EPA withdraws WOTUS-related Interpretive Rule

By Agri-Pulse staff

© Copyright Agri-Pulse Communications, Inc.



WASHINGTON, Feb. 3, 2015 -- Early this week, the Environmental Protection Agency officially withdrew its interpretive rule that defined “normal farming practices” for purposes of the Clean Water Act and as required by Congress in the 2015 Omnibus spending bill passed in December.

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According to the agency press office, “EPA and the Army Corps of Engineers have followed statutory directive and withdrawn the interpretive rule. The exemptions from Clean Water Act permits for discharges of dredged and/or fill material will continue to apply for normal farming, silviculture, and ranching activities, as well as for other qualifying agricultural activities under 404(f)(1). Withdrawal of the interpretive rule also does not impact the agencies' work to finalize its rulemaking to define the scope of the Clean Water Act.”

The withdrawn EPA guidance issued in March, officially called an Interpretive Rule, said U.S. farmers would only be exempt from needing Clean Water Act permits for 56 routine farming practices conducted near streams and wetlands if they comply with detailed Natural Resources Conservation Service's technical conservation standards. Not surprisingly, the nation's crop and livestock organizations opposed the limited definition of normal farming practices near wetlands as well a change in enforcement protocol.

“Our concern with the initial proposal from last year is that it could have altered the long-standing and productive relationship between farmers and the USDA's Natural Resources Conservation Service in a way that would have made it harder for farmers to implement water conservation measures,” said Jamie Jonker, vice president for sustainability and scientific affairs for the National Milk Producers Federation.

Had the interpretive rule not been withdrawn, Jonker said that “the NRCS would have been thrust into the role of enforcer, rather than remaining a source from which farmers could seek conservation advice.” Established in the 1930s, the NRCS provides voluntary help to farmers who want to conserve resources on their farms.

“The now-withdrawn Interpretive Rule seemed to codify that only those 56 farming practices were exempt from needing to obtain permits under the Clean Water Act,” says Jonker. Currently, he says the NRCS has defined more than 200 normal farming practices typically used near wetlands.

The withdrawn Interpretive Rule was intended to be part of the larger Waters of the U.S. proposal issued by the EPA last March. The larger proposal defined what types of waterways and bodies of water are subject to the Clean Water Act. Following a lengthy public comment period, the proposed rule is still under review by both EPA and the Army Corps of Engineers.

The proposed rule noted that under the Clean Water Act most seasonal and rain-dependent streams and wetlands near rivers and streams are protected. In addition, other types of waters that have more uncertain connections with downstream water will be evaluated through a case-specific analysis of whether the connection is significant.

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