A California farmer agreed Tuesday to pay $1.1 million for plowing federally protected wetlands on his wheat field, according to the Department of Justice. This ends a five-year legal battle over the reach of the Clean Water Act.
His crime for bringing the fine? Plowing his own field without the permission of the U.S Army Corps of Engineers.
The settlement required Duarte to pay $330,000 in civil penalties, to purchase $770,000 of “mitigation credits,” and to restore his 22 acres disturbed to original condition. Duarte would then “admit no liability.”
It all started when Duarte, a fourth-generation farmer, bought 450 acres in Tehama County to grow wheat in 2012 that he knew included vernal pools. These shallow depressions collect rainwater classified as “Waters of the United States” under the Obama administration’s extension of the Clean Water Act. But the act exempts “Established (ongoing) farming… activities,” including plowing and seeding. So, Duarte hired a contractor to plow the land and plant wheat.
In 2013, the Army Corps of Engineers sent Duarte a cease-and-desist order alleging he had violated the Clean Water Act by “deep ripping” federally protected wetlands. The Corps claimed the exemption did not apply to him because the land had not been farmed for more than 20 years. Hence, it was not defined as a “normal farming” practice, and required a government permit. He was not allowed to harvest his $50,000 wheat crop.
Duarte sued the Corps for due process right violations because the letter was sent without conducting a trial. However, a federal judge ruled against him in 2016. The government countersued because Duarte did not obtain a permit to discharge dredged or fill material into wetlands. The prosecution sought up to $45 million in fines.
Duarte settled in court on Aug. 15.
“This has been a difficult decision for me, my family, and the entire company, and we have come to it reluctantly,” Duarte said 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.”
Tony Francois, senior attorney for the Pacific Legal Institute who represented the farmer pro bono, said that Duarte would have preferred to appeal the ruling “which holds that plowing a field requires federal permission — despite the clear text of the Clean Water Act and regulations to the contrary.”
“John and his counsel remain concerned that legal liability for farming without federal permission undermines the clear protections that the Clean Water Act affords to farming and poses a significant ongoing threat to farmers across the nation,” Francois said.
President Trump signed an executive order Feb. 28 targeting the Clean Water Act, calling it a “massive power grab.”
“The Clean Water Act says that the EPA can regulate ‘navigable waters,’ meaning waters that truly affect interstate commerce,” Trump said at the signing. “But a few years ago, the EPA decided that ‘navigable waters’ can mean nearly every puddle or every ditch on a farmer’s land, or anyplace else that they decide, right?”
“You have to worry about getting hit with a huge fine if you fill in as much as a puddle—just a puddle—on your lot,” he added. “I’ve seen it. In fact, when it was first shown to me, I said, ‘No, you’re kidding, aren’t you?’ But they weren’t kidding.”
EPA administrator Scott Pruitt began to formally rescind the rule in July– but not soon enough for Duarte.