EPA clarifies Clean Water Act ag exemptions

Previous agricultural exemptions remain, however, ag industry cautions expansion of EPA's jurisdiction.

The U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers proposed a rule Tuesday that clarifies key exemptions and direction under the Clean Water Act. For agricultural interests who have closely monitored how EPA would define navigable waters, the verdict is still out on whether EPA indeed has struck the proper balance on the proposal.

Determining Clean Water Act protection for streams and wetlands became confusing and complex following Supreme Court decisions in 2001 and 2006. The rule does not protect any new types of waters that have not historically been covered under the Clean Water Act and is consistent with the Supreme Court’s more narrow reading of Clean Water Act jurisdiction, the government agencies said in a joint statement.

For the past three years, EPA and the Army Corps said they have listened to important input from the agriculture community regarding to clarifications to the Clean Water Act. 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 does 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 detailed.

Chandler Goule, National Farmers Union senior vice president of programs, said NFU has long advocated for increased certainty surrounding Clean Water Act requirements for family farmers and ranchers in the wake of complicating Supreme Court decisions. The draft rule clarifies Clean Water Act jurisdiction, maintains existing agricultural exemptions and adds new exemptions, and encourages enrollment in U.S. Department of Agriculture conservation programs. 

“In addition, farmers and ranchers who are voluntarily enacting certain conservation practices on their farms will be exempt from Clean Water Act Section 404 permitting requirements,” Goule said.

Through coordination with USDA, EPA and the Army Corps have ensured that 53 conservation practices that protect or improve water quality will not be subject to Clean Water Act dredge and fill permitting requirements. The agencies said they will work together to implement these new exemptions and periodically review, and update USDA’s Natural Resources Conservation Service conservation practice standards and activities that would qualify under the exemption. Any agriculture activity that does not result in the discharge of a pollutant to waters of the U.S. still does not require a permit, EPA said.

An industry source, who has closely worked on the water regulatory scene for major agricultural groups, said that the basic problems that agriculture was worried about with the leaked draft proposal last fall remain.

If water is moving through drainage features and makes it into other waters, it could fall under EPA’s jurisdiction still, the source said. “It’s hard to understand where there’s any kind of limit to EPA and Corps’ of Engineers’ jurisdiction.”

He added that if farmers’ conservation practices are exempt, the features themselves could be considered being waters of the United States which carries 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.

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