When California farmer John Duarte decided to settle his legal battle with the U.S. Army Corps of Engineers rather than risk losing his family owned nursery operation, a couple of signals were sent to all of agriculture according to Don Parrish, senior director of regulatory relations for the American Farm Bureau Federation. Duarte agreed to pay a $1.1 million settlement after being accused by the U.S. Army Corps of Engineers of improperly disturbing a wetland when he plowed a wheat field.

Parrish told Farm Journal’s AgriTalk radio show, the government is telling farmers and ranchers they need to ask permission to use their own land if it is anywhere near what the government considers a water of the U.S.  Parrish said that is a chilling result from this case but equally chilling is a new government theory that if plowing leaves furrows it is illegal. Parish said by that theory “Basically no primary tillage a farmer would do would be exempt”.

 

 

In the Duarte case, Parrish said the government used the most extreme definition of waters of the U.S.  that you could take and pursued it to the fullest. Parrish said the ruling sets a dangerous precedent because the judge ruled Duarte was not entitled to an exemption because the land had not been tilled in 20 years. According to Parrish, government agencies can arbitrarily determine how long land can lay idle or be part of a rotation before saying a landowner does not have access to exemptions created by Congress. 

A public comment period is underway seeking input to write a new waters of the U.S. rule, but even a better rule may not totally solve this issue.   Parrish said while a new rule might limit where agencies can regulate, it won’t clarify the narrowing of exemptions that Congress gave farmers.  Parrish told farmers  “You’d better stand up and take back your exemption because the agencies have effectively taken it away from you”.  According to Parrish this could even impact the use of Conservation Reserve Program (CRP) acres.  He said because of the Duarte ruling, agencies, if they wish, can stop landowners from tilling their land as it was before being entered into the CRP. Talks are underway with the ag committees of Congress to determine whether a legislative fix or a regulatory clarification is needed to take back the exemption and Parrish urged farmers to bring this issue to the attention of lawmakers.

Listen to the full AgriTalk interview with Don Parrish in the player above.