June 13, 2016

Federal court rules that plowing without an Army Corps permit violates Clean Water Act

By Anthony L. Francois Senior Attorney

Last Friday we received a disappointing decision in Duarte Nursery v. Army Corps of Engineers. The court ruled that the company violated the Clean Water Act by plowing its property, even though the Act exempts normal farming practices. And, the implementing regulations state that plowing is never even subject to the Act, so long as it does not convert wetlands to dry land. Since no wetlands were lost or reduced in acreage by the plowing in this case, the court’s decision amounts to a rule that you may not plow in federally regulated wetlands without an Army Corps permit, the clear exemptions to the contrary notwithstanding.

The court also reversed an earlier ruling in the case and held that although the Corps ordered Duarte Nursery to halt all activity in any area of its property that could be considered waters of the U.S. on its property, the company did not suffer any deprivation of its property. On this basis, the court then ruled that Duarte Nursery’s due process rights have not been violated by being ordered not to farm its property for the last three years.

An appeal will ensue, as day follows night. We think that both of these rulings are wrong on the law, and fail to take account of all of the facts. This ruling also raises the stakes for PLF’s ongoing litigation against the new definition of “waters of the U.S.” If farmers need a federal permit to farm in waters of the U.S. (despite Congress legislating to the contrary), then it makes an even greater difference how far this oppressive statute extends.

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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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