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August 1st, 2016
environmental
PLOWING DEEMED POLLUTING UNDER CLEAN WATER ACT

The United States District Court for the Eastern District of California held the owner of a farm violated the Clean Water Act when he allowed wetlands on his property to be tilled.  Duarte Nursery, Inc. v. United States Army Corps of Engineers, No. 2:13-cv-02095-KJM-AC (June 10, 2016).  John Duarte, president of Duarte Nursery, purchased approximately 2,000 acres of real estate in Tehama County, California, in 2012.  There had been no farming activity on the land since 1988. 

            Portions of the land were tilled to loosen the soil for rip penetration and to prepare the land for wheat farming.  The Army Corps of Engineers investigated the activities and equipment on the property and advised Duarte the ripping activities required a permit under the Clean Water Act.  Duarte had retained NorthStar Environmental to map appropriate buffers around all wetlands and believed the tilling avoided all of the wetlands delineated by NorthStar. 

            The Army Corps issued a cease-and-desist letter to Duarte.  Duarte, as owner and on behalf of the nursery, responded that Section 404 of the Clean Water Act, codified at 33 U.S.C. § 1344, exempted agriculture from the Clean Water Act’s permitting requirement.  However, the exemption only applies to farming activities that are ongoing. Since the land had not been farmed in over 20 years, a permit was required. 

            The cease-and-desist letter also referenced potential future enforcement. Duarte claimed this violated his and the nursery’s procedural due process rights.  In granting summary judgment for the Army Corps on this issue, the District Court held the letter did not amount to a distinct deprivation of a constitutionally protected liberty or property interest. Without a deprivation of a protected interest, there can be no procedural due process claims based on the letter.  The District Court also dismissed the farm’s retaliatory prosecution action because it failed to show that the United States waived its sovereign immunity.           


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