THE Environmental Protection Agency and U.S. Army Corps of Engineers proposed a rule March 25 that clarifies key exemptions and direction under the Clean Water Act (CWA).
For agricultural interests who have closely monitored how EPA will define "waters of the United States," the verdict looks less than favorable as far as whether EPA has struck the proper balance on the navigable waters proposal.
Determining CWA protection for streams and wetlands became confusing and complex following Supreme Court decisions in 2001 and 2006. The proposed rule does not protect any new types of waters that have not historically been covered under CWA and is consistent with the Supreme Court's narrower reading of CWA jurisdiction, the Corps and EPA said in a joint statement.
For the past three years, EPA and the Corps said they have listened to important input from the agriculture community regarding clarifications to CWA, and as such, "all agricultural exemptions and exclusions from Clean Water Act requirements that have existed for nearly 40 years have been retained with clarification."
EPA said any normal farming activity that does not result in a point source discharge of pollutants into waters of the U.S. still will not require a permit. Those activities include plowing, seeding, cultivating, minor drainage and harvesting for production of food, fiber and forest products, a fact sheet on the exemptions explained.
Chandler Goule, National Farmers Union senior vice president of programs, praised the draft rule, saying it clarifies CWA jurisdiction, maintains existing agricultural exemptions while adding new exemptions and encourages enrollment in U.S. Department of Agriculture conservation programs.
The proposal does appear to expand agency jurisdiction, however, by clarifying that seasonal and rain-dependent streams are protected and that wetlands near streams and rivers also are protected.
The National Cattlemen's Beef Assn. (NCBA) stated that almost all activities on its members' open land will now touch a "water of the United States" under the expanded definition. NCBA said, for the first time, ditches are included in the definition of a "tributary" and now will come under federal jurisdiction.
Activities near a jurisdictional ditch will now require a federal permit. Many cattle operations will be required to get Section 402 National Pollutant Discharge Elimination System permits, Section 404 Dredge & Fill permits or Section 311 Spill Prevention, Control & Countermeasure spill plans.
"This proposal by EPA and the Corps would require cattlemen like me to obtain costly and burdensome permits to take care of everyday chores like moving cattle across a wet pasture or cleaning out a dugout," NCBA president Bob McCan said. "This proposed regulation and the burdensome federal permitting scheme will only hinder producers' ability to undertake necessary tasks and, in turn, result in an exodus of ranchers from the field."
EPA and the Corps coordinated with USDA to ensure that 53 conservation practices that protect or improve water quality will not be subject to CWA Dredge & Fill permitting requirements. The agencies said they will work together to implement these new exemptions and will periodically review and update the conservation practice standards and activities of USDA's Natural Resources Conservation Service that would qualify under the exemption.
Any agricultural activity that does not result in the discharge of a pollutant to waters of the U.S. still will not require a permit, EPA reiterated.
An industry source who has worked closely on the water regulatory scene for major agricultural groups said the basic concerns the agriculture industry had with the draft proposal leaked last fall still remain.
If water is moving through drainage features and makes it into other waters, it could fall under EPA's jurisdiction, the source said, so "it's hard to understand where there's any kind of limit to EPA and Corps of Engineers jurisdiction."
The source added that the industry is in a "serious learning mode" and hopes to sit down with EPA soon to run through some maps of farmland in upland areas and see whether various drainage features will or will not be jurisdictional waters under CWA.
"I remain concerned about what will be considered an ephemeral stream in farming areas and how that will interact with the drainage ditches that permeate everywhere," he said.
He added that if farmers' conservation practices are exempt, the features themselves could be considered waters of the U.S., carrying significant regulatory implications.
The proposed rule will be open for public comment for 90 days from publication in the Federal Register. The interpretive rule for agricultural activities is effective immediately. For more information on the rule, visit www.epa.gov/uswaters.