All water runs downhill. All farmers are subject to the muddled text of the Clean Water Act (CWA). Just ask John Duarte.
In a settlement with the federal government on Aug. 15, Duarte agreed to pay $330,000 in civil penalties and $770,000 in wetlands credits. Duarte initially faced a $2.8 million direct fine and more than $40 million in mitigation penalties for plowing without a permit from the Army Corps of Engineers. It was a bitter pill for Duarte, concluding a five-year legal nightmare brought on by a few inches of tillage. In the end, Duarte couldn’t evade a one-two punch combination from the Corps and Department of Justice (DOJ). From every angle, the landmark case is loaded with implications for U.S. agriculture.
“Today’s agreement affirms the Department of Justice’s commitment to the rule of law, results in meaningful environmental restoration and brings to an end protracted litigation,” stated Jeffrey Wood, acting assistant attorney general for the DOJ’s Environment and Natural Resource Division, in a press release.
As a fourth-generation producer and president of Modesto, Calif.-based Duarte Nursery, Duarte sells rootstock for almonds, avocado, grapes and pistachios on the West Coast. In 2012, he bought 450 acres of red clay ground for investment and potential future orchard development. The fields were in wheat during the 1970s and 1980s, followed by cattle grazing in the 1990s and early 2000s.
During at least part of the time since it was last used for wheat, it was enrolled in the Conservation Reserve Program, according to Anthony Francois, Duarte’s attorney with the Pacific Legal Foundation. The acreage contains vernal pools, which form in low field pockets after rains, typically several inches deep and one-hundredth of an acre in size. The vernal pools normally last several weeks before drying.
In November 2012, Duarte gave permission to grow wheat on the land to a business associate, who hired a local operator to till the ground with a Case IH Quadtrac and Wilcox ripper. When the tractor was spotted by a Corps field agent, the fuse was lit on a nightmarish legal saga.
In February 2013, Duarte received a cease-and-desist (CDO) letter from the Corps, warning him over “unauthorized work in waters of the United States” and adding the threat of potential fines and imprisonment.
Figurative fists raised, Duarte prepared for a lengthy court battle.
On June 10, 2016, in U.S. District Court, Judge Kimberly Mueller accepted the government’s argument that Duarte was liable for plowing his farmland without a permit from the Corps. Plowing to produce a crop is not subject to permitting, but Duarte’s plowing did require a permit, according to Mueller, because the activity caused “the material, in this case soil, to move horizontally creating furrows and ridges.”
Boiled down, Mueller agreed with the Corps: Because Duarte chiseled a few inches into the ground and moved dirt within a low spot that would become a vernal puddle, he was liable for discharging dredged and fill material into wetlands. As punishment, DOJ litigators sought a $40 million-plus package from Duarte, a penalty heavy enough to bury his entire operation. (DOJ declined questions during the case citing pending litigation. After litigation was completed, DOJ again declined comment. EPA also declined all questions.)
“The sense of responsibility John has to over 400 employees is significant. This agreement protects them from job loss. That’s highly important to John,” Francois explains.
“Frankly, we never wanted this case to go this far. There is an exemption for normal, ongoing farming under the Clean Water Act, but it does not apply to new operations,” says Michael Jewell, Chief of the Regulatory Division of the U.S. Army Corps of Engineers, Sacramento District. “Under the exemption, ongoing means continual use, and it can include fallowing land as part of operation. In the Duarte case, roughly 20 years elapsed when there was not an ongoing farming operation before he started ripping the land.
“I do think work needs to be done to put the exemptions in plain English,” Jewell adds. “It is tough to understand and farmers sometimes have to hire environmental consultants to help them navigate, which is unfortunate.”
“We continue to think the way the government applied the law is problematic. The CWA is very clear in protecting normal farming practices from permitting requirements,” Francois notes. “Real, normal farming practices won’t be prosecuted, the government assures everyone. Well, you’re not going to find a more normal farming practice than the plowing John’s company did.
“The only way a farmer can know if a CWA exemption will be honored by the Corps is to ask the Corps in advance of activity. The government can assure everyone it won’t prosecute normal farming practices, but the fact is: They don’t even know what a normal farming practice is until they find out everything about your farming operation,” Francois continues.
Washington, D.C., attorney Gary Baise with OFW Law, and a member of Duarte’s legal team, says Mueller didn’t consider grazing a normal farming practice.
Despite government promises, Baise insists any farmer could be subject to the same oversight and prosecution faced by Duarte based on the shifting sands of the CWA and elastic interpretation. “WOTUS [Waters of the United States] gives the Corps and EPA a very long arm that can reach any farmer in any state,” he adds.
The uncertainty over farming practices and exemptions must be resolved, Francois says. “The protection must mean what it says. The protection can’t be shot through with loopholes, asterisks, exceptions and reinterpretation. Farmers have to stand up for their rights because the Corps and DOJ have covered that protection with a cloud.”