John Duarte, a fourth-generation California farmer, Duarte says he has spent $2 million and five years fighting charges by the federal government that he violated the Clean Water Act by plowing too deeply on watery areas of a 450-acre parcel of land he purchased to grow winter wheat for at least one year. He was disappointed that when President Trump repealed the Waters of the United States rule in late June, it did not mean immediate legal relief from the environmental case against him that was initiated by the Obama administration.
According to Duarte, the Army Corps of Engineers has ignored evidence that showed that he had not tilled the land too deeply, at about 3 to 4 inches. The vernal pools—the wetlands in question on his property—remain healthy. Last year, a U.S. District Judge ruled against Duarte, meaning that he may face $2.8 million in fines and potentially tens of millions of dollars in environmental mitigation when the case goes to trial in mid-August. He hopes that federal prosecutors will settle for a small amount, which he said would be consistent with Trump’s policies with regard to Waters of the United States.
Vernal pools are seasonal concavities in the soil that are filled with shallow water for "variable periods" from winter to spring. They may dry up during the summer and fall months. According to the EPA, vernal pools provide "unique habitat for numerous rare plants and animals that are able to survive and thrive in them." He told Washington Free Beacon, "I'm still trying to figure out how a plowing method that doesn't not move soil.”
Duarte's supporters contend that the Clean Water Act and WOTUS both have exemptions for "normal" farming activities like plowing, grazing and mowing they believe should apply to Duarte's case. In May, Newsweek reported that attorney Anthony Francois of the Pacific Legal Foundation said that the case could set a precedent requiring farmers to obtain costly, time-consuming permits just to plow. "The case is the first time that we're aware of that says you need to get a (U.S. Army Corps of Engineers) permit to plow to grow crops," said Francois. "We're not going to produce much food under those kinds of regulations," Francois said.
Sen. Joni Ernst (R-IA) asked EPA Director Scott Pruitt about Duarte's case during confirmation hearings this year. She asked if the Trump administration would "stop trying to regulate ordinary farming practices." Pruitt said, "Yes, senator."
In an emailed response to Spero News, PLF attorney Francois described the Duarte case:
“The Duarte Nursery plowed its property to produce a wheat crop. Under clear Clean Water Act regulations, that does not require a permit. But the government is prosecuting the company and its president personally on the theory that it wasn’t really ‘plowing’ because it resulted in five-inch furrow tops that they insist are ‘small mountain ranges.’
"Unfortunately, the federal court agreed with the government in ruling that plowing requires a permit when it moves soil from side to side. We profoundly disagree with this ruling and will appeal it at the appropriate time, but first Duarte Nursery has to go through a penalty trial starting in mid-August, in which the government is demanding a $2.8 million dollar penalty plus tens of millions more in third party wetland restoration payments. This is an outrageous result for simply plowing land to produce food.
“Something is deeply amiss in our government when farmers are prosecuted for doing things that the law clearly allows, under novel and counter-intuitive reinterpretations of the law, and then faced with ruinous penalties. Sadly, if the rule in this case stands, every farmer in America can be subjected to similar lawsuits by activists who will misuse the Clean Water Act to shake them down, threatening to prevent them from farming unless they pay thousands in ransom.”