The private property rights – and the property values – of countless American farmers, ranchers and landowners nationwide are being devastated by an unauthorized and unlawful regulatory scheme implemented over the past 12 years by the Environmental Protection Agency (EPA) and the Army Corps of Engineers.
The Trump administration – especially under EPA Administrator Scott Pruitt – and the Congress together have an exceptional opportunity to protect these law-abiding citizens, uphold the Constitution, and restore the trust in government that is so important to the dignity of everyday American citizens.
The U.S. Army Corps of Engineers estimates there are about 53 million acres of prior converted croplands throughout the United States. Since 1972, the Clean Water Act (CWA) – enacted with bipartisan congressional support – regulated only the “navigable waters” of the United States and exempted from federal regulation all areas that are not “the waters of the United States.”
This understanding was further reinforced by President Bill Clinton, whose 1993 Wetlands Plan included a rule that prior converted croplands, defined as agricultural lands that were converted from wetlands prior to 1985, were excluded from the definition of “the waters of the United States.” As a result, the Army Corps adopted a rule that croplands were not subject to regulation under CWA Section 404. The Clinton administration further stated its assurance “to American farmers that an estimated 53 million acres of prior converted cropland will not be subject to regulation under Section 404 of the Clean Water Act.”
For decades, both the legislative and executive branches had clearly – and correctly – stipulated that prior converted croplands are not “waters of the United States.” That’s because prior converted croplands have been cleared, drained or otherwise altered and manipulated under decades of farming activities to make it possible to plant and grow crops. Because they do not exhibit any important wetland values, and are not navigable waters of the United States, they had always been exempt under the Clean Water Act’s Section 404 overseeing wetlands permitting jurisdiction.
For more than 30 years after the enactment of the landmark legislation, property owners could farm their land without having to obtain a permit – exactly as Republican and Democratic lawmakers together had intended. Prior converted croplands – no matter their use – were always exempt from federal regulation.
Farmers and ranchers used their land responsibly, with operational certainly and financial stability, under this congressionally approved framework. In addition, they could use the collateral value of their exempt croplands as capital for farm and other loans. As the American Farm Bureau Federation has noted, “the value of prior converted croplands is significantly higher than land encumbered by costly federal wetlands regulations.”
Since 2005, the Army Corps has quietly ignored the 1993 wetlands rule over croplands such as rice fields and irrigated pastures. In 2009, unilaterally and without any congressional authorization, the Army Corps issued new rules to formally change the definition of prior converted cropland so it could extend its jurisdictional reach to land not in permanently active agricultural use. Before this action, prior converted cropland that was shifted to non-agricultural use was treated as exempt. Following this action, the exemption was stripped away.
In 2011, a U.S. district court prohibited the Army Corps from enforcing the new definition, citing the Corps’ refusal to follow the required notice-and-comment procedures for new rules as set forth by the Administrative Procedure Act. The federal court further provided that the new rule be set aside until the Corps first engaged in appropriate notice-and-comment procedures, which it has never done. Despite the federal court ruling, the EPA and Army Corps continue to enforce the “underground” rule with impunity.
This has already been the case in Northern California, where the EPA and Corps presume that rice fields are jurisdictional wetlands unless the property owner agrees to prove otherwise, either through lengthy and expensive soil testing or by taking rice fields out of production and fallowing them for years. Unless the new EPA takes corrective action, there is no obstacle to federal agencies applying this precedent more broadly, including in major rice-growing states such as Texas, Louisiana, Mississippi, Arkansas and Missouri, as well as any other states that contain prior converted croplands.
As a result, farmers and ranchers confront significant declines in the value of their land, with potentially devastating economic consequences in farming and ranching states and throughout the national economy. The EPA and Army Corps have created and enforced an unauthorized, invalid and unlawful federal regulatory framework under which the agencies narrow the definition of prior converted croplands. Any project anywhere in the United States being planned on prior converted croplands actively used for agriculture production is potentially in danger, dependent on the whim of EPA officials and Corps project managers.
President Trump has a unique opportunity to protect America’s farmers and ranchers, and to right a legal, economic and historical wrong. The EPA should issue a policy determination that restores the original definition of prior converted croplands, converted prior to 1985, as excluded from the definition of “the waters of the United States.” As the Clinton administration effectively summarized in 1996, “once a PC, always a PC.”
To ensure longer-term compliance with this rule, Congress should enact legislation that restores the regulatory framework enshrined in the 1972 Clean Water Act and the 1993 Clinton Wetlands Plan, that prior converted croplands are not navigable waters of the United States and – regardless of use – are exempt from Section 404 regulation.