A Farmer's Water Legal Battle

OMAHA (DTN) -- Two congressional committee chairmen want to know why the U.S. Department of Justice is still pursuing a Clean Water Act case against a California farmer who potentially faces millions in fines and penalties from the U.S. Corps of Engineers.

John Duarte, who runs a farm and nursery in Hughson, California, has been at the center of a federal prosecution and multiple federal lawsuits against the U.S. Army Corps of Engineers because Duarte tilled vernal pools on farm ground he owns in northern California.

Duarte is facing a fine as high as $2.8 million and millions more in mitigation costs as a federal judge's summary ruling against him will lead to a penalty trial now scheduled for August. Duarte had thought federal attorneys and regulators would have dropped the case against him, especially after President Donald Trump's push to dial back the controversial waters of the U.S. rule, followed later by the president's executive order in April calling on regulatory agencies to essentially back off farmers.

"We believed after the election that when the Trump Justice Department looked at this case, they would dispose of it," Duarte said. "It's just a gross abuse of the Clean Water Act. It should be apparent to anybody with objective reasoning on this that it is just government bullying."

On Thursday, House Agriculture Committee Chairman Michael Conaway, R-Texas, and Judiciary Committee Chairman Bob Goodlatte, R-Va., wrote U.S. Attorney General Jeff Sessions about the case. The chairmen informed Sessions that the case appears to violate congressional intent to exempt traditional farming practices from specific Clean Water Act permit requirements.

Conaway and Goodlatte want the Justice Department to justify its prosecution to the committees, which includes explaining the "novel or strained interpretation of the underlying statutory authority" used in the case.

"I have to say I'm very pleased that Congress is standing up for a faithful interpretation of the Clean Water Act," Duarte said. "It was passed with limitations on government and protections for farmers, and it's a great day when Congress will stand up and defend congressional intent against the agencies."

Duarte's case began after he bought 450 acres of wheat and grazing land in 2012 and went ahead and planted wheat that fall. He got a call from the Corps warning him that he was illegally "deep ripping" wetlands on the farm. The Corps later sent him a letter declaring he was violating the Clean Water Act. The vernal pools defined as wetlands hold water three or four times a year when it rains heavily, mainly due to clay soils.

"This happened even though the pools had been farmed through before with probably even deeper tillage than we did, Duarte said.

The case helped make Duarte a farmers' spokesman in the campaign against an expanded waters of the U.S. rule and the battle with federal agencies over property rights.

Beyond the $2.8 million fine, Duarte could be on the hook for anywhere from $16 million to $33 million in mitigation costs because the Corps wants Duarte to create up to 132 acres of vernal pool mitigation banks.

"This is for vernal pools that are still there in as good or better condition than when we got the property," Duarte said.

In legal filings, the Corps of Engineers argues Duarte is required to get a dredging and fill permit, but did not file one. The Corps pushed an enforcement action against Duarte and his farm, but he also filed his own countersuit against the Corps. A federal judge issued a summary ruling last summer finding Duarte guilty of violating the Clean Water Act. The suit and countersuit are caught up in court motions over appeals even as the courts move to the penalty hearing against Duarte based on the summary judgment against him.

To make things worse, once the Corps and Department of Justice got a summary ruling last summer against Duarte, the Department of Justice filed a similar case against the farmer who sold the land to Duarte.

Yet, as the congressmen noted in their letter to Sessions, the Clean Water Act states that plowing is considered an exempt farming practice that does not require any kind of discharge permit.

A Department of Justice spokesman declined to comment to DTN about the congressmen's letter or the Duarte case.

Tony Francois, an attorney for the Pacific Legal Foundation, notes the position taken by the federal government and the judge who ruled against Duarte is that plowing requires a dredging and fill permit because plowing moves soil from side to side.

"So you have this just bizarre, counterintuitive view of the law over what is allowed by farmers," Francois said. "The letter from the two congressmen is a very important one asking for clarity on it."

If the court decision against Duarte eventually stands, Francois said, it could lead other Corps regional offices to bring similar cases against farmers. Further, citizen suits could be filed to demand farmers get permits.

Farmers could be required to get such permits when they bring the land out of the Conservation Reserve Program, which is how at least part of Duarte's land had been idled during the 1990s. The Corps argued that the land was idled too long for plowing to be considered a normal farming practice on the property.

"Everybody in the Conservation Reserve Program needs to know that the emerging view of the Corps of Engineers is that you are going to need a 404 permit to continue farming that property," Francois said.

Francois noted a 404 permit to dredge and fill can take close to two years to be granted and can often cost businesses $200,000 to $300,000 for engineering and consulting fees.

In addition to the fine, the Department of Justice has asked Duarte for a conservation easement on the property that would prevent it from ever being farmed again, Francois said.

A favorable outcome right now, Duarte said, would be for his nursery to accept a small penalty and then go to an appeals court to rule on all of the various legal arguments in the case. Duarte would like to see an appeal that would define what jurisdictional wetland is under the Clean Water Act, as well as ruling on what is a defined agricultural practice. Duarte also thinks due process should be spelled out when agencies declare a violation has occurred.

"Can you imagine if they get away with this, what can they do to every farmer in America?" Duarte said.

The letter to the Attorney General can be viewed here: https://agriculture.house.gov/…

Chris Clayton can be reached at Chris.Clayton@dtn.com

Follow him on Twitter @ChrisClaytonDTN

(AG/CZ)

Copyright 2017 DTN/The Progressive Farmer. All rights reserved.