Bridging Responsible Agricultural Conservation Efforts Act

I 116TH CONGRESS 2D SESSION H. R. 5799 To amend the Federal Water Pollution Control Act with respect to normal farming activities and to require the Corps of Engineers and the Environ- mental Protection Agency to apply certain decisions of the Secretary of Agriculture when enforcing such Act, and for other purposes. IN THE HOUSE OF REPRESENTATIVES FEBRUARY 7, 2020 Mr. THOMPSON of Pennsylvania (for himself and Mr. PETERSON) introduced the following bill; which was referred to the Committee on Transportation and Infrastructure A BILL To amend the Federal Water Pollution Control Act with respect to normal farming activities and to require the Corps of Engineers and the Environmental Protection Agency to apply certain decisions of the Secretary of Agriculture when enforcing such Act, and for other pur- poses. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Bridging Responsible 4 Agricultural Conservation Efforts Act’’. 5 VerDate Sep 11 2014 04:02 Feb 11, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H5799.IH H5799 kjohnson on DSK79L0C42PROD with BILLS 2 •HR 5799 IH SEC. 2. DEFINITIONS. 1 In this Act: 2 (1) ADMINISTRATOR.—The term ‘‘Adminis- 3 trator’’ means the Administrator of the Environ- 4 mental Protection Agency. 5 (2) CHIEF OF ENGINEERS.—The term ‘‘Chief of 6 Engineers’’ means the Secretary of the Army, acting 7 through the Chief of Engineers. 8 (3) SECRETARY.—The term ‘‘Secretary’’ means 9 the Secretary of Agriculture. 10 SEC. 3. NORMAL FARMING ACTIVITIES. 11 (a) IN GENERAL.—Section 404(f)(1)(A) of the Fed- 12 eral Water Pollution Control Act (33 U.S.C. 13 1344(f)(1)(A)) is amended by striking ‘‘or upland soil and 14 water conservation practices’’ and inserting ‘‘upland soil 15 and water conservation practices (including changing con- 16 servation systems), crop changes for soil management (in- 17 cluding the use of haying and pasturing for the purpose 18 of harvest or grazing), or activities and practices employed 19 for purposes of expanding production in an operation’’. 20 (b) DEADLINE.—Not later than 12 months after the 21 date of enactment of this Act, the Administrator and the 22 Chief of Engineers, jointly with the Secretary, shall issue 23 a rule to revise the regulations implementing section 404 24 of the Federal Water Pollution Control Act to reflect the 25 amendment made by subsection (a). The rule shall also 26 VerDate Sep 11 2014 04:02 Feb 11, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H5799.IH H5799 kjohnson on DSK79L0C42PROD with BILLS 3 •HR 5799 IH include activities and practices employed for purposes of 1 expanding production in an operation, changing crops pro- 2 duced in an operation, and changing conservation systems 3 in an operation. 4 SEC. 4. APPLICATION OF FOOD SECURITY ACT OF 1985 TO 5 FEDERAL WATER POLLUTION CONTROL ACT 6 ENFORCEMENT. 7 (a) SECRETARY OF AGRICULTURE DECISIONS.— 8 (1) PRIOR CONVERTED CROPLAND.— 9 (A) EFFECT OF DETERMINATION.—For 10 purposes of section 404 of the Federal Water 11 Pollution Control Act, the Chief of Engineers 12 and the Administrator shall consider land to be 13 prior converted cropland if the land has, at any 14 time, been determined by the Secretary to be 15 prior-converted cropland or commenced-conver- 16 sion wetland under the Food Security Act of 17 1985. 18 (B) NO ABANDONMENT.—In carrying out 19 subparagraph (A), the Chief of Engineers and 20 the Administrator may not consider any deter- 21 mination by the Secretary under the Food Se- 22 curity Act of 1985 that land previously deter- 23 mined to be prior-converted cropland or com- 24 VerDate Sep 11 2014 04:02 Feb 11, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H5799.IH H5799 kjohnson on DSK79L0C42PROD with BILLS 4 •HR 5799 IH menced-conversion wetland has reverted to wet- 1 land due to abandonment. 2 (2) WETLANDS.—For any land with respect to 3 which the Secretary has made a wetland delineation, 4 determination, or certification under section 1222 of 5 the Food Security Act of 1985, the Chief of Engi- 6 neers and the Administrator shall apply such delin- 7 eation, determination, or certification when carrying 8 out section 404 of the Federal Water Pollution Con- 9 trol Act. 10 (b) WATERS OF THE UNITED STATES.—For pur- 11 poses of the Federal Water Pollution Control Act, prior 12 converted croplands under subsection (a)(1), and any par- 13 cel of land that is contiguous to, and owned by the same 14 owner as, such prior converted croplands, are not waters 15 of the United States. 16 (c) RELIANCE.—The first sentence of section 17 1222(a)(6) of the Food Security Act of 1985 shall apply 18 to enforcement actions under section 404 of the Federal 19 Water Pollution Control Act. 20 (d) JUDICIAL REVIEW.—Notwithstanding section 21 706 of title 5, United States Code, a court reviewing any 22 agency action of the Secretary, the Chief of Engineers, 23 or the Administrator that is affected by this section shall 24 decide de novo all relevant questions of law, including the 25 VerDate Sep 11 2014 04:02 Feb 11, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H5799.IH H5799 kjohnson on DSK79L0C42PROD with BILLS 5 •HR 5799 IH interpretation of constitutional and statutory provisions, 1 and rules made. If the reviewing court determines that a 2 statutory or regulatory provision relevant to its decision 3 contains a gap or ambiguity, the court shall not interpret 4 that gap or ambiguity as an implicit delegation of legisla- 5 tive rule making authority and shall not rely on such gap 6 or ambiguity as a justification either for interpreting agen- 7 cy authority expansively or for deferring to any interpreta- 8 tion of the Secretary, the Chief of Engineers, or the Ad- 9 ministrator on the question of law. Notwithstanding any 10 other provision of law, this subsection shall apply in any 11 action for judicial review of such an agency action author- 12 ized under any provision of law. No law may exempt any 13 civil action for review of such an agency action from the 14 application of this subsection except by specific reference 15 to this subsection. 16 Æ VerDate Sep 11 2014 04:02 Feb 11, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6301 E:\BILLS\H5799.IH H5799 kjohnson on DSK79L0C42PROD with BILLS