Karen Kidd Sep. 1, 2016, 12:48pm

HUGHSON – A federal judge erred earlier this summer when she ruled against a Stanislaus County farmer fighting federal regulators over the Clean Water Act and claims that his property contains Waters of the U.S. (WOTUS), a Pacific Legal Foundation attorney said during a recent interview.

"We think the judge was mistaken in accepting the government’s theory of this case, which is that plowing a farm requires a Corps of Engineer’s permit if it results in the movement of any soil on the farm," Pacific Legal Foundation Senior Staff Attorney Tony Francois said during a Northern California Record email interview. "Clearly, plowing will always result in movement of soil, since that is the purpose of plowing. But under express federal law, plowing is not regulated by the Clean Water Act and does not require a permit from the Corps of Engineers."

Judge Kimberly Mueller of the U.S. District Court for the Eastern District of California decided otherwise, handing down a 37-page order June 10 in favor of federal regulators. The Environmental Protection Agency and U.S. Army Corps of Engineers had not, Mueller ruled, infringed on the property rights of Hughson farmer John Duarte and that the cease and desist letter the corps sent Duarte was not an enforcement action.

Duarte is fighting the two agencies with the help of the Pacific Legal Foundation.

There is only one way that Duarte can correct Mueller's order, Francois said.

"Unfortunately, it will be necessary to correct this mistake on appeal," he said. "In the meantime, this ruling could be used by government agencies and environmental activists across the country to prevent farmers from working their fields without onerous federal permits. So it will be important, not just to Duarte Nursery but to all farmers, to correct this mistake on appeal.”

That appeal is pending.

“The appeal has not yet been filed, but it will be in due time,” Francois said.

Duarte's case predates much of the regulation he is fighting. In 2012, Duarte Nursery purchased 450 acres in Tehama County with plan to grow winter wheat on the rolling grassland that had, since 1988, been used for grazing, according to court documents. The property's clay soil allows rainwater to collect into what are known as vernal pools.

In November 2012, a U.S. Army Corps of Engineers employee driving by the property noticed the farming activity and took photos of what court documents say he believed were violations of the Clean Water Act. The employee returned the following December and made similar observations.

The following February, Duarte received a U.S. Army Corps of Engineers cease and desist letter that said the corps believe Duarte's farming of the property violated Section 404 of the Clean Water Act. Specifically, the letter claimed that discharge allegedly occurred into seasonal wetlands, vernal pools, vernal swales and intermittent and ephemeral drainages on the land.

The following month, Duarte’s legal counsel responded to the letter, asking for the documentation used by the corps to support its allegations and pointing out that Section 404 exempts certain agricultural activities. Meanwhile, the matter was transferred to the EPA for enforcement.

In October 2013, Duarte filed his lawsuit, Duarte Nursery v. U.S. Army Corps of Engineers, against the two federal regulatory bodies, alleging due process violations. The U.S. Army Corp of Engineers counterclaimed with allegations that Duarte had violated the Clean Water Act. At issue in the case was whether the cease and desist letter Duarte received constituted a final agency action that may be challenged in court.

As the case made its way through the courts, the Clean Water Act evolved. In June 2015, the EPA finalized a broader definition of the WOTUS rule under the act. The EPA and U.S. Army Corps of Engineers the following August began to enforcing the WOTUS rule, which extends the federal agency’s authority to all bodies of water, regardless of size or frequency.

The broadened WOTUS rule did not go unchallenged. In October, the U.S. 6th Circuit Court of Appeals blocked the EPA and U.S. Army Corps of Engineers from implementing the WOTUS rule nationwide.

In February, the same court ruled in a split decision that it has jurisdiction to hear merits of challenge to the WOTUS rule.

The previous month, U.S. lawmakers, particularly Republicans, weighed in on WOTUS. The U.S. House passed a symbolic resolution to nullify the EPA's WOTUS rule in a 253-166 vote largely along party lines. Only one Republican Congressman, U.S. Rep. Chris Smith (R - New Jersey), voted against the measure.

The strongest ruling yet about the applicability of the Clean Water Act and how far the federal government can go to designate bodies of water on private and public lands as being Waters of the U.S. arrived late last spring. On May 31, in a rare unanimous decision, the U.S. Supreme Court ruled in U.S. Army Corps of Engineers v. Hawkes Co that landowners have the right to seek judicial review of federal declarations that their property contains waters of the U.S. that are subject to regulations under the Clean Water Act.

Pacific Legal Foundation also represented the plaintiffs in the Hawkes case.

Meanwhile Duarte, with assistance from Pacific Legal Foundation counsel, is pleading his own case and that of other similarly situated property owners, especially in the western U.S., to anyone who will listen.

“Duarte Nursery representatives have met with state and national Farm Bureau leaders from across the country, to alert them to the threat which this ruling poses to farmers all over the nation," Francois said. "Mr. Duarte also met, along with his attorneys, with his congressional representatives, to brief them on the seriousness of this situation.”

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Organizations in this Story

Pacific Legal Foundation
930 G Street
Sacramento, CA 95814

U.S. District Court for the Eastern District of California
501 I Street
Sacramento, CA 95814

U.S. Environmental Protection Agency (EPA)
1200 Pennsylvania Ave NW
Washington, DC 20460

U.S. Army Corps of Engineers
441 G St NW
Washington, DC 20314

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