Two environmental organizations brought a lawsuit against a dairy farm under the Clean Water Act (CWA). Intending to build a concentrated animal feeding operation (CAFO) on the property, the dairy farm filled two ditches and installed drainage tiles. The plaintiffs allege that the dairy farm site consists of farmed wetlands and that, through the construction activities, the dairy farm violated the CWA. The CWA prohibits the “discharge of dredged or fill material” into waters of the United States. 33 U.S.C. § 1344(a). This includes farmed wetlands. The dairy farm moved to dismiss the lawsuit claiming that there were no wetlands on the property.

The dairy farm sits on a drained lakebed that has been used as farmland since the 1900s. The dairy farm asserts that the plaintiffs’ petition shows that the land is prior converted cropland. Unlike farmed wetland, prior converted cropland does not have hydrologic signs of wetlands and is not subject to CWA jurisdiction. 7 C.F.R. § 12.2. Farmed wetland includes land that was used to produce an agricultural commodity before December 23, 1985, and experiences inundation for at least 15 consecutive days or 10 percent of the growing season. The court found that the complaint alleged wetland factors including evidence of hydrophytic vegetation, hydric soil, and wetland hydrology. Additionally, the complaint alleged that these wetlands have a significant nexus to jurisdictional waters. Because of this, the court denied the motion to dismiss.

Hoosier En't Council v. Nat. Prairie Indiana Farmland Holdings, LLC, 2021 WL 4459509 (N.D. Ind. Sept. 29, 2021).