A farmer in California prosecuted under the Clean Water Act for plowing his own land without federal permission agreed to a $1.1 million settlement after the feds threatened $45 million in penalties.
The Duarte Nursery was written up by the Obama Department of Justice after the Army Corps of Engineers determined the pools running alongside the furrows created by plowing a wheat field were “navigable waters” under the Waters of the United States rule, which was codified in 2015.
The government insisted the furrows were “mini-mountains” that disrupted the “ephemeral” puddles of water on the land.
President Trump’s review of the huge expansion of authority claimed under the Clean Water Act during the Obama administration is in progress and apparently of no help to the nursery, which was represented by the Pacific Legal Foundation.
Senior Attorney Tony Francois said the Duartes 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.”
The CWA actually exempts ordinary farming operations.
The judge’s ruling that the company violated the Clean Water Act is under appeal, but the penalty phase must take place first.
It was during the run-up to the penalty phase, which was to begin this week, that the government threatened the massive penalties.
“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.
The settlement will have Duarte admit no liability, pay the government $330,000 in a civil penalty and purchase $770,000 worth of vernal pool mitigation credits, officials said.
“This has been a difficult decision for me, my family, and the entire company, and we have come to it reluctantly,” said John Duarte. “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.”
The court will hold a hearing in about 45 days to approve the settlement.
The Washington Times reported that while Trump has tried to help farmers by rolling back Obama’s “hotly contested” Waters of the United States rule, which expanded federal authority over all of the United States, “it didn’t happen soon enough to help John Duarte.”
“The alternative was to roll the dice in court and risk a fine of as much as $45 million, which would have devastated his family business, Duarte Nursery, located near Modesto,” the report said.
The nursery plowed a 450-acre piece of land in Tehama County in 2013 to grow wheat, but the Army Corps of Engineers claimed the “pools running alongside the furrows were navigable waters under the Waters of the U.S., codified by the Obama administration in 2015,” the report said.
The feds were happy the nursery had to back down.
“Today’s agreement affirms the Department of Justice’s commitment to the rule of law, results in meaningful environmental restoration, and brings to an end protracted litigation,” said Jeffrey Wood, acting assistant attorney general.
Trump has ordered a review of Obama’s Waters of the U.S. rule.
“The Clean Water Act says that the EPA can regulate ‘navigable waters,’ meaning waters that truly affect interstate commerce. 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?” Trump said when he ordered the review.
WND reported members of Congress have expressed disbelief that such a case could exist.
Sen. Joni Ernst, R-Iowa, in a congressional hearing, got confirmation from experts that the idea that the occasional puddle on the Duarte property needed to be protected was incorrect.
One witness, Misha Tseytlin of Wisconsin, characterized such claims as propaganda.
Ernst ridiculed the government’s characterization of the plowed ridges as “mini mountain ranges.”
She pointed out that under the government’s definitions, 97 percent of Iowa would be regulated because the state would be considered waters of the United States and her state should be counted as the most mountainous state in the union.
Former congressman Richard Pombo wrote in a WND commentary that it was an opportunity for Trump to move the federal government back toward common sense.
“Donald J. Trump largely took the path through rural America to the presidency of the United States. Farmers and ranchers cheered at the election results last November because they felt that they now had the chance to be relieved of the burdens of the regulatory tsunami that had been unleashed on them by the previous administration. This anti-farmer regulatory environment is at the core of America’s ability to compete in a world economy. Was it all an illusion or will President Trump stand up for the men and women of rural America?”
The case, he noted, “is based on a set of facts that one agricultural reporter, Chris Bennett, called ‘a Monty Python, George Orwell lovechild.'”
“This is the nonsense that we expected from the Obama administration,” Ponbo explained. “Things are different now that America has elected President Trump, but they haven’t been different on this case so far.”
Two other Republicans, K. Michael Conaway of the House Committee on Agriculture and House Judiciary Chairman Bob Goodlatte, wrote to Sessions raising concerns that the DOJ was misinterpreting congressional intent in its actions.
“The prosecution of Mr. Duarte raises concerns that the congressional intent behind farming exemptions in the statute is misunderstood. Specifically, it is the Agriculture Committee’s view that even occasional farm activities, including grazing, qualify as ‘normal’ farming under the statutory exemption, and also are part of an established operation for purposes of the exemption.”
They want the DOJ to explain who the DOJ decides to prosecute under the Clean Water Action, about the “novel or strained interpretation” that might be at play, or settlements that have been reached.