Duarte faces millions of dollars in fines for plowing through wetlands in violation of the Clean Water Act
October 31, 2016
A federal judge ruled this summer that John Duarte, president and CEO of Duarte Nursery Inc. of Hughson, Calif., had illegally plowed through vernal pools in Tehama County in Northern California. A ruling on the civil penalty is pending.
Duarte told a group of reporters at a panel in September he is liable for $2.8 million in direct penalties. He may also have to purchase 60 wetlands credits in addition to fees. “I think our best estimate is that they’re asking for $8 to $10 million dollars,” Duarte said. According to a court filing, Duarte “has the ability to pay a civil penalty of at least $8.4 million.”
One of his attorneys, Anthony Francois, of the Sacramento-based Pacific Legal Foundation, said the team is preparing an appeal.
The dispute began in the fall of 2012 when a U.S. Army Corps of Engineers’ employee stopped by the Duarte’s 450-acre field south of Red Bluff and reported seeing someone deep ripping through vernal pools without a permit, a violation of the Clean Water Act. Vernal pools are depressions into the ground that fill with water during the rainy season. The land the Duarte family acquired in 2012 had been used for grazing for more than two decades while wheat prices were low.
Duarte said the contractor was tilling the land to plant a wheat crop. There was no deep ripping, Duarte said. No vernal pools were destroyed. Plowing the land did not violate the Clean Water Act, Duarte said.
The U.S. Army Corps of Engineers, however, in February 2013 served Duarte with a cease-and-desist order, ordering him to stop farming the property. Duarte said he lost $50,000 in planting costs when he was forced to abandon the crop. In October 2013, Duarte filed a complaint against the U.S. Army Corps of Engineers in the U.S. District Court for the Eastern District of California for lack of due process. The lawsuit claimed the cease-and-desist was imposed without a hearing or a chance to comment on the allegations.
The U.S. Department of Justice, acting at the request of the U.S. Army Corps of Engineers, later countersued, alleging Duarte had violated the Clean Water Act; Duarte claimed that complaint was filed in retaliation.
In June, U.S. District Court Judge Kimberly Mueller ruled against Duarte on the due process claim and on the retaliation claim. The judge also ruled Duarte could be held personally liable for violating the Clean Water Act.
The case has drawn the attention of the American Farm Bureau, encouraging local chapters to support Duarte’s legal expenses. A gofundme.com campaign for Duarte’s legal defense fund started in September has raised more than $10,000 since September. The case has cost more than $1 million already in legal fees, Duarte said.
American Farm Bureau Federation officials said federal regulators want to make an example of Duarte.
Duarte is facing millions in fines and the potential loss of his home just for plowing his land to plant wheat, according to the Farm Bureau.
The Farm Bureau and Republican lawmakers particularly object to a new rule adopted in 2015 that further defines Clean Water Act. They claim the new definition of the waters of the United States – the “WOTUS” rule - would expand provisions in the Clean Water Act.
A recent report from the Republic majority staff of the U.S. Senate Committee on Environment and Public Works cited Duarte and other cases, saying the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers use their discretionary authority to define their jurisdictions. The new WOTUS rule “would codify the agencies’ broadest theories of jurisdiction, which (U.S. Supreme Court) Justice Kennedy called ‘ominous,’” according to the staff report.
Duarte said the new WOTUS rule could designate “95 percent of entire states” as wetlands” under the Clean Water Act.
“There is no question the new WOTUS rule will expand authority and increase exposure for farmers nationwide,” Duarte said.
And according to his federal case, “lifting the soil with a plow a couple of inches and moving it a couple of inches laterally to form furrows is now a discharge into the waters of the United States."
The U.S. Environmental Protection said the new “WOTUS” rule, which is now on hold because it is the focus of a federal complaint, would clarify the rules under the Clean Water Act when it is implemented. The current farm exemptions are preserved. The government is not trying to regulate land.
Jan Goldman-Carter, an attorney for the National Wildlife Federation, spoke on the same panel in Sacramento as Duarte in September, focusing on the Clean Water Act.
“The Clean Water Act has been a huge success and is our primary tool for keeping our waters clean and healthy,” said Goldman-Carter, adding opponents to the WOTUS rule are cherry picking facts. The Duarte case predates the new water rule, she stressed.
Congress added the agriculture’s exemptions in 1977. “It’s never been a carte blanche to do whatever you want in the water bodies on your land,” Goldman-Carter said.
“It is appropriate that we have these normal farming exemptions,” Goldman-Carter also said. “But there is also a real fundamental issue,” she added, “of people taking responsibility for that pollution,” she said, referring to water pollution.
A representative for the U.S. Department of Justice did not comment on the case; instead the department forwarded statements field with the court.