Long-Running Clean Water Act Dispute Ends, Duarte Agrees to Pay Civil Fines, Restore Streams and Wetlands
Bringing to a close several years of litigation, John Duarte and Duarte Nursery Inc. have agreed to pay a large civil penalty and preserve and restore creeks, streams, and wetlands to resolve violations of the Clean Water Act on property located in Tehama County, California, the Justice Department announced today.
Duarte has agreed to pay $1.1 million in civil penalties and mitigation for 22 acres of disturbed streams and wetlands and to permanently protect creeks on the property that are connected to the Sacramento River. The agreement follows a federal court determination in 2016 finding Duarte liable for violating the Clean Water Act and will redress illegal "ripping" of federally-protected streams and wetlands. The agreement allows Duarte to return the vast majority of the site to productive use and allows him to seek future determinations concerning jurisdictional waters at the site.
“Today's agreement affirms the Department of Justice's commitment to the rule of law, results in meaningful environmental restoration, and brings to an end protracted litigation,” said Jeffrey H. Wood, Acting Assistant Attorney General for the Justice Department's Environment and Natural Resource Division. “We are pleased to reach this agreement that serves the public interest in enforcement of the Clean Water Act and deterrence of future violations.”
“The Corps is pleased that this long-standing enforcement action has finally been resolved,” said Michael Jewell, the Chief of the Regulatory Division for the U.S. Army Corps of Engineers’ Sacramento District. “We encourage members of the public to contact the Corps prior to engaging in activities that are regulated under the Clean Water Act. The Corps is always willing to talk to the public about the Regulatory Program and to provide information on permit requirements, jurisdictional determinations, wetland delineations, and any other aspects of the Program.”
This case stems from activities Duarte conducted after he recently purchased property that had laid fallow and unfarmed for more than 20 years. Duarte bought the property in 2012 for $5 million and shortly thereafter sold most of it for approximately $8 million, retaining 450 acres for his own use. Even before the purchase, Duarte received detailed maps showing the location of federally-protected streams and wetlands which took up less than 10 percent of his remaining property.
Despite the small portion of property that was subject to the Clean Water Act, Duarte hired a contractor to conduct "ripping" throughout the entire 450 acres, including in streams and wetlands, even though Duarte's own environmental consultant had warned him that he would be subject to significant penalties for ripping without a permit from the Army Corps of Engineers. This resulted in the ripping of flowing streams, running creeks, and in protected wetlands. In 2016, a federal court rejected Duarte's "plowing" defense based on the facts of this case, finding that no plowing had occurred anywhere on the site for at least 24 years and that (as intended) the ripping activity converted areas of water to dry land. The settlement agreement reached today secures a significant penalty for these violations, while providing fairness for farmers and other landowners who comply with the applicable laws.
In a recent pre-trial brief, the United States gave assurances that this case is not (and will not be used as) a pretext for federal prosecution of farmers who engage in normal plowing on their farms. 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" (including plowing) if they are part of an established (i.e., ongoing) farming operation and not for the purpose of converting federally protected waters to new uses. Those protections for farmers remain in the law today and will continue to be recognized.
The proposed consent decree, lodged in the U.S. District Court in Sacramento, is subject to a 30-day comment period and final court approval. A copy of the proposed consent decree is available on the Justice Department Web site at www.usdoj.gov/enrd/Consent_Decrees.html.