A PCC Conundrum
Prior converted croplands (PCC), are a complex and often difficult-to-understand corner of the CWA. The concept is, in gross summary, that where any wetlands were converted to farmland before 1985 it is OK to keep farming, but they lose that exemption from regulation if you stop farming. Simple enough. The exemption, which is nowhere to be found in the CWA Section 404(f) exemptions, snuck into the EPA/Corps regs via the Food Security Act in an effort to harmonize the two regulatory schemes. At the time it first started, the exemption ended when a farmer stopped farming. That's important because a developer couldn't come along and start building in wetland arguing that it's now exempt. The relevant FSA language is set out below.
This is important because the new WOTUS rule says that the exemption is lost only if the farmland has been abandoned for five or more years. See 33 C.F.R. § 328.3(9) (def. of PCC). If a farmer stops farming in 2020, the land is exempt from the definition of WOTUS until 2025. That makes it pretty easy to develop the land.
Talking to a colleague recently, the question arises, can EPA and the Corps create a categorical exclusion from regulation under the CWA without express statutory authority? The courts have generally taken a dim view of categorical exclusions. The original PCC definition arguable is authorized by the FSA, although even that is a stretch. The new definition is only tenuously connected to the original congressional statement in the FSA. Is is legal? Comments on this would be welcome.
16 U.S.C. § 3822(b) (Exemptions. No person shall become ineligible under section 3821 of this title for program loans or payments under the following circumstances:
(1) As the result of the production of an agricultural commodity on the following lands:
(A) A converted wetland if the conversion of the wetland was commenced before December 23, 1985.
. . . .
(G) A converted wetland if the original conversion of the wetland was commenced before December 23, 1985, and the Secretary determines the wetland characteristics returned after that date as a result of— (i)
the lack of maintenance of drainage, dikes, levees, or similar structures; (ii) a lack of management of the lands containing the wetland; or(iii) circumstances beyond the control of the person.)
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