Clean Water Act: A Bare-Bones Primer
Federal regulations and numerous federal court cases have established that practices which are legal and do not require a under the Clean Water Act (CWA) farming exemptions, are actually illegal without those exemptions.
On its face, the Clean Water Act (CWA) is very clear about that a violation consists of:
- Discharge of,
- A pollutant into,
- Waters of the United States.
Permits and Exemptions Legalize Pollution
The CWA does legalize pollution in two cases:
- If a permit is first obtained from the U.S. Army Corps of Engineers, or
- If a farming exemption applies.
With no exemption, many ordinary farming practices can be prosecuted if a farmer does not have a permit. (Clean Water Act Permits: Expensive, time-consuming, uncertain).
Also the EPA and U.S. Army Corps of Engineers regulations governing eligibility for the exemptions require, at a minimum, that all of the following apply to a specific field or parcel of farmland:
- There exists an ongoing and established farming operation for a long (but not specified) period of years
- That “normal” farming practices are employed. The meaning of “normal” is not specified.
- That the type of farming in that specific field or parcel of land has not been “converted.” Conversion includes such things as changing from grazing to row crops, row crops to vineyards, forest to orchards, grazing to forest or other various land use combinations.
- That any land that is part of the Waters of the United States (WOTUS) has not been filled, destroyed or converted to agriculture. WOTUS includes wetlands, but also shallow, seasonal and “ephemeral” stream beds and depressions that are dry except during rainy season.
See Ag exemptions to the CWA law and as interpreted by Courts, EPA & Army Corps of Engineers for more.