A California farmer faces trial this summer in federal court and a $2.8 million fine for not obtaining a permit to plow soil on his own land, USA Today reported Wednesday.
In 2012, John Duarte, owner of Duarte Nursery in Modesto, California, bought 450 acres in Tehama County that he intended to use to farm wheat. The property contained numerous swales, vernal pools — or temporary pools of water that provide habitat for distinctive plants and animals — and wetlands due to being drainage areas for two creeks.
These seasonal wetland areas — so named for being considered wetlands only a part of the year — are considered "waters of the United States," so Duarte hired a consulting firm to help him map out the areas where he could legally plow.
According to Duarte's attorney, Anthony Francois of the Libertarian-leaning nonprofit Pacific Legal Foundation, Duarte plowed his land and planted his wheat crop. However, Duarte never got the chance to harvest it.
According to Bovine Veterinarian, Army Corps of Engineers field agent Matthew Kelly came to Duarte's farm and began snapping pictures of Duarte's equipment. Duarte claims that Kelly later accused him of illegally destroying the wetlands by "deep ripping" the soil, or mechanically breaking up the ground to access the soil below the reach of plant roots. Duarte said he invited Kelly to come see that Duarte was not doing anything illegal, but Kelly declined.
“About two weeks later, Matthew Kelly called me and said, ‘You’re deep ripping vernal pools.’ One, I told him we were not deep ripping. Two, I told him the driver was going around the vernal pools, which I had instructed be done. I offered to meet on-site and show him, but he turned me down,” Duarte said.
In February 2013, the Army Corps of Engineers and the California Central Valley Regional Water Quality Control Board ordered Duarte to stop work on the land with a cease and desist order, claiming that Duarte had violated the Clean Water Act for failing to obtain the necessary permit to discharge dredged or fill material into seasonal wetlands.
The letter included what Duarte claimed is an outdated wetlands map of the property, claiming he had "deep ripped" sections of it. The Army Corp of Engineers refused to release information about the order and denied Duarte a hearing.
In October 2013, Duarte sued the Corps of Engineers and the state of California, claiming both violated his constitutional right of due process with the cease and desist order without first holding a hearing. The U.S. attorney’s office then counter-sued Duarte Nursery to enforce the Clean Water Act violation.
Francois told USA Today that farmers are specifically exempt from the Clean Water Act rules forbidding discharging material into U.S. waters when plowing their fields. Francois also noted that this is the first case the Pacific Legal Foundation is aware of where a U.S. Army Corps of Engineers permit was need to plow crops.
According to documents filed by the U.S. attorney’s office in Sacramento, however, farmers still need a permit to work their land near waters of the United States.
“Even under the farming exemption, a discharge of dredged or fill material incidental to the farming activities that impairs the flow of the waters of the United States still requires a permit because it changes the chemical, physical and biological integrity of the waters,” the U.S. attorney said in court filings.
The U.S. attorney's office claims that Duarte was not merely plowing his land, as his tractor was equipped with a ripper sporting 36-inch shanks that dug 10 inches into the soil, disturbing not just Duarte's farmland, but the wetlands as well. On top of paying the fine for damaging the land without a permit, the U.S. attorneys are asking the judge to require Duarte to repair the damage to the wetlands.
Francois conceded that some of the wetlands were plowed, but not damaged significantly, nor damaged to the extent the U.S. attorney's office claims. According to Francois, Duarte only plowed four to seven inches into the soil. Regardless, Francois believes the penalties being hefted onto Duarte are unfair, as Duarte broke no law.
“A plain reading of the rules says you don’t need a permit to do what he did,” Francois said. “How do you impose a multi-million penalty on someone for thinking the law says what it says?”
