The story of John Duarte and 450 acres in Northern California is a complicated matter. The U.S. Army Corps of Engineers says it’s a tale of a clear violation of the Clean Water Act. Duarte, on the other hand, says the real story is about assumptions and overreach by the government.“I call it peeling the onion because this thing goes so many layers deep,” he says.
Duarte is owner of Duarte Nursery, one of the largest grapevine and nut tree suppliers on the West Coast.
In 2012, he purchased 450 acres in Tehama County that, according to Duarte, had been in the USDA’s Conservation Reserve Program under previous owners.
The land had been planted with wheat many times, Duarte says. And a portion of adjoining land was farmed as late as 2011. As part of the land purchase, NorthStar Engineering, an environmental consulting firm, mapped buffers around the wetlands that were a part of the property.
“We consider ourselves accomplished ecologists when it comes to agricultural production,” Duarte says. “This land is over-farmed wetland. It has been planted to wheat before and had been used as grazing ground for a few decades.”
NorthStar found vernal pools, vernal swales, seasonal wetlands, seasonal swales and other waters which are considered pre-jurisdictional waters of the U.S., and would fall under the Clean Water Act
Tilling Or Ripping?
In 2012 Duarte decided to plant wheat on the 450 acres. He contracted with an equipment operator to prepare the land for planting.
In November 2012 a representative from the U.S. Army Corps of Engineers drove past Duarte’s property and saw what he believed were Clean Water Act violations. The representative returned to the property the following month to observe what he believed to be deep ripping.
Duarte suspects the Corps of Engineers representative assumed the equipment operator was deep ripping to prepare to plant trees or vines. However, Duarte says the operator was just plowing the field.
The Army Corps of Engineers would not comment on this particular case, however provided a statement from the EPA on the Clean Water Act litigation.
“The agencies look forward to vigorously defending the merits of the Clean Water Rule, which the agencies continue to believe is fully consistent with the law and based on the best available peer-reviewed science,” the EPA says.
Duarte received a formal cease and desist letter in February 2013 stating he had discharged dredged or fill material into the seasonal wetlands, vernal pools, vernal swales, and other waters without a permit.
Duarte’s attorney sent letter a letter to the U.S. Corps of Engineers requesting the Corps provide copies of all the information it gathered on the farm to back up the claims it was making. He also requested a hearing on the claims.Instead, he received another letter in March 2013 stating the case was transferred to the EPA for enforcement.
Due Process Claim
Duarte then sought help from the Pacific Legal Foundation, a conservative nonprofit, which said the case was a due process case. Duarte filed a due process claim against the U.S. Corps of Engineers.
“The government can’t just tell you to stop farming your land because they thought they saw something without giving you an opportunity to share facts; this is a due process issue,” Duarte said.
Duarte says the U.S. Department of Justice filed a destruction of wetlands countersuit against Duarte Nursey, and against John Duarte. Duarte says they allege that the land was deep-ripped or tilled 36 inches deep or more.
“We filed a counterclaim that the destruction of wetland suit was a retaliatory suit based on our due process claim,” Duarte says. “We simply planted wheat in the dark spots where wheat had been planted before.”
Soil experts from the Department of Justice visited the parcel to examine and measure the land. Duarte says the experts asserted the tillage was 4-7 inches deep and left plow furrows 24 inches apart peak to peak and a gully of 5 inches, and was not deep ripping. Even worse,the department’s employees dug up the vernal pools in question. The Corps of Engineers contends the raised part of these furrows created constitute mini mountain ranges. Duarte jokingly calls them the Sierra Minimas.
“[They said] the bottom of the furrow is still a wetland, but the top of the furrow is now a converted upland,” Duarte says.
Duarte is being prosecuted under the Clean Water Act, however he says if he was being charged under the new Waters of the U.S. Rule (WOTUS), 95% of the Tehama County property would be considered a wetland.
He also says the exemptions within the Clean Water Act permit farmers to plow in wetlands without a permit and that moving the soil in the act of plowing does not cause a discharge. However, a federal judge said that because the plow lifted the soil a few inches and moved it a few inches to create the furrows, the soil moved is a pollutant and therefore does not fall under the plowing protection. He also says the government claimed sovereign immunity to protect itself and countersue against his first amendment claim.
“There is no protection for farming, and according to this judge there never has been,” Duarte says.