July 28, 2017

Duarte Nursery moves to dismiss federal Clean Water Act suit

By Anthony L. Francois Senior Attorney

Earlier this week, PLF clients Duarte Nursery, Inc., and its president John Duarte, moved to dismiss the federal government’s Clean Water Act prosecution against them, on the ground that the Court lacks subject matter jurisdiction over the claim.

The government bases the court’s jurisdiction over the Clean Water Act claim on 33 U.S.C. section 1319(b), which authorizes the EPA Administrator to bring actions for injunctive and other relief for violations of the Clean Water Act, in all cases other than those dealing with violations of an Army Corps issued permit. Small problem, though: the government concedes in this case that the case is not brought by or on behalf of the EPA Administrator, and indeed the Army Corps never referred the matter to the EPA for enforcement. In fact, the current EPA Administrator takes a dim view of this case:

Since it is a statutory prerequisite to jurisdiction that the EPA be the agency bringing the claim, Duarte has asked the court to dismiss the case.


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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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