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A farmer is going on trial for the crime of plowing his own field. That is the essence of a case that could have far reaching implications for property rights, not to mention our supply of food.

It's a complicated story that involves a dispute between the Army Corps of Engineers and Duarte Nursery. The owner of the nursery purchased 450 acres of land on which he planned to grow wheat. There were several parts of the acreage that were off limits due to EPA Clean Water Act regulations about "wetlands." The farmer hired a consultant who mapped out the parts of his acreage where he could legally plow. But the Army Corps of Engineers claims that the farmer needed a permit to plow the land, given its "protected" location. There was also a protected species of shrimp that the Corps said the farmer threatened. 

The tangled legal issues have led to the Corps suing the farmer for $2.8 million in damages and forbidding him from working his own land.

USA Today:

Duarte's wheat was planted but not harvested because in February 2013 the Army Corps of Engineers and the California Central Valley Regional Water Quality Control Board issued orders to stop work at the site. The agencies claimed Duarte had violated the Clean Water Act by not obtaining a permit to discharge dredged or fill material into seasonal wetlands considered waters of the United States.


Duarte sued the Army Corps and the state, alleging they violated his constitutional right of due process by issuing the cease and desist orders without a hearing. The U.S. Attorney’s Office counter-sued Duarte Nursery to enforce the Clean Water Act violation.

Farmers plowing their fields are specifically exempt from the Clean Water Act rules forbidding discharging material into U.S. waters, Francois said.

Assistant U.S. Attorney Gregory Broderick said he could not comment on the case and referred questions to his office’s public affairs department, which did not return phone calls.

However, documents filed in court explain some of the rationale behind the government’s case.

“Even under the farming exemption, a discharge of dredged or fill material incidental to the farming activities that impairs the flow of the waters of the United States still requires a permit because it changes the chemical, physical and biological integrity of the waters,” the U.S. attorney said in court filings.

The creeks also flow into the Sacramento River, home to endangered chinook salmon.

In addition to civil penalties, the U.S. Attorney’s Office is also asking the judge to order Duarte to repair the damage to the wetlands, including smoothing out the soil and replanting native plants in the wetlands.

The "waters of the United States" regulation that was one of the last Obama EPA power grabs is also the most pernicious example of government overreach during the Obama years. Under that regulatory regime, there is hardly a creek or a puddle that can't be managed by the EPA. 

The nursery also discovered a by-product of the regulation; the EPA and Army Corps of Engineers get to use their own definitions for who is in compliance and who is violating the law. They can interpret the regulations however they see fit, making them tyrannical masters of much of the farmland in the US. 

The GOP is seeking to rollback this regulation, but you can bet that the greens will fight tooth and nail to keep it. The rule represents a culmination of 50 years of EPA's drive to become the most powerful and intrusive agency in government. Farmers will discover this fact of life to their regret.


By Rick Moran


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