On August 15, 2017, a settlement was reached in the Clean Water Act case brought by the U.S. Army Corps of Engineers against Duarte Nursery, Inc., and John Duarte, individually. According to attorneys for Duarte at the Pacific Legal Foundation, under the settlement agreement, Duarte will admit no liability, but will pay the government $330,000 in a civil penalty, purchase $770,000 worth of vernal pool mitigation credits, and perform additional work on the site of the plowing.
The matter began in 2012 when Duarte planted land previously enrolled in a Conservation Reserve Program to wheat. In June 2016, a judge with the United States Eastern District Court of California granted summary judgment in favor of the U.S. Army Corps of Engineers, concluding that plowing (4-7 inches deep) across features that are subject to Clean Water Act jurisdiction (in this case, “vernal pools”) is a “discharge” of “pollutant” potentially subjecting the farmer to millions of dollars in fines and other penalties.
According to John Duarte, the property had been planted to wheat since the 1940s or 1950s until the 80s. The property was in the Conservation Reserve Program under a different owner before the Duarte family purchased the land, which was documented farmed wetlands according to the Farm Service Agency and the USDA. Duarte faced fines of up to $2.8 million for failing to get a permit from the US Army Corps of Engineers to plow his field, and the Corps also wanted Duarte to purchase between $15-30 million in offsite mitigation credits.
“This has been a difficult decision for me, my family, and the entire company, and we have come to it reluctantly,” said?Mr. Duarte?in a statement. “But given the risks posed by further trial on the government’s request for up to $45 million in penalties, and the catastrophic impact that any significant fraction of that would have on our business, our hundreds of employees, our customers and suppliers, and all the members of my family, this was the best action I could take to protect those for whom I am responsible.”
While the Duarte decision was based on pre-2015 Waters of the U.S. (WOTUS) regulations, there is a chance that the current administration’s efforts to repeal WOTUS and then to replace it with more sensible and practical regulation, could provide some relief to farmers and ranchers. Until then, farmers and ranchers need to be very cautious about actions to return CRP land to production as they could be regulated by the Clean Water Act.