Wednesday, October 12, 2022
An issue that troubles many farmers and ranchers is the federal government’s regulation of farmland and farming activities. Two primary regulatory agencies are the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (COE). They have jurisdiction to regulate the “waters of the United States” (WOTUS) and the scope of that jurisdiction has been a big issue for many years and has generated innumerable court decisions.
A recent case involved the issue of the COE deciding not to regulate a wet area on a farm and whether the decision not to exercise jurisdiction was done properly. The court’s decision is instructive on the procedure for determining the existence of a wetland, what “prior converted cropland is” and how the agency should properly decline to regulate
The COE’s regulation of farmland - it’s the topic of today’s post.
Facts of the case. In Hoosier Environmental Council, et al. v. Natural Prairie Indiana Farmland Holdings, LLC, et al., 564 F. Supp. 3d 683 (N.D. Ind. 2021), the defendant acquired farmland to build and operate a concentrated animal feeding operation (CAFO) with over 4,350 dairy cows. The COE inspected the property and concluded that much of the land was not subject to the Clean Water Act. The plaintiffs, two environmental groups sued alleging that the defendant violated the Clean Water Act (CWA) and that the COE’s administrative jurisdictional determination violated the Administrative Procedures Act (APA). The land at issue was drained in the early 1900's via the creation of several large ditches and drainage canals to move surface water into the Kankakee River 9.5 miles downstream. The CAFO was constructed on what had been a lakebed over a century ago, and two of the drainage ditches are on the defendant’s land.
Note: The lake was totally drained in the early 1990s to make farmland. Vested with that is the right to maintain the drain. See, e.g., Barthel v. United States Department of Agriculture, 181 F.3d 934 (8th Cir. 1999). It is immaterial what the size of the lake was or whether it was where a marsh was at some time in the past. The land at issue was completely transformed to farmland long before the defendant acquired the land at issue.
The plaintiffs claimed that the defendant filled nearly half a mile of one ditch and installed drainage tile to drain excess water, filled and tiled various lateral ditches attached or near both ditches. After the alterations the plaintiffs contacted the COE to determine if the ditches, lateral ditches and land were subject to federal regulation. The COE investigated and determined that neither the defendant’s land nor the lateral ditches were jurisdictional wetlands but did conclude that the two drainage ditches were jurisdictional.
The plaintiffs sought judicial review of the COE’s determination to not regulate the defendant’s land or lateral ditches. The plaintiff asserted that the defendant’s filling and tiling activities required CWA permits for dredged or fill material, and a pollution discharge permit. The plaintiffs claimed that the manipulation of the hydrology and drainage at the CAFO site would degrade the nature and wildlife areas and waters and diminish their ability to continue using and enjoying them. The plaintiffs also claimed that the COE’s wetland determination was arbitrary and capricious because the agency made its conclusion without relying on the relevant wetland factors articulated in the COE’s technical guidance manuals. The COE asserted that its guidance’s procedures weren’t applicable and that the administrative record supported its decision.
Standing. The court determined that the plaintiffs had standing to sue because their members have been and would continue to be injured by the defendant’s activities, and that the plaintiffs’ restorative activities on an adjacent downstream tract that the plaintiffs’ members use for various recreational activities would be harmed. The court also pointed out that at least three members got their water from downstream private wells. The plaintiffs’ “wetland scientist and drainage expert” provided an opinion that the COE’s decision to not assert jurisdiction and the defendant’s continued hydrological changes to the property would “result in a loss of stream and wetland functions on the dairy’s property that would alter hydrology and water quality downstream within Kankakee Sands.”
The court’s opinion gave no indication of the COE’s response to the opinion of the plaintiffs’ expert. Given the recited facts of the case, hydrologic changes by the dairy’s activities would have no impact on the Kankakee Sands, a nearby 10,000-acre restored tallgrass prairie. The topography shows that the site does not drain onto the Kankakee Sands. Instead, the area drains into the Bogus Island Ditch which is well downstream from the dairy. In addition, state law waste management plans protect the drinking water wells at issue from contamination. Also, there is no public access to the ditches. A “wetland and erosion scientist” directly attributed the consequences of the COE’s decision and the prior and ongoing activities of the dairy to “a loss of stream and wetland functions on the dairy’s property that will alter hydrology and water quality downstream within Kankakee Sands.” But this assertion seems far-fetched. Filling a small ditch that doesn’t drain into the Kankakee Sands will have no material effect.
Note: If the Congress intended this result, then a court could extend standing to environmental groups for drainage improvement projects on agricultural land. However, the Congress did not intend that to occur.
The court stated that the plaintiffs had explained that the dairy’s discharges created “reasonable concerns” and that were “fairly traceable” to the dairy’s actions. However, what the plaintiffs complained about was the filling of a ditch and the replacement of its function with a tile. “Reasonable concerns” are not relevant for a jurisdictional determination. The issue is whether there is a hydrological connection between Kankakee Sands and the ditch fill at the dairy.
What is a “Wetland”?
Before diving into the court’s “analysis,” a brief sidestep is necessary. When the Congress created the CWA, it failed to provide a definition of a “wetland,” instead leaving the matter up to the administrative agencies responsible for implementing the law. Under the COE’s rules, a wetland requires a finding of the presence of hydrophytic vegetation, hydric soil and wetland hydrology under a subject tract’s “normal circumstances.” Under the COE’s initial procedures for delineating a wetland, it must determine that a site has been altered, and determine when the alteration occurred and characterize the land as it existed before the alterations.
“Prior converted cropland” is wetland that was manipulated and cropped before December 23, 1985, which no longer contains key wetland indicators. 33 C.F.R. § 328.3(a)(8); 7 C.F.R. § 12.2(a)(8); COE Regulatory Guidance Letter 90-07 ¶5(a). A “farmed wetland” is a wetland that was manipulated and cropped before December 23, 1985, but which still contains key wetland indicators. 7 C.F.R. § 12.2(a)(4); COE Regulatory Guidance Letter 90-07 ¶5(b). A farmed wetland could still be a jurisdictional wetland, but prior converted cropland is non-jurisdictional. 33 C.F.R. § 328.3(a)(8). Thus, when recent alterations are present on agricultural land, before the COE can decide which delineation methodology to use, a detailed assessment of the changes in the hydrology, vegetation, and soil must occur. However, in this instance, the COE noted that the land in question had been drained nearly 100 years ago and continuously row cropped since 1939 (well before the effective date of the 1985 Farm Bill), its normal circumstance was as farmland that did not contain wetland indicators and was, therefore, non-jurisdictional prior converted cropland. While hydric soil was present, to find a jurisdictional wetland, all three indicators must be present.
Note: In its original version, the COE’s 1987 Manual defined “normal circumstances” as what vegetation is commonly present, not what would exist if the land was not disturbed. This was later changed by “notes” added to the 1987 Manual when the Congress outlawed the 1989 Manual. Those explanatory notes changed “normal circumstances” to mean vegetation that would exist if the land was not disturbed and planted. The COE uses reference sites with similar hydrology and soils. If wetland vegetation exists, the COE assumes that it exists on the disturbed tract. However, hydrology still must be present for a wetland to be deemed to exist (as much as the bureaucracy wishes it did not). B & D Land and Livestock Co. v. Veneman, 231 F. Supp. 2d 895 (N.D. Iowa 2002).
The Court’s Analysis
The primary issue before the court was whether the COE’s determination that the land was prior converted wetland (and therefore not subject to COE regulation) was arbitrary and capricious. The court examined the record to determine if the COE followed its own guidance for delineating wetlands. The court noted that the administrative record lacked any description of the prior drainage system (the series of medial and lateral ditches transecting the property before defendant’s alterations), the defendant’s new drainage system, how these systems were designed to function, and whether they were effective in removing wetland hydrology from the area.
Note: While the plaintiffs made much ado about the COE’s lack of consideration of the hydrology of the land before the farm’s alterations, that is largely an irrelevant point. Famers are entitled to maintain the “wetland and farming regime” on the land and may engage in whatever drainage activities necessary to keep that historic farming activity and production. The land in question had been converted to farmland many decades earlier and had been constantly maintained in that status.
The court examined aerial photographs, noting that there was an absence of data identified in the COE’s “Midwest Supplement” to assess the relevant drainage factors, including how the existing and current drainage systems were designed to function, whether they were effective in removing wetland hydrology from the area, and when any conversion occurred. The absence of these sources, coupled with an absence of any meaningful discussion of the hydrology of the site before the defendant’s alterations, led the court to believe that the COE failed to follow the procedures outlined in its own guidance in deciding the land was prior converted cropland. The COE also reviewed 14 aerial photographs that spanned from 1938 to 2017. Those photos showed the presence of row cropping and offered no evidence of potential wetlands. Relying on aerial photographs, the COE expert’s determination and a determination of the Natural Resources Conservation Service to conclude that wetlands did not exist was certainly appropriate.
Note: In addition, the court’s analysis on this point is suspect. The COE did not need to find and document all three factors. The hydrology had been materially altered to enable consistent row crop farming. In that situation wetland hydrology is not present, and the area in question is not a wetland. As a result, other levees, systems or dams do not alter area hydrology because there is not wetland hydrology present to alter. The court referred to the COE’s 1987 Manual for its conclusion that the COE didn’t follow its own procedures. However, the 1987 Manual was established to evaluate recent alterations to undisturbed wetland. The court incorrectly applied this standard to materially hydrologically altered wetland where the alteration had occurred a century earlier. As such, the land in issue was prior converted wetland. The court incorrectly applied the standards of the 1987 Manual to the facts before it involving alterations that occurred over 100 years ago.
The court also determined that there was no indication in the record that the aerial photographs were used to assess hydrology characteristics of the defendant’s land before alterations were made, how the drainage systems were designed to function, and how effectively and efficiently they could convert land from wetland to upland. Further, the court noted there was also no explanation why the COE skipped these steps. The COE took the position that its review of aerial photographs was sufficient to determine the land’s normal circumstances. The court disagreed, determining that the evidence did not support the COE’s claim that its decision was based on identified relevant factors. Instead, the court concluded that the COE made impermissible post hoc justifications. If reliance on its own manuals was not warranted in this situation, the court stated, the COE needed to provide a rationale. As such, the court determined that the evidence did not support the COE’s argument that its decision was rationally based on the relevant wetland hydrological factors before concluding the land was prior converted cropland. Absent that rationale, the COE’s determination of wetland status of the defendant’s farmland was arbitrary and capricious.
Note: The COE followed its correct procedure in this case contained in the Midwest Supplement and also accepted a prior USDA determination as to the land’s status for federal farm program purposes. The ditches and drains that were legally installed successfully removed wetland hydrology. The COE did not deviate from its own regulatory guidance and procedures, but the court assumed that it did. There was no need for the COE to find and document all three wetland characteristic factors. The elimination of wetland hydrology eliminates the possibility that the land was a wetland.
Concerning the lateral ditch, the plaintiffs claimed that the record did not support the COE’s conclusion that the lateral ditches were irrigation canals that drained uplands and lacked relatively permanent flow. The plaintiffs pointed to a lack of administrative record and the claimed failure of the COE to follow the relevant factors that it lists in its Approved Jurisdictional Determination Form. The court also held that the COE’s finding of non-jurisdiction over the lateral ditches was arbitrary and capricious.
The court remanded the case to the COE conduct a more thorough investigation of the defendant’s tract.
The court’s decision correctly points out that administrative agencies must follow their own rules and procedures in delineating wetlands. Even a finding of non-jurisdiction based on prior converted cropland status must be supported by the administrative record and be sufficient to allow a court to determine that the agency followed the proper process. That much is certainly true. The COE did follow the correct procedure in this case or declined to assert jurisdiction. Unfortunately, the court’s opinion reveals a lack of understanding of the process for delineating wetlands and wetland hydrology. As part of its finding that the COE acted in an arbitrary and capricious manner in reaching its conclusion that the land in issue was prior converted wetland, the court stated that ditches and drainage tile impact hydrology in different ways. This is not correct, and it influenced the court’s conclusion that the COE used an inappropriate delineation methodology without explanation, which was arbitrary. However, ditches and drainage tile lines affect groundwater drawdowns identically based upon depth. Once the COE determined that wetland hydrology wasn’t present, the matter was over. There was no wetland.
Aside from the questionable grant of standing, the court waded deep into a subject that is highly technical and which it did not understand sufficiently to be able to sort out proper wetland delineation procedures. Perhaps the same can be said for the dairy’s lawyers – it’s difficult to imagine how the briefs filed on behalf of the dairy didn’t provide some sort of an indication in the court’s opinion of guidance on how the COE delineates wetlands and that the COE’s decision-making process was not arbitrary and capricious.
For farmers, the case is a frustrating one. At issue was land that had been farmed for over 80 years and the right to continue to farm consistent with the historic drainage of the property was caught up in bureaucratic red tape. The court’s expansive view of standing and lack of understanding of the actual science behind the hydrology and geographic facts of the case created a problem for a dairy operation that should have never happened. What was involved in the case were shallow ditches dug into prior converted wetland. That is an activity that the CWA does not regulate.