California Farmer Settles Closely Watched Wetlands Case

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By Carolyn Whetzel

A California farmer will pay $1.1 million to resolve a long-running Clean Water Act lawsuit over protected wetlands, federal prosecutors announced Aug. 15.

The proposed consent decree averts a trial for penalties in the government’s case against John Duarte and Duarte Nursery Inc., which was set to begin the same day ( United States v. Duarte Nursery Inc. , E.D. Cal., No. 2:16-cv-01498, 8/15/17 ).

In 2016, the U.S. District Court for the Eastern District of California found Duarte violated the Clean Water Act’s Waters of the U.S. rule. The U.S. Army Corps of Engineers brought the action, accusing the nursery owner of plowing over wetlands on his Tehama County property connected to the Sacramento River without a permit.

Duarte has been fighting the claims since 2013. The case has been closely watched by property rights advocates, farm groups, and even Republicans in Congress who held the case up as government overreach.

Terms of the settlement would require Duarte to pay $330,000 in penalties and purchase $770,000 worth of vernal pool mitigation credits and perform other mitigation work on the property, his attorney, Anthony Francois of the Pacific Legal Foundation in Sacramento, Calif., said in a statement.

The agreement allows Duarte to return most of the site at issue in the case back to productive use, prosecutors said.

The case won’t be used as “pretext for federal prosecution of farmers who engage in normal plowing on their farms,” the Justice Department said in a pre-trial brief. “No federal dredge-or-fill permit is required for plowing as defined in the regulations, and no such permit is required for discharges” from “normal farming” activities and operations, and not for converting federal protected waters for new uses.

“This has been a difficult decision for me, my family, and the entire company, and we have come to it reluctantly,” Duarte said in the statement. “But given the risks posed by further trial on the government’s request for up to $45 million in penalties, and the catastrophic impact that any significant fraction of that would have on our business, our hundreds of employees, our customers and suppliers, and all the members of my family, this was the best action I could take to protect those for whom I am responsible.”

To contact the reporter on this story: Carolyn Whetzel in Los Angeles at cwhetzel@bna.com

To contact the editor responsible for this story: Rachael Daigle at rdaigle@bna.com

For More Information

The proposed consent decree is available at http://src.bna.com/rHe.

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