Sunday, September 21, 2014

Lawsuit Could Test Scope Of CWA Permit Exemptions For Agriculture

Posted: July 22, 2013

An ongoing lawsuit challenging the Army Corps of Engineers' decision not to issue a dredge-and-fill permit for a man-made pond in South Carolina could test the limits of the "agricultural exemption" to permits normally required by the Clean Water Act (CWA).

An ongoing lawsuit challenging the Army Corps of Engineers' decision not to issue a dredge-and-fill permit for a man-made pond in South Carolina could test the limits of the "agricultural exemption" to permits normally required by the Clean Water Act (CWA).

The suit, William F. Craig, et al. v. Army Corps of Engineers, et al., argues that a man-made pond near Rock Hill, SC, should not qualify for the exemption because it does not serve an "ongoing" farming operation and creates a "new use" for the water. The complaint was filed June 27 in the U.S. District Court for the District of South Carolina.

Dredge-and-fill permit exemptions for agriculture have recently been a source of contention, and the issue could become increasingly important given the Obama administration's pending efforts to determine when isolated wetlands and other marginal waters are subject to the law's requirements after Supreme Court rulings that created uncertainty about what tests regulators use to make their determinations.

Republicans and industry groups oppose any rulemaking unless EPA pledges to abandon the terms of draft guidance that they say would expand the law's reach in part because it allows regulators to use either of two Supreme Court tests for determining whether waters are jurisdictional.

In an effort to block advancement of the administration's approach, House appropriators included a provision in a Corps funding bill for fiscal year 2014 that blocks the Corps from implementing or developing any rule or guidance to revise the policies regulators use to determine the reach of the CWA -- the most expansive attempt yet to block the pending effort by EPA and the Corps to refine their jurisdictional tests.

The White House, however, in a July 8 statement of administration policy has threatened to veto the Corps funding bill because of that provision.

Section 404 of the CWA generally requires permits for the discharge of dredged or fill material into waters of the United States, including wetlands, though the law includes several exemptions for various agricultural activities. These exemptions, outlined in section 404(f), include "normal farming, silviculture and ranching activities" related to established and ongoing farming operations, as well as the construction or maintenance of farm or stock ponds.

But the exemption is only valid as long as the discharges do not convert an area of waters of the United States to a new use and do not impair the flow or circulation of waters of the United States or reduce the reach of waters of the United States.

Separately, regulations developed under the law also exempt prior converted croplands from CWA requirements, and industry prevailed in a 2010 test of that provision. The U.S. District Court for the Southern District of Florida in New Hope Power Company, et al. v. U.S. Army Corps of Engineers tossed out Corps memos that said non-agricultural uses of a historically agricultural area in Florida do not qualify for the exemption.

The court ruled that such guidance had the effect of regulation and created new national policy without the required notice-and-comment rulemaking procedure. An appellate court in 2011 upheld the ruling.

Water Supply

At issue in the South Carolina case is a stream that begins on cattle farmers' property, crosses the adjacent property and then returns to the farmers' land, where it supplies water to cattle. The cattle farmers are concerned about a pond the adjacent property owner built under the agricultural exemption because the farmers say the dam for the pond "takes all control of the water away from" them. A lawyer for the plaintiffs says water flows to the farmers' land during periods of normal rain, but it is restricted during a drought.

The complaint says the adjacent landowner initially proposed building the pond for recreational purposes, but later wrote to the Corps, saying he has "always been interested in growing peaches, grapes, berries, hops, etc." and asking about the possibility of an agricultural exemption.

The Corps told the landowner in June 2012 that he qualified for an agricultural exemption as long as the pond is no larger than necessary to facilitate the farming operation and is "specifically constructed for irrigation."

"I wonder where the limit is, if there is a limit, to how little you have to do to plant a garden out back and have your agricultural exemption," the lawyer for the plaintiffs says.

The complaint notes that the landowner said that "not a single plant was in the ground" when he applied for the exemption, meaning the pond doesn't serve an "ongoing" farm. Additionally, the complaint argues it is "beyond dispute" that the dam brings an area of jurisdictional waters into a new use. The farmers also say the pond is not needed for irrigation because the adjacent property has two other ponds and several wells.

The attorney says such conflicts over water are increasingly common as formerly rural areas become more developed. The adjacent landowner, a doctor, is "using the property in an entirely different way. When you have farmers living beside each other, there's an understanding of how you're going to share resources. I'm not sure how that understanding is held by people from a different walk of life." -- Lee Logan

Related News: Litigation Water