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The Hagstrom Report - EPA, Army Corps Release Waters Rule

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By Jerry Hagstrom

The Environmental Protection Agency and the U.S. Army Corps of Engineers today released a long-anticipated rule defining the waters of the United States.

The rule claims EPA jurisdiction over interconnected streams and wetlands that feed rivers, lakes, bays, and coastal waters, and gives the agency authority to impose stricter pollution controls on them.

"The rule helps communities stay safe and healthy," EPA Administrator Gina McCarthy said in a statement to reporters.

Noting that two complex Supreme Court decisions in 2001 and 2006 "have made determining Clean Water Act protections for these streams and wetlands confusing over the last decade,'" McCarthy said that "the proposed rule uses sound science to clarify that: Seasonal and rain-dependent streams are protected under the Clean Water Act and wetlands near rivers and streams are also protected."

"For other waters -- whose influence in downstream water quality is not as clear cut -- their protections are evaluated on a case-by-case basis. And to be considered "jurisdictional" -- that is, covered by Clean Water Act protections -- these other upstream waters must be shown to have a "significant nexus' to downstream water quality," she said.

"Although we're glad the case-by-case method gives us a way to evaluate protection for these other waters that live in a gray area -- we still acknowledge it would be more efficient and effective if we could reduce uncertainty even more," she continued.

"That's why our proposal specifically asks for comments and input on new ways to focus case-by-case reviews -- ways like identifying specific subcategories of waters where the science may be strong enough to warrant protections or geographic areas beyond which aggregation of similarly situated waters may not be necessary or advisable to consider during case by case analysis."

McCarthy continued, "Let me take a moment to make clear what this rule does not do. It does not expand the Clean Water Act. I repeat, it does not protect any new types of waters that have not historically been covered under the Clean Water Act."

"We know how vital water is to America's farmers and ranchers. Some in the agricultural community think that a new rule might mean expansion of the Clean Water Act to all waters, but as I've explained -- that's simply not the case."

"For the past three years, EPA and the Army Corps have listened to the concerns and advice of states, local governments, the agricultural community, and more. I often say: America's farmers and ranchers are our original conservationists. And EPA has worked arm in arm with the Department of Agriculture to make sure we're addressing farmers' concerns up front."

"The rule will not regulate groundwater or tile drainage systems; and it will not increase regulation of ditches -- whether they are irrigation or drainage. And to be clear, this rule keeps intact existing Clean Water Act exemptions for agricultural activities. But it does more for farmers than that -- it actually expands those exemptions.

"We worked with USDA's Natural Resources Conservation Service and the Army Corps of Engineers to exempt 53 additional conservation practices. These practices will be familiar to farmers -- they understand their benefits to business, the land, and the waters we rely on.

"The bottom line is this: before the rule, producers needed to notify agencies and seek certain types of permits (for discharges of dredged or fill material). After the rule, if producers choose to partake in any of the 53 conservation practices detailed in the proposal, they will not need those particular permits or any pre-approval."

Farm groups have expressed fears about the rule, but today Chandler Goule, a vice president of the Democratic-leaning National Farmers Union, spoke in support of it.

"NFU has long advocated for increased certainty surrounding Clean Water Act requirements for family farmers and ranchers in the wake of complicating Supreme Court decisions," Goule said. "Today's 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," he noted.

"Today's ag-friendly announcement clearly indicates that NFU and other agricultural stakeholders made their voices heard, and EPA took notice. I encourage EPA to continue to rebuild trust with the agricultural community by withdrawing its proposal to reduce the Renewable Fuel Standard targets."

But the National Cattlemen's Beef Association said it is "deeply concerned by this vast overreach by EPA and the administration. Under this expansion, essentially all waters in the country would be subject to regulation by the EPA and the Corps, regardless of size or continuity of flow."

"This is a step too far, even by an agency and an administration notorious for over-regulation," said NCBA President Bob McCan, a Victoria, Texas, cattleman.

While Senate Agriculture Committee ranking member Thad Cochran, R-Miss., questioned the intent the proposed rule, he encouraged the agriculture community to weigh in on the proposal.

"While I am suspect of the impact and objectives of this rulemaking, I give the agency some credit for finally choosing to use the rulemaking process and allow for public input as Congress intended," Cochran said.

"I encourage citizens to carefully review this proposal and weigh in with EPA to ensure that regulations like this one are based on sound science, consider economic impacts, and demonstrate common sense."

But Rep. Ronald Neugebauer, R-Texas, said, "This is a power-grab, plain and simple."

"The EPA's role is to ensure the federal government and states are working together efficiently to reduce pollution in our nation's waterways," Neugebauer said. "This rule goes far beyond that. EPA is giving itself permission to regulate anything from runoff ditches to stock ponds."

Environmental groups generally praised the rule.

"The release of the draft rule gets us one step closer to better defining Clean Water Act regulations in regard to wetlands," said Ducks Unlimited CEO Dale Hall.

"We are also pleased with the open process EPA has adopted, which invites the public, Congress and all interested parties to participate in the discussion," Hall said.

"EPA's draft science report last year showed many categories of wetlands, including prairie potholes, may be geographically isolated but are still connected to, and have a significant impact on, downstream waters."

McCarthy also wrote a column on the rule that was published online on AgWeb.

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