April 28, 2017

Concerns over Duarte case remain for US Senators

By Anthony L. Francois Senior Attorney

On Wednesday of this week, the Senate Committee on Environment and Public Works held a hearing on the legal and technical flaws in the Obama Administration’s 2015 WOTUS definition.* During the hearing, Sen. Ernst (R – IA) asked panelist and Wisconsin Solicitor General Misha Tseytlin about the Duarte Nursery case. Tseytlin agreed that he was familiar with the case, and that a farmer being prosecuted under the Clean Water Act merely for plowing a field was a large reason that both the Wisconsin and American Farm Bureaus oppose the 2015 WOTUS definition. Senator Ernst focused on the Army Corps’ absurd argument that plowing causes “mini mountain ranges” and quipped that under that view, Iowa may be the most mountainous stated in the Union. You can watch Senator Ernst’s exchange with the panelists here:

*”Waters of the United States.” The 2015 regulation expanding this definition to vast areas of dry land, including farm land, is currently stayed by the Sixth Circuit of appeal in litigation brought by Pacific Legal Foundation and others.

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Duarte Nursery v. U.S. Army Corps of Engineers

John Duarte and Duarte Nursery, in rural Tehama County, California, received a cease and desist order from the U.S. Army Corps of Engineers for engaging in normal farming activities (i.e., plowing) that purportedly affected wetlands. Duarte was not permitted any type of hearing to defend himself.

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