Are farmers protected by the agricultural practices exemption of the Clean Water Act? That is the centerpiece of a court hearing getting underway in California.
John Duarte has been in the national spotlight since the U.S. Army Corps of Engineers sued him for plowing his Tehema County wheat field, claiming he had improperly disturbed wetlands. Duarte continues to fight the order to cease operations, but that could cost him dearly.
“They want a $2.8 million civil penalty and the purchase of $13 to $43 million worth of wetland mitigation credits,” Duarte’s attorney, Tony Francois, told the AgriTalk Radio Show. “Certainly even a small fraction of that would destroy the company and put its many hundreds of workers out of work.”
The two sides meet in federal court Tuesday to begin what is expected to be a three-week penalty hearing. If, that is, the court rejects a motion to dismiss filed on Duarte’s behalf by the Pacific Legal Foundation.
Section 404 of the Clean Water Act provides an exemption to the discharge permit requirement for: “Established farming, ranching, and silviculture activities such as plowing, seeding, cultivating, minor drainage, harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices.” Francois said this case, however, shows farmers cannot count on that exemption.
“That sounds like a perfectly easy to understand law and industry protection,” Francois told AgriTalk. “The view of the Army Corps is that it doesn’t mean nearly what it sounds like. There are exceptions and loopholes and caveats and asterisks all over it.”
A federal judge ruled last year that plowing the wheat field did require an Army Corps of Engineers permit. Francois said they will appeal that ruling once the penalty phase is complete.
Listen to the entire AgriTalk interview with attorney Tony Francois in the player above.