[Docket ID # EPA-HQ-OA-2013-0582]
On September 17, 2013, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers announced a joint proposed rule with the intent to clarify which streams, wetlands and other waters are “waters of the United States” and subject to jurisdiction under the federal Clean Water Act (CWA). The agencies sent the proposed rule to the White House’s Office of Management and Budget (OMB) but have not yet released it to the public. This draft rulemaking is likely to expand the Clean Water Act Jurisdiction.
The proposed rule is limited to clarifying current uncertainty concerning the jurisdiction of the Clean Water Act that has arisen as an outgrowth of recent Supreme Court decisions; it does not propose changes to existing regulatory exemptions and exclusions, including those that apply to the agricultural sector that ensure the continuing production of food, fiber and fuel to the benefit of all Americans. Specifically, EPA and the Army Corps are interested in enhancing the ability of the CWA and USDA’s conservation programs to work in tandem to protect water quality and improve the environment by encouraging expanded participation in conservation programs by farmers and ranchers. It will do so by providing greater clarity on which waters are not subject to CWA jurisdiction and greater certainty on which activities do not require CWA permits.
Current activities and waters falling under existing agricultural exemptions from Clean Water Act jurisdiction or permitting:
Exemptions from Clean Water Act permitting continue for:
- Agricultural stormwater discharges.
- Return flows from irrigated agriculture.
- Normal farming, silvicultural, and ranching activities.
- Upland soil and water conservation practices.
- Construction and maintenance of farm or stock ponds or irrigation ditches.
- Maintenance of drainage ditches.
- Construction or maintenance of farm, forest, and temporary mining roads.
Exclusions from Clean Water Act jurisdiction continue for:
- Prior Converted Cropland, including the role of USDA.
- Waste Treatment Systems.
The proposed rule submitted to OMB for review includes exclusions from Clean Water Act jurisdiction for:
- Non-tidal drainage, including tiles, and irrigation ditches excavated on dry land.
- Artificially irrigated areas that would be dry if irrigation stops.
- Artificial lakes or ponds used for purposes such as stock watering or irrigation.
- Areas artificially flooded for rice growing.
- Artificial ornamental waters created for primarily aesthetic reasons.
- Water-filled depressions created as a result of construction activity.
- Pits excavated in uplands for fill, sand, or gravel that fill with water.
In support of the proposed rule, the agencies have released a draft science report titled “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence.”” The Draft Study is a compilation of independent peer-reviewed scientific literature that when finalized, is intended to provide the scientific basis for the agencies to clarify CWA jurisdiction through the rulemaking process.
The EPA – through the independent Scientific Advisory Board (SAB) – is soliciting public comment on this Draft Study until October 31, 2013, and has announced that it will hold public meetings on December 16-18, 2013, in Washington, D.C. Comments can be submitted using the E-Gov website and enter Docket ID # EPA-HQ-OA-2013-0582.
For a copy of the draft study, contact Jessica Roger .