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. 

U.S. Supreme Court Rules Unanimously in Favor of Monsanto

The United States Supreme Court ruled unanimously today in Bowman v. Monsanto, the case that pitted an Indiana soybean farmer against Monsanto. The Court held that the farmer could not use patented genetically modified soybeans to create new seeds without paying the company. A full copy of the decision is located here. I wrote about this case back in October of 2012 when the Supreme Court granted the farmer's petition for certiorari. Monsanto provides its take on the opinion here.  

A Game Changer for Environmental Due Diligence?

New standards will be released this year that will dramatically expand the scope of environmental due diligence that must be performed at some sites in order to ensure prospective purchasers of property are protected from CERCLA liability for past releases.  The American Society for Testing and Materials (ASTM) is preparing to release its revised standard for Phase I Environmental Site Assessments (ESAs), which will be known as ASTM E 1527-13, some time this spring or summer.  The most significant change will be the incorporation of vapor mitigation screening requirements, which will require the identification of sites up to 1/3 mile away that pose potential vapor intrusion risks for the subject site.  This will vastly expand the scope of Phase I ESAs and will likely increase the costs and timing for completion of the Phase I process.

The majority of the revisions to the standard simply clarify existing definitions and add additional terms to help streamline and simplify the process, including 1) redefining Recognized Environmental Conditions (RECs); 2) redefining Historical Recognized Environmental Conditions (HRECs); 3) adding a definition of Controlled Recognized Environmental Conditions (CRECs); and 4) clarifying the requirements and expectations of a regulatory file review.

The current Phase I standard, ASTM E 1527-05, was released in 2005, and since that time one of the major questions that has been debated among environmental professionals is whether vapor mitigation must be considered during a Phase I assessment.  The 2005 standard is not clear on this point, but most professionals had determined that vapor mitigation did not need to be considered because it is an Indoor Air Quality issue, which are generally outside the scope of Phase I assessments.  The new revision will make clear that vapor intrusion risks should be considered in a Phase I ESA.  ASTM has a separate standard for determining the likelihood of vapor migration risks at a site, which defines the "Area of Concern" in which suspected or known contaminated sites must be identified.  The area is 1/3 mile for sites with non-petroleum contaminants (COCs) and 1/10 mile for sites with petroleum COCs only.  The environmental professional performing the Phase I can use his or her discretion to exclude certain sites based on site-specific factors (i.e. hydraulic or physical barriers, soil characteristics, etc.) but there is always some risk involved in excluding properties within the defined area of concern.

The revised standard was recently submitted to the EPA, which will review the proposed changes to ensure that the standard is still consistent with the AAI rule.  If EPA determines that the revisions are acceptable for AAI compliance and approves the standard, it will then be published by ASTM.

For additional information, contact Dan Cory.

EPA Moving Forward With Lead-Abatement Regulation for Commercial Buildings

The United States E.P.A. is moving forward with preliminary rule-making activities for the regulation of lead-based paint hazards on and in public and commercial buildings (those built prior to 1978) under the Toxic Substances Control Act (TSCA).  The regulation of commercial structures will impact a number of real estate practitioners involved with pre-1978 buildings - including property owners and managers, construction and real estate contractors, and other industry professionals.

The EPA already has a Lead Renovation, Repair, and Painting (RRP) Rule in place for pre-1978 residential properties and child-occupied facilities, which imposes stringent disclosure obligations on owners and property managers and requires renovations, repairs and painting to be performed by EPA-certified contractors with training in lead abatement practices.  This rule has added significant costs to the ownership and maintenance of older homes and has exposed property owners and contractors to significant civil penalties for failing to comply with the rule.

The EPA will be collecting information from the public and industry professionals regarding lead-based paint in commercial and public buildings until April 1, 2013.  Specifically EPA is seeking comments on the manufacture, sale and use of lead-based paint post-1978; use of lead-based paint in or on public and commercial properties; how often renovations were performed on public and commercial properties and the practices used in such renovations; estimates of the amount of dust created and possibly transported from the outside to the inside of the building; and the economic impact that the regulation would have on affected businesses and stakeholders - in particular small businesses.

The information gathering is designed to assist the EPA in determining whether renovations, repairs and painting activities in commercial and public buildings create lead-based paint hazards.  The EPA is required to either determine that no such risks exist or sign a proposed rule similar to the RRP rule for residential properties by July 1, 2015.

The EPA is planning to hold a public meeting regarding the potential commercial and public building rule on June 26, 2013.  Additional details regarding the public meeting will be available in the spring.

The full text of the request for information can be found here.  

 

Meth Busters

Image from the Indiana State Police Meth Suppression Section's website

A recent article in the Indiana Lawyer discusses the Indiana General Assembly's attempts to curb the state's growing methamphetamine problem.  Over the past ten years meth labs found by Indiana law enforcement have increased from 732 in 2002 to 1,726 in 2012.  In 2012, more than 10% of those meth labs were found in two of Indiana's 96 counties: Madison County (96 labs) and Vanderburgh County (81 labs).  The problem is so bad in Madison County that Rodney Cummings, the Madison County prosecutor, states that 35% of his docket is meth related.  

Six new bills addressing meth have been introduced during the 2013 session.  All six target ephedrine and pseudoephedrine, the main ingredients used in manufacturing meth.  Two of the bills would reduce the amount of medication containing these ingredients a person could purchase.  One such bill proposed by Sen. Carlin Yoder, a Republican from Middlebury, would limit each person to 61.2 grams of ephedrine and pseudoephedrine per year, increase criminal penalties for giving these ingredients to someone expressly for manufacturing meth, and prohibit any meth-related criminals from possessing these ingredients without a prescription for seven years.  The four other bills would make ephedrine and pseudoephedrine controlled substances that could only be purchased with a prescription.  In 2005, Oregon took such a step, which has led to a significant drop in meth labs.  Cummins believes that a similar result would occur in Indiana.  One such bill, proposed by Randy Head a Republican from Logansport, would make the two ingredients Schedule III controlled substances.  This bill, however, will not get a hearing this session.  I will continue to track the six proposed bills to see if the Assembly enacts any changes to Indiana's meth laws.    

With an increase in meth manufacturing comes an increase in meth lab explosions.  These explosions cause significant property damage, injuries, and even deaths.  I, along with fellow Monitoring Well authors, Brianna Schroeder and Sean Hirschten, and other attorneys at Plews Shadley Racher & Braun LLP, assist clients with cleaning up their properties after a tenant's meth lab explodes.  Often there is insurance coverage for these types of cleanups even if the policy contains an exclusion for illegal activities.  The firm also represents environmental consultants that clean up exploded meth labs.  If you are a property owner whose property has been damaged by a tenant's meth lab, please do not hesitate to contact our firm with any questions.  Also, for more information on Indiana's efforts to curb meth abuse, please refer to the Indiana State Police's and the State of Indiana's websites.     

Wine is Good for You...and for Agri-Tourism

This post is less about environmental litigation and more about the environment of wine.  Indiana wine grapes, in particular.  The federal government (specifically the Alcohol and Tobacco Tax and Trade Bureau or "TTB") recently designated 2,000,000 acres in southern Indiana as a viticultural area, to be called the "Indiana Uplands."  An "American Viticultural Area," or "AVA" is a designated wine grape-growing region distinguished by its geographic features.  The borders of the recently-designated AVA in Indiana runs from the Morgan-Monroe County line near Bloomington south to the Ohio River, a distance of just over 100 miles.  The soil, climate, and topography in this swath of land are conducive for growing great wine grapes.

This AVA designation indicates the growing importance of agri-tourism in Indiana.  The designation also allows vintners to better describe the origin of their wines and to allow consumers to better identify wines they want to purchase.  For a wine to be labeled with a viticultural area name, at least 85% of the wine must be derived from grapes grown within the viticultural area represented. The wine must also meet the other conditions in 27 CFR 4.25(e)(3) (discussing wine name and label requirements).

For more information on the recent designation of the Indiana Uplands, see the details of the TTB's determination in the Federal Register here.  The Hoosier Ag Today provides a bit more information about the economic impact of the designation in its top story today, located here.

Heightened Federal Pleading Standards and Environmental Long-tail and Toxic Tort Claims

I wrote an article with my colleague, Greg Gotwald, that was recently published in the American Bar Association's Section of Environment, Energy, and Resources' newsletter Trends.  The article provides an outline of how federal district courts have been handling environmental claims in light of Iqbal and Twombly's requirement that a plaintiff show plausible--not possible--entitlement to relief.  This can be hard to do when details of when and where the contamination originated may not be known at the time a complaint is filed.  The take-away of the article is that the more information a plaintiff can provide in a complaint, the better chance it has of defeating a 12(b)(6) motion. If defending an action, then Twombly and Iqbal provide justification for dismissing speculative claims.

Read more here.