This past February the Environmental Protection Agency (EPA) and the United States Army Corps of Engineers withdrew an interpretive rule that would have defined “normal farming practices” for purposes of the Clean Water Act.
The agencies’ had been required to do so due to a statutory directive imposed by Congress but the action was only a brief intermission in an ongoing drama.
The interpretive rule stated that farmers, ranchers and landowners would only be exempt from needing Clean Water Act permits for 56 routine farming practices conducted near streams and wetlands if they complied with detailed Natural Resources Conservation Service (NRCS) technical conservation standards.
From a practical perspective, the interpretive rule seemed to codify that only those 56 farming practices were exempt from needing to obtain permits under the Clean Water Act. Currently, the NRCS has defined more than 200 normal farming practices typically used near wetlands.
Withdrawal of the interpretive rule did not impact the agencies’ work to finalize its rulemaking to define the scope of the Clean Water Act, which the EPA and Army did May 27, 2015, with a final rule that includes approximately 300 pages of explanation.
According to the EPA and Army, the final rule “provides clarity over which waters are protected under the Clean Water Act. The rule is grounded in law and the latest science, and is shaped by public input. The rule does not create any new permitting requirements and maintains all previous exemptions and exclusions.”
A host of agricultural stakeholders beg to differ with the viewpoints of the EPA and Army Corps of Engineers. The American Farm Bureau Federation (AFBF) does not believe that agriculture’s concerns were addressed in the final rule, coupled with the belief that the EPA and the Army Corps of Engineers actually added components that weren’t initially proposed for public review and comment in the proposed rule. This includes making prairie potholes jurisdictional under the rule on a case-by-case basis as they are “similarly situated.”
As for Congress, the United States House of Representatives continues to utilize the appropriations process to address regulatory issues such as the “Waters of the United States” (WOTUS) rule.
Earlier this month the House voted to block the rule, with support from both Republicans and some farm- and energy-state Democrats. Similar legislation is moving through the Senate.
In addition, opponents are also preparing lawsuits that will add to an already long trail of litigation over the government’s powers to regulate water — an issue the Supreme Court has already taken up twice.
The final is available at: http://www.epa.gov/cleanwaterrule.
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Dave Ladd, President
RDL & Associates, LLC
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