Conaway, Goodlatte Call on Attorney General to Evaluate DOJ Overreach in Prosecuting WOTUS Violation in CA Court Case

House Agriculture Committee Chairman K. Michael Conaway (TX-11) and House Judiciary Committee Chairman, Bob Goodlatte (VA-6) sent a letter to U.S. Attorney General Jeff Sessions calling for a review of the Department of Justice’s (DOJ) decision to prosecute a California court case alleging violations under the Clean Water Act (CWA) – directly related to both the statutory exemptions for farming and Obama administration’s waters of the U.S. (WOTUS) rule.

The letter requests information about DOJ’s process for prosecuting violations of the CWA, citing specific concerns about the case of Duarte Nursery v. Army Corps of Engineers. In the letter, the chairmen note both committees’ concerns that the court’s opinion is “not consistent with the legislative intent behind the farming exemptions under the CWA.” The letter also seeks to clarify whether a legislative fix is required to protect farmers, such California farmer John Duarte, from similar prosecution in the future.

“Mr. Duarte’s case clearly highlights the need to keep the federal government out of America’s backyards, fields, and ditches. Little-by-little we watched the previous administration chip away at the rights of land and property owners, aiming to expand its authority through broad new rules under WOTUS, all while providing a little clarity to farmers and ranchers about what qualifies for exemptions. Our letter aims to work with the new administration to better define current interpretations of both WOTUS and farming exemptions so we can begin to set new rules of the road that will protect our farmers and ranchers from onerous fines, penalties, and regulations,” said Chairman Conaway.

“The regulatory overreach of the previous administration is having a negative impact on the lives of hardworking Americans. Congress made its intentions of how the Clean Water Act was to be applied for the health and safety of Americans, but the Obama administration has twisted law to serve a political agenda. We will work with President Trump and the new administration to reverse Obama-era regulations that are hurting American farmers, as well as other industries, and private citizens alike,” said Chairman Goodlatte.

Mr. Duarte’s case stems from a February 2013 U.S. Army Corps of Engineers (the Corps) allegation that the vernal pools on Mr. Duarte’s land are considered WOTUS, thus subject to CWA authority. The Corps argued that based on inconsistent agriculture production patterns on Mr. Duarte’s land prior to his purchase in 2012 he did not qualify for farming exemptions and had violated the CWA when he plowed his field in late 2012. Mr. Duarte now faces fines of roughly $2.8 million and additional costly mitigation measures.

Full text of the letter is available below.
_

May 26, 2017

The Honorable Jeff Sessions
Attorney General of the United States
Department of Justice
950 Pennsylvania Avenue, NW
Washington, D.C. 20530

Dear Attorney General Sessions:

As Chairman of the House Committee on Agriculture and Chairman of the House Committee on the Judiciary (“Committees”), we have been following the case of Duarte Nursery v. Army Corps of Engineers very closely. As you may know, the interpretations of the Clean Water Act (CWA) and its farming exemptions are critical to farmers and ranchers across the nation and, thus, are of particular interest to the Agriculture Committee, especially given the Committee’s jurisdiction over agriculture generally. The Judiciary Committee’s oversight responsibilities include ensuring that the Justice Department enforces the law as Congress intended.

The prosecution of Mr. Duarte raises concerns that the Congressional intent behind the farming exemptions in the statute is misunderstood. Specifically, it is the Agriculture Committee’s view that even occasional farm activities, including grazing, qualify as “normal” farming under the statutory exemption, and also are part of an established operation for purposes of the exemption. Further, it is the Committee’s view that the activity at issue, in this case, constitute plowing for the purposes of the exemption.

To better understand the Department of Justice’s (DOJ) process for prosecuting potential violations of the CWA and in order to determine whether or not legislation is required to correct potential misinterpretations of the law, the Committees request the following information:

• What does the DOJ consider in determining whether or not to prosecute a violation of the CWA?
• Is it appropriate to seek reduced penalties where the alleged violation is based on a novel or strained interpretation of the underlying statutory authority?
• Have there been any cases where DOJ has entered into contingent settlements pending an appeal of a CWA case? If so, please describe the circumstances of those cases.
• Has DOJ ever declined on appeal to advance CWA arguments that were successful at the district court level? If so, please describe the circumstances of those cases.

If you have any questions about this request, please contact Agriculture Committee staff at (202) 225-2171 and the Judiciary Committee at (202) 225-3951.

Sincerely,

1. Michael Conaway
   Chairman
   House Committee on Agriculture

Bob Goodlatte
Chairman
House Committee on the Judiciary

cc:        The Honorable Scott Pruitt, Administrator, U.S. Environmental Protection Agency