Federal District Court Ruling Concerning for Farmers

Farmers should be concerned about a recent decision (Duarte Opinion) from the United States District Court of the Eastern District of California involving the federal Clean Water Act.  Generally, the CWA provides that a landowner may not discharge a point-source pollutant (Section 402) or dredge and fill material (Section 404) into a “water of the United States” without obtaining the proper permit from the Environmental Protection Agency or the Army Corps of Engineers. There are significant agricultural exceptions to both Sections 402 and 404. Both of these principles are central to the Duarte case.  Among other things, this case illustrates the broad reach of the current definition of WOTUS. Many feel the new WOTUS definition, which is currently stayed pending ongoing litigation, is even broader. The case also articulates an extremely narrow application of the agricultural exception to Section 404 of the CWA and the potential impact on normal farming activitie