Clean Water Act 101 for Farmers

Swampbuster was the villain of my last post. However, Swampbuster is only one of the two major federal statutes that affects a farmer's ability to cultivate, excavate, and control his or her farmland in areas where wetlands are prevalent. The other key law in approaching wetlands in agricultural areas is the Clean Water Act ("CWA"). 33 USC § 1251 et seq. The CWA allows the EPA to enforce its provisions and provides for citizen suits. Non-compliance with the CWA can lead to fines and lawsuits. Farmers should make sure they are not violating the CWA anytime they move dirt on their farm.

The definition of wetlands under the CWA is essentially the same as under Swampbuster. Again, "wetlands" are those 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. 40 CFR § 230.3(t). 

The national pollutant discharge elimination system ("NPDES") permit program controls water pollution by regulating point sources that discharge pollutants into waters of the United States. Section 404 of the CWA establishes a program to regulate the discharge of dredged or fill material into waters of the United States, including wetlands. It is also unlawful to discharge dredged or fill material into the waters of the U.S. without first receiving authorization from the U.S. Corps of Engineers. Waters of the U.S. generally includes wetlands. (There are scores of cases discussing exactly what "waters of the U.S." means, but suffice to say that it likely includes most wetlands.) “Discharge of dredged material” means any addition of dredged material into, including redeposit of dredged material other than incidental fallback within, the waters of the United States. This is the area most likely to affect farmers and agricultural areas. While most ongoing farming activities do not require Section 404 permits, a farmer likely does need a permit to discharge soil or any other deposit into a wetland because of the broad language in the statute. See 33 USC § 1311(a); 33 CFR § 323; 40 CFR 232.2. Point sources are discrete conveyances such as pipes or man-made ditches. Surface waters can include wetlands. Point sources may not discharge pollutants to surface waters without an NPDES permit from the Environmental Protection Agency ("EPA") in partnership with state agencies. In Indiana, the state agency responsible for NPDES permits is the Indiana Department of Environmental Management ("IDEM"). IDEM issues its NPDES permits, called "Rule 5" permits, for discharges pursuant to 327 IAC 15-5. Certain non-point sources (including agricultural stormwater discharges and irrigation return flows) are not subject to the federal permit program. 

There is no CWA jurisdiction over isolated waters or wetlands, but many wetlands that might appear "isolated" to a layman could be considered to have a "significant nexus" to traditional navigable waters. That is enough for the federal government to exercise jurisdiction under the CWA. The recent Supreme Court decision on this issue is called Rapanos v. United States, 547 U.S. 715 (2006). It includes five separate opinions and no majority, and is the perfect piece of reading material if you're having trouble sleeping.

There are exemptions to the Clean Water Act that might apply to a farmer's discharges into the water or wetland area. The "agricultural exemption" applies to "normal farming" activities. Those activities must be part of an established, ongoing program. Changing crops as part of a crop rotation is exempt. Resumption of farming fallow areas as part of a rotation is also exempt. "Normal farming" activities include cultivating, harvesting, plowing, seeding, and "minor damage." These words are all specifically defined in regulations. 40 CFR § 232.3(d). The agricultural exemption also applies to stormwater discharges, return flow from irrigated agriculture, normal activities associated with farm roads, and normal activities associated with construction and maintenance of irrigation ditches or maintenance of drainage ditches. The agricultural exemption, like other CWA exemptions, is construed narrowly. Farmers must be careful, because "maintenance" of a ditch does not include changing the location or footprint of the ditch or levee.  The agricultural exemption is subject to a "recapture provision." Any discharge of dredged or fill material into the waters of the U.S. incidental to any activity intended to bring an area of the water or wetland into a new use, whether the flow, circulation, or reach of navigable waters might be impaired is required to have a Section 404 permit. This "recapture provision" can bring a large swath of activities back under the CWA, even if at first glance it appeared the agricultural exemption applied. For instance, courts have held that converting from silviculture (growing trees) to soybean production and even from wetlands farming to dryland farming can subject the activities in question to recapture, particularly if it involves hydrologic alterations, such as loss of wetlands. 

Non-exempt discharges are not necessarily prohibited, but they do require either a general or individual Section 404 permit. Like the Swampbuster, the CWA contains mitigation provisions. When considering mitigation options, a farmer should seek to "avoid, minimize, and compensate" for the loss of wetlands. The farmer should work with the local Corps, NRCS, and state agencies to determine the appropriate use of mitigation in each situation.

 Like the Swampbuster, the CWA is not something to be ignored. Farmers and consultants should be aware of these federal statutes and the way in which those statutes can affect agricultural land use. Contact an attorney if you have questions. As always, this blog post should not be considered legal advice. 

Wetlands in Agriculture - Swampbuster

"Swampbuster." It is a fun word. However, it can cause some not-so-fun repercussions for farmers who violate its rules protecting wetlands. Swampbuster is the term used for the federal law that discourages farmers from altering wetlands by withholding federal farm program benefits from any person who: (1) plants an agricultural commodity on a converted wetland that was converted by drainage, dredging, leveling, or any other means; or (2) converts a wetland for the purpose of or to make agricultural commodity production possible. See 16 U.S.C.§ 3821.

Wetlands in Agriculture

The Natural Resources Conservation Service ("NRCS") has the lead responsibility for identifying wetlands on agricultural lands for purposes of implementing Swampbuster. NRCS will make a certified wetlands determination when a landowner submits a form AD-1026 for an activity that may be subject to the wetland conservation provisions. These forms are generally available at the local Farm Service Agency ("FSA") office.

First -- what, exactly, is a wetland? A farmer may think that she does not have to worry about wetlands because she thinks that a wetland always looks like a swamp. A swamp is likely a wetland, but not all wetlands look like swamps. A wetland (1) has predominance of hydric soils; (2) is inundated or saturated by surface or groundwater at a frequency and duration sufficient to support a prevalence of hydrophytic vegetation typically adapted for life in saturated soil conditions; and (3) normally does support such vegetation. 7 CFR § 12.2(a).  All three criteria must be present.

Because of differences between the Food Security Act and the Clean Water Act ("CWA") on the jurisdictional status of some wetlands, one agency’s wetland determination may not be valid or binding under the wetland laws administered by another agency. Therefore, NRCS makes its certified wetland determination for Swampbuster and the Army Corps of Engineers will conduct jurisdictional determinations for the administration of the CWA.  Both agencies consider the same elements. More on the CWA in a later post. 

The Federal agencies involved in Swampbuster and the CWA (EPA, the U.S. Army Corps of Engineers, the U.S. Department of Agriculture, and the U.S. Fish and Wildlife Service) are actively seeking to coordinate their activities and to clarify the relationship between the programs. For example, "prior converted croplands" have been excluded from regulation under Section 404 to be consistent with Swampbuster and one wetland identification can be used for both the Section 404 program and the Swampbuster program. http://water.epa.gov/grants_funding/wetlands/facts/fact19.cfm. 

There are, of course, exceptions to the general Swampbuster rule. These include the following exemptions: minimal effect, good faith, prior converted cropland, compliance with a conservation plan, reliance upon an NRCS determination for highly erodible land, or allowable variances. 7 CFR § 12.5. If your activity on your wetlands fits into one of these exemptions, you may not be subject to the Swampbuster provisions. 

Finally, a farmer may be able to use mitigation to avoid the loss of the wetlands' function and therefore avoid losing their federal program benefits under Swampbuster. Mitigation is the creation, enhancement, or restoration of a site that compensates for lost wetland functions of site in question. If a farmer is going to use mitigation, she must ensure the mitigation site is in the same general area/watershed as the lost wetlands, must record an easement to the USDA, and must provide equivalent functions of the site being considered. The farmer will work with their local FSA and/or NRCS to determine how mitigation can be used on their farm. Under Swampbuster, mitigation is all about replacing the function of the wetlands. 

Contact an attorney if you are concerned that activity on your farm could affect a wetland. Swampbuster is fun to say, but not so fun when it causes a farmer to lose her federal benefits.