never intended to undermine national food security. In my case, the federal prosecutors and the federal judge ignored the normal farming practices/plowing exemption.”

Nat DiBuduo, president of Allied Grape Growers, stated, “The Clean Water Act is a very powerful statute that asserts federal regulatory authority over waters of the U.S. There was general agreement that waters of the U.S. are navigable waters. But what exactly does ‘navigable’ mean, and does the U.S. have authority to regulate waters directly connected to ‘navigable waters’? These questions have been subject to extensive debate and litigation.

“By expanding the definition of WOTUS to include ditches, ephemeral and intermittent streams and wetlands and other minor water features, EPA and ACE can expand their regulatory reach onto private property and common land use practices not previously regulated by the federal government under the CWA.”

John Aguirre, president of the California Association of Winegrape Growers, noted, however, that soon after publication, president Obama’s WOTUS rule was tied up in the courts: Thirty-one states filed suit challenging the rule and seeking a stay of implementation. On Oct. 9, 2015, the U.S. Court of Appeals for the Sixth Circuit stayed the Clean Water Rule. Trump’s order could make that permanent.

Aguirre said, “Trump’s executive order directs the EPA and the Army Corps of Engineers to adopt a definition of waters of the U.S. consistent with Justice Scalia’s opinion in a 2006 Supreme Court ruling on the scope of the Clean Water Act.”

Impact on grapegrowers

How does all this affect wine grape growers?

Aguirre said, “The Obama administration’s WOTUS rule represented a major regulatory threat for private landowners and farmers, in particular. However, the WOTUS rule wasn’t implemented. So, farmers were shielded from the effects of the rule.”

On a national level, Michael Kaiser, vice president of WineAmerica told Wines & Vines, “It was our position that the Obama administration didn't need to scuttle the entire rule (where other groups did), but it did need to be more specific.” He added, “I don’t know of any growers that were impacted because the rule was barely fully implemented and was held up so much in court, it never really went into effect.”

But DiBuduo points out, “The EPA and ACE will still retain enormous regulatory authority.”

A new threat from California
However, California has proposed enforcing tight regulations, so the issue remains a concern to grapegrowers there.

Aguirre said, “Under the Porter-Cologne Act, the state of California has enormous regulatory authority as relates to water quality. There is concern California regulators may choose to implement what the Trump Administration seeks to prohibit.” He added that California farmers remain the most heavily regulated growers in the United States.

John Duarte concurs. “Winegrowers and all farmers should be very concerned with the proposed Waters of the State process. If it replaces the effort to regulate farms through federal jurisdictions under the Obama WOTUS rule, it will destroy California agriculture.”

He pointed out, “All farms have wet spots. All farms must be able to alternate crops according to business realities.”

Duarte concluded, “I hope that the California legislature and Gov. (Jerry) Brown will skip this opportunity to lash back at the Trump administration. The CWA as written was effective, and the executive order by President Trump protects both the futures of farming and effective environmental policy.” He believes more isn’t needed.

Duarte has mounted a crowd-sourcing campaign to fight his $8 million fine at gofundme.com/duartestandsup.

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