EPA Releases Guidance on Waters

Ag groups concerned that proposed rule could potentially include farm ponds and ditches.

The U.S. Environmental and Protection Agency and the U.S. Army Corps of Engineers developed draft guidance for determining whether a waterway, water body, or wetland is protected by the Clean Water Act. The administration said over the past decade, interpretations of Supreme Court rulings removed some critical waters from Federal protection, and caused confusion about which waters and wetlands are protected under the Clean Water Act.

This guidance would replace previous guidance to reaffirm protection for critical waters. It also will provide clearer, more predictable guidelines for determining which water bodies are protected by the Clean Water Act. The draft guidance will be open for 60 days of public comment to allow all stakeholders to provide input and feedback before it is finalized.

The issue has been watched closely since President Obama came into office. Many members of Congress have been outspoken in support of protecting farmers’ interest in the ruling and say states should have the authority to regulate waters and that specific definition between state and federal jurisdictions are important.

House Agriculture Committee Chairman Frank Lucas says the guidance “builds a foundation for the EPA and the Army Corps of Engineers to regulate essentially any body of water, such as a farm pond or even a ditch.”

“The proposed guidelines are worrisome to our farmers as federal agencies could have the authority to regulate ditches and ponds,” National Corn Growers Assn. president Bart Schott, a grower from Kulm, N.D. said. “The announced guidelines have the potential to expand federal jurisdiction in a way that could lead to additional permitting requirements and make famers more vulnerable to citizen action lawsuits.” 

Some 169 House members signed a letter earlier this month raising concerns about the proposed guidance. “While the agencies may claim that the guidance is legally nonbinding, the truth is the administration has defined regulatory terms that will ultimately lead to over-regulation and intrusion into individual and states’ rights,” Lucas adds.

National Cattlemen’s Beef Association (NCBA) Deputy Environmental Counsel Ashley Lyon said the Obama administration has once again acted as an “activist” administration rather than simply implementing laws as intended by Congress and required under the U.S. Constitution.

According to Lyon, if the guidance is finalized, the only thing cattle producers can be clear and certain about is that any stream, ditch and pond on their land could easily be subject to regulation.

Knowing that guidance documents are normally reviewed and signed off on by all federal agencies with an interest in the subject matter, Lyon said she is surprised that U.S. Department of Agriculture Secretary Tom Vilsack would allow something like this document to go through the review process given the “devastating impact” it would have on America’s farmers and ranchers.

While the guidance maintains existing exemptions for normal farming and ranching activities, NCGA remains concerned that the new proposal could expand EPA’s authority over isolated waters including ditches and farm ponds, Schott said. NCGA believes states should have the authority to regulate waters and that specific definition between state and federal jurisdictions are important. 

Several agriculture and environmental groups have requested that the EPA and Army Corps of Engineers initiate a formal rulemaking process on this matter to ensure transparency and public participation.

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