Clean Water Act PROPSAL Created by rrummel on 3/29/2014 10:04:54 AM
Exclusions and Exemptions
Clean Water Act Exclusions and Exemptions Continue for
U.S. EPA and the U.S. Army
Corps of Engineers have proposed a joint rule to clarify the types of waters
that are and are not covered by the Clean Water Act to bring certainty and
predictability, including to agriculture. For the past several years, EPA and
the Army Corps have listened to important input from the agriculture community.
Using the input from those discussions, the agencies then worked with the U.S.
Department of Agriculture to ensure that concerns raised by farmers and the
agricultural industry were addressed in the proposed rule.
The proposed rule focuses on
reducing the confusion and complexity about where the Clean Water Act applies
following Supreme Court decisions in 2001 and 2006. The proposed rule is
consistent with the more narrow readings of Clean Water Act protection by the
Supreme Court. 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
The proposed rule preserves
existing Clean Water Act exemptions and exclusions for agricultural activities.
In addition, in coordination with USDA’s Natural Resource Conservation Service,
EPA and the Army Corps will now exempt 53 established NRCS conservation
practices implemented in accordance with published standards from Clean Water
Act Section 404 dredged or fill permitting requirements if they occur in waters
covered by the Clean Water Act.
The proposed rule will:
Preserve current agricultural exemptions for Clean Water Act permitting,
o Normal farming, silviculture, and ranching practices.
Those activities include plowing, seeding, cultivating, minor drainage, and
harvesting for production of food, fiber, and forest products.
o Upland soil and water conservation practices.
o Agricultural stormwater discharges.
o Return flows from irrigated agriculture.
o Construction and maintenance of farm or stock ponds or
irrigation ditches on dry land.
o Maintenance of drainage ditches.
o Construction or maintenance of farm, forest, and
temporary mining roads.
Provide greater clarity and certainty to farmers.
Avoid economic burden on agriculture.
Encourage the use of voluntary conservation practices.
• Be consistent with and
support existing USDA programs.
The proposed rule will NOT:
• Cover groundwater
• Cover tiles drains
• Increase regulation of
• Protect any new types of
• Affect areas generally
previously excluded from jurisdiction, including:
Artificially irrigated areas that would revert to upland if irrigation stops.
Artificial lakes or ponds created by excavating and/or diking dry land and used
for purposes such purposes as rice growing, stock watering or irrigation.
Artificial ornamental waters created for primarily aesthetic reasons.
Water-filled depressions created as a result of construction activity.
Pits excavated in upland for fill, sand, or gravel.
Prior converted cropland.
o Waste treatment systems
(including treatment ponds or lagoons).
Improving Opportunities for Conservation Programs
EPA and the Army Corps have
worked with USDA to improve opportunities for farmers, ranchers, and foresters
to participate in USDA’s voluntary conservation programs that help to protect
water quality and improve the environment.
During the coordination with
USDA, the agencies ensured that 53 specific agriculture conservation practices
that help protect or improve water quality will not be subject to Clean Water
Act dredged or fill permitting requirements, including habitat restoration and
establishing riparian forest buffers. This is being done through an
interpretive rule that was published at the same time as the proposed rule and
will go into effect immediately.
To qualify for this exemption,
the activities must be part of an established farming, forestry, or ranching
operation, consistent with the statute and regulations and be implemented in
conformance with Natural Resource Conservation Service technical standards.
Farmers and producers will not
need a determination of whether the activities are in “waters of the United
States” to qualify for this exemption nor will they need site-specific
pre-approval from either the Corps or the EPA before implementing these
specified agricultural conservation practices to qualify for the exemption.
Through a memorandum of
understanding, EPA, the Army Corps, and USDA have set up a process for working
together to implement these new exemptions and for periodically identifying,
reviewing, and updating NRCS conservation practice standards and activities
that would qualify under the exemption.