A proposed rule change to the Clean Water Act has been created to clarify what is and what is not protected under a law that was passed by Congress in 1972 but later muddied by at least three Supreme Court rulings.

The rule changes, which were jointly developed by the U.S. Army Corps of Engineers and the Environmental Protection Agency, will be available for public comment for 90 days following publication in the Federal Register.

In a webcast sponsored Monday, April 7, by EPA’s Watershed Academy, Nancy Stoner, Acting Assistant Administrator, Office of Water, U.S. Environmental Protection Agency, discussed how the proposed changes will affect agriculture and other industries. “We want to explain why the rule is important and why it doesn’t change much on the ground,” she said.

She said the rule will benefit agriculture.

“We worked very hard to not only make sure the proposed rule doesn’t have a negative impact on agriculture, but that it actually benefits those involved in farming, ranching, and forestry.”

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Previous exemptions for agriculture will remain in place. Those include:

  • Normal farming, silviculture, and ranching practices.
  • Upland soil and water conservation practices.
  • Agricultural storm water discharges.
  • Return flows from irrigated agriculture. 
  • Construction/maintenance of farm or stock ponds or irrigation ditches on dry land. 
  • Maintenance of drainage ditches.
  • Construction or maintenance of farm, forest, and temporary mining roads.
  • Artificially irrigated areas that would revert to upland if irrigation stops.
  • Artificial lakes or ponds created by excavating and/or diking dry land and used for such purposes as rice growing, stock watering or irrigation.
  • Artificial ornamental waters created for primarily aesthetic reasons.
  • Water-filled depressions created as a result of construction activity.
  • Pits excavated in upland for fill, sand, or gravel.
  • Prior converted cropland.
  • Waste treatment systems (including treatment ponds or lagoons).

Ag exemptions remain

“All agricultural exemptions and exclusions from Clean Water Act requirements that have been developed over 40 years have been retained or expanded,” Stoner said.

Many conservation practices will be permitted under the new rule without permit. “Through coordination with USDA, EPA and the Army Corps … 56 conservation practices that protect or improve water quality will not be subject to Clean Water Act dredged or fill permitting requirements. This is being done through an interpretive rule that was published at the same time as the proposed rule and will go into effect immediately.” Those practices include: Conservation cover, wildlife habitat restoration, wetland enhancement, riparian forest buffer, tree/shrub establishment, and stream crossings.

Permits also will not be necessary for certain practices approved through the Natural Resource Conservation Service.

Agricultural interests are in the process of evaluating the rule and waiting to take a hard stand one way or the other.

Keith Menchey, manager of the National Cotton Council’s Science and Environmental Issues, explained the council’s current thinking.

“The Council is carefully analyzing the proposed rule to determine its impact on the cotton industry,” Menchey said.  “We are consulting the members of the Council's Environmental Task Force to ensure we have the growers' perspective. We want to better understand how the proposed rule affects current farming practices and whether it is a significant expansion of authority. The proposed rule is one of the most expansive we have had to evaluate in recent times and the Council will devote significant resources to fully review and comment on it."

The USA Rice Federation also responded with caution when reporting release of the proposed rule to its members. “The USA Rice Federation will review the proposed rule and submit official comments after it is published in the Federal Register,” it said in its daily e-newsletter.

Legislator response has ranged from an outright attack on the proposed rule by Sen. Roy Blount, R-Mo. – calling it an attempt by the Obama administration to take control of Americans’ private properties—to a more constrained response from Sen. Thad Cochran, R-Miss., who said:

“I encourage citizens to carefully review this proposal and weigh in with EPA to ensure that regulations like this one are based on sound science, consider economic impacts and demonstrate common sense.”

Blunt added: “This proposed rule would have a devastating impact on Missouri farm families, and it has serious implications for productive activities like dredging, filling, and drainage nationwide.”

Shore up protections

Clarification is the moving force behind the rule, said Stoner.

 “We have an opportunity to shore up the system of protections Congress put in place in 1972,” she said to the more than 2,200 participants in the webcast. “We want to define what is and what is not protected and clarify the definition of (Waters of the United Sates).

“No new types of water are protected. If something was not covered by the Clean Water Act before, it’s not covered now. The primary purpose of the rule change is to clarify what is covered.”

Some streams that are “seasonal” in nature, only flowing during certain parts of the year or after rainfall, are covered, if they connect with other navigable streams. “Some 60 percent of streams are seasonal,” Stoner said, “but they have a huge impact on downstream waters. We can’t protect large bodies of water without protecting smaller waters that feed them.”

She said streams supply water to 117 million Americans, one out of every three.

The old definitions of Waters of the United States, covered by the Clean Water Act, “were confusing and lacked clarity,” Stoner said. That lack of understanding prevented the EPA from taking action against some polluters that were causing significant damage to bodies of water. “The issues were not pursued because the (charges) were too complex to prove.”

She noted Edwards Creek near Talco, Texas, as one example of a stream polluted by crude oil discharge, but the perpetrator was never charged because of the complexity of proving the stream was covered.  Cases concerning Georgia’s Blackshear Lake and Arizona’s San Pedro River also were not pursued because of the complexity of proving the water was protected under the Clean Water Act.

Supreme Court actions

She said the rule changes would clarify which bodies of water are covered and will reduce confusion created following Supreme Court rulings in 1986, 2001 and 2006. It also clarifies what’s covered in the Clean Water Act.

“The U.S. Supreme Court has reviewed the agencies’ regulatory definition of “waters of the US” three times,” she said. 

The first time was in Riverside Bayview Homes, 1986.  A unanimous Supreme Court upheld the agencies’ regulatory definition and talked about the integrated nature of the aquatic ecosystem and the importance of adjacent wetlands to that ecosystem.

In a 2001 case called SWANCC, the Supreme Court held that the CWA did not authorize considering something as a “water of the US” based solely on the water’s use by migratory birds.  “While the SWANCC decision did not invalidate the agencies’ regulations, it emphasized that some type of relationship with waters that were navigable was necessary.” 

The latest Supreme Court case in 2006 considered the scope of “waters of the US” in the Rapanos and Carabell decisions.  The Court’s decision was split, with five opinions and none having a majority of votes.

Stoner says the clarifications in the proposal will save businesses time and money. The rule changes will also help states protect water. “Currently, 36 states have (legal) limitations on their ability to protect water that’s not covered by the Clean Water Act,” she said.

She also explained what the rule does not do.

“It does not protect any new types of water. It does not broaden the historical coverage of the clean Water Act. It does not regulate groundwater or expand regulation of ditches. It does not remove any exemptions.

“The rule actually proposes to reduce jurisdiction by excluding certain ephemeral and intermittent ditches. In fact, every exemption currently in the statute or regulations is preserved,” Stoner said.

Need for clarification

Donna Downing, Jurisdiction Team Leader, Wetlands Division, U.S. EPA, discussed the need to clarify some of the definitions in the Clean Water Act. “Congress did not define in the CWA what it meant by ‘waters of the U.S.,’” Downing said,   “and left it up to EPA and the Army Corps of Engineers to provide more detail through rulemaking. The agencies issued regulations shortly after the statute was enacted in 1972, and the current regulatory definition is essentially unchanged since the late 1970s.”

Covered waters include interstate waters, territorial seas, impoundments, and tributaries—which now has a more limited definition that includes: “a bed and banks and high water marks. A wetland may be a tributary if it is near a river or stream and contributes flow to that stream.”

A covered tributary also contributes flow to a traditional navigable water (TNW), interstate water, or territorial sea either directly or through other waters.  Wetlands are tributaries even where lacking a bed and banks and ordinary high water mark (OHWM) if they contribute flow to such waters.

The definition also emphasizes that tributaries can be natural, man-made, or man-altered.  This includes ditches that meet the definition of tributary and are not excluded in the “Waters Not Waters of the U.S.” section.

Downing said the new definition “limits (not expands) the scope of what is jurisdictional as a tributary under the regulations.”

A category tagged “adjacent waters,” also leaves room for clarification. “Existing regulations define ‘adjacent’ as “bordering, contiguous, or neighboring,” Downing said.  “That regulatory definition is unchanged, and the proposal defines ‘neighboring’ for the first time.  Defining neighboring enhances clarity.  Floodplains and riparian areas are defined as ‘neighboring’ under the proposal.  This means that wetlands, lakes, and ponds located in those areas are adjacent, not that the floodplain or riparian is itself WUS.”

Other waters “require a case-by-case analysis to determine if they are protected or not,” Downing said.

“Non-jurisdictional waters, those not covered, include prior converted cropland—a concept created under the Food Security Act years ago and includes areas used to grow commodity crops before November 1985.   “Current regulations list PCC as exempt from the definition of WUS, and the proposal retains that exemption without discussion.”

Waters that do not fall into the categories above are jurisdictional only where case-specific analysis shows that they have a significant nexus (connection) to a TNW, interstate water, or territorial sea,” Downing explained. “Other waters must have a significant connection to another TNW to be considered covered.”

Clarifications

The proposal also clarifies regulations of several waters that ongoing practice has considered generally non-jurisdictional, providing additional certainty.

  • Irrigated areas that would revert to upland if irrigation ceased.
  • Artificial lakes or ponds created on dry land and used exclusively for stock watering, irrigation, settling basins, or rice growing
  • Artificial reflecting or swimming pools created on dry land
  • Small ornamental waters created on dry land
  • Water-filled depressions created incidental to construction activity
  • Groundwater, including groundwater drained through sub-surface drainage systems
  • Gullies and rills and non-wetland swales

“The proposal would state these waters were not WUS, without the potential available under current practice of finding a particular one of these waters WUS on a case-by-case basis.  The proposal would put into regulation that these waters are not WUS and not regulated under the CWA, period,” said Downing.

The proposal also narrows jurisdiction over ditches compared to existing guidance and for the first time would exempt certain ditches by regulation.

Battle over “Waters of the United States,” begins with release of…

“Ditches excavated wholly in uplands, draining only uplands, and that have less than perennial flow,” and “ditches that do not contribute flow, either directly or through other waters, to a traditionally navigable water, interstate water, or territorial sea are exempt from regulation.”

Downing said two points are important:

“Waters listed as non-jurisdictional cannot become jurisdictional even if they have a significant nexus.

“Non-jurisdictional waters may serve as a hydrologic connection for purposes of determining adjacency or a significant nexus analysis.”

Stoner said the benefits of the rule changes will far outweigh the costs. Benefit estimates range from $388 million to $514 million annually. That includes reducing flooding, filtering pollution, providing wildlife habitat, supporting hunting and fishing, and recharging groundwater.

Cost estimates run from $162 million to $279 million per year for mitigating impacts to streams and wetlands. Also considered a cost is taking steps to reduce pollution to waterways.

 

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