Today, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers jointly released a proposed rule to clarify protection under the Clean Water Act for streams and wetlands. This much anticipated release is generally favorable for the ag sector as it maintains all exemptions and exclusions for the industry and it does not expand jurisdiction to any new types of water, such as ditches or groundwater. Click here for a fact sheet on these exclusions and exemptions for agriculture.
According to the press release on the matter, the "The proposed definitions of waters will apply to all Clean Water Act programs. It does not protect any new types of waters that have not historically been covered under the Clean Water Act and is consistent with the Supreme Court's more narrow reading of Clean Water Act jurisdiction."
The proposed rule preserves Clean Water Act exemptions and exclusions for agriculture. In addition, EPA and the Army Corps have coordinated with USDA to "develop an interpretive rule to ensure that 53 specific conservation practices that protect or improve water quality will not be subject to Section 404 dredged or fill permitting requirements. The agencies will work together to implement these new exemptions and periodically review, and update USDA's Natural Resources Conservation Service conservation practice standards and activities that would qualify under the exemption."
EPA and the Army Corps further clarify, "Any agriculture activity that does not result in the discharge of a pollutant to waters of the U.S. still does not require a permit."
The new rule does not protect any new types of water, it does not regulate groundwater and it does not expand jurisdiction over ditches. In fact, the rule actually proposes reduced jurisdiction and the exclusion of certain temporary ditches.
Specifically, the proposed rule clarifies that under the Clean Water Act:
- Most seasonal and rain-dependent streams are protected.
- Wetlands near rivers and streams are protected.
- 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 protecting similarly situated waters in certain geographic areas or adding to the categories of waters protected without case specific analysis.
Learn more about the rule at EPA's website.
The proposed rule will be open for public comment for 90 days following publication in the Federal Register. The interpretive rule for agricultural activities is effective immediately.