March 27, 2014
The U.S. Environmental Protection Agency (EPA) and Army Corps of Engineers (Corps) have released a much-anticipated proposed rule to clarify Clean Water Act protections for small streams and wetlands. The National Sustainable Agriculture Coalition applauds EPA and the Corps for moving forward with this important rule, which will bolster the Clean Water Act’s legal and scientific foundation and protect the streams, wetlands, and other waters that feed our Nation’s rivers, lakes, and bays.
What Prompted this Rule?
Two U.S. Supreme Court decisions over the last decade resulted in uncertainty and controversy regarding the scope of the Clean Water Act. Of particular concern has been the circumstances under which EPA can regulate wetlands and smaller headwaters based on their connectivity to larger bodies of water. The proposed rule is intended to clarify the scope of EPA’s authority based on a the best available science, while still adhering to Supreme Court precedent. Drawing from a comprehensive report on wetlands connectivity, the proposed rule clarifies that protections under the Clean Water Act extend to most seasonal and rain-dependent streams as well as wetlands near rivers and streams. Other headwaters that might also have a significant connection to larger, downstream bodies of water would be evaluated on a case-by-case basis.
EPA and the Corps Working with NRCS
In addition to the proposed rule, EPA and the Corps have issued an interpretive rule, effective immediately, that will allow farmers and ranchers, under certain circumstances, to qualify for an exemption from Section 404 permit requirements for discharging dredge and fill materials into jurisdictional waters. Under the Clean Water Act, certain “normal farming activities” are exempt from requiring a Section 404 permit. The interpretive rule clarifies that certain agricultural practices that are based on Natural Resources Conservation Service (NRCS) conservation practice standards are also exempt. EPA, the Corps, and NRCS have announced that they will work together under a Memorandum of Understanding (MOU) to implement these exemptions and periodically review and update the list of NRCS conservation practice standards and activities that would qualify under the exemption. The current list of approved conservation practices is available here.
Additional Clarification Needed
NSAC is encouraged to see EPA and the Corps working collaboratively with NRCS to integrate NRCS conservation practices that protect or improve water quality within the Clean Water Act framework, and we hope this rule will incentivize greater participation in NRCS conservation programs. However, we are concerned about the phrasing EPA is using to describe this exemption. “Certainty” for agricultural producers could mean that implementing a conservation practices anywhere on a farm would provide a shield from wetland or water body regulation. This does not appear to be the intention of the interpretive rule, and would be illogical, but the press surrounding the rollout of the proposed rule has generated considerable confusion.
The MOU states that, “where NRCS is the technical assistance provider, the agency has the responsibility to appropriately identify and implement conservation practices in a manner consistent with the applicable conservation practice standard.” However, “landowners not relying on NRCS for technical assistance have the responsibility to ensure that implementation of the conservation practice is in accordance with the applicable NRCS conservation practice standard.”
This means that, for example, if a producer works with NRCS to install Conservation Practice Standard #391 – Riparian Forest Buffer – and the act of installing that practice results in some discharge of materials into jurisdictional waters, then the producer is exempt from the Section 404 permit requirement for that installation. This seems logical, because the practice’s purpose is to improve water quality by reducing nutrient flow into nearby streams, and the actions taken to implement the practice might result in a discharge of materials into the body of water the riparian area surrounds.
However, the list also approves Conservation Practice Standards #500 Obstruction Removal and #460 Land Clearing, among other practices whose benefits to water quality are much more attenuated. Leaving monitoring and regulation to the producer to determine whether the exemption applies, and allowing the exemption to apply to a broad array of practices with arguably little verifiable benefit to water quality, is a risky proposition.
NSAC urges the agencies to act quickly to clarify the extent of the exemption.
Once published, the proposed rule will be open for a 90-day public comment period. Comments can be submitted to regulations.gov under Docket ID No. EPA-HQ-OW-2011-0880.
The interpretive rule is also open for public comment through regulations.gov under Docket ID No. EPA-HQ-OW-2013-0820.
Additional information available on EPA’s website.
Categories: Conservation, Energy & Environment