The Clean Water Act is an important piece of legislation. When enacted in the 1970’s, it solved a real water quality and pollution problem throughout the nation. Moreover, as its early enforcement unfolded, Congress and even the EPA were careful to include important provisions to protect the economy. America’s farmers, in particular, were assured that normal farming practices would be protected from federal micromanaging; amendments clarified that plowing to produce crops is not regulated by the Act, and other normal farming practices do not require permits.
Lawmakers understood that we’d have a hard time feeding our nation if farmers had to go through the Clean Water Act permitting process, which is long and expensive, simply for the right to grow food.
But those protections are under unprecedented assault, through a groundbreaking federal prosecution launched during the Obama Administration that has somehow continued under the Trump Administration.
The target is my family’s business, Duarte Nursery, Inc., and the 500 jobs of our employees. Career prosecutors at the Justice Department and entrenched bureaucrats at the Army Corps of Engineers are seeking devastating fines, all because we planted wheat in a field we own in Northern California.
They’re going after us because we didn’t get a permit to plow, even though the Clean Water Act says no permit is needed and indeed no permit has ever been required or issued to a wheat farmer ever before; and we didn’t avoid some small wet spots in our field, even though they’re similar to many others commonly farmed through by farmers all over the US (and those seasonal wetlands are still present on our property, as they were before our plowing).
From the beginning, the government put forward allegations that were grossly incorrect. A Corps of Engineers field agent accused us of deep ripping, three feet deep, permanently destroying more than 20 acres of wetlands. If true, this would have required a permit in many cases. But not only was this not true, the Corps agent avoided opportunities to find out what actually happened, and then destroyed documents in his file to prevent their disclosure to me and the public.
The government’s own expert report admits that the plowing averaged four to seven inches, which does not require a permit. Undaunted, a government team of 12 experts and others had the run of the property for two weeks. They dug up 20 vernal pool wetlands, two-to-three feet deep, with a diesel excavator. At the end of their investigation, the government faced a failed theory of prosecution—there was no deep ripping and the wetlands were all still present, even in a five year drought. But the prosecution team persisted, now with senseless metaphors: they argued that five inch plow furrows were really “small mountain ranges” and the plowing “like a tornado.” Sadly, a federal judge agreed with the government, holding us liable because our plowing moved soil back and forth and from side to side.
Now, the court is poised to hear the government’s arguments to impose astonishing financial penalties. The proposed $2.8 million fine, coupled with a requirement that my business and myself personally fund over $30 million to a private wetland mitigation bank, is ruinous. It will destroy an important California family business and many jobs. It will also give the federal government unlimited power to extract wealth from family farms and rural communities nationwide.
Over the years, members of both parties in Congress—in particular, but not limited to, representatives from rural areas—have worked hard to sustain the farming safeguards in the law. It is widely recognized that the attack on my family business threatens those safeguards. House Judiciary Chairman Goodlatte and House Agricultural Committee Chair Conaway recently sent a strong letter to Attorney General Sessions asking him several important questions specific to this case. Iowa Senators Joni Ernst and Charles Grassley have spoken against this abusive prosecution. As stated by attorney Tony Francois of Pacific Legal Foundation, which is representing my business without charge against the Corps., my case “should alarm every farmer in America, and every family that values having food on their table. If the farming protection in the Clean Water Act is going to be plowed under, we may not have a lot of domestically grown food to eat.”
President Trump recognized early in his campaign that the Obama Administration’s illegal expansion of Clean Water Act jurisdiction, through an open-ended WOTUS rule, would be a threat to rural America. President Trump’s move to repeal the Obama WOTUS rule was very important. Now we need the same attention to this prosecution against me, my family business, and, by extension, America’s farmers from coast to coast.
John Duarte is president of family owned Duarte Nursery, Inc., headquartered near Modesto.