EPA withdraws portion of WOTUS

Interpretive rule intended to clarify normal farming activities exempt from the Clean Water Act pulled by EPA.

The Environmental Protection Agency has withdrawn a portion of it its controversial Waters of the U.S. with the removal of the interpretive rule, likely resulting from Congress’s action within the cromnibus spending bill which included a rider to do exactly that.

Last spring the EPA proposed an expanded definition of what constitutes a water of the U.S., and also included an interpretive rule that went into effect immediately detailing agricultural exemptions to the Clean Water Act permitting requirements and pertained to Natural Resource Conservation Service (NRCS) approved practices. The interpretive rule was intended to clarify normal farming activities exempt from the Clean Water Act, but soon groups began to fear it would change the role of NRCS and actually muddy the waters of what was and wasn’t allowed.

The EPA guidance, officially called an Interpretive Rule, was issued in March 2014. It said farmers are only exempt from needing Clean Water Act permits for more than 50 routine farming practices if they comply with detailed NRCS technical conservation standards. Historically, these standards have been voluntary, and the farming practices exempt from the permit process.

In a memo from the EPA and the U.S. Department of Army, the agencies formally withdrew the interpretive rule and also withdrew the Memorandum of Understanding signed by the EPA, Army Corp and U.S. Department of Agriculture.

Last summer the National Milk Producers Federation has requested that the interpretive rule be withdrawn saying it could have actually discouraged water conservation and environmental best practices.

“Our concern with the initial proposal from last year is that it could have altered the long-standing and productive relationship between farmers and the USDA’s Natural Resources Conservation Service, in a way that would have made it harder for farmers to implement water conservation measures,” said Jamie Jonker, NMPF’s vice president for sustainability & scientific affairs.

In comments filed last July, NMPF said the guidance changes NRCS’s role from that of a conservation partner to that of an enforcer of the Clean Water Act, on EPA’s behalf. Had the interpretive rule not been withdrawn, “the NRCS would have been thrust into the role of enforcer, rather than remaining a source from which farmers could seek conservation advice. This could have hindered rather than helped conservation efforts,” he said.

“Farmers have a lot of concerns about WOTUS,” said Maryland farmer Chip Bowling, president of the National Corn Growers Assn. “What we need is clarity. The interpretive rule actually made things less clear. We hope that the withdrawal of the interpretive rule will allow us to get to the true matter at hand: how the Clean Water Act is administered.”

Bowling has invited EPA officials to his farm and said it’s been a productive conversation in helping tell the true impacts of the rule.

NCGA said a final rule is expected this spring.

“We need to continue that dialogue, on WOTUS and beyond. We can all agree that clean water is important. Farmers are committed to improving water quality and conservation practices. We look forward to working with Administrator McCarthy and the EPA as they finalize the WOTUS rule, to ensure it is clear and workable for farmers,” Bowling said.

Agricultural groups have been attempting to have the entire rule withdrawn, saying the proposal is a “federal land grab” and greatly expands jurisdiction over private property. Last year the U.S. House of Representatives passed bipartisan legislation to prohibit the EPA and the Army Corps from developing, finalizing, adopting, implementing, applying, administering or enforcing the proposed rule to or any similar rule that would expand the agencies’ jurisdiction over these waters. The Senate had proposed a bill, but never brought it up for a full chamber vote.

Rep. Kristi Noem (R., S.D.) was “thrilled” to see a portion of the proposed rule withdrawn, but also stated “we aren’t out of the woods yet.”

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