John Duarte, the owner of Duarte Nursery in Modesto, California, bought the 450 acres of land ten miles to the south of Red Bluff in 2012 and plowed it with the intention of growing wheat on the land that would eventually be replaced by a walnut orchard. Like many farms in the area, it’s made up of grassland, and water collects in puddles when it rains. These puddles, known as vernal pools, evaporate instead of draining and are often inhabited by creatures like fairy shrimp.
He hired a consulting firm to help him create a map of the property indicating areas that drain into Oat Creek and Coyote Creek and then asked the contractor plowing the land to avoid those areas.
When a project manager from the U.S. Army Corps of Engineers’ local office drove past the field while it was being plowed, he thought the land was tilled too deeply. This prompted Duarte to be sent a cease-and-desist letter.
While Duarte’s contractor did ultimately plow a few of the vernal pools, he said that none of them were destroyed. The plow went anywhere from four to seven inches into the ground, which is not deep enough to disrupt the impermeable layer that exists under the pools. Duarte maintains that the project manager was mistaken, but a U.S. District Judge sided with Army Corps in a 2016 ruling. The government is now asking for $2.8 million and mitigation measures like replanting certain plants and repairing the wetlands; the trial’s penalty phase is set to get underway in August.
These vernal pools are actually considered to be wetlands, which means disturbing them is considered wetlands destruction. However, while wetlands are protected by the government’s Clean Water Act, the EPA has ruled that plowing does not fall under its purview as long as it does not turn wetland into dryland, thereby enabling farmers to plow their land without needing special permits.
Lawyer says penalties were unfair
An attorney for the Pacific Legal Foundation, who is defending Duarte, Anthony Francois, said that the penalties were unfair and the rules stated that a permit was not needed. “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,” he stated.
The Army Corps of Engineers and California Central Valley Regional Water Quality Control Board claim he was in violation of the Clean Water Act because he did not get a permit to discharge the dredged material into the seasonal wetlands, which are considered waters belonging the United States – even though they are on his property.
Representatives ask Attorney General for clarification
The High Plains Journal reports that the Chairmen of the House Agriculture Committee and the House Judiciary Committee, Mike Conaway (R-TX) and Bob Goodlatte (R-VA) have written a letter to Attorney General Jeff Sessions asking for a review of the decision to prosecute the farmer.
Conaway said: “Mr. Duarte’s case clearly highlights the need to keep the federal government out of America’s backyards, fields and ditches.
“Little by little, we watched the previous administration chip away at the rights of land and property-owners, aiming to expand its authority through broad new rules under WOTUS, all while providing little clarity to farmers and ranchers about what qualifies for exemptions.”