EPA takes another step in defining waterways

Broad interpretation could require any water that shows up after rainfall be subject to EPA oversight under Clean Water Act.

What defines navigable water and what will need to be regulated? That's the major question that the Environmental Protection Agency is looking to establish in a draft report and proposed rule that has agricultural groups and some other government agencies troubled.

EPA sent a draft scientific report, entitled Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence,  about the connectivity of waterways to a Science Advisory Board (“SAB”) Panel for review and announced a proposed rulemaking to define waters of the United States under the Clean Water Act.  For now the rule is being passed around interagency, and isn't available to the public.

The Draft EPA Waterbody Connectivity Report under review will form the basis for Clean Water Act regulation of pollution across the nation. Public comments on the Report will be accepted through November 6, 2013 and public meetings will be held in December of 2013. 

A statement from the National Farmers Union said that "according to EPA, the proposed rule is limited to clarifying current uncertainty concerning the jurisdiction of the Clean Water Act that has arisen as an outgrowth of recent Supreme Court decisions; it does not propose changes to existing regulatory exemptions and exclusions, including those that apply to the agricultural sector that ensure the continuing production of food, fiber and fuel to the benefit of all Americans."

However, Don Parrish, senior director of environmental regulatory affairs at the American Farm Bureau Federation, said that although EPA is saying it will only regulate what is aquatic in nature, the Army Corps of Engineers was directed to make it much more encompassing. He said the U.S. Department of Agriculture and 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 where ditches and low places where water fills in after rain events will be treated the same as streams.

"I don't think farmers have a problem with protecting aquatic resources," Parrish said. "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 manure down. Additional pesticide permits would likely be required.

"This is huge. This is a land grab is what it is," Parrish stated. If farmers aren't okay with having those areas where water exists following a rainfall, they need to get involved by contact members of Congress and the Administration.

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