In a process that started about a year ago, and after a lengthy public review that included a couple of extensions, the U.S. EPA this week sent a version of its Waters of the U.S. proposal to the White House Office of Management and Budget for review.
While the EPA's latest version isn't available publicly, the agency's administrator, Gina McCarthy, teamed up with U.S. Army Corps of Engineers' Jo-Ellen Darcy to pen an EPA Connect blog post discussing general recommendations in the final version.
"We’re confident the final rule will speak for itself," Darcy and McCarthy wrote. "But we can broadly share some of the key points and changes we’re considering."
Some of those key points include: Better defining of how protected waters are significant; defining tributaries more clearly; providing certainty in how far safeguards extend to nearby waters (wetland protections); specifying waters in the "other waters" category; limiting protections to ditches that "function like tributaries"; expanding on exclusions for agriculture; and maintaining the status of stormwater sewer systems.
Specifically, the blog noted that in 400 meetings on the proposal and in more than a million public comments, EPA received feedback that the term "upland ditches" was confusing, and the agency leaders said the new version will clarify the proposal to specify ditches that function as tributaries.
Those tributaries also will be defined more clearly, McCarthy and Darcy said. "We’ve heard feedback that our proposed definition of tributaries was confusing and ambiguous, and could be interpreted to pick up erosion in a farmer’s field, when that’s not our aim. So we looked at ways to refine that definition, be precise about the streams we’re talking about, and make sure there are bright lines around exactly what we mean."
Another ag-focused comment on the blog addressed farming and ranching activities: "Normal agriculture practices like plowing, planting, and harvesting a field have always been exempt from Clean Water Act regulation; this rule won’t change that at all."
"Where we are today is not where we need to be in terms of protecting our water," she said at the March meeting with the National Farmers Union in Kansas. "We need to define waters in need of protection and farmers and ranchers will get what they need to be able to go about producing the food, fiber and fuel that we all need."
Long history of concern
Initial reactions toward the Waters of the U.S. proposal among the agriculture community last year were poor; the American Farm Bureau spearheaded a "Ditch the Rule" campaign on social media, citing its concerns that the proposal created complex land use rules that expanded jurisdiction of the EPA on water.
"We think what EPA is doing is teeing up the opportunity to categorically regulate all intrastate isolated waters, things like prairie potholes and playa lakes," AFBF regulatory specialist Don Parrish said in a Tuesday interview. "They want to categorically call all of those waters of the U.S."
Other farm groups also joined a chorus of concern on the rule, most also fearing that the rule would ultimately foster the regulation of more water under the Clean Water Act and impede farming and ranching activities.
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The groups' concerns were enough to convince Congress that an Interpretive Rule which accompanied the Waters of the U.S. proposal should be withdrawn. The Interpretive Rule offered 56 "normal farming and ranching" exemptions under the regulations of the Natural Resources Conservation Service.
Opponents of the rule said using these practices as CWA exemptions would alter farmer-NRCS interaction and discourage environmental best practices. Ultimately, it was withdrawn via "Cromnibus" funding legislation, passed at the end of 2014.