Agriculture’s exemptions
and exclusions from Clean Water Act expanded by proposal
WASHINGTON (March 25, 2014) — The U.S.
Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers today jointly released a proposed rule to clarify protection under the
Clean Water Act for streams and wetlands that form the foundation of the
nation’s water resources. The proposed
rule will benefit businesses by increasing efficiency in determining coverage
of the Clean Water Act. The agencies are launching a robust outreach effort
over the next 90 days, holding discussions around the country and gathering
input needed to shape a final rule.
Determining Clean Water Act protection for
streams and wetlands became confusing and complex following Supreme Court
decisions in 2001 and 2006. For nearly a decade, members
of Congress, state and local officials, industry, agriculture, environmental
groups and the public asked for a rulemaking to provide clarity.
The proposed rule clarifies protection for
streams and wetlands. 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.
"We are
clarifying protection for the upstream waters that are absolutely vital to
downstream communities,” said EPA Administrator Gina McCarthy. “Clean water is
essential to every single American, from families who rely on safe places to
swim and healthy fish to eat, to farmers who need abundant and reliable sources
of water to grow their crops, to hunters and fishermen who depend on healthy
waters for recreation and their work, and to businesses that need a steady
supply of water for operations.”
"America's waters and wetlands are
valuable resources that must be protected today and for future generations,”
said Assistant Secretary of the Army (Civil Works) Jo-Ellen Darcy. “Today's
rulemaking will better protect our aquatic resources, by strengthening the
consistency, predictability, and transparency of our jurisdictional
determinations. The rule's clarifications will result in a better public
service nationwide."
The health of rivers, lakes,
bays, and coastal waters depend on the streams and wetlands where they begin. Streams and wetlands provide many benefits to
communities – they trap floodwaters, recharge groundwater supplies,
remove pollution, and provide habitat for fish and wildlife. They are also economic drivers because of their role
in fishing, hunting, agriculture, recreation, energy, and manufacturing.
About 60 percent of
stream miles in
the U.S only flow seasonally or after rain, but have a considerable impact on
the downstream waters. And
approximately 117 million people – one in three Americans – get drinking
water from public systems that rely in part on these streams. These are
important waterways for which EPA and the Army Corps is clarifying protection.
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.
·Waters
like wetlands, ponds and lakes that lack direct hydrologic connections to
other water bodies are protected through a case specific analysis. However, to
provide more certainty, the proposal requests comment on options emphasizing
protecting similarly situated waters in certain geographic areas or adding to
the categories of waters protected without case specific analysis.
The
proposed rule preserves the Clean Water Act exemptions and exclusions for
agriculture. Additionally, EPA and the Army Corps
have coordinated with the U.S. Department of Agriculture (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. 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
proposed rule also helps states and tribes – according to a study by the
Environmental Law Institute, 36 states have legal limitations on their ability
to fully protect waters that aren’t covered by the Clean Water Act.
The
proposed rule is supported by the latest peer-reviewed science, including a
draft scientific assessment by EPA, which presents a review and synthesis of
more than 1,000 pieces of scientific literature. The rule will not be finalized
until the final version of this scientific assessment is complete.
Forty years ago, two-thirds of America’s
lakes, rivers and coastal waters were unsafe for fishing and swimming. Because
of the Clean Water Act, that number has been cut in half. However, one-third of
the nation’s waters still do not meet standards.
The
proposed rule will be open for public comment for 90 days from publication in
the Federal Register. The interpretive rule for agricultural activities is
effective immediately.
More information visit www.epa.gov/uswaters.