American Farm Bureau Weighs in for Grower in Clean Water Act Suit

John Duarte, the owner of Duarte Nursery, one of the largest grapevine and nut tree suppliers on the West Coast, recently gained a powerful ally in his battle against the U.S. Army Corps of Engineers, which is demanding more than $2.8 million in fines and damages related to his plowing of a Tehama County, CA, field in order to plant wheat.

American Farm Bureau Weighs in for Grower in Clean Water Act Suit

John Duarte

American Farm Bureau President Zippy Duvall sent a letter to USDA Secretary Sonny Perdue last Friday stating: “The Duarte prosecution has been a poster child for the disregard of the statutory farming exemptions by the U.S. EPA and Army Corps of Engineers over the past eight years.”

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Duvall noted he has been closely following Duarte Nursery v. Army Corps of Engineers, and personally visited Duarte’s farm to see firsthand the implications of this case for all of agriculture.

“What happened on the Duarte land was farming, plain and simple, and it caused no environmental harm,” Duvall states. “Most importantly, Congress has said plainly in the Clean Water Act (CWA) that “normal farming” is exempt from regulation.”

Duvall goes on to state: “While the Duarte case centers on one farmer, the implications are national in scope and will require both prompt and sustained attention from this Administration.”

Duarte’s case stems from a February 2013 U.S. Army Corps of Engineers (the Corps) allegation that the vernal pools on Duarte’s land are considered Waters of the United States (WOTUS), thus subject to CWA authority. The Corps argued that based on inconsistent agriculture production patterns on the land prior to Duarte purchasing it in 2012 meant he did not qualify for farming exemptions and had violated the CWA when he plowed his field in late 2012.

Anthony Francois, Senior Staff Attorney of the Pacific Legal Foundation, says the case is set for trial on Aug. 14, where Duarte is subject to a $2.8 million penalty. Francois says the judge has ruled the plowing – about 4 to 7 inches deep – required a Clean Water Act permit.

Here is the full text of Duvall’s letter:

July 21, 2017

The Honorable Sonny Perdue

Secretary, U.S. Department of Agriculture

1400 Independence Avenue, S.W. Washington, D.C. 20250

 Dear Secretary Perdue:

As President of the American Farm Bureau Federation, I have closely followed the Duarte Nursery v. Army Corps of Engineers case and personally visited Mr. Duarte’s farm to see firsthand the implications of this case for all of agriculture. Mr. Duarte is facing trial in federal court in California starting on August 15 to determine whether he will pay $2.8 million in penalties and corrective measures for the simple act of plowing — about seven inches deep — through low spots in a farm field where water sometimes pools after spring rains. What happened on the Duarte land was farming, plain and simple, and it caused no environmental harm. Most importantly, Congress has said plainly in the Clean Water Act that “normal farming” is exempt from regulation.

The Duarte prosecution has been a poster child for the disregard of the statutory farming exemptions by the U.S. EPA and Army Corps of Engineers over the past eight years. If it continues to trial next month, it will be an embarrassment to this Administration — raising serious questions among farmers and ranchers nationwide about whether the abuses of the past eight years are at an end. Under an Administration that has promised to end agency overreach and abuse, farmers and ranchers should be able to rely on the plain and clear exemptions as written by Congress. The exemptions are critical to farming and ranching, and it is essential that the policy positions taken by this Administration line up with that law.

While the Duarte case centers on one farmer, the implications are national in scope and will require both prompt and sustained attention from this Administration. After years of agency “interpretation” narrowing the farming and ranching exemptions out of existence, clarifying and restoring the exemptions — and codifying a rational interpretation in regulation — should be one of the highest priorities identified by the Task Force on Agriculture and Rural Prosperity and addressed under the Presidential Executive Order on Promoting Agriculture and Rural Prosperity in America.

I urge you to be a strong advocate at the cabinet level to bring this issue the focus that it deserves. On behalf of Farm Bureau, and farmers and ranchers nationwide, thank you.

Sincerely,

Zippy Duvall

President

 cc: Ray Starling, Special Assistant to the President