National Sustainable Agriculture Coalition

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Q&A on the “Waters of the US” Proposed and Interpretive Rule

There has been a lot of attention lately on the Environmental Protection Agency (EPA) as it engages with the farming community on the proposed rule to define “Waters of the U.S.”  The so-called WOTUS rule would define which bodies of water fall under EPA’s Clean Water Act jurisdiction.  In an accompanying post, we provided an update on where things stand with the proposed rule and the accompanying interpretive rule, and explored some of the confusion surrounding both rules.  This Q&A breaks the issue down even further.

Why is EPA doing this rulemaking?

EPA is tasked with protecting our nation’s water.  However, EPA’s jurisdiction does not extend to all water.  The Clean Water Act prohibits the discharge of any pollutant or dredge/fill material into “waters of the United States” without a permit.  EPA is proposing changes to the current definition of “waters of the US” to provide clarity to regulators and the regulated community regarding which bodies of water are subject to EPA’s jurisdiction, and which activities require a permit.

What currently IS considered Waters of the US?

EPA’s current regulations broadly consider the following bodies of water to be water of the US:

  1. Traditional navigable waters;
  2. Interstate waters; and
  3. All other waters that could affect interstate or foreign commerce, impoundments of waters of the U.S., tributaries, the territorial seas, and adjacent wetlands.

What currently is NOT considered a Water of the US?

EPA’s current regulations exclude the following types of water from the definition of water of the US:

  • Waste treatment systems, including ponds or lagoons designed to meet the requirements of the Clean Water Act;
  • Prior converted cropland (which refers to wetlands that were drained and cropped prior to December 23, 1985);
  • Groundwater;
  • Artificially irrigated areas that would revert to upland should irrigation cease;
  • Artificial lakes or ponds created by excavating and/or diking dry land and used exclusively for such purposes as stock watering, irrigation, settling basis, or rice growing; and
  • Gullies, rills, and non-wetland swales.

So how does the proposed rule differ from what is already being regulated?

The new definition states that waters of the US includes:

  1. Traditional navigable waters;
  2. All interstate waters, including interstate wetlands;
  3. The territorial seas;
  4. All impoundments of water identified in 1 – 3 and 5;
  5. All tributaries of waters identified in 1 – 4;
  6. All waters, including wetlands, adjacent to a water identified in 1 – 5; and
  7. On a case-specific basis, other waters, including wetlands, provided that those waters alone, or in combination with other similarly situated waters, including wetlands, located in the same region, have a significant nexus to a water identified in 1 – 3.

Essentially, what EPA has done in the proposed rule is remove impoundments, tributaries, and wetlands from the “other waters” category, based on its determination that impoundments, tributaries, and adjacent wetlands that connect to traditional jurisdictional waters have a significant nexus to those waters without requiring a case-by-case determination.

Does the proposed rule change any of the exclusions?

The proposed rule continues to exclude the waters listed above, and also expressly excludes two types of ditches:

  1. Ditches that are excavated wholly in uplands, drain only uplands, and have less than perennial flow; and
  2. Ditches that do not contribute flow, either directly or through another water, to jurisdictional water.

So does the proposed rule regulate ditches or not?

It depends.  Tributaries are covered under the proposed rule, so if a ditch does not satisfy one of the two types of ditches excluded above, and it satisfies the definition of a tributary, then it would be covered.  Tributaries are defined as a body of water with a bed, banks, and an ordinary high water mark, and which contributes flow, either directly or through another water, to a jurisdictional water.  A ditch could also be covered if it has a significant nexus to another jurisdictional water.

What is a significant nexus?

EPA proposes to define significant nexus as a water, including wetlands, that – either alone or in combination with other similarly situation waters in the region – significantly affects the chemical, physical, or biological integrity of a jurisdictional water.  For an effect to be significant, it must be more than speculative or insubstantial.  Waters are “similarly situated” when they perform similar functions and are located sufficiently close to a water of the US that they can be evaluated as a single landscape unit with regard to their effect on a jurisdictional water.

So what happens if I have jurisdictional water on my farm?

If you have a jurisdictional water on your farm, then you may be required to obtain a Section 402 or a Section 404 permit before engaging in certain activities.

What type of activities do Section 402 and Section 404 permits cover?

Section 402 permits – or National Pollutant Discharge Elimination System (NPDES) permits – are required in order to discharge a pollutant into a water of the US.  Most states, though not all, administer the Section 402 program themselves through state agencies.

Section 404 permits are required in order to discharge dredge or fill material into a water of the US, including wetlands.  The Army Corps of Engineers administers this program collaboratively with EPA, and is the permitting authority in most states.

What’s the difference between the proposed rule and the interpretive rule?

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 interpretive rule is limited to exemptions for certain activities under the Section 404 permitting program.  It also operates as an interim final rule, which means it went into effect as soon as it was published, though it was also open for public comment.  The proposed rule, on the other hand, is currently undergoing a public comment period and must be finalized before it takes effect.

What does the interpretive rule do?

The interpretive rule only addresses exemptions for certain activities under the Section 404 permitting program.  Under Section 404, activities that are considered “normal farming” do not have to have a permit to discharge dredge or fill material into jurisdictional waters, including wetlands.  EPA regulations state that “normal farming” includes such activities as plowing, seeding, cultivating, minor drainage, harvesting, or upland soil and water conservation practices.  However, these are not outright exclusions.  These are exemptions for certain activities that are happening in waters covered by the Clean Water Act.

The interpretive rule broadens the activities that fall under “normal farming” by providing a list of NRCS Conservation Practice Standards and stating that any farmer undertaking an activity on the list – whether or not the practice is implemented or installed with NRCS technical assistance and training – does not have to obtain a Section 404 permit for that activity, even if it results in dredge or fill material being discharged into a wetland or other jurisdictional water.

Are there any caveats to these exempt activities?

Yes.  Section 404 exemptions are subject to the “recapture” provision.  This means that these activities are exempt from the requirement to have a permit as long as the activity is not done in a way that could impair the flow or circulation of a jurisdictional water or bring it under a new use.  If that occurs, then the activity is no longer exempt from the requirement to have a permit.

Are there any concerns about the interpretive rule?

Yes.  The interpretive rule presents several key concerns.  Chief among them is that the list of activities is generating confusion given that some of the activities are already exempt under “normal farming.”  It is also concerning that farmers can self-certify compliance with NRCS practice standards, many of which are quite technical and complex to implement and maintain.  Another concern is the lack of clarity provided in the rule about when and how the exempted practices could still trigger the recapture provision (see above).  Moreover, this rule did not undergo a public comment period before going final and before practices creating new exemptions were placed on the list.

What has EPA been saying recently about the interpretive rule?

EPA was initially surprised by the concerns over the interpretive rule, because it is intended to be a win-win for farmers and water quality.  Administrator Gina McCarthy said earlier this month, “I have never proposed anything that I thought would be so well-received as this that has fallen totally flat on its face.”  However, EPA now recognizes that there are concerns associated with the interpretive rule, and that it has resulted in “bonafide confusion,” and has indicated that they will likely be making significant adjustments to the interpretive rule.

How could the interpretive rule be fixed?

EPA could remove any conservation activity from the list that is already exempt as an upland soil or water conservation activity.  This would clear up a good deal of confusion regarding why some conservation activities are on the list but not others.  EPA should also put any newly-exempt activity out for public comment, which includes practices that do not appear to fall within the category of “normal farming.”  EPA could also elaborate on the requirements of various practices through guidance for self-certifying producers, or require that a practice be installed or implemented with NRCS technical assistance and training in order to qualify for the exemption.

NSAC submitted comments on the interpretive rule, which include specific suggestions to address the concerns raised by the interpretive rule – particularly how to restructure the rule to avoid unintended water quality impacts that could result if these practices are improperly implemented.

How do I get involved?

You can submit comments to the proposed rule docket until October 20 via regulations.gov, Docket No. EPA-HQ-OW-2011-0880.