US EPA Interpretive Rule Now Closed

Swamp Stomp

Volume 14, Issue 23

On April 21, 2014 the US EPA announced in the Federal Register two new rules that pertain to the definition and exemptions of areas known as Waters of the US (WoUS). On Friday, June 5, 2014 the agricultural exemptions interpretive rule comments has closed. The Federal Register notice specifically asked the public to comment on:

“how they (the Corps and EPA) might most effectively and efficiently conduct the proposed periodic review of exempt practices and how best to revise the list of exempt NRCS practice standards. The agencies also request comment on how they can best work together and with NRCS to provide clarity to the regulated community and the public on the exemption.”
There are 56 listed activities that are exempt from Clean Water Act Section 404 permitting. However there are other aspects of the act that do not exempt farming operations from permitting. For example, under Section 402 NPDES point source discharge is a regulated activity by EPA. An NPDES permit sets specific discharge limits for point sources discharging pollutants into waters of the United States and establishes monitoring and reporting requirements, as well as special conditions. A number of farming activities would require this permit regardless of the WoUS exemptions.

The following is from the Federal Register:

Section 404(f)(1)(A) of the CWA exempts from section 404 permit requirements certain discharges associated with normal farming, silviculture, and ranching activities in “waters of the United States,” including wetlands. To provide additional clarity to farmers and to promote practices under the Agriculture Act of 2014 designed to improve water quality, the EPA and the Corps have signed an interpretive rule, “Interpretive Rule Regarding Applicability of the Exemption from Permitting under Section 404(f)(1)(A) of the Clean Water Act to Certain Agricultural Conservation Practices.” The interpretive rule was developed in coordination with the U.S. Department of Agriculture.

The agencies believe working together to improve the consistency and integration of these programs is fully consistent with the law, promotes the mutual objectives of our regulations and statutes, and increases clarity and predictability for the agriculture community. The result is good for the nation’s waters and for farmers and foresters who want to protect the resources on their lands.

The agencies have identified specific NRCS agricultural conservation practices that are appropriately considered “normal farming” activities and exempt from permitting under section 404(f)(1)(A). The agencies and NRCS have also entered into a Memorandum of Understanding to guide their future coordination on the exemption. The list of practices, the Memorandum of Understanding, and the interpretive rule are available on the EPA Web site at http://water.epa.gov/lawsregs/guidance/wetlands/agriculture.cfm and in the docket for this notice. The agencies seek comment on these documents within the next 45 days. The agencies and NRCS intend to periodically revisit and revise, if necessary, the list of exempt NRCS conservation practice standards. The agencies are particularly interested in receiving comments on how they might most effectively and efficiently conduct this periodic review and how best to revise the list of exempt NRCS practice standards. The agencies also request comment on how they can best work together and with NRCS to provide clarity to the regulated community and the public on the exemption.

The Interpretive rule is in effect and the comments are now closed. The proposed WoUS comments close on July 21, 2014. The effective date of the Final WoUS rule is not known. However, it is reasonable to expect it to be in final form either later on this summer or early fall.

Have a great week!
Best,
Marc

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