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Ag exemptions to the CWA law and as interpreted by Courts, EPA & Army Corps of Engineers

August 29, 2016 | Filed under Featured Articles | Posted by

By Lewis Perdue

Many activities within an area designated as part of the Waters of the United States (WOTUS) require a permit from the Corps of Engineers. However, the Clean Water Act specified a number of farming exemptions.

 

One of the basic issues for farmers is to determine whether they need an exemption at all. That need is based on whether their land is actually part of WOTUS. This previous article: Trying To Make Sense Out Of Clean Water Act Regulation, explained how federal court and agency rulings have determined that Waters of the United States” (WOTUS) can extend to intermittent and ephemeral streams and shallow dry stream beds which can be many miles from the nearest navigable water.

 

Complicating the task of determination is the fact that no official land registry or collection maps exist to definitively determine whether any given field, forest or parcel of land is considered WOTUS. No WOTUS “zoning map” exists to guide farmers and landowners.

 

Currently, the only way landowners can determine if their land is part of WOTUS is to obtain a “jurisdictional determination (JD)” from the U.S. Army Corps of Engineers (CoE).

 

The only way to get a JD is to apply for a permit from the CoE.

 

EPA and outside studies show that individual permits are expensive, time-consuming, uncertain and can cost many tens of thousands of dollars and take months to obtain.

 

Subsequent court interpretations of the CWA exemptions along with regulations from the EPA and Corps of Engineers,  have narrowed the exemptions.

Ag exemptions of ag land of considered part of WOTUS

In the decades since the passage of the CWA in 1972, federal court cases and regulations have considerably narrowed the grounds on which farmers can obtain ag exemptions. This section attempts to compare current regulations with the CWA.

Code Versus Regulation

The U.S. Code applies to laws passed by Congress and signed by the President.

The Code of Federal Regulations are the specific rules written by executive agencies that govern how they will enforce the law from the U.S. Code. Federal courts give regulations the force of law if they feel the regulations reflect the intent of Congress.

A “rule” and a “regulation” are often used synonymously.

Clean Water Act Regulations That Define & Narrow Exemption Eligibility

The following direct quotes in red are from the Clean Water Act as written in the U.S. Code: 33 U.S. Code § 1344.

 

The following direct quotes in green are from the Code of Federal Regulations: 33 CFR Part 323. These quotes are from the Federal Register dated 1986 —need advice: is this the most version prior to the 2015 Clean Water Rule?—

NOTE: An EPA/Corps effort to update the current regulations — called the Clean Water Rule — was issued in 2015. That update  was withdrawn after numerous lawsuits in federal courts which contended that the rule greatly expanded the jurisdiction of the EPA and Corps of Engineers beyond the intent of Congress. Those lawsuits resulted in the rule being stayed. Until those lawsuits are resolved (probably by eventual appeal to the U.S. Supreme Court) the older regulations — on which this article is based — still govern jurisdiction and enforcement.

Normal Farming Exemptions As Passed By Congress

(a)(1)(i) [N]ormal farming, silviculture, and ranching activities such as plowing, seeding, cultivating, minor drainage, harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices;

 

The definition of normal has not been clearly defined.

 

Sometimes the Corps refers to documents concerning voluntary agriculture and conservation written by the Natural Resources Conservation Service (NRCS) . Those NRCS recommendations often change, do not have the authority of federal regulations, and have no jurisdiction in CWA regulations.

 

Regardless of the definition, EPA/Corps regulations state that to qualify as normal, a farm or forest must be an ongoing and established operation:

To fall under this exemption, the activities specified in paragraph (a)(1)(i) of this section must be part of
an established (i.e., on-going) farming, silviculture, or ranching operation ….

The “ongoing and established” requirement is not in the CWA as passed.

 

In addition, no time period has been specified in the regulations on how long or how recently a field or forest needs to have been farmed to qualify as an ongoing and established operation. Some determinations have held that to qualify as “ongoing and established,” land brought into farm or forestry use after 1977 are not exempt and will need permits.<<LINK>>

The Exemption Clock Runs On Crop Rotation

Crop rotation is allowed, but not if the time periods between resuming the same use is too long. If the the length of fallow time is too long, the operation is no longer ongoing and established. Regulations do not specify a time period.

Activities on areas lying fallow as part of a conventional rotational cycle are part of an established operation.  An operation ceases to be established when the area on which it was conducted has been coverted to another use or has lain idle so long that modifications to the hydrological regime are necessary to resume operations.

New Crops Can Prevent Exemption Eligibility

If the use of a field or forest has been “converted” to a new use it requires a permit. The CWA addresses conversion in the following paragraph.

Any discharge of dredged or fill material into the navigable waters incidental to any activity having as its purpose bringing an area of the navigable waters into a use to which it was not previously subject, where the flow or circulation of navigable waters may be impaired or the reach of such waters be reduced, shall be required to have a permit under this section.

EPA/Corps regulations hold that “conversion” also applies to such activities as changing the use of a field from grazing to row crops or row crops to vineyards.Conversion also covers clearing forest for any other ag use or even planting an orchard on a former pasture keeps a field from being exempt.

New Farms, Fields & Forests Are Not Exempt And Will Need A Permit

Activities which bring an area into farming, silviculture, or ranching use are not part of an established operation.

No actual harm to the ecosystem, a watershed or any water determined to be part of WOTUS is required for the EPA or the Corps to require a permit for a use or to sanction a farmer or forester for use of ag land.

The Complete List Of Farming Exemptions According To The the Clean Water Act

The CWA classifies the following as “non-prohibited,” (in other words, “exempt”):

 

  • [N]ormal farming, silviculture, and ranching activities such as plowing, seeding, cultivating, minor drainage, harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices;

 

  • [M]aintenance, including emergency reconstruction of recently damaged parts, of currently serviceable structures such as dikes, dams, levees, groins, riprap, breakwaters, causeways, and bridge abutments or approaches, and transportation structures;

 

 

  • [C]onstruction or maintenance of farm or stock ponds or irrigation ditches, or the maintenance of drainage ditches;

 

 

  • [C]onstruction of temporary sedimentation basins on a construction site which does not include placement of fill material into the navigable waters;

 

 

  • [C]onstruction or maintenance of farm roads or forest roads, or temporary roads for moving mining equipment, where such roads are constructed and maintained, in accordance with best management practices, to assure that flow and circulation patterns and chemical and biological characteristics of the navigable waters are not impaired, that the reach of the navigable waters is not reduced, and that any adverse effect on the aquatic environment will be otherwise minimized;

 

The CWA statute is also clear that land that is considered Waters of the United States — streams and wetlands whether wet or not — cannot be filled or altered without a permit:

 

Any discharge of dredged or fill material into the navigable waters incidental to any activity having as its purpose bringing an area of the navigable waters into a use to which it was not previously subject, where the flow or circulation of navigable waters may be impaired or the reach of such waters be reduced, shall be required to have a permit under this section.

 

Articles in this series (so far)

Interesting and/or helpful links