Tony Francois Suggested Duarte Settle

Judge Refused to See New Evidence in John Duarte Trial, Forcing Him to Settle

By Patrick Cavanaugh Farm News Director

Duarte Nursery, its president John Duarte, and legal counsel, Pacific Legal Foundation, agreed to a settlement with the federal government over the Army Corps of Engineers’ nearly five-year enforcement action for Duarte’s routine plowing of his wheat field in late 2012, said PLF senior attorney Tony Francois, who represents Duarte, gratis.

PLF Attorney Tony Francois

Among the main reasons for Duarte’s settlement is the judge’s refusal to consider new evidence regarding the restored condition of the vernal pools on Duarte’s land, which were at the nucleus of the controversy.

“Vernal pools are wet six to eight weeks out of the year due to rainfall,” according to Francois. “They have a kind of hard pan underneath them, so the water stays in place for a bit.”

“On August, 15, the morning of the trial, we intended to provide the judge with current evidence of the good condition of the vernal pools to show there was no significant harm to the environment from plowing the property,” Francois said.

“However, the government persuaded the judge to exclude that evidence,” Francois explained. “The government claimed that vernal pool-specific vegetation would not recover from being plowed.”

“We also were prepared to show how any significant penalty would affect Duarte Nursery and its ability to maintain its workforce. The judge allowed some older evidence, but excluded the most current evidence, basically, of the company’s ability to pay,” he said.

“Both rulings were significant because the court was supposed to consider those two factors in imposing their penalty,” Francois explained. “The judge actually acknowledged that excluding evidence of the current condition of the vernal pools would make a material difference on how large a penalty would be imposed.”

“Nonetheless, the judge excluded evidence on the legal grounds that it would be unfair to the government because they had not asked for or taken any steps to update their own information,” Francois said.

Francois explained how easily they could have demonstrated the vernal pools were undamaged.

“First, the vernal pools themselves are all still there. Second, the government’s own evidence shows that all the vernal pools still exist,” he said. “Our experts went out there last year and this year and showed that, with normal rainfall, the vernal pools are doing fine. The vegetation is healthy and fairly abundant, with all the right types of plants present. Basically, our evidence showed there was no harm done to the vernal pool from plowing.”

“Now, some of the scars to the vernal pools from government’s excavation may still be there,” he continued. “That, I have not seen, myself. But, as far as the plowing, our evidence that it had not harmed the vernal pools, is what the court excluded.”

According to Francois, the government claimed that Duarte’s current evidence was unfair to them because they had not taken any opportunities to update their own experts’ view of the property or to request access for inspection. “The result of the ruling was to cut off consideration of how plowing affected the vernal pools to the time period when California was in the midst of a multi-year drought,” he said.

“We think there were a number of ways the government could have looked at the evidence, if it were admissible, and responded to it, including driving to the property and observing several of the vernal pools from the road. In fact, seeing the vernal pools from the roadside is what lead the Army Corps to claim the violation in the first place,” Francios noted.

Duarte did not get a permit, according to the Clean Water Act, to plow the land, but Francois explained, “That is not really the problem. The problem is, a farmer reads the Clean Water Act that says ‘normal farming practices’ do not require a permit. The farmer knows what normal farming practices are; I would think that everybody knows that plowing is a normal farming practice.”

“You read a little further, and the regulations actually say that plowing to produce a crop is never even a discharge under the Clean Water Act. Plowing, in a very wide general sense, is not even regulated by the Army Corps of Engineers. It’s not a question of the type of plowing or if plowing in this location requires a permit. The law speaks clearly and broadly and says that you do not need a permit.”

“Nevertheless, the U.S. Army Corps of Engineers, backed up by the Justice Department, has reinterpreted what plowing and normal farming practices are in a way that is very unclear as to when they will think you need a permit and when they will think you don’t. So, if they think you needed a permit, and it never occurred to you that you would need one, this is what can happen to you. We deposed several employees and even officials with the Army Corps of Engineers about their understanding of all this. They were pretty clear; there is no way for a farmer to know without asking the Army Corps in advance what a normal farming practice is.”

“The entire U.S. agricultural industry is up against this scenario right now. One of the interesting things about the Army Corps’ approach—‘Just come and ask us’—is what how their press release announced the settlement,” according to Francois. “Anybody who wants to is welcome to come and ask us and we’ll tell you what you have to do.”

“Here is how that works in practice,” Francois explained. “You can go and ask the Army Corps. They are going to say you need to prepare an expensive study on whether there are any navigable waters on your property, and then we’ll tell you whether we agree with it or not. Then, you have to tell us everything you’ve done in the past and everything you plan on doing, and we will tell you whether what you plan to do is normal.”

“They way they view it, ‘normal’ does not mean ‘something that farmers normally do.’ They reinterpret ‘normal’ to mean something done routinely done on this property. If you have not done the particular practice on this property routinely in the past, they think of the practice in terms of conversions, changes in use and zoning. Their view is if you are changing things, you probably need a permit if there is anything they consider navigable waters on the property,” he said.

“So, for example, this property was in the Conservation Reserve Program for a number of years under a prior owner. The Army Corps convinced the judge in this case that because it had not been plowed in several years, plowing was no longer normal on this property. How many farmers who have their land enrolled in the Conservation Reserve Program are aware that the Corps of Engineers is going to expect to get their permission to resume plowing it?”

The United States Department of Agriculture (USDA) Farm Service Agency (FSA) oversees the Conservation Reserve Program (CRP). According to the CRP website, “In exchange for a yearly rental payment, farmers enrolled in the program agree to remove environmentally sensitive land from agricultural production and plant species that will improve environmental health and quality. Contracts for land enrolled in CRP are 10-15 years in length. The long-term goal of the program is to re-establish valuable land cover to help improve water quality, prevent soil erosion, and reduce loss of wildlife habitat,” Francois said.

“Or, let’s say, you have been through a business reorganization, an estate process, or just for market reasons, your land has been fallow for a few years,” Francois said. “Perhaps you have not built something or put the land to grazing. After all those scenarios, the Corps of Engineers told us there is probably a permit required.”

Farmers may view these activities as normal farming practices that do not need a permit, only to learn at the end of this process, a permit was warranted.

Francois believes, “In essence, the Army Corps has taken a protection from permitting in the Clean Water Act and turned it into a permit application in which, randomly, they will tell you, ‘Thanks for filing this expensive and time-consuming permit application. You don’t need a permit.’ ”

“We are optimistic that even though these issues are not properly resolved in this case, we will continue litigating these issues until the courts clearly reinforce and enforce the clear protection for farming in the Clean Water Act. We believe that farmers, and really all citizens, all regulated parties, should be able to rely on the clear text of the law rather than be subject to all this after-the-fact rewriting, reinterpreting and explaining away that the Corps has done in cases like this.”

Groundwater Recharge at Terranova Ranch

Major Groundwater Recharge Program at Terranova Ranch Progresses

By Patrick Cavanaugh, Deputy Editor

Don Cameron, manager of Fresno County-based Terranova Ranch has been working with the Kings River Conservation District (KRCD) on a groundwater recharge plan for nearly 20 years to convey floodwaters from the Kings River across Terranova Ranch and other properties in the area. “It has been a long, hard, committed struggle,” said Cameron, “but in 2011, we got Natural Resources Conservation Service (NRCS) involved.

“Once we submitted our grant application to the California Department of Water Resources (DWR), they reviewed it and awarded us a $5 million grant, which really got the project off the ground,” said Cameron.

“We are in the third year of work with the grant and we are currently doing the environmental studies with California Environmental Quality Act (CEQA). We are still very much involved in the engineering phase and we are putting a lot of agreements together with all the neighboring agencies that we have to work with,” Cameron said.

Logistically, Terranova Ranch is in an ideal location to capture potential floodwaters from the Kings River. Adjacent to the North Fork of the Kings River where floodwaters move though the James Bypass to the Mendota Pool, Terranova Ranch, provides the operation a unique opportunity in terms of groundwater recharge.

“We are taking farmland that is in production, and when the floods come, we will direct floodwaters across that land and neighboring land, to recharge the groundwater in our fields,” said Cameron. “We have proven that we can recharge in existing vineyards and tree-crop orchards, as well as in tomato, onion and carrot fields before we plant. We can use the floodwater across our farmland so that we do not need a dedicated basin dug out just for a recharge.”

“We know we can recharge anywhere on our land,” explained Cameron. “We can even turn off our pumps and use the water on the land to irrigate, through our drip systems. There are a lot of different ways to attack the problem. We think this is the best fit for our area, and we hope to be successful in rebuilding our groundwater supply,” said Cameron.

“The plan is to dedicate about 250 acres of ground for recharge,” said Cameron. Low levies will be built around the land when floodwaters are anticipated. We may have crops planted on the fields,” but Cameron hopes to be able to predict floods prior to planting a crop. Nevertheless, Cameron said, “We will flood crops if we need to.”

When the fields are flooded, the water may be as much as 2 to 3 feet deep, or as little as six inches deep. But the goal is to keep the water continuously on those fields to continue the recharge.

And since this is a large project involving state money, CEQA must be involved. Cameron emphasized, “We want to be sure that there is no environmental damage to any possible endangered species anywhere near our farm or near the project we are doing. There are state and federal laws that we have to abide by and so we need to jump through those hoops to get the project approved to completion,” said Cameron.

“We have been working with the project for a long time and we think its time has come,” said Cameron. “We are in the fourth year of a drought now and there is a lot of interest in putting water underground now, rather than building dams. We think dams are necessary as part of the overall water storage for irrigation, but we need both aboveground and below-ground storage.”

Cameron contends this groundwater recharge plan could improve groundwater quantity and quality fairly quickly, and be implemented faster than trying to build a large dam in the state. “We want to do our part here,” he said. “We would hate to see all the floodwater flow by during flood periods. It’s smarter to capture those stormwater flows on the land and into the ground water reservoir. We think it’s a real win for the whole state,” he said, adding there has been a lot of interest in duplicating this type of project throughout the state.

Cameron noted the project is perfect for the Sustainable Groundwater Management Act, which went into effect Jan. 1, 2015. “We are going to be ahead of the game on this, which is where we want to be,” he said.

Yet, not fast enough. Though a sizeable El Niño may pound California this fall and winter, bringing potential floodwaters to many rivers, the paperwork for the Terranova Ranch recharge program will not be completed in time. Cameron and the KRCD have been pushing to complete the project, but the agencies that need to sign off are numerous, including:

  • California Department of Transportation (Caltrans) – because floodwaters will be moving to additional landowners east of 145.
  • Pacific Gas and Electric Company (PG&E) – because water will need to flow under a natural gas pipeline.
  • U.S. Army Corps of Engineers – because a major cement structure with gate valves must be in place for the floodwater to be extracted from by-pass. “This will essentially mean that the levies will be breached,” said Cameron.

Again, the floodwaters will be flowing north and to the east, to several landowners in the region. Cameron and KRCD have been doing all the setup for everyone, not just themselves. “We hope, in long term, to expand the recharge project to 16,000 acres,” said Cameron.

Commentary: Proposed EPA ‘waters’ rule hangs farmers out to dry

Source: Don Parrish; Ag Alert

The U.S. Environmental Protection Agency proposal to expand the scope of “navigable waters” subject to Clean Water Act jurisdiction was drafted, according to the agency, to reduce uncertainty. It’s very clear the proposed waters of the U.S. rule is designed to allow the federal government to regulate every place water flows when it rains, including small and remote “waters” and ephemeral drains and ditches.

We all know that water flows downhill and that at some point, some of that water eventually finds its way into a creek, stream or river. Yet, based on nothing more than the flow of rainwater along a natural pathway across the land, the EPA wants to call vast areas of otherwise dry land “tributaries” and therefore “navigable waters.”

With its proposal to regulate land that is dry most of the year and miles from the nearest truly navigable water, EPA is putting farmers in a tenuous position. EPA and other supporters of the proposed rule have made much of a long-standing exemption for agriculture, and claim that it still stands; however, the proposed rule narrows that exemption and opens it up to litigation. The “normal farming and ranching” exemption only applies to a specific type of Clean Water Act permit for “dredge and fill” materials. There is also no farm or ranch exemption from Clean Water Act permit requirements for what EPA would call “pollutants.”

Ultimately, the new permitting requirements that would come with this proposal would mean that common farm activities could trigger Clean Water Act liability and the need for Section 402 National Pollutant Discharge Elimination System permits if pollutants could incidentally be deposited into ditches, ephemerals and other features that will now fall under federal jurisdiction.

At the same time EPA and the U.S. Army Corps of Engineers are telling farmers and ranchers they’re got nothing to worry about because the exemption puts them in the clear, the agency is moving forward with a guidance document that will govern how it interprets the “normal farming” exemption contained in Section 404 of the Clean Water Act.

This interpretive rule makes fundamental changes in how the exemption for normal agricultural activities at “established” farms will be applied and enforced. Contrary to assertions by proponents, this interpretive rule narrows how the exemption is applied and increases farmers’ liability by requiring that farmers comply with Natural Resources Conservation Service conservation standards, which were previously voluntary, in order to be exempt from Section 404 permitting.

Like the proposed waters of the U.S. rule, the interpretive rule conflicts with congressional intent. In 1977, Congress amended the Clean Water Act to exempt “normal” farming, ranching and silviculture from Section 404 “dredge and fill” permit requirements. However, EPA and the Corps are now asserting that farmers are exempt from Section 404 permits so long as any of 56 listed practices comply with NRCS standards, despite the fact that those practices have qualified as the “normal” farming, ranching and silviculture activities for 37 years.

The newly proposed interpretation of “normal farming and ranching” would apply only to farms and ranches that EPA determines to be “established” and “ongoing”—not newer or expanded farms and ranches. Where does this leave the children and grandchildren of farmers and ranchers who want to work the land but need to grow the operation to support an expanding family? What does this mean for the billions of people who will need to be fed in the future?

Worried about the answers to those questions and the many threats the proposed rule poses to agriculture, the American Farm Bureau Federation launched a website at ditchtherule.fb.org to help farmers, ranchers, landowners and others express the need for EPA to “Ditch the Rule.” Focused on topics and analysis related to the proposed rule, the site includes several sections: Take Action, Go Social, Find Answers and Get Resources. We encourage you to visit the site, sign up to learn more, comment on the proposed rule and send tweets using the hashtag #DitchTheRule. You should also voice your concerns to your state and local officials and your U.S. representative and senators.