by Todd Neeley, DTN Staff Reporter
OMAHA (DTN) — Though U.S. agriculture groups have feared an expected expansion of the Clean Water Act for nearly three years, some 53 conservation practices would for the first time be exempt and previous agriculture exemptions from the law would stay in place in a newly proposed rule announced Tuesday by EPA.
EPA Administrator Gina McCarthy told reporters that critics of the proposal may be pleasantly surprised by what they find in the rule, which will trigger a 90-day comment period once published in the Federal Register in the next few weeks. McCarthy said she believes the new rule will improve the Clean Water Act and reward farmers and other landowners for long-standing conservation practices.
“That confusion hasn't been good for anybody,” she said.
In a leaked proposal last year EPA indicated more waters would become jurisdictional with the rule — something EPA continues to deny.
U.S. Supreme Court rulings in 2001 and 2006 brought into question which waters EPA could regulate. The court ruled EPA needs to prove a “significant nexus” or connection to jurisdictional waters by tributaries and other waters in order to regulate those waters.
Farm groups have feared that the proposed rule would give EPA authority to regulate tributaries, streams and other intermittent water bodies on U.S. farms. McCarthy said the rule will require a body of impounded water such as a pond to have a link, or nexus to a stream or river.
“To be considered jurisdictional you must have a significant nexus. We have to show that a pond or wetland significantly affects other jurisdictional waters. This does not expand the Clean Water Act. It does not protect any new types of waters not covered by the Clean Water Act. This is simply not the case,” McCarthy said.
“This rule will not regulate ground water or tile systems. It keeps intact exemptions and it expands exemptions. These practices will be familiar to farmers.”
McCarthy said the current regulation requires farmers to seek Clean Water Act permits when working on conservation practices that lead to the release of fill or dredge materials into jurisdictional waters.
“Now with 53 practices they will not need particular permits,” she said.
McCarthy said she's hopeful the proposal “generates excitement in the agriculture community.”
For the first time the proposed rule would exclude many upland water features from the Clean Water Act that are important for farming and forestry. Those include upland drainage ditches with no more than ephemeral water flows; artificially irrigated areas that would revert to upland should irrigation cease; artificial lakes or ponds used for purposes such as stock watering; artificial ornamental waters created for primarily aesthetic reasons; and water-filled depressions created as a result of construction activity.
According to an interpretative rule, http://tinyurl.com/…, USDA conservation programs that help farmers reduce soil erosion, enhance water supplies, improve water quality, enhance wildlife habitat and reduce flood damage, would be “interpreted to cover certain agricultural conservation practices as 'normal farming' activities” and exempt from the law.
Assistant Secretary of the Army for Civil Works Jo Ellen Darcy, said federal agencies have worked to address farmer and other stakeholder concerns about the Clean Water Act.
“In the last three years there has been an unprecedented undertaking by these agencies,” she said.
“The court called on EPA and the Corps to offer clarity and that's what we've done today. This will help us nationwide to deliver a better public service. What we've recognized is that farming practices have helped to improve water quality.”
CWA FLEXIBILITY
For those practices on the farm not exempted from the Clean Water Act, farmers still must seek permits to conduct certain work that leads to the release of fill and dredge into waters of the U.S.
Despite concerns expressed by agriculture groups about the rule, fourth-generation southwest Indiana farmer Ray McCormick said the Clean Water Act has given producers flexibility.
McCormick has a peach orchard and said waterfowl are an important part of his operation.
“I'm 100{75f28365482020b1dc6796c337e8ca3e58b9dd590dc88a265b514ff5f3f56c30} never-till and use cover crops,” he said.
“For 40-plus years the Clean Water Act has been an integral part of my operation. Many of the practices in the USDA-NRCS producer partnerships will always be the cornerstone to successfully protecting water quality. This allows most agriculture operations to function successfully in the Clean Water Act.
“Ag enjoys many exemptions under the Clean Water Act to tile and for stream maintenance without permits. Every day of my life I work with farmers to show how we can protect waters. I think the Clean Water Act has been very fair to farmers and we'll continue to enjoy those exemptions.”
Whit Fosburgh, president and chief executive officer for the Theodore Roosevelt Conservation Partnership, said the proposed changes will bring back important protections to hunting and fishing.
“After the Supreme Court decisions we saw a dramatic loss of wetlands,” he said.
Some 60{75f28365482020b1dc6796c337e8ca3e58b9dd590dc88a265b514ff5f3f56c30} of headwater streams are not protected, Fosburgh said. Wetlands provide buffers for flooding, and “headwater streams — that's where all the fish come from. Streams may go dry certain times of the year, but it doesn't mean they're not important.”
PRIVATE PROPERTY
Despite efforts to ease the concerns of farmers, U.S. Sen. David Vitter, R-La., the top Republican on the Environment and Public Works Committee, said he believes EPA's proposal is an assault on private property rights.
“The 'waters of the U.S.' rule may be one of the most significant private property grabs in U.S. history,” Vitter said in a statement.
“Today's rule also shows EPA picking and choosing the science they use. Peer review of the agency's connectivity report is far from complete, and yet they want to take another step toward outright permitting authority over virtually any wet area in the country, while at the same time providing a new tool for environmental groups to sue private property owners.”
Most wildlife groups applauded the proposal Tuesday, although many of them would like to see more protection for rivers and streams.
“This is a huge step forward for protecting America's waters and wildlife,” said Larry Schweiger, National Wildlife Federation president and chief executive officer.
“We simply cannot protect our rivers, lakes and bays without protecting the many small streams and wetlands that feed into them. Drinking water supplies for more than one-third of Americans will be safer once this rule is put into place.”
According to EPA about 60{75f28365482020b1dc6796c337e8ca3e58b9dd590dc88a265b514ff5f3f56c30} of U.S. stream miles only flow seasonally or after rain. About 117 million people get drinking water from public systems that rely in part on these streams.
The rule would clarify the Clean Water Act would protect most seasonal and rain-dependent streams, wetlands near rivers and streams, “other types of waters may have more uncertain connections with downstream water and protection will be evaluated through a case-specific analysis of whether the connection is or is not significant,” according to an EPA news release.
View the proposed rule here, http://tinyurl.com/….
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Posted with DTN Permission by Haylie Shipp
