During the Trump era, the deregulation of the Clean Water Act was a move that helped the farming and ranching communities from over-regulation of steams and waterways. The Navigable Waters Protection Rule replaced previous language of the Clean Water Act that was enacted in 2015. It was determined that the 2015 definition of “navigable waters” was more expansive than the constitution allows, and was thus changed under President Trump’s reign.
Prior to the Navigable Waters Protection Rule, the Clean Water Act prohibited discharging of pollutants without a permit. The definition of what federal waters was, wasn’t quite clear and included ephemeral waters on private property.
In a detailed article published by JDSupra.com, The Clean Water Act defines ‘“navigable waters” as the waters of the United States, including territorial seas. Seems clear, right? But, does that include water that pools at the bottom of an old quarry? What about wetlands that are not navigable, but are adjacent to navigable water? How about wetlands on private property that are a mile away from the closest navigable stream? It turns out that all of those were included as waters of the United States.
The question found its way to the U.S. Supreme Court in Rapanos v. United States, which resulted in a 4-1-4 opinion. In the absence of a statutory or regulatory definition, the plurality in Rapanos, defined the term “waters of the United States” to also include “relatively permanent standing or continuously flowing bodies of water” that are connected to traditional navigable waters or wetlands that have a continuous surface with such relatively permanent waters. Justice Kennedy, in a famous concurring opinion gave us the significant nexus test, meaning wetlands or bodies of water were included as waters of the United States if they “either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’”
The Court’s definition was cumbersome. Thereafter, in 2015, the EPA and Army Corps of Engineers tried issued a rule defining “waters of the United States.” Under that rule certain waters were deemed to be jurisdictional, including: (1) waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide; (2) interstate waters and wetlands; (3) the territorial seas; (4) impoundments of waters otherwise identified as jurisdictional; (5) tributaries of the first three categories; and (6) adjacent waters. The rule excluded certain bodies of water, like ditches, irrigated land, and stock tanks. The 2015 rule also left the door open to other bodies of water that may be deemed waters of the United States on a case by case basis such as isolated waters that are not connected to navigable waters but are ecologically important (including California vernal pools or prairie potholes).”
However, in 2017, Trump signed an executive order that demanded a change in the definition which included very specific categories of “navigable waters” and those that are not.
In the past few months, the Biden administration has reversed this ruling. EPA Administrator Micheal Regan, discussed the repeal.
“After reviewing the Navigable Waters Protection Rule as directed by President Biden, the EPA and Department of the Army have determined that this rule is leading to significant environmental degradation.”
While the rulings in the law usually exempt agriculutral communities, it is still a major concern for the industry, as would any increasing government oversight.
In another article by JDSupra.com they share, “the motion seeks to have the Navigable Waters Protection Rule remain in place pending agency review. EPA has indicated its intent to draw on the experience of the pre-2015 rule, the Obama-era Clean Water Rule and the Trump-era Navigable Waters Protection Rule when initiating its new rulemaking process.”
The EPA, normal farming activities are exempt from the rules, and they define what is normal and not normal on their website:
“What is the “normal farming” activities exemption?
The Clean Water Act exempts from the Section 404 program discharges associated with normal farming, ranching, and forestry activities such as plowing, cultivating, minor drainage, and harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices (Section 404(f)(1)(A)). To be exempt, these activities must be part of an established, ongoing operation. For example, if a farmer has been plowing, planting and harvesting in wetlands, he can continue to do so without the need for a Section 404 permit, so long as he does not convert the wetlands to dry land. Activities which convert a wetland which has not been used for farming or forestry into such uses are not considered part of an established operation, and are not exempt. For example, the conversion of a bottomland hardwood wetland to crop production is not exempt.
In determining whether an activity is part of an established operation, several points need to be considered. First, the specific farming activity need not itself have been ongoing as long as it is introduced as part of an ongoing farming operation. For example, if crops have been grown and harvested on a regular basis, the mere addition or change of a cultivation technique (e.g., discing between crop rows to control weeds rather than using herbicides) is considered to be part of the established farming operation. Second, the planting of different agricultural crops as part of an established rotation (e.g., soybeans to rice) is exempt. Similarly, the rotation of rice and crawfish production is also exempt (construction of fish ponds is not an exempt activity and is addressed below). Third, the resumption of agricultural production in areas laying fallow as part of a normal rotational cycle are considered to be part of an established operation and would be exempted under Section 404(f). However, if a wetland area has not been used for farming for so long that it would require hydrological modifications (modifications to the surface or groundwater flow) that would result in a discharge of dredged or fill material, the farming operation would no longer be established or ongoing.
As explained earlier, normal farming operations include cultivating, harvesting, minor drainage, plowing, and seeding. While these terms all have common, everyday definitions, it is important to recognize that these terms have specific, regulatory meanings in relation to the Section 404(f) exemptions. For example, plowing that is exempt under Section 404(f) means all mechanical means of manipulating soil, including land leveling, to prepare it for the planting of crops. However, grading activities that would change any area of waters of the United States, including wetlands, into dry land are not exempt. Minor drainage that is exempt under Section 404(f) is limited to discharges associated with the continuation of established wetland crop production (e.g., building rice levees) or the connection of upland crop drainage facilities to waters of the United States. In addition, minor drainage also refers to the emergency removal of blockages that close or constrict existing drainageways used as part of an established crop production. Minor drainage is defined such that it does not include discharges associated with the construction of ditches which drain or significantly modify any wetlands or aquatic areas considered as waters of the United States. Seeding that is exempt under Section 404(f) includes not only the placement of seeds themselves, but also the placement of soil beds for seeds or seedlings on established farm or forest lands. Cultivating under Section 404(f) includes physical methods of soil treatment to aid and improve the growth, quality, or yield of established crops. Except as provided under Section 404(f)(2) as explained below, construction or maintenance of irrigation ditches or maintenance of drainage ditches is also exempt.
Recognizing area and regional differences in normal farming practices, EPA and the Corps agree to develop additional definitions of normal farming practices in consultation with the designated Land Grant Colleges and the Cooperative Extension Services. We also further encourage our field staffs to utilize the expertise in these colleges and agricultural services in the ongoing implementation of the Section 404 program.
When the normal farming activity exemption do not apply?
Sections 404(f)(2) provides that discharges related to activities that change the use of the waters of the United States, including wetlands, and reduce the reach, or impair the flow or circulation of waters of the United States are not exempted. This “recapture” provision involves a two-part test that results in an activity being considered not exempt when both parties are met: 1) does the activity represent a “new use” of the wetland, and 2) would the activity result in a “reduction in reach/impairment of flow or circulation” of waters of the United States? Consequently, any discharge of dredged or fill material that results in the destruction of the wetlands character of an area (e.g., it conversion to uplands due to new or expanded drainage) is considered a change in the waters of the United States, and by definition, a reduction of their reach and is not exempt under Section 404(f). In addition, Section 404(f)(1) of the Act provides that discharges that contain toxic pollutants listed under Section 307 are not exempted and must be permitted.
However, discharges that are not exempt are not necessarily prohibited. Non-exempted discharges must first be authorized either through a general or individual Section 404 permit before they are initiated.”
The Biden Administration and the EPA will be discussing the rule reversal and have stated they will commit to ‘“meaningful stakeholder engagement” to ensure a proper balance between essential clean water protections and support for key economic sectors.”’
