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Duarte Nursery, Inc. v. United States Army Corps of Engineers

ELR Citation: 46 ELR 20111
Nos. 2:13-cv-02095, (E.D. Cal., 06/10/2016) (Mueller, J.)

A district court, on motions for summary judgment, held that the owner of a farm violated the CWA when he allowed wetlands on his property to be tilled. The record shows that the farm discharged a pollutant to navigable waters from a point source without a permit. Soil is a pollutant, the wetlands on the property have a significant nexus to a traditionally navigable water, and the equipment used to till the land is a point source. Although the CWA provides a farming exemption, it only applies to activities that are established and ongoing. Here, there was no evidence that the land supported farming activities in over 20 years. In addition, the owner can be held individually liable as a responsible corporate officer because he authorized and controlled farming activities on the property. The court also dismissed the farm's due process and retaliatory prosecution claims. The U.S. Army Corps of Engineers had issued a cease-and-desist letter advising the farm that its activities, conducted without a permit, were in violation of the CWA. It also stated the possibility of "potential future enforcement." The owner and farm claimed this violated their procedural due process rights, but the letter did not amount to a distinct deprivation of a constitutionally protected liberty or property interest. Without a deprivation of a protected interest there can be no procedural due process claims based on the letter. The court also dismissed the farm's retaliatory prosecution action because it failed to show that the United States waived its sovereign immunity.