Farming Under Regulatory Fear

California Farmer's Battle Spotlights Growing Fear of Government Overreach

Chris Clayton
By  Chris Clayton , DTN Ag Policy Editor
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At the Farm Bureau's annual meeting, John Duarte showed in his presentation an example of a typical vernal pool wetland that Army Corps of Engineers and EPA say is being destroyed. (John Duarte photo by Chris Clayton; vernal pool photo courtesy of John Duarte.)

ORLANDO, Fla. (DTN) -- John Duarte, a farmer from Hughson, Calif., finds himself mired in multiple federal lawsuits against the Army Corps of Engineers because Duarte decided to grow wheat.

Farmers and ranchers at the American Farm Bureau Federation annual meeting are expressing growing fears of regulatory and criminal fights with federal agencies.

Farm Bureau leaders say Duarte's legal case is a classic example of why farmers can't take EPA and the Army Corps of Engineers at their word when the agencies declare farmer protections in the Clean Water Act are still there and still in place.

Additionally, Duarte's legal complications could be coming to a farm near you, especially if the controversial waters of the U.S. rule is allowed to go into effect.

Farm Bureau has spearheaded efforts to defeat the expanded waters of the U.S. rule, which is now tied up in federal courts. Farm groups and others want Congress to pass a law killing the rule and reaffirming agricultural exemptions under the Clean Water Act.

Duarte bought 450 acres of wheat land and grazing land in 2012 in Tehama County in northern California; he planted wheat there in fall 2012. He got a call that December from the Army Corps of Engineers warning him that he was illegally "deep ripping" wetlands on the farm. The Corps later sent him a letter declaring he was violating waters of the U.S. Duarte points out the "wetlands" being discussed are largely known as vernal pools that hold water three or four times a year when it rains. They aren't streams or habitats, he said.

"I don't think they stay wetlands long enough for a pollywog to become a frog," Duarte said. He added, "This land has been planted before. In the late '70s and early '80s, it was chiseled of wheat ... From what we can tell, it was chiseled down to 18-24 inches regularly when it was planted to wheat in the past."

He's now involved in claims and counter-claims in federal court to determine whether he or the Army Corps is overstepping regulatory bounds. Duarte said he has spent $900,000 and he now has representation for at least some of the court cases by the Pacific Legal Foundation. He said the federal government has spent at least $1 million to pursue its claim against him. At a minimum, the Corps states Duarte should have filed for a 404 discharge or dredge permit to till that ground.

Yet, the Clean Water Act states plowing is considered an exempt farming practice that does not require any kind of discharge permit. "The act of plowing is completely exempt from the Clean Water Act," he said. Duarte added later, "The ag exemption is very broad and very clear."

Duarte pointed out the federal logic used to build the case against him. To show Duarte plowed over the vernal pool, the Army Corps brought out a team of 12 consultants last year with a backhoe excavator to dig through his field, as well as count the distribution of pebbles in the field and measure the depth of his tillage. The consultants then used a 1913 agricultural field manual to declare Duarte wasn't using standard cropping practices on his operation.

"They dug 20 or 30 backhoe pits in the middle of the wetlands to show we only plowed eight inches deep," Duarte said. He added, "They punch holes right in the middle of the wetlands, cover them up with a plow and then walk away. There has been no follow-up with us or cooperation to take into account their damage to the wetlands and bring it anything close to what their standards are."

HIGHLIGHTS EXPANDED RISKS

Farm Bureau staff is using Duarte's case to highlight the expanded risks that farmers can face over wetland determinations or other farming restrictions if EPA and the Corps of Engineers successfully implement the waters of the U.S. rule. Duarte stressed that his case is "pre-WOTUS" but reflects a broader regulatory creep by federal agencies.

"This is what we are seeing happening in many parts of California and happening to many farms," Duarte said. "This is coming to a farm near you under WOTUS and the Endangered Species Act as it's currently drawn up."

The Pacific Legal Foundation took up Duarte's case because the property-rights group argues the Army Corps of Engineers did not engage in any due process or hold an administrative hearing for Duarte on the situation.

Duarte sees increasing federal intrusion in to agriculture. He pointed to the criminal prosecution of Oregon ranchers Dwight and Steve Hammond, who are now in federal prison for as long as five years because of grassland fires they started on their ranch that spread to permitted ground managed by the U.S. Bureau of Land Management. Duarte said that case also demonstrates another federal agency seeking to aggressively demonstrate its regulatory oversight.

Duarte isn't alone in his concerns. At a town hall meeting Sunday, Montana rancher Bill Bergin asked Agriculture Secretary Tom Vilsack about the Hammond case and why the ranchers were charged under a terrorism act. "As a rancher, that scares me," Bergin said, who told DTN his ranch does include leasing a small piece of federal ground. "If I were to start a backfire and it got out of control, would I be considered a terrorist and be sent to prison?"

Vilsack told Bergin he could not speak for other federal departments, but he did not think such a thing would occur with USDA's Forest Service.

DISCONNECT BETWEEN FARMERS AND OTHERS

Vilsack then later said there is a "regulatory disconnect" between farmers and the rest of the country, partially because there are so few farms today and so many people who are now generations away from farms and see farmers and ranchers as an "industry" rather than family operations.

DTN asked the agriculture secretary about the mounting fears facing farmers over regulatory agencies and how such problems should be handled given that most Americans don't understand production agriculture. Vilsack said he didn't necessarily have the answer, but he said USDA and groups such as the American Farm Bureau and the U.S. Farm and Ranchers Alliance need to continue marketing what farmers do to the rest of the country.

Vilsack added that federal agencies also need to recognize that government at all levels should be about customer service. "It's incumbent upon all federal agencies -- I think this is just common sense -- but on all federal agencies to think of themselves in terms and in relation of customer service," Vilsack said.

The secretary noted Farm Bureau is doing a survey about the quality of service for USDA programs and agencies. Vilsack said he's encouraged by that and wants to know how USDA can do a better job. USDA has an advantage because of county offices around the country, "And I think we like to think of ourselves as a service-oriented entity," he said.

Vilsack added that government agencies also do a poor job of explaining why a regulation may be needed and what it would do. "This is a general observation, but I don't think we do as good a job as we should setting the stage, explaining to people why a regulation is being proposed, why it's being advanced and what benefit it would accrue," he said.

Duarte told reporters the overregulation that comes from federal agents across the country could lead to an ominous future for farmers and ranchers. Broadening the use of a law or ignoring exemptions drafted by Congress also hurts the ability of Congress to act in good faith on other pressing matters, he said.

"We can't solve problems in the future if we can't have words with meaning that endure in the legislation," Duarte said.

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

Follow him on Twitter @ChrisClaytonDTN

(ES/BAS)

Chris Clayton