The Environmental Protection Agency and U.S. Army Corps of Engineers jointly released a proposed rule to clarify protection under the Clean Water Act for streams and wetlands Tuesday. The EPA and Army Corps say 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 over the next 90 days – holding discussions around the country and gathering input needed to shape a final rule. According to an EPA press release – the proposed definitions of waters will apply to all Clean Water Act programs. The EPA says 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. The proposed rule preserves the Clean Water Act exemptions and exclusions for agriculture. EPA and the Army Corps have coordinated with 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. The agencies will 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 discharge of a pollutant to waters of the U.S. still does not require a permit.
EPA Administrator Gina McCarthy says they are clarifying protection for the upstream waters that are absolutely vital to downstream communities. Jo-Ellen Darcy – Assistant Secretary of the Army – says the rulemaking will strengthen the consistency, predictability and transparency of their jurisdictional determinations. 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; 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. 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.
The proposed rule will be open for public comments for 90 days from publication in the Federal Register. The interpretive rule for agricultural activities is effective immediately. Visit www dot epa dot gov slash uswaters (www.epa.gov/uswaters) for more information.
National Farmers Union has long advocated for increased certainty surrounding Clean Water Act requirements for family farmers and ranchers in the wake of complicating Supreme Court decisions. NFU Senior Vice President of Programs Chandler Goule says the draft rule released Tuesday clarifies Clean Water Act jurisdiction, maintains existing agricultural exemptions, adds new exemptions and encourages enrollment in USDA conservation programs. He also notes that farmers and ranchers voluntarily enacting certain conservation practices on their farms will be exempt from CWA Section 404 permitting requirements. Goule says this ag-friendly announcement from the Environmental Protection Agency and Army Corps of Engineers indicates that the voices of agricultural stakeholders were heard. He encourages EPA to continue to rebuild trust with the ag community by withdrawing its proposal to reduce the Renewable Fuel Standard targets.
Expands Ag Exemptions
