ACTION ALERT: Submit Comments Now

ISSUE:  Congress passed the Clean Water Act in 1972, with the goal of improving water quality across the nation.  To achieve that goal, the CWA established a system of cooperative federalism that preserves primary state authority over land and water uses, but prohibits certain “discharges” into “navigable waters” from a “point source” (i.e., a pipe or other conveyance) unless authorized by federal permit.  The law says that “navigable waters” are “waters of the United States.”  Over the years, the U.S. Supreme Court has established that this includes interstate waters, plus waters that are navigable, wetlands adjacent to navigable waters and other waters with a substantial connection to navigable waters.  State and local governments have jurisdiction over smaller, more remote waters, such as many ponds and isolated wetlands.  Two sections of the law have particular impacts on agriculture.  Section 404 allows the U.S. Corps of Engineers to issue permits for discharges of “dredge and fill” material into navigable waters.  Section 402 establishes the National Pollutant Discharge Elimination System (NPDES) permitting program, in which EPA or states (with EPA oversight) can issue permits for discharges of other pollutants into navigable waters.

The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (the Corps) on March 25, 2014 issued a proposed rule that would expand their regulatory authority under the Clean Water Act (CWA) to many of these land features and waters, giving the agencies the power to regulate or prohibit land-uses and farming practices in or near them. The rule would make it more difficult to farm or change a farming operation to remain competitive and profitable.

IMPACT:  This proposed rule has many areas of concern.  First and foremost this proposed rule would create confusion rather than clarity.  One concern is this would lead to farmers facing increased frivolous litigation over what are considered "normal" agricultural practices.  The rule also would change the role of the Natural Resources Conservation Service (NRCS) from that of providing assistance to producers wanting to install best management practices that would improve water health to a more regulatory role.  The proposed rule references a "Connectivity Report" that creates a significant nexus by utilizing stated factors that would create a connection to currently regulated waters based on proximity, or possibly even biological connections that would, by EPA's own words and map examples, greatly expand regulatory oversight to areas that would only occasionally contain water. Again, this could lead to increased litigation, reduce a producer's ability to best manage land resources, and probably spend long, unproductive hours working securing no-discharge permits to perform common farm tasks.

In the proposed rule, EPA references over 50 normal farming practices that would be exempted from Section 404, dredge and fill permit requirements.  First, the proposed rule says "The proposed rule does not affect any of the exemptions provided by CWA section 404(f), including those for normal farming, silviculture, and ranching activities."  The “normal” farming exemption does include more than these 56 practices, but according to longstanding Corps and EPA interpretations, it only exempts farming that has been ongoing at the same site since 1977. That’s true for these 56 practices and other practices. That is why regulating land as if it were “waters” under the proposed rule will result in federal permit requirements for many commonplace and essential farming practices. The exemptions do not cover weed control, fertilizer use and other common farming practices, only those activities that pertain to Section 404.  This is critical because with the expansion of jurisdiction proposed by EPA, every day weed control, fertilizer applications or any number of other common farm activities may well trigger Clean Water Act liability and/or Section 402 permit requirements.  Moreover, with this expanded jurisdiction, the possibility of citizen lawsuits is amplified and even if EPA says it will not require a permit.  It allows environmental activists an opportunity to go to Federal court and sue for new or different standards. The exemptions have existed for years, but have been narrowed by EPA guidance issued with the proposed rule.  These exemptions were granted by Congress for normal activities at ongoing operations.  EPA has created nothing new.

ACTION:  The comment period for this proposed rule is open until October 20, 2014.  Farm Bureau leaders are urged to submit comments about how this rule will impact their farming operation.  Sample letters can be used as a template for comments, but leaders are urged to personalize comments to reflect their farming operation.  Leaders can also visit kyfb.com to find a copy of the actual proposed rule, talking points you can utilize, additional sample letter language and a comparison of what EPA says the rule will do and how we interpret the rule utilizing the rule language and past federal court cases.  Leaders can submit comments either electronically, or letters that can be mailed to EPA.

HOW TO SUBMIT COMMENTS:  Comments can be submitted electronically at the regulations.gov website, entering the EPA Docket # EPA-HQ-OW-2011-0880 into the search box and hitting enter.  This will take you to the docket site.  Click on the "COMMENT NOW" box by the Clean Water Act:  Definitions:  Waters of the United States option.  This will take you to the comment box where comments can be typed in, or near the bottom of the page it allows comment letters to be uploaded as a file attachment.

Comments can also be submitted by regular mail to:  Water Docket, Environmental Protection Agency, Mail Code 2822T, 1200 Pennsylvania Avenue NW., Washington, DC 20460, Attention: Docket ID No. EPA-HQ-OW-2011-0880.  Submissions through regular mail should include the original plus three copies.

Comments are also accepted via email submissions.  To email comments, send them to OW.docket@epa.gov.  Be sure to put EPA-HQ-OW-2011-0880 in the subject line.