Harmonizing ‘Converted Wetland’ Under the Clean Water Act and Food Security Act Would Reaffirm Congress’ Intent To Limit EPA And Army Corps 404 Jurisdiction ©

12 Kentucky Journal of Equine, Agricultural and Natural Resource Law (2019-2020)

83 Pages Posted: 16 Apr 2019

See all articles by Lawrence A. Kogan

Lawrence A. Kogan

The Kogan Law Group, P.C.; Institute for Trade, Standards and Sustainable Development (ITSSD)

Date Written: February 4, 2019


Federal case law unmistakably shows that the U.S. Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (“Corps”) have long failed, for Clean Water Act § 404 enforcement purposes, to recognize the legal significance of the former United States Agriculture Department Soil Conservation Service (“USDA-SCS”)’s prior designation of farmlands (including the approximate 30-acre portion of Erie County, Pennsylvania farmer Robert Brace’s Murphy farm tract area) as “converted wetlands” (“CW”), as Congress carefully defined that term in the Food Security Act of 1985 (“FSA”). A USDA-SCS “converted wetlands’ designation was required before a farmer or rancher could be deemed eligible by the former USDA-Agricultural Stabilization and Conservation Service (“USDA-ASCS”) to have their farm tract/field considered for the designation of “commenced converted” (“CC”) or “prior converted” (“PC”) wetlands/croplands under the FSA, entitling such persons to continued USDA benefits.

Pursuant to jointly issued 1993 EPA-Corps regulations having retroactive effect to December 23, 1985, a CW bearing a PC designation also meant the area in question no longer satisfied the Corps’ three-parameter wetlands definition (soil, vegetation and hydrology) and thus, was excluded from the definition of “waters of the United States,” and consequently, from CWA § 404 jurisdiction. A CC designation entitled a farmer’s or rancher’s farm tract/field to PC status and to the exclusion from CWA § 404 jurisdiction, provided, the conversion had been completed before January 1, 1995, and it had not been “abandoned.” An uncompleted conversion was not deemed “abandoned” if it was due to circumstances beyond the control of the farmer or rancher – i.e., it had been disrupted by third parties (e.g., government agencies and nongovernmental organizations).

The detailed CWA statute mentions the term “wetland” only once in a single provision (CWA § 404(g)) delegating responsibility to the States to administrate the CWA’s dredge and fill permitting program. Congress nowhere in the statute expressly defined the terms wetlands or “converted wetlands”), and nowhere expressly delegated authority to the Environmental Protection Agency (“EPA”) or the U.S. Army Corps of Engineers (“Corps”) to regulate nontidal wetlands or manmade ditches located miles away from non-navigable-in-fact waters. The exclusive legal source of the agencies’ claimed federal jurisdiction over such areas is found only in EPA and Corps agency-created regulations broadly interpreting unreliable snippets of legislative history that do not reflect the intent and consensus of Congress as a single legislative body. In other words, a review of applicable evolving CWA regulations clearly indicates that, despite the federal case law that developed favoring EPA’s broad claim of jurisdiction over non-tidal wetlands and manmade ditches, there is no real legal support for that position in the text of the CWA itself.

Notwithstanding this lack of express congressional delegation of jurisdiction to these federal agencies, activist federal courts previously held, in error, that the unreliable snippets of legislative history associated with the CWA 1977 amendments convey adequate congressional intent that EPA and the Corps should exercise the broadest possible jurisdiction, including over such areas, to ensure the preservation of wetlands throughout the nation. Such federal case law, however, reveals that each of the court decisions upon which EPA and the Corps now rely had been issued prior to the enactment of the FSA. The FSA is the only federal statute that expressly conveyed Congress’ expressed intent to define the terms “wetlands” and “converted wetlands” and to provide farmers and ranchers with the pathway forward, for a limited time period, to convert farmed pasturelands and haylands into croplands under the “normal farming activities” exemption of CWA § 404(f)(1) without triggering the recapture provision of CWA § (f)(2).

The following article discusses how the legal significance of the CW designation, based on Congress’ use of the ‘terms of art’ “wetland” and “converted wetland” in the statutory text of the FSA can be used to reaffirm Congress’ intent to limit U.S. EPA & Army Corps of Engineers Clean Water Act § 404 jurisdiction. This discussion should be considered by federal legislators in drafting a future farm bill, and by the U.S. District Court of the Western District of Pennsylvania to resolve the United States v. Brace, No. 90-0029 (W.D. Pa.) Clean Water Act action, one of the longest running lawsuits in the history of the U.S. Department of Justice’s Environment and Natural Resources Division. This discussion also should be considered in light of the United States Supreme Court’s current review of the Chevron, Auer and Seminole Rock doctrines of federal court deference to agency expertise, for which oral arguments had recently been convened.

Keywords: wetlands, plain text meaning, 1977 clean water act, food security act of 1985, converted wetland, commenced conversion, prior converted cropland, legislative history, agency-made law, congressional intent, chevron deference, auer deference, 404-dredge-and-fill-permit, federal jurisdiction, WOTUS

JEL Classification: Q1, Q15, Q18, Q24, Q25, Q28, Q53, Q58, K32

Suggested Citation

Kogan, Lawrence A., Harmonizing ‘Converted Wetland’ Under the Clean Water Act and Food Security Act Would Reaffirm Congress’ Intent To Limit EPA And Army Corps 404 Jurisdiction © (February 4, 2019). 12 Kentucky Journal of Equine, Agricultural and Natural Resource Law (2019-2020), Available at SSRN: https://ssrn.com/abstract=3361982

Lawrence A. Kogan (Contact Author)

The Kogan Law Group, P.C. ( email )

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HOME PAGE: http://www.koganlawgroup.com

Institute for Trade, Standards and Sustainable Development (ITSSD) ( email )

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Princeton Junction, NJ NJ 08550-9998
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HOME PAGE: http://www.itssdusa.org

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