Normal farming and adjacency: a last minute gift for the Farm Bureau?

• Author: Johnston, Craig N.
• Position: Controversies Surrounding the 2015 Clean Water Rule

1. INTRODUCTION II. AGRICULTURE AND ITS IMPACT ON WETLANDS III. A BRIEF OVERVIEW OF HOW SECTION 404 APPLIED TO AGRICULTURE LEADING UP TO THE CLEAN WATER RULE IV. A SHORT SUMMARY OF THE MOST RELEVANT PORTIONS OF THE CLEAN WATER RULE V. ANALYSIS VI. BUT IS THIS ASPECT OF THE NEW RULE ILLEGAL? DOES IT VIOLATE THE CWA? VII. CONCLUSION I. INTRODUCTION

   On June 29th of last year, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (the Corps) published in the Federal Register a joint new regulation--known as the "Clean Water Rule"--governing which waters they view as being protected under the Clean Water Act (CWA). (1) Judging from the initial press accounts, one might have thought that the Rule constituted on balance at least a strong assertion of federal jurisdiction, or perhaps even an unqualified environmental triumph. (2) The reality, though, is more complicated.

   First, as Professor Blumm and Mr. Thiel note, EPA and the Corps (collectively, the Agencies) for the first time expressly disclaim jurisdiction over groundwater, even where it may have a close hydrological connection with a nearby jurisdictional water. (3) And second, as Professor Parenteau describes, the Agencies inserted several last-minute changes to the rule, weakening it significantly as compared to what had been in their original proposal. (4) Professor Parenteau correctly identifies as one of the worst of these concessions the arbitrary cut off of 4,000 feet, (5) beyond which most waters are deemed, as a matter of law, to be incapable of having a jurisdiction-conferring "significant nexus" with either a traditional navigable water, (6) an interstate water, or the territorial seas (which we will collectively refer to as "core jurisdictional waters"). (7)

   This Article will focus on another important last-minute change, involving how the Agencies propose to address agriculture, silviculture, and ranching. Even before the new Rule, many of those who engaged in these activities received special treatment under section 404(f), with many of their otherwise-jurisdictional discharges being exempted from regulation under specified circumstances. (8) Additionally, in 1993 EPA and the Corps promulgated a regulation excluding "prior converted cropland" from their definitions of "waters of the United States," based in part on their conclusion that these croplands had lost so many of their ecological values that "they should not be treated as wetlands for purposes of the CWA." (9)

   In issuing the Clean Water Rule, the Agencies created a third significant relief valve for agricultural interests. Like section 404(f), this new mechanism also extends to their silvicultural, and ranching brethren. (10) The Agencies did this in the context of redefining which waters would be deemed to be jurisdictional on a per se basis by virtue of their being adjacent to other specified types of jurisdictional waters. (11) While defining adjacent with more specificity than ever before--and in an otherwise seemingly expansive way--EPA and the Corps specifically precluded any waters from being deemed to be adjacent, no matter how close they may be to the other waters, if they are being used for normal farming, ranching, or silvicultural activities (collectively referred to as being subject to the normal farming exception). (12)

   As shown below, the effect of excluding waters subject to normal farming from the definition of adjacent is to preclude those waters from ever benefitting from the categorical presumption that they have a significant nexus, as defined under the rule, with either a traditional navigable water, an interstate water, or a territorial sea--a trio of water types that the rule seems to treat as the core jurisdictional waters, and we will refer to them as such. (13) In turn, this denies the relevant (farming) water--no matter how close it is to the qualifying jurisdictional water--a conclusive presumption that it is itself a water of the United States, which otherwise attaches to all waters that are adjacent to the qualifying jurisdictional waters. (14) It is still possible that these waters may qualify as waters of the United States, but only if the Government shows, on a case-specific basis, that a farmed water does indeed have a significant nexus with a core jurisdictional water. (15) If the Government is unable to make this showing, the net result could be a finding that there is no jurisdiction; (16) this could free the relevant area from "normal farming" constraints, even if the property still exhibits wetland characteristics. (17)

2. AGRICULTURE AND ITS IMPACT ON WETLANDS

   The United States Fish and Wildlife Service (FWS) estimates that the area that now comprises the lower forty-eight states contained almost 221 million acres of wetland in the colonial period. (18) Its most recent estimate is that there are 110.1 million acres of wetlands in that same area, meaning that we have lost slightly more than half of these resources. (19) At the same time, however, FWS notes that our rate of loss has declined radically over time. Its analysis indicates that, on a net basis, we lost approximately 458,000 acres of wetlands per year between the 1950s and the 1970s, 290,000 acres per year between the 1970s and the 1980s, 58,550 acres per year between the 1980s and the 1990s, and, most recently, only 13,800 acres per year between 2004 and 2009. (20)

   This dramatic overall improvement, however, can obscure significant losses for some types of wetlands. For example, even though FWS estimates that we had a net loss of only 62,000 acres between 2004 and 2009, during that same period it concluded that we had a net loss of approximately 633,000 acres of freshwater forested wetlands. (21)

   Throughout all of these relevant time periods, agriculture (especially when considered together with silviculture) has been by far the largest cause of our wetland losses. As far as the historical sources of these losses are concerned, FWS determined that agriculture was responsible for approximately 87% of the losses between the mid-1950s and the mid-1970s. (22) It later estimated that agriculture was responsible for 54% of the losses from the 1970s to the 1980s. (23) Most recently, it indicated that agriculture and silviculture combined were responsible for 51% of the losses of forested wetlands between 2004 and 2009. (24)

3. A BRIEF OVERVIEW OF HOW SECTION 404 APPLIED TO AGRICULTURE LEADING UP TO THE CLEAN WATER RULE

   Section 404 traces its jurisdictional roots to section 301(a) of the CWA, which prohibits "the discharge of any pollutant" without a permit. (25) Section 502(12) defines the phrase "discharge of a pollutant" to require an addition of a pollutant to navigable waters from a point source. (26) In turn, section 502(7) defines the term "navigable waters" to mean "the waters of the United States, including the territorial seas." (27)

   In the agricultural context, the courts consistently have found that using earthmoving equipment to redistribute significant amounts of earthen materials into jurisdictional wetlands--through such activities as land-clearing or ditching--can constitute a jurisdictional addition of pollutants to those waters. The courts' analysis has been fairly straightforward. First, they have found that earth-moving equipment, such as bulldozers, backhoes, and the like, can constitute a "point source" under section 502(14). (28) And second, they have found that the redeposit of non-de minimis amounts of earthen materials constitutes an addition of a pollutant within the meaning of section 502(12). (29)

   Putting aside for the moment any consideration of the issues posed by the Supreme Court's opinions in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) (30) and, especially, Rapanos v. United States, (31) in most adjacent wetland situations, (32) the question whether a particular wetland is jurisdictional has been fairly straightforward legally. (33) EPA and the Corps have long asserted jurisdiction over almost all adjacent wetlands, (34) whether they are adjacent to traditional navigable waters, to their tributaries, or to other jurisdictional waters. (35) Additionally, they have long defined "wetlands" as:

   [T]hose areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. (36) In applying this narrative standard, EPA and the Corps generally use what is referred to as the Corps' 1987 Wetlands Delineation Manual. (37) On the key criterion of hydrology, that manual requires that the relevant area be "inundated or saturated to the surface continuously for at least 5% of the growing season in most years (50% probability of recurrence)." (38)

   As mentioned, two other unique twists in the agricultural context involve section 404(f) (39) and the regulatory exclusion of prior converted cropland from the definition of "waters of the United States." (40) Section 404(f) generally exempts "normal farming, silviculture and ranching activities" (collectively, "normal farming") from the reach of section 404. (41) Under the Agencies' regulations, in order to qualify as normal farming the activity must "be part of an established (i.e., ongoing)" operation. (42) Additionally, the area on which the activity is conducted cannot have "lain idle so long that modifications to hydrologic regime are necessary to resume operations." (43) Even if an activity otherwise qualifies as normal farming, it may lose that status if the relevant discharge is "recaptured" under section 404(f)(2). (44) A discharge is recaptured if it is "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...