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The Hill: When farming requires federal permission
Imagine the federal government threatening you with a $62 million fine for making routine improvements to your own land.
It sounds like something out of an Orwell novel, but that was the reality facing Wyoming landowner David Hamilton. After purchasing a neglected farm near Worland, Hamilton set about restoring an irrigation ditch that had been used by local farmers for nearly a century.
He removed abandoned vehicles, appliances, and other debris that previous owners had used to combat erosion. He rebuilt the ditch’s banks and channel, and spent hundreds of thousands of dollars improving the property’s productivity and environmental condition.
Unfortunately, those efforts landed him in the crosshairs of the Environmental Protection Agency and the Army Corps of Engineers.
According to the federal government, Hamilton needed a permit under Section 404 of the Clean Water Act before making those improvements. Obtaining this permit is no small undertaking. The average applicant spends more than two years navigating the process and incurs hundreds of thousands of dollars in costs before receiving a decision.
Hamilton had good reason to believe he was exempt from those requirements. Congress specifically included a provision in the Clean Water Act, that exempts “normal farming, silviculture, and ranching activities” from the permitting program. Lawmakers recognized that ordinary agricultural practices should not be subjected to the same federal permitting regime that applies to activities affecting navigable waters. Hamilton’s efforts to restore an existing irrigation ditch and improve the productivity of his farm would seem to fit comfortably within Congress’s protection for normal farming activities.
So how did we reach a point where federal agencies are pursuing farmers and ranchers whom Congress explicitly intended to protect? The answer lies in decades of judicial decisions that steadily narrowed the scope of the exemption.
When Congress enacted the Clean Water Act in 1972, its goal was to protect the nation’s waters from pollution. One of its key tools was the Section 404 permitting program, which regulates the discharge of either dredged or fill material into federally regulated waters.
Farmers quickly warned that the program’s broad language risked sweeping in ordinary agricultural activity. Congress responded in 1977 by enacting Section 404(f), expressly exempting normal farming, ranching and forestry activities from permitting requirements.
Congress’s intent was clear. Unfortunately, many courts have not treated it that way.
The problem is perhaps best illustrated by the U.S. v. Akers case. There, a California farmer undertook drainage and land-improvement activities to make his property productive. Rather than treating those activities as protected farming practices, the court held that they were swept back into the federal permitting regime through the Clean Water Act’s recapture provision. Although Congress had intended that provision to address genuine conversions of waters to new uses, courts increasingly applied it in ways that narrowed the exemption for farmers and expanded federal authority over ordinary agricultural land-management decisions. The result was that the recapture provision often overshadowed the exemption itself.
Similar decisions involving landowners in Wisconsin, Louisiana, and elsewhere steadily narrowed the exemption’s reach and expanded federal authority over ordinary land-management decisions. The result has been to transform a statutory protection enacted by Congress into something far less meaningful in practice.
Fortunately, Congress is not powerless to correct the problem.
This month, Sen. Cynthia Lummis (R-Wyo.) introduced the Farmers and Ranchers Relief Act, a bill to restore the original understanding of the Section 404(f) exemption.
The bill is straightforward. It reaffirms Congress’s intent that normal farming, ranching and forestry activities remain outside the federal permitting system and instructs courts to construe the exemption liberally “in favor of not prohibiting, and not requiring a permit.” Rather than forcing landowners to overcome decades of judicial skepticism toward the exemption, the legislation would direct courts to resolve close cases in favor of preserving the protection Congress enacted.
That simple change would help reverse decades of judicial erosion and restore the protection Congress intended nearly 50 years ago. When there is uncertainty about whether routine agricultural activity requires federal permission, the benefit of the doubt should go to the landowner — not the bureaucracy.
The bill also offers a useful lesson for broader permitting reform efforts. As Congress considers ways to modernize America’s permitting system, lawmakers should look for opportunities to eliminate unnecessary barriers that impose significant costs while delivering little public benefit. Restoring the Section 404(f) exemption would be an important step in that direction.
No farmer, rancher or landowner should face ruinous penalties for engaging in activities that Congress intended to exempt from federal regulation. Lummis’s legislation would help restore the protections Congress enacted and ensure that courts give meaningful effect to the exemption rather than reading it out of existence.
Congress created the Section 404(f) exemption to ensure that ordinary farming activities would not require federal permission. Nearly 50 years later, Lummis’s legislation offers lawmakers an opportunity to restore that promise. Congress should seize it.
This op-ed was originally published in The Hill on July 30, 2026.
The post <em>The Hill</em>: When farming requires federal permission appeared first on Pacific Legal Foundation.
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