EPA and Army Corps announce water protection rule

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The U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Army Corps) yesterday jointly released a proposed new rule to clarify protection or enforcement of the Clean Water Act (CWA) for streams and wetlands.

“The proposed rule will benefit businesses by increasing efficiency in determining coverage of the Clean Water Act. The agencies are launching a robust outreach effort that will extend more than 90 days, holding discussions around the country and gathering input needed to shape a final rule,” the announcement explained.

Once the proposed rule is published in the Federal Registry, comments will be accepted for 90 days. It is common for publication in the Federal Registry to take a few weeks, but comments are already being taken to the rule as it has been posted on the EPA and the Army Corps websites.

The EPA and Army Corps claim that determining CWA protection for streams and wetlands became confusing and complex following Supreme Court decisions in 2001 and 2006, and nearly every business and the general public, including farmers, have wanted clarity of how and to what waters the Clean Water Act pertains.

Ag Group Concerns

The jointly proposed rule’s definitions of protected waters will apply to all Clean Water Act programs. Groups including the Agricultural Retailers Association and American Farm Bureau Federation have expressed concern that the proposed rule could overstep the bounds of the CWA. These groups concerned about new rulemaking have been working with Congress to make sure the water covered is navigable streams and continuously flowing waterways.

During a media conference yesterday, March 25, Gina McCarthy, U.S. EPA administrator, said, “It (the rule) does not expand the Clean Water Act. I repeat, it does not protect any new types of water that has not been historically covered under the Clean Water Act. We know how vital water is to America’s farmers and ranchers. Some in the agriculture community think that a new rule might mean expansion to all waters. As I’ve explained, that simply is not the case.

“For the past three years, the EPA and Army Corps have listened to the concerns and advice from states, local governments, the agriculture community and more. I often say our farmers and ranchers are our original conservationists, and the EPA has worked on and on with the Department of Agriculture to make sure we are addressing farmers’ concerns up front.

“This rule will not regulate groundwater or tile drainage systems. It will not increase regulations of ditches whether they are irrigation or drainage. It can be clear that this rule keeps in tact existing Clean Water Act exemptions for agricultural activities, but it does more for farmers than that. It actually expands those exemptions.

“We worked with USDA’s Natural Resource Conservation Service and the Army Corps to exempt 53 additional conservation practices. These practices will be familiar to farmers; they understand their benefits to business and the environment. It’s also a benefit to clean water. These practices are a win-win.”    

Talking Need to Protect All

McCarthy quickly noted in the news release separate from the media conference, “We are clarifying protection for the upstream waters that are absolutely vital to downstream communities. Clean water is essential to every single American, from families who rely on safe places to swim and healthy fish to eat, to farmers who need abundant and reliable sources of water to grow their crops, to hunters and fishermen who depend on healthy waters for recreation and their work, and to businesses that need a steady supply of water for operations.”

Jo Ellen Darcy, assistant secretary of the Army (Civil Works/Corps) suggested “the rulemaking will strengthen the consistency, predictability and transparency of our jurisdictional determinations.”

Ray McCormick, an Indiana farmer, spoke in support of the new rule, during the media conference. He said, “Many of the practices that are implemented as part of our USDA NRCS programs provide partnerships between farmers and ranchers and the conservation community. And this will always be the cornerstone to a voluntary approach to successfully protecting our nation’s water quality.”

In ending, he said, “While exemptions and exclusions are privileges no other industry enjoys, they aren’t nearly as important as the value clean water means to agriculture, wildlife, livestock, crops and families.”

The fourth speaker was Whit Fosburgh, president and CEO of the Theodore Roosevelt Conservation Partnership. He contends that the new rule puts back protection to waters taken away after the Supreme Court rulings. Talking on behalf of his organization, he said. “Honestly, if there is one thing we think about in regard to this rule, we wish it would have been a little bit stronger to protect a lot of those isolated wetlands that are not going to be covered and will be dealt with case by case. We look forward to the rule-making process actually making it a little bit stronger than what has been proposed at this time.”

Looking at Seasonal Streams

It would appear that seasonal streams are one bone of contention between the new rule and what agriculture has asked to be exempt from enforcement. The announcement of the rule pointed out that “about 60 percent of stream miles in the U.S only flow seasonally or after rain, but have a considerable impact on the downstream waters. And approximately 117 million people—one in three Americans—get drinking water from public systems that rely in part on these streams. These are important waterways for which EPA and the Army Corps is clarifying protection.”

Specifically, the proposed rule supposedly clarifies the steams covered under the Clean Water Act based on science. 

Rule proposals include:

  • Most seasonal and rain-dependent streams being protected.
  • Wetlands near rivers and streams being protected.
  • 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. However, to provide more certainty, the proposal requests comment on options protecting similarly situated waters in certain geographic areas or adding to the categories of waters protected without case specific analysis.

McCarthy tried to assure the media listening to her presentation that waters from fields must have a “significant nexus,” alone or in combination with other similar waters to a traditional navigable water, before coming under scrutiny of the EPA. “We went to a great extent to be very thorough that it is not just about connections but it is about whether or not the water in question would significantly affect or alter the physical, biological or chemical integrity of waters that are clearly jurisdictional. So, we do define in this rule significant nexus, and we certainly will take comment on that. So, it isn’t just that you do a case by case review to establish a connection, but there clearly needs to be a potential impact.”

Even More Ag-Related Topics

EPA and the Army Corps coordinated with the USDA to develop an interpretive rule to ensure that 53 specific conservation practices implemented, as noted by McCarthy, will not be subject to Section 404 dredged or fill permitting requirements. The agencies will work together to implement these new exemptions and periodically review, and update USDA’s NRCS conservation practice standards and activities that would qualify under the exemption, it was announced.

Then here still is another possible big contention between the rulemakers and agriculture. “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,” the explanation of the rule noted. But of course, runoff of any fertilizer is discharge of a pollutant.

The proposed rule also “helps states and tribes” because “36 states have legal limitations on their ability to fully protect waters that aren’t covered by the Clean Water Act,” it is suggested.

The rulemakers claim to be backed by peer-reviewed science, and those reviews are continuing. Forty years ago, two-thirds of America’s lakes, rivers and coastal waters were unsafe for fishing and swimming. Because of the Clean Water Act, that number has been cut in half. However, one-third of the nation’s waters still do not meet standards, and the EPA, USDA and Army Corp are shooting for cleaning up that one-third.

More information from the EPA is at www.epa.gov/uswaters. Administrator McCarthy has an overview at: http://youtu.be/ow-n8zZuDYc. And yet another version is available from Deputy Chief of Staff Arvin Ganesan: http://youtu.be/fOUESH_JmA0.


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