The EPA is trying hard to make its proposed definition of “waters of the United States” acceptable or at least understandable to the agricultural sector.  In a recent blog, Nancy Stoner, the Agency’s acting assistant administrator for water, concedes (as the EPA administrator has done previously) that “we haven’t had the best relationship with the agriculture industry in the past.”

In an effort to “do better,” Stoner said the proposal, which was jointly issued with the Army Corps of Engineers (Corps), contains specific provisions to align with farming interests and that the Agency invites comments “to make sure we get [the final rule] right.”

Expansion or clarification

Some agriculture associations have claimed that the proposal would significantly expand EPA’s power to regulate farming activities, a contention Stoner refutes.

“The rule keeps intact all Clean Water Act exemptions and exclusions for agriculture that farmers count on,” writes Stoner, who adds that the number of exemptions has actually been increased with the proposed addition of 56 Natural Resources Conservation Service practices to the list of exemptions.

Stoner notes that farmers depend on clean water, which “fuels agriculture,” something that was recognized in the 1972 Clean Water Act (CWA).  “But two Supreme Court cases over the last 15 years confused things,” writes Stoner, “making it unclear which waters are ‘in’ and which are ‘out.’”  She says the Court rulings forced the Corps to make case-by-case decisions about which waters are protected, and decisions in different parts of the country became inconsistent.

In or out?

Stoner makes these specific points:

• The EPA and the Corps are NOT going to have greater power over water on farms and ranches. The CWA 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 proposed rule will NOT bring all ditches on farms under federal jurisdiction.  Some ditches have been regulated under the CWA since the 1970s, and the proposal would not expand jurisdiction.  Also, for the first time, the agencies are clarifying that all ditches that are constructed in dry lands, that drain only dry lands, and do not flow all year are not waters of the United States.  This includes many roadside ditches and many ditches collecting runoff or drainage from crop fields.
• Ditches that are IN are generally those that are essentially human-altered streams that 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 do not flow all the time, or do not flow into a jurisdictional water.  Farmers, ranchers, and foresters continue to receive exemptions from CWA Section 404 permitting requirements when they construct and maintain their ditches, even if ditches are jurisdictional.
• Normal farming and ranching activities are not regulated under the CWA.
• Wet areas on crop fields are not jurisdictional, and the proposal specifically excludes erosional features from the definition.
• The EPA and the Corps are NOT taking control of ponds in the middle of the farm.  Also, the proposed rule does not change existing practice regarding farm ponds, does not affect the existing exemption Congress created under Section 404 for construction and maintenance of farm or stock ponds and, for the first time, would specifically exclude stock watering ponds from jurisdiction in rule language.