Imagine facing a $62 million fine for enhancing your own land. This was the daunting reality for Wyoming landowner David Hamilton. After buying a neglected farm near Worland, Hamilton aimed to restore an irrigation ditch used by local farmers for nearly 100 years. He removed debris like abandoned vehicles and appliances that previous owners used to fight erosion. He rebuilt the ditch’s banks and channel, spending large sums to boost the property’s productivity and environmental health.
Unfortunately, these efforts led to trouble with the Environmental Protection Agency and the Army Corps of Engineers. They claimed Hamilton needed a Section 404 permit under the Clean Water Act before starting improvements. Obtaining this permit involves navigating a process that typically lasts over two years and costs hundreds of thousands of dollars.
Hamilton believed he was exempt from these requirements. Congress included an exemption in the Clean Water Act for “normal farming, silviculture, and ranching activities.” This provision recognized that routine agricultural practices should not face the same federal permitting rules as activities affecting navigable waters. Restoring an existing irrigation ditch should seemingly fall under this exemption.
The situation reflects how decades of legal decisions have narrowed this exemption. The Clean Water Act, enacted in 1972, aimed to guard the nation’s waters against pollution. A key mechanism was the Section 404 permitting program regulating the discharge of dredged or fill material into federally controlled waters. Shortly after, farmers warned that broad language could include typical agricultural activities. In response, Congress added Section 404(f) in 1977, exempting regular farming, ranching, and forestry tasks from permits.
Nevertheless, courts have not consistently honored Congress’s intent. The U.S. v. Akers case exemplifies this issue. A California farmer conducted drainage and land-improvement activities, yet the court ruled these actions required permitting under the Clean Water Act’s recapture provision. This provision, initially meant to cover real conversions of waters to new uses, has been broadened by courts, thereby lessening the exemption for farmers.
Similar rulings in states like Wisconsin and Louisiana reduced the exemption’s reach, expanding federal control over standard land-management choices. Aimed at protecting landowners, the statutory exemption became less meaningful.
Fortunately, Congress can rectify this. Sen. Cynthia Lummis (R-Wyo.) recently introduced the Farmers and Ranchers Relief Act. This bill seeks to return to the original intent of the Section 404(f) exemption. It affirms Congress’s goal to exclude regular farming, ranching, and forestry tasks from needing federal permits. It directs courts to interpret the exemption favorably, resolving doubtful situations to benefit landowners instead of bureaucracy.
This legislative clarification can reverse years of judicial erosion, reinstating the protection Congress intended. When uncertainty exists about whether standard agricultural actions need federal permission, the benefit should go to the landowner.
The bill serves as a lesson for broader permitting reform. In considering how to upgrade America’s permitting system, Congress should find ways to remove unnecessary barriers imposing high costs with minimal public gain. Restoring the Section 404(f) exemption is a crucial step.
No farmer or rancher should face severe penalties for activities Congress meant to exempt from regulation. Lummis’s bill could restore protections and ensure courts honor the exemption rather than diminish it. With the exemption created to safeguard normal farming activities from needing permits, Lummis’s bill offers Congress a chance to uphold that promise.
Damien Schiff is a senior attorney in Pacific Legal Foundation’s Environment and Natural Resources practice. John Nagle is a federal policy manager at the Pacific Legal Foundation.