My favorite law professor, the late Morgan Shipman, used to love to refer to environmental cases as “birds and bunnies” law. While he felt strongly that the environment should be protected, he often pondered if the Draconian regulations protecting “birds and bunnies” were at the cost of human liberty and constitutional rights. I can only imagine his take on the recent settlement in the Duarte Case.
This matter is from California, often the source of confusing legal resolutions. The trouble all began when John Duarte, fourth generation owner of Duarte Nursery, an employer of over 400 and seller of rootstock (almonds, avocados, pistachios and grapes), purchased 450 acres of red clay ground for investment and potential future orchard development in 2012.
The acreage, near Modesto, had been wheat fields in the 1970s and 1980s and some of the ground was enrolled in the Conservation Reserve Program at that time. Cattle grazed this land during the 1990s and early 2000s. This property contained vernal pools, which form in low field pockets after rains. They are typically several inches deep and one-hundredth of an acre in size and remain for several weeks. Duarte hired biologists who surveyed the ground and mapped out wetlands, comprised of the vernal pools.
At this point, I cannot avoid grandstand quarterbacking. If I had a client with this set of facts, I would advise him to contact the Natural Resource Conservation Service for discussions about the land before proceeding. Duarte’s biologists confirmed it was wetlands. Four federal agencies have authority over wetlands: the Army Corp of Engineers (ACE); the Environmental Protection Agency; USDA Soil Conservation Service; and U.S. Fish and Wildlife Service. This means the government gets to determine where wetlands exist, not your private consultants. Sometimes it is not better to ask for forgiveness than permission.
Wetlands are defined as “areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances, do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamp, marshes, bogs and similar areas.” All three of the following must exist for there to be a wetlands determination: hydrology; hydric soils; and wetland vegetation.
In December of 2012, Duarte hired a local operator at $50 per acre to till the property with a Case Quadtrac and Wilcox ripper. Duarte requested the dirt be opened down to several inches, but no deep ripping. And the individual was instructed to go around the vernal pools.
This activity got the attention of an ACE field agent. And the fight began, with strong emotions on both sides. In February of 2013, Duarte received a cease-and-desist letter alleging “unauthorized work in waters of the U.S.” and threat of potential fines and imprisonment. In this communication, ACE clearly invoked the Clean Water Act. The agency later stated they believed this communication would lead to resolution of the issues. Instead, Duarte requested a hearing. When nothing happened, he filed a due process lawsuit in October of 2013.
Tensions ran high on both sides, so intense that the U.S. EPA opted to not get involved. That is a particularly interesting scenario. When does the EPA turn down a fight over wetlands? The U.S. Department of Justice, however, willingly joined the battle with ACE.
In August 0f 2017, the parties in this case reached a settlement. Duarte needed to resolve the matter because in June of 2017, Judge Kimberly Mueller agreed with ACE that Duarte required a permit before plowing and that his four to seven inches of tilling “had caused the material, in this case, soil, to move horizontally, creating furrows and ridges” in violation of the Clean Water Act.
Normal farming activities, such as plowing, are exempt from regulations, but ACE established this was a new operation and therefore not exempt. The issue appears to be the use or non-use of the land in the years just prior to purchase by Duarte. The record refers to grazing in the early 2000s but there is no indication of its use just prior to the purchase by Duarte. Apparently Duarte was not able to establish that the land laying fallow was part of continuous agricultural use, although the statute provides for this. My suspicion is that the issue was ownership of the property during this period. Since Duarte did not own the land when it lay fallow, he may have been unable to establish that condition as part of his farming plan.
The government sought $2.8 million in direct fines and $40-plus million in mitigation penalties. The parties agreed to Duarte paying $330,000 in civil penalties and $770,000 in wetlands credits. Furthermore, Duarte admitted no liability. The settlement enabled Duarte Nursery to conclude the matter and remain a viable business with 400 employees.
In Ohio, my personal experience with USDA and Steve Baker, State Soil Scientist with Ohio NRCS, has been nothing like the Duarte matter. Although Steve is very busy, he is extremely knowledgeable, very practical and willing to work with farmers. Plus he is a genuinely nice guy. If you think you have a wetland area, contact USDA Soil Conservation Service to discuss the matter before you take any action.
The comment period on the proposal to rescind the existing Waters of the U.S. Rule has been extended until Sept. 27, 2017. “Waters of the U.S.” were protected under the 1972 Clean Water Act, which included all navigable waters. In recent years, that definition has expanded to include anything with a nexus to a traditional navigable water, a far broader interpretation. This is your opportunity to submit comments, identified by Docked Id.EPA-HQ-2017-0203, at regulations.gov.