Setting the Record Straight on Waters of the US

Swamp Stomp

Volume 14, Issue 27

The following is a republication of a blog post by Nancy Stoner, EPA Acting Assistant Administrator for Water.  It was published on EPA’s Official Blog on June 30, 2014 in response to the many concerns voiced by the farming community.  Of particular interest is the discussion of how ditches are to be handled.  In additional there is a discussion of how wet areas on farm fields may not be waters of the US.  There seems to be some conflicting information especially in light of the EPA Science Advisory Report.  However in the interest of fairness, the EPA’s position is published in its entirety.  There is a link to the EPA post and comments at the end of this post.

Setting the Record Straight on Waters of the US
by Nancy Stoner, EPA Acting Assistant Administrator for Water
June 30, 2014

There’s been some confusion about EPA’s proposed “Waters of the U.S.” rule under the Clean Water Act, especially in the agriculture community, and we want to make sure you know the facts.

We know that we haven’t had the best relationship with the agriculture industry in the past, but that doesn’t mean we aren’t and we can’t do better. We are committed to listening to farmers and ranchers and in fact, our proposed rule takes their feedback into account.

The rule keeps intact all Clean Water Act exemptions and exclusions for agriculture that farmers count on. But it does more for farmers by actually expanding those exemptions. We worked with USDA’s Natural Resource Conservation Service and the Army Corps of Engineers to exempt 56 additional conservation practices. These practices are familiar to many farmers, who know their benefits to business, the land, and water resources.

Farmers and ranchers are on the land every day, and they are our nation’s original conservationists. The American agriculture economy is the envy of the world, and today’s farmers and ranchers are global business professionals—relying on up-to-the minute science to make decisions about when to plant, fertilize, and irrigate crops.

Both EPA and farmers make decisions based on facts—so here are the facts about EPA’s proposal.

When Congress passed the Clean Water Act in 1972, it didn’t just defend the mighty Mississippi or our Great Lakes; it also protected the smaller streams and wetlands that weave together a vast, interconnected system. It recognized that healthy families and farms downstream depend on healthy headwaters upstream. But two Supreme Court cases over the last 15 years confused things, making it unclear which waters are “in,” and which are “out.”

That confusion added red tape, time, and expense to the permitting process under the Clean Water Act. The Army Corps of Engineers had to make case-by-case decisions about which waters were protected, and decisions in different parts of the country became inconsistent.

EPA’s proposal will bring clarity and consistency to the process, cutting red tape and saving money. The proposed Waters of the U.S. rule does not regulate new types of ditches, does not regulate activities on land, and does not apply to groundwater. The proposal does not change the permitting exemption for stock ponds, does not require permits for normal farming activities like moving cattle, and does not regulate puddles.

EPA’s goals align with those of farmers: clean water fuels agriculture—and we all depend on the food, fuel, and fiber that our farmers produce. We at EPA welcome input on the proposed rule to make sure we get it right.

Here are clarifications on a few points of confusion about the proposed rule. For further information, check out: http://www2.epa.gov/newsroom/questions-and-answers-about-waters-us

The EPA and the Army Corps are NOT going to have greater power over water on farms and ranches.

• The Clean Water Act and its regulations have multiple exclusions and exemptions from jurisdiction and permit requirements. The proposed rule does not change or limit any of them.
• The agencies also worked with USDA to develop and publish through an interpretive rule, a list of NRCS agricultural conservation practices that will not be subject to CWA permitting requirements. These practices encourage conservation while protecting and improving water quality.

The proposed rule will NOT bring all ditches on farms under federal jurisdiction.

• Some ditches have been regulated under the Clean Water Act since the 1970s.
• The proposed rule does not expand jurisdiction over ditches.
• For the first time, the agencies are clarifying that all ditches that are constructed in dry lands, and drain only dry lands, are not “waters of the U.S.” This includes roadside ditches, and ditches collecting runoff or drainage from crop fields.

• Ditches that are IN are generally those that are essentially human-altered streams, which feed the health      and quality of larger downstream waters. The agencies have always regulated these types of ditches.
• Ditches that are OUT are those that are dug in dry lands and don’t flow all the time, or don’t flow into a jurisdictional water.

• Farmers, ranchers and foresters are exempt from Clean Water Act Section 404 permitting requirements when they construct and maintain those ditches, even if ditches are jurisdictional.

The proposed rule does NOT mean permits are needed for walking cows across a wet field or stream.

•   Normal farming and ranching activities are not regulated under the Clean Water Act.

The proposed rule will NOT apply to wet areas on fields or erosional features on fields.

• Water-filled areas on crop fields are not jurisdictional.
• The proposal specifically excludes erosional features from being “waters of the U.S.”

EPA is NOT taking control of ponds in the middle of the farm.

• The proposed rule does not change jurisdiction over farm ponds.

• The rule does not affect the existing exemption Congress created for construction and maintenance of farm or stock ponds.
• The proposed rule would for the first time specifically exclude stock watering ponds from jurisdiction.

The EPA blog and comments can be found HERE