September 23, 2013
EPA announced that it was scrapping a controversial guidance document and has sent a CWA proposed rule to the White House for interagency review and public comment. According to senior EPA officials, the rule, crafted by both the EPA and the Army Corps of Engineers, will provide greater clarity about which waters are subject to Clean Water Act (CWA) jurisdiction and greater certainty about which activities require CWA permits.
In particular, the rule is aimed at small waterways that may dry up during some seasons, exist only after rains or are adjacent to other waters. The need for the rule is to clarify “considerable debate and uncertainty” over attempts to interpret two US Supreme Court decisions on what constitutes waters of the United States.
EPA officials have stated that the rule would not propose changes to existing permitting exemptions and exclusions, including those that apply to the agricultural sector. Specifically, EPA said the rule would exempt agricultural storm water runoff, normal silvicultural activities and irrigation ditches, among other waters, from National Pollutant Discharge Elimination System permitting requirements under Section 402 of the CWA. Also excluded from jurisdiction would be waste treatment ponds and wetlands that were filled prior to Dec. ’85 for use as croplands. The proposed rule would clarify that artificial ornamental ponds, artificially irrigated areas, areas artificially flooded for rice growing, pits excavated for land fill, among others would be excluded from CWA jurisdiction.
On the same date, EPA also announced that its Science Advisory Board was releasing for public comment a study on the connectivity of smaller streams and wetlands to larger, downstream waters. This study, once finalized, would provide the scientific basis for the proposed rule.
The draft report concluded that streams, regardless of their size or how frequently they flow, are connected to and have important effects on downstream waters. Moreover, wetlands in floodplains of streams and rivers and riparian areas are integrated with streams and rivers, and strongly influence downstream waters by affecting the flow of water, trapping and reducing nonpoint source pollution, and exchanging biological species. However, the report found there was insufficient information to generalize about wetlands and open waters located outside of riparian areas and floodplains and their connectivity to downstream waters.
Since 2012, the EPA connectivity study has been causing concern among congressional Republicans, home developers and farming groups. The groups and the lawmakers see the study as providing the scientific basis for establishing a significant nexus between ephemeral, perennial, and intermittent waters as well as wetlands and larger navigable waters.
EPA is expecting finalization of the report and its rulemaking to take at least 18 months.
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