The Clean Water Act’s Double Standard

A California farmer who plowed dry ground faces large fines from the Environmental Protection Agency for polluting America's waterways. Meanwhile, under some conditions, cities can dump raw sewage into major rivers with impunity. How is this fair?

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As a lifelong farmer with more than one or two disasters under my belt, I say give me tornadoes, drought, floods, low prices, and disease. Bring it on. Just please don’t afflict me with federal enforcement.

Those folks are scary.

Take California farmer John Duarte, for instance. All he wanted to do was grow walnut trees. But it takes years to get trees up to speed before you can even get close to having walnuts or even nursery trees. That is a brave thing to do. There’s a huge investment that doesn’t pay dividends until trees are big enough to sell,  and it takes even longer to produce nuts.

Farmers like John spend all the money up front and hope that disasters like storms or free falling markets don’t hit bottom before we have a chance to get our money back. Unfortunately, the disaster we never expect may be the one that government drops on us like basketball-sized hail out of a clear blue sky.

All of a sudden and out of the blue, the U.S. Army Corps of Engineers hailed on John Duarte.

Duarte had to adapt California farmland he bought in 2012 from grassy pasture to something suitable for planting young, environmentally friendly trees. So he did what farmers do: created a rotational seed bed from grass, to another crop, wheat, then trees.

The area of northern California where Duarte’s land lies gets about 22 inches of rain each year. That’s about half what Midwestern corn fields get. In an arid climate like that, grass in Duarte’s field would have competed with young trees for moisture, so he had to destroy the grass and create a seed bed for wheat. That’s because when wheat plants mature, they stop taking up moisture and die.

That leaves a non-competitive environment for seedling trees.

The grass Duarte destroyed was planted in 1988. Before that the farm was planted to wheat. But the time lapse between cropping and grass and back to crops was a big one. As far as the government was concerned, the farm had been grassland forever.

There is a big difference between pasture, which is almost never tilled, and fields planted to grain crops that usually are. One reason for that is that environmentalists and recreationists including hunters and hikers put pressure on government to preserve the rural status quo. Another negative for farmers is the way agriculture is perceived has changed. Prior to the Dirty Thirties Dust Bowl, no one cared how or where crops were raised, and one in five Americans were farmers.

Today, 98.5% of Americans have opinions about the way the other 1.5% manage their land. It’s not just about water conservation or water quality. People who support more stringent requirements like those in the Clean Water Act and Waters of the U.S. do so for the benefit of recreation and conservation on more public land.

The 450 acres Duarte bought was pockmarked with vernal, or temporary, pools; low spots, really, where rainwater collects. With average annual rainfall a little more than half the national average, water doesn’t stand around too long. But the Army Corps of Engineers and Environmental Protection Agency like to see it stand as long as possible. That’s why, thanks to the Clean Water Act, farmers like Duarte are prohibited from altering low-spot, vernal pools.

During the 1980’s, farmers not just in California but in the Midwest, too, were required to have conservation plans on file at USDA service centers. Those plans dealt mostly with erosion in uplands, but for a time under Swamp Buster rules, they identified vernal pool equivalents on flat Midwestern land. That effort used soil mapping and observation by technicians of the Natural Resources Conservation Service who were finding areas of “hydric soil.” That was promoted initially by another branch of USDA, the Fish and Wildlife Service.

Hydric soils are poorly drained soils identified by, among other things, wetland weeds like cat tails and smart weed, and soil types. On river bottoms those areas are fairly common—sometimes running from bluff to bluff as in 2011 when the Army Corps of Engineers oversaw a four-month-long water management runaway on the Missouri River.

Some people believe creating, not protecting, swampland is a long-term goal of government groups intent on expanding their jurisdiction. Ever since that flood I have had cattails in my flowerbeds.

I can thank the Corps for that.

Long story short, all those government gotcha regulations create a stir then languish for years before they suddenly reappear. That’s when farmers like Duarte, who forgot or underestimated their importance, get nailed to their own particular cross in federal court.

All it took for Duarte was a federal highway with a whistle blower Army Corps of Engineers employee passing by who noticed the scenery change where Duarte had tilled his land. That’s when it started raining on Duarte’s parade, because under current knee-bone-connected-to-the-leg-bone environmental law, vernal pools can be connected to a creek through underground aquifers, and ultimately in this case the Sacramento River.  And if that vernal pool connects to a waterway, that makes it susceptible to federal regulation.

Under current law, somewhere down the line, that dripping faucet in your home connects you to Waters of the U.S. It’s just a matter of when it gets there. It’s all wide open to court interpretation.

What do crop farmers do when they grow crops? Usually they disturb the soil. That’s what Duarte did, but EPA considers soil to be a pollutant. So when Duarte plowed his field he inadvertently moved small amounts of soil in and around dry vernal low spots that were merely soil at the time.

This is the potential Clean Water Act nightmare that has farmers around the country and in prairie pothole regions of the Dakotas up in arms.

Here’s the scenario:

Duarte stirs the soil. Water falls from the heavens onto vernal pools. Duarte’s freshly stirred soil soaks up the rain as some of the excess moisture soaks into an aquifer. According to the Corps the soil Duarte stirred contaminated the pools. That makes him a polluter. Potential penalties, fines, and legal fees could have totaled nearly $50 million.

Interestingly, it is not uncommon for cities along the Missouri River, like Omaha, Nebraska, or St. Joseph, Missouri, to dump raw sewage directly into the river. Those cities pay no fines, but farmers do. This is the potential Clean Water Act nightmare that has farmers around the country and in prairie pothole regions of the Dakotas up in arms.

During and after the flood of 2011, the Corps shoved sand and soil back into the river, but farmers were prohibited from moving what they called “pollutant sand and soil” deposited on their farmland by the flood, even if only to fill the river washouts it came out of.

For farmers, justice is as elusive as it is protracted.

Duarte and his lawyers bided their time, hoping that a new Trump administration might change the way the Clean Water Act is enforced. This administration may be more sympathetic, but under a deal reached with the Corps of Engineers, Duarte will pay $330,000 in fines and buy $770,000 worth of vernal-pool credits from a mitigation bank. He will also make unspecified improvements to pools on his land, but by buying mitigation bank credits (RIBITS) he will be allowed to operate his farm within guidelines, while income from the credits he buys will be used to improve environmental impacts on other land within the same water shed. In other words that money will most likely be used to expand public land holdings.

Interestingly, a common complaint about the Clean Water Act and Waters of the U.S. is that it finances government agency land grabs.

In a press release issued by Duarte’s lawyers, Duarte said, “This has been a difficult decision for me, my family, and the entire company, and we have come to it reluctantly, but given the risks posed by further trial on the government’s request for up to $45 million in penalties, and the catastrophic impact that any significant fraction of that would have on our business, our hundreds of employees, our customers and suppliers, and all the members of my family, this was the best action I could take to protect those for whom I am responsible.”

While established orchards or almond groves in some areas reflect their cost of development and can be worth up to $36,000 per acre, arable land in Tehama County, California, has generally sold for $3,000 to $5,700 per acre. The plowing done for Duarte by a custom operator likely cost around $18 per acre.

Fines and mitigation bank fees John Duarte will pay are roughly equal to half the value of his land, or over $2,400 per acre.

That’s scary.

Richard Oswald is a fourth-generation farmer from Langdon, Missouri. He is president of the Missouri Farmers Union.

 

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