Farmer Faces $2.8 Million Fine in Mix-Up Over Where to Plow

A California farmer faces trial in federal court this summer and a $2.8 million fine for failing to get a permit to plow his field and plant wheat. 

The case could set precedent requiring other farmers to obtain costly, time-consuming permits just to plow. 

“The case is the first time that we’re aware of that says you need to get a (U.S. Army Corps of Engineers) permit to plow to grow crops,” said Anthony Francois, a lawyer for the Pacific Legal Foundation. “We’re not going to produce much food under those kinds of regulations,” Francois said. 

U.S. District Judge Kimberly J. Mueller sided with the Army Corps in a judgment in June. A trial, in which the U.S. Attorney’s Office asks for $2.8 million in civil penalties, is set for August. 

The case began in 2012 when a farmer bought about 450 acres near Modesto, Calif., to grow wheat. Because the property has numerous swales and wetlands, Duarte hired a consulting firm to map out areas on the property that were not to be plowed because they were part of the drainage for creeks identified as waters of the United States. 

Some of the wetlands were plowed, the attorney said, but not significantly damaged. The farmer did not destroy a freshwater species in the creeks protected by the Endangered Species Act. 

The Army Corps of Engineers and the California Central Valley Regional Water Quality Control Board issued orders to stop work at the site before the wheat was harvested. 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. 

The farmer 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 counter-sued. 

Farmers plowing their fields are specifically exempt from the rules forbidding discharging material into U.S. waters, but the U.S. Attorney’s Office argues that the farmer disturbed portions of the property that included wetland areas. 

“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 U.S. Attorney’s Office is also asking the judge to order the farmer to repair the damage to the wetlands. He also may be required to purchase other wetlands to compensate for the alleged damage. 

Francois said his client thought the plowing exemption allowed him to till. 

“A plain reading of the rules says you don’t need a permit to do what he did,” Francois said. “How do you impose a multimillion penalty on someone for thinking the law says what it says?” 

Source: USA Today