Clean Water Act PROPSAL Created by rrummel on 3/29/2014 10:04:54 AM
Exclusions and Exemptions
Clean Water Act Exclusions and Exemptions Continue forAgriculture
U.S. EPA and the U.S. ArmyCorps of Engineers have proposed a joint rule to clarify the types of watersthat are and are not covered by the Clean Water Act to bring certainty andpredictability, including to agriculture. For the past several years, EPA andthe Army Corps have listened to important input from the agriculture community.Using the input from those discussions, the agencies then worked with the U.S.Department of Agriculture to ensure that concerns raised by farmers and theagricultural industry were addressed in the proposed rule.
The proposed rule focuses onreducing the confusion and complexity about where the Clean Water Act appliesfollowing Supreme Court decisions in 2001 and 2006. The proposed rule isconsistent with the more narrow readings of Clean Water Act protection by theSupreme Court. Any normal farming activity that does not result in a pointsource discharge of pollutants into waters of the U.S. still does not require apermit.
The proposed rule preservesexisting Clean Water Act exemptions and exclusions for agricultural activities.In addition, in coordination with USDA’s Natural Resource Conservation Service,EPA and the Army Corps will now exempt 53 established NRCS conservationpractices implemented in accordance with published standards from Clean WaterAct Section 404 dredged or fill permitting requirements if they occur in waterscovered by the Clean Water Act.
The proposed rule will:
•Preserve current agricultural exemptions for Clean Water Act permitting,including:
o Normal farming, silviculture, and ranching practices.Those activities include plowing, seeding, cultivating, minor drainage, andharvesting for production of food, fiber, and forest products.
o Upland soil and water conservation practices.
o Agricultural stormwater discharges.
o Return flows from irrigated agriculture.
o Construction and maintenance of farm or stock ponds orirrigation ditches on dry land.
o Maintenance of drainage ditches.
o Construction or maintenance of farm, forest, andtemporary mining roads.
•Provide greater clarity and certainty to farmers.
•Avoid economic burden on agriculture.
•Encourage the use of voluntary conservation practices.
• Be consistent with andsupport existing USDA programs.
The proposed rule will NOT:
• Cover groundwater
• Cover tiles drains
• Increase regulation ofditches
• Protect any new types ofwaters
• Affect areas generallypreviously excluded from jurisdiction, including:
oArtificially irrigated areas that would revert to upland if irrigation stops.
oArtificial lakes or ponds created by excavating and/or diking dry land and usedfor purposes such purposes as rice growing, stock watering or irrigation.
oArtificial ornamental waters created for primarily aesthetic reasons.
oWater-filled depressions created as a result of construction activity.
oPits excavated in upland for fill, sand, or gravel.
oPrior converted cropland.
o Waste treatment systems(including treatment ponds or lagoons).
Improving Opportunities for Conservation Programs
EPA and the Army Corps haveworked with USDA to improve opportunities for farmers, ranchers, and forestersto participate in USDA’s voluntary conservation programs that help to protectwater quality and improve the environment.
During the coordination withUSDA, the agencies ensured that 53 specific agriculture conservation practicesthat help protect or improve water quality will not be subject to Clean WaterAct dredged or fill permitting requirements, including habitat restoration andestablishing riparian forest buffers. This is being done through aninterpretive rule that was published at the same time as the proposed rule andwill go into effect immediately.
To qualify for this exemption,the activities must be part of an established farming, forestry, or ranchingoperation, consistent with the statute and regulations and be implemented inconformance with Natural Resource Conservation Service technical standards.
Farmers and producers will notneed a determination of whether the activities are in “waters of the UnitedStates” to qualify for this exemption nor will they need site-specificpre-approval from either the Corps or the EPA before implementing thesespecified agricultural conservation practices to qualify for the exemption.
Through a memorandum ofunderstanding, EPA, the Army Corps, and USDA have set up a process for workingtogether to implement these new exemptions and for periodically identifying,reviewing, and updating NRCS conservation practice standards and activitiesthat would qualify under the exemption.