- Ag Docket
There has been a lot of discussion lately about clean water. Barring a last-hour injunction, the new Clean Water Rule promulgated by the EPA and the U.S. Army Corps of Engineers will go into effect Friday, August 28.[i] (The United States District Court for the District of North Dakota did issue a preliminary injunction on the eve of the effective date. Read about it here: Today's the Day! Or Maybe Not) As we’ve discussed in prior articles, the Clean Wa ter Rule defines “waters of the United States” or those waters subject to the jurisdiction of the Clean Water Act.[ii] For land subject to CWA jurisdiction, section 402 authorizes the EPA to issue permits for storm water runoff, and section 404 authorizes the Corps to issue permits for the discharge of fill material. This definition includes a number of exclusions. Many of these exclusions are designed to protect established farming practices.
One Clean Water Act provision with a complicated history is the exclusion for prior converted cropland (PCC). Retained in the new Clean Water Rule is the exclusion of PCC from the definition of “waters of the United States.” Lands that qualify as PCC are beyond the jurisdiction of the CWA. In other words, owners can dredge and fill on that property without obtaining a 404(b) permit. The Clean Water Rule did not change the existing PCC exclusion, which has existed in its current form since 1992.[iii] The Rule also provides that even if another federal agency has deemed land to be PCC, the final authority regarding CWA jurisdiction remains with the EPA.
This distinction is important because other federal wetlands conservation compliance law (commonly known as Swampbuster) also incorporates a PCC exception. Administered by the USDA, Swampbuster provisions were created by the Food Security Act of 1985. The Act regulates federal benefits for farmers and includes provisions designed to discourage farming on converted wetlands. Under the Act (and still in place following the 2014 Farm Bill), farmers who have altered a wetland after November 28, 1990, to make crop production possible are generally prohibited from receiving USDA-FSA-administered commodity, disaster, and conservation program benefits. Likewise, farmers who plant crops on wetlands converted between December 23, 1985, and November 28, 1990, are ineligible for program payments. Generally, drainage systems and other conversions in place before December 23, 1985, may continue in their existing form. The 2014 Farm Bill also reinstated a requirement that farmers must comply with Swampbuster provisions to receive crop insurance premium assistance beginning in 2015. To verify compliance, farmers must complete a Highly Erodible Land Conservation and Wetland Conservation Certification (AD-1026) to participate in FSA programs.
The NRCS is responsible for making wetland determinations for purposes of USDA farm program eligibility. Once a certified wetlands determination is made (and given to the farmer via form NRCS-CPA-026), it is binding on the property. All determinations made after July 3, 1996, are automatically deemed “certified.” Determinations made prior to that date may be considered certified if they meet certain conditions. If a certified wetlands determination exists, the NRCS may not issue a new determination, absent a request by the landowner and (1) a determination that natural changes have occurred to the topography or (2) an acknowledgment by NRCS that an error exists in the current report.
As noted above, if land qualifies as PCC, it is exempt from Swampbuster provisions. Farmers may continue to drain, crop or manipulate this ground without losing eligibility for farm program benefits. The PCC exemption must be included in the certified wetlands determination. If no certified determination exists, the farmer may request a Certified Wetland Determination by filing form NRCS-CPA-38. NRCS will make its determination using a variety of tools such as cropping history records, aerial photography, maps and an on-site evaluation. Under NRCS regulations, farmland must meet the following criteria to obtain the Swampbuster PCC exemption[iv]:
Under Swampbuster regulations, as long as the land is used for agricultural purposes, a certified PCC designation remains in effect. Before 2005, PCC determinations made by NRCS were also used by the Corps for CWA enforcement. This “one-stop shopping” approach, however, was discontinued in joint guidance issued by the agencies on February 25, 2005.[v] The guidance was issued because Swampbuster amendments meant that jurisdictional interpretations for purposes of Swampbuster would not always be consistent with jurisdictional determinations for CWA purposes.[vi]
Although the NRCS and the Corps still work together when possible, the Corps is responsible for making its own CWA jurisdictional determinations (JDs). As such, NRCS is required to inform landowners that its certified wetlands determinations may not be valid for CWA jurisdiction. Likewise, the Corps must inform landowners that its JDs may not be valid for purposes of the Swampbuster provisions. The guidance does provide, however, that “to the maximum extent permissible by current statute and regulation, NRCS and [the Corps] will rely on each other’s wetland determinations.”
The differences between NRCS and Corps determinations are of particular importance for the prior converted cropland designation. While Swampbuster regulations modified in 1996[vii] have been summarized, “once a [PCC] always a [PCC],” that is not true for Corps PCC designations. A court that considered the question in 2013 determined that the EPA abandonment rule (which was modeled after an original Swampbuster rule) is still in effect.[viii] This abandonment rule, which was included only in the federal register[ix] and never in the code of federal regulations states:
Prior converted cropland which now meets wetland criteria is considered to be abandoned unless for once in every five years the area has been used for the production of an agricultural commodity or the area has been used and will continue to be used for the production of an agricultural commodity in a commonly used rotation with aquaculture, grasses, legumes, or pasture production.
Under this rule, abandonment only kicks in if the land “now meets wetland criteria.” In other words, crop production has ceased and the land has returned to a wetland state.
In 2009, the Corps implemented an additional rule, commonly called the Stockton Rule. Without notice or an opportunity for comment, the Corps adopted as its official position a policy set forth in an issue paper at a local Corps office: PCC that is converted to nonagricultural use is subject to regulation by the Corps.[x]
This rule, which differed radically from prior Corps guidance, was set aside by a federal court in 2010, after the court found that the Stockton Rule was established without the required “rulemaking using appropriate notice-and-comment procedures.”[xi]
Despite the fact that no court has ruled otherwise, it appears that landowners still lack clarity as to PCC that is no longer farmed, but has not returned to wetlands. In other words, JDs have been made by the Corps under which the PCC has been found to be abandoned, even though the land has not returned to wetlands status. Unless an enforcement action is brought, it may be difficult for a landowner to receive jurisdictional review of such a determination. In 2014, for example, the Fifth Circuit ruled that a landowner was not entitled to judicial review of a Corps wetlands JD because it was not a “final agency action” from which legal consequences would flow.[xii]
On July 23, 2015, a landowner filed a complaint in the United States District Court for the District of Northern Illinois. The landowner, who was building a residential development on property previously found to be PCC, is seeking a declaration that the Corp’s JD (which found the property to be jurisdictional wetlands) is invalid.[xiii]
As this article reminds us, even long-enforced regulations can generate uncertainty. Because of its many new provisions, the enactment of the Clean Water Rule will likely introduce unprecedented uncertainty regarding which lands are subject to CWA jurisdiction. We will keep you posted as the flurry of promised litigation unfolds.
[i] 80 FR 37053.
[ii] 33 U.S.C. §§1251-1387.
[iii] 33 C.F.R. §328.3(a)(8).
[v] Joint Guidance from the NRCS and the COE Concerning Wetland Determinations from the Clean Water Act and the Food Security Act of 1985 (February 25, 2005).
[vi] 16 U.S.C. §3822(a)(6).
[vii] 61 Fed. Reg. 47019, 47021 (Sept. 6, 1996).
[viii] Huntress v. EPA, 2013 U.S. Dist. LEXIS 73805 (W.D. N.Y. 2013)(determining that EPA abandonment was a valid “rule,” even though it was only published in the Federal Register);
[ix] 58 Fed. Reg. 45008, 45034 (August 25, 1993).
[x] Corps' Issue Paper Regarding "Normal Circumstances" (ECF No. 18-22) and Memorandum for South Atlantic Division Commander (Apr. 30, 2009) (ECF No. 18-23).
[xi] New Hope Power Co. v. U.S. Army Corps of Engineers, 2010 U.S. Dist. LEXIS 101828 (S.D. Fla. 2010).
[xii] Belle Company, LLC v. U.S. Army Corps of Engineers, 761 F.3d 383 (5th Cir. 2014).
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