On Thursday, July 31, thirteen senators submitted a letter to leaders of the Environmental Protection Agency (EPA), the Army Corps of Engineers and the U.S. Department of Agriculture (USDA) on the “Waters of the US” (WOTUS) proposed and interpretive rule.  There has been a lot of attention lately around how the farming community would be impacted by WOTUS rule, which would define which bodies of water fall under EPA’s Clean Water Act (CWA) jurisdiction.  In one previous post we break down the rule to explain the its background, relevant Supreme Court decisions, and helpful definitions.  A second post provides related Q&A.

In the letter, Senate Agriculture Chairwoman Debbie Stabenow (D-Mich.) and twelve of her colleagues asked the Administration for clarification on the unintended consequences on agriculture and the conservation practices currently used by farmers and ranchers throughout the country.  Stressing the importance of ongoing conservation efforts, the letter explains, “Voluntary conservation practices supported by USDA and expanded in the 2014 Farm Bill are the federal government’s largest investment in the conservation of private working lands and critical to maintaining clean water, clean air, wildlife habitat, and other benefits.”

Questions on Existing Conservation Efforts Impacted by the Interpretive Rule

The Senators’ letter offered a number of questions on both the proposed rule and the interpretive rule, reflecting the concerns they have heard from farmers and ranchers across the country.  They expressed concern that the recent uncertainty and confusion, specifically around the interpretive rule, could ultimately end up discouraging participation in conservation programs.  They shared concerns of stakeholders who worry that other conservation practices, beyond the 56 included in the interpretive rule as exempt from the Section 404 CWA permitting process, might now require a CWA permit.  They also sought clarification around the 56 selected exempt conservation practices, asking if they would have previously required a CWA permit.

Proposed Rule Clarification

The proposed rule defines “waters of the US” for jurisdictional purposes of the entire Clean Water Act.  Waters that are excluded from the definition of “waters of the US” are therefore excluded from all aspects of the Clean Water Act.  The Senators requested clarification on any potential impact on flow and runoff from agricultural fields, and requested definitions that would help clarify which agricultural features could be classified as tributaries.  They also asked for further explanation around which ditches are now jurisdictional under the proposed rule.

The National Sustainable Agriculture Coalition (NSAC) applauds the Senators for working within the rulemaking process to express their confusion, rather than simply calling for the rule to be withdrawn.  The senators encouraged the EPA, USDA, and Army Corps of Engineers to engage with stakeholders to better understand their concerns as the rulemaking process continues.

In addition to Senator Stabenow, the letter is also signed by Sen. Kay Hagan (D- NC ),  Sen. Patrick Leahy (D-VT), Tom Harkin (D-IA), Sen. Al Franken (D-MN), Sen. Amy Klobuchar (D-MN), Sen. Sen. Tim Johnson (D-SD), Sen. Jeanne Shaheen (D-NH), Sen. Sherrod Brown (D-OH), Sen. Tammy Baldwin (D-WI), Bob Casey (D-PA), Sen. Mark Warner (D-VA), and Sen. Michael Bennet (D-CO).

To read more about the proposed and interpretive rules, check out last week’s blog post and Q&A post on Waters of the US (WOTUS).  The senators’ letter is available here.