The rule defining “Waters of the U.S.” under the Clean Water Act (CWA) that has been proposed by the Environmental Protection agency (EPA) and the U.S. Army Corps of Engineers (USACE) has a comment period that will end Nov. 14, 2014. This has been a controversial topic since the comment period started on April 24, 2014. Some of the main topics of debate have been jurisdiction over ditches, agricultural impacts from fertilizer and pesticide application, and jurisdiction over “other waters.”
Ditches are being debated because some Ag groups contend that the wording in the proposed rule will grant jurisdiction under the CWA to ditches not currently regulated. According to the EPA, no new land will be subject to the CWA that hasn’t historically been jurisdictional. The proposed rule explains that ditches that would be excluded must be dug in upland areas and have less than perennial flow. To be excluded, the ditch also cannot meet the definition of a “tributary”. According to the proposed rule, the term tributary means a water body physically characterized by the presence of a bed and banks and ordinary high water mark, which contributes flow, either directly or through another water. So a ditch that only has ephemeral flow, can still be jurisdictional if it has a bank, bed, and ordinary high water mark. A wetland, lake, or pond can also be a tributary if it acts as a conduit for flow contribution to another location; such as a wetland in a floodplain or riparian area.
Fertilizers & Pesticides: Permit concerns
Many farmers are concerned that they will be required to obtain permits for the application of fertilizers and pesticides. No permits will be required according to EPA on agricultural application on dry lands. This still concerns the farmers because of the uncertainty of what constitutes dry land. Many acres that are dry during an application may run or contain water after a heavy rainstorm. As long as the areas that have chemicals applied onto them do not have a bed, bank, ordinary high water mark, or meet the definition of a tributary, EPA has deemed those areas as non-jurisdictional.
For many agricultural practices that may discharge pollutants to “waters of U.S.” such as stream crossings or tile outlets, 56 NRCS approved conservation practices have been written into the Interpretive Rule. No permit is required as long as the agricultural activity follows the standards written for the associated practice. A list of the 56 practices is available courtesy of the EPA.
Besides the 56 conservation practices, the same historic exemptions will exist for agricultural practices. These include “normal” farming and ranching, construction and maintenance of farm or stock ponds or irrigation ditches, maintenance of drainage ditches, and construction or maintenance of farm roads.
Jurisdiction for “Other Waters” currently lies in listing out types of water bodies that if degraded or destroyed would impact interstate or foreign commerce including any such waters. This list was omitted because it was thought to be repetitive when many of the items are jurisdictional under different criteria. For a water body to fall into the “Other Waters” category, it would have to be determined on a case-specific basis. An example of this might be a prairie pothole. If the pothole doesn’t meet any other criteria for jurisdiction, then it will be evaluated for a significant nexus to another interstate water or territorial sea.
Opponents & Critics
Opponents of the Proposed Rule claim that it will give the EPA greater reach over areas that they historically haven’t covered, despite EPA’s claims that they will not have any additional jurisdictional areas. The EPA has created a website to explain and defend the Proposed Rule named Ditch the Myth.
The American Farm Bureau Federation, one of the most vocal critics of the proposed rule, has also created a website that opposes the rule named Ditch the Rule.
Producers and stakeholders that are interested in the proposed rule and its potential impacts are encouraged to learn more and provide comments to the EPA before the end of the public comment period.