In a joint announcement Tuesday, the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers released a proposed rule that would clarify the definition of waters of the U.S. under the Clean Water Act.
The proposed rule release kicks off a 90-day "robust outreach effort" that will include discussions with stakeholders to determine a final rule, EPA said.
According to EPA, the proposed 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.
Specifically, the proposed rule clarifies that under the Clean Water Act, most seasonal and rain-dependent streams are protected; Wetlands near rivers and streams are protected; and other types of waters may have more uncertain connections with downstream water and protection will be evaluated through a "case specific analysis of whether the connection is or is not significant."
In the request for comment, EPA says it is seeking more input on options to protect similarly situated waters in certain geographic areas or adding to the categories of waters protected without case-specific analysis.
'A step too far'
The rule comes after more than a decade of discussion among municipalities, agriculture and other industries regarding Clean Water Act protection for streams and wetlands. Confusion was underscored by a Supreme Court decision that suggested limits on federal jurisdiction of water, says National Cattlemen's Beef Association environmental counsel Ashley McDonald.
"The Supreme Court has said that [water] has to have a significant nexus to navigable waters to be jurisdictional," McDonald said Tuesday. "Of course EPA here has basically said that everything has a nexus and everything's going to be jurisdictional – which clearly shows us that they believe that there is no limit to federal jurisdiction."
The states are supposed to be the primary implementers, enforcers of the Clean Water Act," McDonald added. "This takes all authority away from the states and makes all waters federal. It's Congress that needs to clarify exactly what a water of the United States is, not the agency."
Ag exemptions preserved
The proposed rule preserves the Clean Water Act exemptions and exclusions for agriculture, EPA said. Those CWA permitting exemptions include ag stormwater discharges, maintenance of drainage or irrigation ditches, normal farming and ranching activities, and several others.
Additionally, EPA and the Army Corps said they coordinated with the USDA to develop an interpretive rule to ensure that 53 specific conservation practices that protect or improve water quality will not be subject to Section 404 dredged or fill permitting requirements. It will be effective immediately.
EPA said the agencies plan to 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 point source discharge of a pollutant to waters of the U.S. still does not require a permit, EPA said.
In response to protections for conservation efforts, Chandler Goule, National Farmers Union senior vice president of programs, said the draft rule encourages conservation enrollment and provides welcome clarification following several years of confusion.
"Today's ag-friendly announcement clearly indicates that NFU and other agricultural stakeholders made their voices heard, and EPA took notice," Goule commented in a released statement.
Several conservation groups also supported the changes, including Ducks Unlimited, the Theodore Roosevelt Conservation Partnership and the Izaak Walton League.
"The release of the draft rule gets us one step closer to better defining Clean Water Act regulations in regard to wetlands," explained DU CEO Dale Hall. "EPA's draft science report last year showed many categories of wetlands, including prairie potholes, may be geographically isolated but are still connected to, and have a significant impact on, downstream waters."
Despite the protections afforded to conservation and other agricultural practices, NCBA's McDonald argued that the proposed rule water definition is really the concerning factor. Under the proposed rule, she said, EPA could consider anything in a flood plain – including pastures – as a water of the U.S.
"Anybody that has any common sense knows that if you define anything in floodplain as being a water of the United States that has the capacity to hold water, you are really going to shut down a lot of productive activity on that land," she said, "so it's very costly, it's going to be very time-consuming, and it's going to be a big headache for producers across the country."
The proposed rule will be open for public comment for 90 days from publication in the Federal Register.
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