Academic journal article Environmental Law

Normal Farming and Adjacency: A Last Minute Gift for the Farm Bureau?

Academic journal article Environmental Law

Normal Farming and Adjacency: A Last Minute Gift for the Farm Bureau?

Article excerpt

I.   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. …

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