WHAT defines navigable water, and what will need to be regulated? Those are the major questions the Environmental Protection Agency is looking to establish in a draft report and proposed rule that have agricultural groups and some other government agencies troubled.
EPA said recent decisions of the Supreme Court have underscored the need for EPA and the public to better understand the connectivity or isolation of streams and wetlands relative to larger water bodies such as rivers, lakes, estuaries and oceans and to use that understanding to underpin regulatory actions and increase certainty among various Clean Water Act (CWA) stakeholders.
EPA sent a draft scientific report, titled "Connectivity of Streams & Wetlands to Downstream Waters: A Review & Synthesis of the Scientific Evidence," about the connectivity of waterways, to a Science Advisory Board Panel for review.
In addition to the release of the report, EPA, along with the Army Corps of Engineers, sent a draft rule to clarify the jurisdiction of CWA to the Office of Management & Budget for interagency review.
The draft EPA "Waterbody Connectivity Report" under review will form the basis for CWA regulation of pollution across the nation. Public comments on the report will be accepted through Nov. 6, and public meetings will be held in December.
National Farmers Union (NFU) president Roger Johnson said he was pleased with the announcement, specifically since agricultural activities named in CWA remain exempt from jurisdiction or permitting.
"NFU also supports the EPA deferring to state laws to regulate bodies of water that are fully contained within a state and are not suitable for transportation," Johnson said.
In its announcement, EPA said exemptions will continue for agricultural stormwater discharges, return flows from irrigated agriculture, normal farming and ranching activities, construction and maintenance of farm or stock ponds or irrigation ditches, upland soil and water conservation practices and construction or maintenance of farm roads.
EPA said it "does not propose changes to existing regulatory exemptions and exclusions, including those that apply to the agriculture sector."
Specifically, EPA said it and the Corps are interested in enhancing the ability of CWA and the U.S. Department of Agriculture's conservation programs to work in tandem to protect water quality and improve the environment by encouraging expanded participation in conservation programs by farmers and ranchers.
EPA said it will do so by providing greater clarity on which waters are not subject to CWA jurisdiction and greater certainty on which activities do not require CWA permits.
National Corn Growers Assn. (NCGA) president Pam Johnson said the organization's members want to ensure that long-standing agricultural exemptions will be included in the final version and added that NCGA is working with USDA and EPA on this issue.
Don Parrish, senior director of environmental regulatory affairs at the American Farm Bureau Federation, said farmers will end up having to fend for themselves if EPA comes knocking with additional regulations.
Even though EPA is saying it will regulate only what is aquatic in nature, the Corps was directed by EPA to make it much more encompassing.
He said USDA and the U.S. Department of Transportation have some concerns about how broadly the rule is written.
The notion that in order to protect things downstream, then waters upstream must be regulated, Parrish said sets up a situation in which ditches and low places where water fills in after rain events will be treated the same as streams.
Parrish said, "I don't think farmers have a problem with protecting aquatic resources, but if they don't know where their ephemeral waters are, stop and think about where water exists after a rainfall": That's what's at stake if EPA goes all the way on this rule, he added.
Parrish explained that livestock operators may be limited on when and where they can put down manure. Additional pesticide permits would likely be required.
In a statement, NCGA said it has opposed removing the term "navigable" from CWA through the legislative process.
"While the proposed rule is not an amendment to the CWA, there are concerns within the agriculture community that this administrative action is intended to expand the scope of federal authority in a similar way," NCGA explained.