‘Waters of the U.S.’ rule could lead to more red tape, lawyer says

By Sarah Gonzalez

© Copyright Agri-Pulse Communications, Inc.



An attorney who specializes in environmental law told farmers at the American Farm Bureau Federation's (AFBF's) 95th Annual Convention that EPA's efforts to clarify the definition of “waters of the United States” under the Clean Water Act (CWA) could result in broader and more complex regulations.

Globally Positioned Agriculture

Although nothing has been formally published, Virginia Albrecht, a lawyer with Hunton & Williams LLP who often represents developers and mining companies,  said she has “reason to believe'' that a draft of the EPA proposal leaked last year is accurate.

Albrecht made her comments on Monday, shortly after Agriculture Secretary Tom Vilsack gave a speech at the convention in which he suggested that people spare judgment about the proposed rule until it is released. The plan is under review by the Office of Management and Budget. When the review is complete, it will be published in the Federal Register and concerned parties will have 60 days to comment.

“We are assured that the draft leak of a document involving ‘waters of the United States' does not necessarily reflect the position of the EPA,” Vilsack said. USDA is conveying the concerns of the agricultural community as the review progresses, he said.

Don Parrish, AFBF's senior director of regulatory relations, said agricultural exemptions built into the Clean Water Act will not necessarily protect farm operations from burdensome regulations after the definition is revised. He said only certain agricultural practices are exempted, such as harvesting or planting, but other actions, like pesticide applications, are not. 

“There are a whole lot of activities you conduct that subject you to the (CWA) 402 process and you have to get Clean Water Act permit,” he told AFBF members.

Albrecht listed several provisions she believes EPA is considering in a proposed rule. They include regulatory authority over all tributaries and adjacent waters to bodies of water used for interstate commerce and all interstate waters and interstate wetlands.

“It's very broad,” Albrecht said, with “broad definitions of tributaries and adjacency.”

She also emphasized a potential “catch-all” provision that says any water can be judged on a case-by-case basis to determine if it falls under the definition of “waters of the US.”

“It's not right to say, ‘Don't worry, you will be covered by exemptions,'” she said. “It's very complex because environmental law is technical.”

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