Duarte Settlement Leaves Unanswered Questions for Growers

Is agriculture exempt from the permitting requirements of the Clean Water Act? Growers will have to wait a while longer for an answer to that question following a $1.1 million settlement in a landmark case this week.

California grower John Duarte was sued by the U.S. Army Corps of Engineers after plowing a wheat field without a permit from the Corps. The Corps of Engineers argued Duarte disturbed protected wetlands in the process of plowing. Ag groups and individuals watched the case closely as it progressed, hoping it would provide clarity in the increasingly murky waters at the intersection of agriculture and the Clean Water Act. The impact of a settlement is not lost on Duarte and his legal team at the Pacific Legal Foundation.

“We will not have the opportunity, in this case to challenge the the re-interpretation of the Clean Water Act farming protections that the government successfully imposed in this case.” Duarte’s attorney, Tony Francois, told Farm Journal’s AgriTalk radio show. “Now the Pacific Legal Foundation will continue to look for solid cases in which to challenge that.”

“The only way a farmer knows if their practices are protected from permitting is to go ask your local Corps official.” Francois added. “We think that's a complete misreading of what is actually a very clear and broad protection from permitting in the act. And that question is going to have to get resolved.”

Section 404 of the Clean Water Act provides an exemption to the discharge permit requirement for: “Established farming, ranching, and silviculture activities such as plowing, seeding, cultivating, minor drainage, harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices.”

Francois said Duarte had a desire to continue to challenge the Corps of Engineers and the court ruling, but that the potential of more than $45 million in penalties put his 400 employees at an unacceptable risk.

Listen to the entire interview with attorney Tony Francois on AgriTalk in the player above.


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