In the last few years, we have seen an increased focus on the regulatory reach of federal jurisdiction over agricultural lands, with the new WOTUS rule and other court decisions. A recent trial court decision from the Eastern District of California should be extremely concerning to landowners across the country. At issue, the federal Clean Water Act and agricultural operations. Duarte hired a local wheat farmer to plant, care for, and harvest wheat on the property. The farmer was instructed to till the soil 12″ or less, and did so using a Case IH tractor and a Wilcox ripper with 36″ shanks. He was told to avoid vernal pools on the land. The farmer avoided some, but not all, of the vernal pool areas, but none of the pools were destroyed. In November 2012, an Army Corps of Engineers (“COE”) employee drove by the property and observed farming activities and equipment present. He took photographs of what he believed to be a Clean Water Act violation. The COE sent a cease and desist letter to Duarte.
In summary, the court explained that the plowing equipment did not avoid all wetlands on the property, the equipment moved dirt from around and in the wetlands before redepositing it into the wetlands, the wetlands have a “significant nexus” to Coyote Creek, which is a tributary of the navigable Sacramento River, and tillage was not part of an established and ongoing farming operation. Thus, Duarte was required to have a federal permit in order to plow the wetlands and the plowing/ripping without a permit was a violation of the Clean Water Act.