Often bound up in controversy, wetlands are argued and fought over, coveted or loathed, depending on your perspective of what is ‘appropriate’ land use. Any way you look at it, the topic is attracting lots of attention.
Farmers are accustomed to being buffeted by forces beyond their control, such as pests, drought, floods, tornados, rainfall that comes too early or too late, or frost that makes a surprise encore appearance in the spring or a too-early arrival in autumn. But, as farmers, they have signed up for what nature provides and accept it as part of rural life. They can be troubled by diesel prices, commodity prices, interest rates, and trade policy, but absorb such challenges with stoicism. Some farmers face additional challenges because their land is saturated and poorly drained or because it contains wetlands that interfere with farming, yet the land provides a rich ecosystem, primarily for waterfowl. The tension between environmental interests and improving agricultural productivity by drainage has existed for decades. This tension is examined in this article by providing an overview of wetlands and their importance and then discussing four issues in which federal environmental law can play a pronounced role in a farmer’s land management decisions.
The first issue concerns the federal government’s acquisition of thousands of easements to preserve wetlands as waterfowl habitat. While the number of easements managed by the U.S. Fish & Wildlife Service is known, the acreage covered is less certain, leading to disputes with farmers over the geographic scope of the easements. Further, wetland easements issued by landowners supply the Fish & Wildlife Service with “bootstrapping” opportunities, allowing it to assert regulatory interests over not only the protected wetland, but also over the landowner’s activities on land adjacent to the wetland as well as activities on a neighbor’s land the Fish & Wildlife Service believe adversely affect its wetland easement.
The second issue is the reach of the Migratory Bird Treaty Act of 1918, which is clearly directed at hunters and poachers and prohibits killing, taking, and capturing migratory birds. However, what is less clear is the 1918 Act’s application to indirect adverse effects on migratory birds, specifically actions by farmers that may affect bird habitat. While courts have not specifically addressed this issue, some commentators believe federal officials could rely on the 1918 Act to prohibit draining or filling wetlands.
The third issue concerns the “waters of the United States” (WOTUS) rule. What a farmer does with water on his or her land can affect others because water travels, and to ensure the effects are largely benign, the U.S. Environmental Protection Agency (EPA) and the U.S. Corps of Engineers (Corps) recently adopted the WOTUS rule that grants these agencies greater authority to regulate private property. Depending on who you ask, the rule is a huge land grab, does not go far enough, or merely clarifies the scope of Clean Water Act and U.S. Supreme Court decisions interpreting the Act. Arguments of those filing suits challenging the EPA’s and the Corps’ authority to enact the rule had enough merit to cause the Sixth Circuit Court of Appeals and a district court in North Dakota to enjoin the rule’s implementation pending resolution of those challenges. This issue is currently taking form, and if the form sought by the federal government is attained, farmers will be subject to even greater federal agency involvement in land management decisions.
The fourth issue deals with potential liability farmers may owe downstream interests for moving water off poorly drained land. In a lawsuit filed in 2015, the city of Des Moines claims that agricultural drainage of land many miles from Des Moines increases nitrate levels in the river that supplies some of the city’s drinking water. Nitrate removal to purify water can be expensive, and Des Moines does not believe it should have to pay the entire cost when high nitrate levels, according to the city, are caused by agricultural drainage. The city relies on the Federal Clean Water Act, which regulates point sources of pollution, to seek a court order requiring substantial reductions in nitrate discharges by Iowa farmers.
As these four issues reveal, landowners, particularly farmers, with surface water or saturated lands face ongoing challenges in maintaining control over how their land is managed and used, and depending on how these issues are ultimately resolved, could face a burdensome regulatory regime.