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One farmer’s ordeal may signal agencies’ actions under WOTUS

John Duarte

All John Duarte did was hire a guy to plow some grazing land so he could raise wheat on 450 acres that his family had purchased in California’s Tehama County, north of Sacramento. The land had been planted to wheat in the past, the wheat market was favorable and the farmer made sure to avoid some wet spots in the field, called vernal pools, which are considered wetlands.

But that plowing, which disturbed only the top few inches of soil, unleased a fire storm from the U.S. Army Corps of Engineers, the Environmental Protection Ag­­ency (EPA) and other regulators against the California Farm Bureau member. The regulators’ actions stopped Duarte (pictured above) from raising wheat, tried to force him to pay millions of dollars to restore wetlands in perpetuity — although  there was no evidence of damage — and sparked lawsuits and countersuits.

Duarte’s experience could well turn out to be an example of how the agencies will treat farmers in Iowa and all over the country under the expansive Waters of the United States (WOTUS) rule, according to Duarte, his attorneys and experts at the American Farm Bureau Federation (AFBF).

“This really shows how these agency actions can play out on a specific family farm,” Duarte said recently during a press conference at the AFBF annual convention in Orlando. “We aren’t concerned about it because John Duarte is having a bad time with the feds. We are concerned because this is a very serious threat to farming as we know it in America.”

Although the EPA and other agencies continue to say to farmers that the WOTUS rule will not affect normal farming practices, such as plowing, Duarte’s case shows that it will, said Tony Francois, an attorney with the Pacific Legal Foundation, which is representing Duarte.

“Anyone who’s being told not to worry about the new WOTUS rule, they should be thinking about this case,” Francois said. “The very thing they are telling you not to worry about is what they are suing Duarte over — just plowing.”

Don Parrish, AFBF senior director of regulatory relations, said a big problem is the wide parameters that the agencies have placed in the WOTUS rule. He noted the rule is filled with vague language like adjacent waters and tributaries, which are difficult to clarify.
As broad as possible

“They want WOTUS to be a broad as they can get it so it can be applied to every farm in the country,” Parrish said.

Iowa Farm Bureau Federation (IFBF) and other organizations have worked hard to stop the WOTUS rule, which was imposed last year but has been temporarily suspended by court rulings. The rule was designed to revise the definition of what is considered a “water of the United States” and is subject to federal regulation under Clean Water Act (CWA).

But instead of adding clarity, IFBF and others contend the rule has only added ambiguity, leaving farmers, like Duarte, facing the potential of delays, red tape and steep fines as they complete normal farm operations, such as fertilizing, applying crop protection chemicals or moving dirt to build conservation structures.

Another problem, Duarte said, is that the agencies are piling the WOTUS law with other laws, such as the Endangered Species Act, to dictate how farmers use their own land or to keep them from farming it at all.

Trying to stop farmers

“They are aren’t just trying to micromanage farmers. They’re trying to stop farmers,” Duarte said. “They’re trying to turn our farmland into habitat preservation. They’re simply trying to chase us off of our land.”

Duarte, who operates a successful nursery that raises grapevines and rootstock for nut trees, was first contacted by the Corps of Engineers in late 2012. In early 2013, the Corps sent a cease-and-desist letter to Duarte, ordering suspension of farming operations based on alleged violations of the CWA.

The Corps did not notify the farmer of the allegations prior to issuing the letter or provide Duarte any opportunity to comment on the allegations.

The agency, Duarte said, wrongly accused him of deep ripping the soil and destroying the wetlands in the field. However, he had only had the field chisel plowed and was careful to avoid the depressions or vernal pools.

It’s also important to note, Duarte said, that plowing is specifically allowed under the CWA. Congress specially added that provision to keep farmers from having to go through an onerous permitting process for doing fieldwork, he said.

Deciding to fight

Instead of capitulating to the Corps, Duarte decided to fight the case in court.

His lawsuit was met by a countersuit from the U.S. Justice Department, seeking millions of dollars in penalties. The case is expected to go to trial in March.

The case, Duarte said, has raised some absurd charges by the agencies. At one point, the government experts claimed that the bottom of the plowed furrows were still wetlands, but the ridges of the furrow had been converted to upland, he said.

In another, an agency official claimed that Duarte had no right to work the land because it had not been continuously planted to wheat.

However, he said, the previous owner had stopped planting wheat because prices were low.

“They said it was only exempt if it was part of ongoing operation,” Duarte said. ”There is no law that says farmers have to keep growing crop if there is a glut and prices are in the tank. But by the Corps thinking, if you don’t plant wheat when it is unprofitable, you lose your right to ever grow it again.”

Duarte also noted that when federal inspectors came out to his farm, they used a backhoe to dig deep pits in the wetlands. “If you do that, you can break through the impervious layer and damage the wetland, but it does not seem to be a problem if you are a government regulator.”

To date, his family has spent some $900,000 in legal fees. That is separate from the work by the Pacific Legal Foundation, which represents the clients it takes for free and is supported by foundations.

It would have been easier, and cheaper, to comply with the wishes of the federal agencies and given up use of the land. Many California farmers who found themselves in a similar situation have done just that, Duarte said.

Banding together

However, it’s important to stand and fight the agencies’ attempt to bend the CWA, Endangered Species Act and other laws to take control of private lands. And it’s important for farmers to band together with Farm Bureau and other groups that oppose the WOTUS rule. 

“We are not against the Clean Water Act or the Endangered Species Act as they were intended,” Duarte said. “But this is not how those acts are supposed to be enforced. We are getting entangled in regulation, and the noose seems to get tighter every year.”

You can watch a video about Duarte’s case at http://www.fb.org/. 



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