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Monday, March 31, 2014

EPA defines 'Waters of the U.S.'

by Kerry Halladay, Associate Editor

—NCBA concerned about inclusion of ditches, tributary definition

Calling something a “semantic argument” is usually a dismissive description of something as silly quibbling over word choice. But when it comes to government-issued definitions, word choice and how things are defined matters.

Tuesday of last week saw the joint release of the Environmental Protection Agency’s (EPA’s) and the Army Corps of Engineers’ (Corps’) proposed rule defining the “waters of the U.S.” The rule will be up for public comment for 90 days once it is published in the Federal Register sometime this or next week.

The proposed rule has long been anticipated—or perhaps “dreaded” is a more appropriate word—in the ranching community. Interestingly, the reactions to and claims about the proposed rule have been mixed.

On the one hand, the EPA claims the proposed rule “does not protect any new types of waters that have not historically been covered under the Clean Water Act” and that it will benefit businesses through greater clarity and certainty. On the other hand, the National Cattlemen’s Beef Association (NCBA) claims basically the opposite; the rule will expand EPA’s control via the Clean Water Act (CWA) to “essentially all waters in the country” and that it will cause considerable harm to ranchers.

Definitions all around

Though the document itself is a whopping 371 pages—wherein the goal of clarity and simplicity is entertainingly repeated—the main purpose is to outline what counts as “waters of the U.S.” According to the proposed rule, “waters in the U.S.” would include the following (with summaries of differences where the definition differs from those found in the CWA and/or when necessary for clarification):

• Traditional navigable waters;

• Interstate waters (including interstate wetlands);

• Territorial seas;

• Impoundments of traditional navigable waters (including interstate wetlands, territorial seas and tributaries of such waters)—The section does not directly define “impoundment” in the section attributed to it, but references court cases in which damming or diversions for irrigation were involved with major rivers, noting that such things did not change the federal nature of the water involved;

• Tributaries of traditional navigable waters, interstate waters, or the territorial seas—bodies of water that have the physical characteristics of a bed and bank and ordinary high water marks, as well as wetlands, ponds, lakes, “shallow groundwater,” canals and ditches if those bodies contribute to the flow of the aforementioned larger bodies and are not excluded elsewhere (see below for exclusions). Significant time, attention, and pages are dedicated to the topic of tributaries in the proposed rule.

• Adjacent waters (including adjacent wetlands)— wetlands, ponds, lakes, riparian areas, floodplains, shallow groundwater and similar water bodies with a “significant nexus” or impact on traditional navigable waters, interstate waters, or the territorial seas. The document notes that the definition is a revision of prior definitions that only included wetlands. It does also point out that adjacent non-wetland waters were previously included under the “other water” category.

• Other waters—bodies of water, which do not meet the above definitions but might still be subject to the “waters of U.S.” jurisdiction if found to have “significant nexus” with the aforementioned bodies covered as “waters of the U.S.” on case-specific bases. As with tributaries, the topic of “other waters” gets a lot of attention in the proposed rule.

Since the proposed rule is all about definitions, there are certain other terms used often that are relevant. “Significant nexus” for instance, was defined as “a water, including wetlands, either alone or in combination with other similarly situated waters in the region … and significantly affects the chemical, physical, or biological integrity” of traditional navigable waters, interstate waters or the territorial seas.

While the list of jurisdictional waters is far-reaching, of significant interests to ranchers and landowners is the list of waters excluded from the “waters of the U.S.” designation. Excluded waters include:

• Waste treatment systems (including treatment ponds or lagoons);

• Prior converted cropland;

• Ditches excavated wholly in uplands, drain only uplands, and have less than perennial flow;

• Ditches that do not contribute flow, either directly or through another water, to a traditional navigable water, interstate water, the territorial seas or an impoundment of the aforementioned waters;

• Or water bodies that possess one or more of the following features—artificially irrigated areas that would revert to upland should application of irrigation water to that area cease; artificial lakes or ponds created by excavating and/or diking dry land and used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing; artificial reflecting pools or swimming pools created by excavating and/or diking dry land; small ornamental waters created by excavating and/or diking dry land for primarily aesthetic reasons; water-filled depressions created incidental to construction activity; groundwater, including groundwater drained through subsurface drainage systems; and gullies and rills and non-wetland swales.

Yes, but what does that mean?

As mentioned, reactions have been mixed among some star ag groups, namely NCBA and the National Farmers Union (NFU).

“This is a step too far, even by an agency and an administration notorious for over-regulation,” said NCBA President and Victoria, TX, cattleman Bob McCan, in the group’s official response to the proposed rule.

“This proposal by EPA and the Corps would require cattlemen like me to obtain costly and burdensome permits to take care of everyday chores like moving cattle across a wet pasture or cleaning out a dugout. These permits will stifle economic growth and inhibit future prosperity without a corresponding environmental benefit. This proposed regulation and the burdensome federal permitting scheme will only hinder producers’ ability to undertake necessary tasks and, in turn, result in an exodus of ranchers from the field.”

Chandler Goule, NFU Senior Vice President of Programs, however, called the proposed rule “agfriendly” and praised the EPA for taking the interests of farmers into account in his group’s response to the rule.

“[The] draft rule clarifies Clean Water Act jurisdiction, maintains existing agricultural exemptions and adds new exemptions, and encourages enrollment in U.S. Department of Agriculture conservation programs. In addition, farmers and ranchers who are voluntarily enacting certain conservation practices on their farms will be exempt from Clean Water Act Section 404 permitting requirements.”

But Collin Woodall, NCBA Executive Director of Legislative Affairs, told WLJ that, while there will be some exemptions, there will still be a lot of producers negatively affected.

“[The exemptions] will hit some ditches but there are a lot of ditches that take water and drain them into various tributaries which are now considered ‘waters of the U.S.’ And that’s where the problem is. They have not been a consideration before. So there will be plenty of operations that will find themselves under the exemption, but there will be quite a few, like Bob for example, who ranches on the coastal plain of Texas and those ditches are going to be ‘waters of the U.S.’ and he is going to have to get a permit to utilize the land around those ditches. That is the concern we have.”

Woodall said that NCBA is still reviewing the rule and that, given the length and oftentimes indirect language of the document, they have requested an extension to the 90-day comment period. Woodall also stressed that the rule "has no discernable environmental benefits" for all the hindrance it will cause. He did, however, point out that not everything is bad about the rule.

“You have to give them credit, they did make some significant exemptions,” said Woodall of the EPA and Corps. “It is obvious they did listen to the concerns. Now, they didn’t take care of all our concerns, but they did listen.

So we’ve got to be fair there; they obviously listened and they obviously made some changes. Our concern is they didn’t make enough and people will still get trapped in this rule.”

As of publishing, the comment period had not yet opened on the draft rule, but publishing in the Federal Register is expected this week or next, meaning the public comment period would extend through the end of June/ beginning of July. Interested parties can access the draft rule—along with a collection of associated information—online at water.epa.gov/lawsregs/guidance/wetlands/CWAwaters.cfm.

Once the comment period is open, comments can be submitted in several ways:

• Online at regulations. gov; search the Docket Number EPA–HQ–OW– 2011–0880;

• Email to ow-docket@epa.gov with EPA–HQ–OW– 2011–0880 in the subject line;

• Mail the original and three copies of your comments 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.

Comments received will be reviewed and taken into account in the creation of the final draft.

Remember that any comments submitted will be made public so do not include identifying personal information you are not comfortable with being public knowledge. — Kerry Halladay, WLJ Editor

 
 


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