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In Duarte Nursery, Inc. v. United States Army Corps of Engineers, 2016 U.S. Dist. LEXIS 76037, the Eastern District of California granted the U.S. Army Corps of Engineers’ (“Corps”) motion for summary judgment, finding that Duarte Nursery (“Nursery”) had violated the federal Clean Water Act (“Act”) by moving dirt around its property as part of tilling activities. The Act generally prohibits the discharge of pollutants into “navigable waters,” or “waters of the U.S.,” without a permit.

The Nursery owned approximately 2,000 acres of land. Prior to purchasing the land, Nursery president John Duarte was aware of a draft delineation that had been prepared. The draft delineation noted that there were 40.78 acres of pre-jurisdictional waters of the U.S. on the property, including vernal pools, seasonal wetlands, and intermittent and ephemeral drainages that have physical connections to Coyote Creek, a tributary of the navigable Sacramento River. In 2012, the Nursery arranged to have wheat grown on the property. The planting process involved tilling the soil with a harvester with a ripper attachment.

An employee of the Army Corps observed the equipment and activities taking place on the property and informed John Duarte that the ripping activity potentially violated the Act. The Corps then sent a cease and desist letter (“C&D Letter”) to the Nursery in February 2013. In October 2013, the Nursery and its president sued the Corps, raising due process claims under the Fifth Amendment and the Corps asserted an enforcement action as a counterclaim.

In deciding the parties’ cross-motions for summary judgment, the court first rejected the government’s argument that the C&D Letter was not subject to judicial review under section 702 of the Administrative Procedure Act (“APA”) because it was not a final agency action. The court held that a party could seek judicial review of an agency action that was not a “final agency action” when a party raised constitutional challenges to the agency action. Additionally, the court noted that the Supreme Court found cease and desist orders issue under the Act to be sufficiently final to trigger APA review in Sackett v. EPA (2012) 132 S.Ct. 1367, 1374.

Next, the court rejected the plaintiffs’ procedural due process claim under the Fifth Amendment because the C&D Letter, which merely advised plaintiffs that their activity was in violation of the Act, did not deprive plaintiffs of their constitutionally protected interest. The court reasoned that a deprivation of a constitutionally protected interest could occur only after an enforcement action was brought by the DOJ or EPA; threatened enforcement of a deprivation of a liberty or property interest was not enough.

Finally, the court held that Nursery, including its president John Duarte, had violated the Act because they discharged soil into waters of the U.S. without a permit. The court held that a corporate officer who directs the activities could be subject to a civil enforcement action under the Act. The court also rejected the plaintiffs’ contention that the tilling activity was exempt under the Act’s farming exemption because there was no farming activity other than grazing on the property between 1998 and 2012 and the exception only applied to the continuation of established and ongoing farming activities. Moreover, the court found that the tilling activity impaired the flow of the waters of the U.S., necessitating a permit even if the farming exception did apply.

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