WASHINGTON, June 13, 2016 - Farming activities must be ongoing in order to avoid the full reach of the Clean Water Act, according to a federal judge’s decision.
In a closely watched case out of California, U.S. District Judge Kimberly Mueller on June 10 found that land preparation that occurred in 2012 on property owned by Duarte Nursery constituted a discharge of pollutants into “waters of the U.S.,” as defined by the CWA.
John Duarte, who manages the business near Modesto, sued the U.S. Army Corps of Engineers in 2013, contending that a ‘cease and desist” letter he received from the Corps amounted to a violation of his right to due process. He also said that the land preparation did not require a permit under the CWA because it was part of the “normal farming” exemption.
The Corps countersued the next year, claiming that the land preparation was, in fact, “deep ripping” of the property, which is illegal under the CWA. Deep ripping mechanically breaks up compacted layers of soil, using tines working down to depths often greater than a foot.
Duarte had said he instructed the contractor doing the plowing to avoid the wet areas on the property, but Mueller said in her ruling that he “later conceded he learned in the summer of 2014 that the tillage did not avoid” delineated wetlands.
Winter wheat was planted on the 450 acres at issue in the case, but a consultant’s report prepared for the Corps found that the wheat seeds had not been incorporated into the soil. “Activities on the subject property in fall 2012 (are) consistent with preparations to plant permanent crops, that is, orchards such as almonds, walnuts or olives. Other permanent crops might include pistachios or wine grapes.”
The land in question had not been farmed for more than two decades. Mueller said she was “not persuaded that, after nearly 24 years of no activity that meets the applicable definition of farming, the tillage and planting of wheat by plaintiffs can be considered a continuation of established and ongoing farming activities.”
Clean Water Act regulations exempt “normal farming and ranching activities” from the prohibition against filling wetlands.
Pacific Legal Foundation attorney Tony Francois, who has been representing Duarte, said in a blog post that “since no wetlands were lost or reduced in acreage by the plowing in this case, the court’s decision amounts to a rule that you may not plow in federally regulated wetlands without an Army Corps permit, the clear exemptions to the contrary notwithstanding.”
The judge also found that the equipment used to till the land, a 360-horsepower International Harvester Case Quadtrac 9370 with Wilcox ripper, was a “point source” under the Clean Water Act. She also concluded that Duarte’s due process rights were not violated.
Although Duarte assumed that because of the cease and desist letter, the government was ready to start enforcement proceedings, “such a reaction does not convert the threatened enforcement to a deprivation of a liberty or property interest cognizable under the Due Process Clause,” the judge said.
The ruling “raises the stakes for PLF’s ongoing litigation against the new definition of ‘waters of the U.S.,’” Francois said, referring to litigation pending in the 6th Circuit Court of Appeals. “If farmers need a federal permit to farm in waters of the U.S. (despite Congress legislating to the contrary), then it makes an even greater difference how far this oppressive statute extends.”
Francois said an appeal would be filed.
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