Waters of the United States

issuebriefThe Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) have officially published their proposed regulation to redefine and expand the scope of “navigable waters” under the Clean Water Act. This proposal changes the term “navigable waters” to essentially mean all “Waters of the United States.” The general public has been given an extension on the initial 90-day comment period and may now make comments until Oct. 20, 2014 to provide the agencies feedback, questions and concerns about the proposal.

The effect of the joint agencies’ proposal is to expand jurisdiction and assert new regulatory authority over non-navigable waters, seasonal flows, wetlands, seeps, intermittent streams and wetlands, isolated ponds, isolated marshes, pot holes, playa lakes, flood plains and additional “waters” with no direct connection to navigable waterways. These waters previous have not been regulated under the Clean Water Act. Farmers, land developers and governors worried about drought management are accusing the federal government of a new round of regulatory overreach. Intense debate has developed around land use, economic impact, states’ rights and the abuse of presidential power.

EPA’s draft scientific assessment that is used as a basis to justify the proposed rule, is still being reviewed by the agency. This assessment draft is not public and will not be finalized until the end of 2014 or early 2015. EPA says the regulation will not be finalized until after the peer reviewed scientific assessment is fully complete and it will take into account the public’s comments. However this time frame will not provide the public a chance to scrutinize EPA’s draft scientific assessment in their comments. As a result, a number of lawmakers on Capitol Hill are calling on the Administration to withdraw the proposed rule to allow the public to digest the pending scientific assessment after it is released. Farm groups, commodity organizations and landowners are asking EPA to give the public at least six months to review the rule’s impacts rather than the three months provided.

Further complicating agriculture’s concern with EPA’s proposal is an accompanying “interpretative rule” which claims to clarify exemptions for “normal farming and ranching“ practices under the proposed regulation. After deeper analysis of the interpretative rule, agriculture is even more concerned with what may or may not be subject to the proposed regulation. Many of the list of 56 exempted practices are extremely common (fencing, grazing, brush management for example) and have never been considered outside the statutory exemption. The fear is that once defined in statute, these practices could become regulated under the Clean Water Act in the future. To qualify for future exemptions, practices must comply with USDA’s Natural Resources Conservation Service (NRCS) technical standards; farmers who employ good practices without the need for NRCS compliance may not benefit from future exemptions. The proposal narrows the definition of normal farming operation to mean ongoing farming activity since the 1970’s; newer farms, those that have ceased operation for a while then resumed, and farms that switched from one crop to another may find themselves disqualified for future exemptions.


GRANGE POSITION

“The Grange recognizes the importance of and protection of all watersheds … The National Grange opposes any mandate that suggests all watersheds are to meet the same water quality standards.” (National Grange Conservation Committee Policy Statement, Legislative Policy and Priorities Booklet, 2013 Edition)


ACTION ALERT

Farmers, ranchers and landowners have the opportunity to infuse some common sense into the government’s proposed redefinition and expansion of the definition of “navigable waters” to include all “Waters of the United States.” Be sure to file your comments before October 20 and encourage your friends, neighbors and fellow landowners to submit comments as well.

Make these points (as applicable) in your comments:

  • Briefly describe your operation (where you are located, what you produce, stewardship practices, family history on the land, etc.).
  • Private landowners are responsible managers of the water, land, air, animals, wildlife and other natural resources under their stewardship.
  • Overregulation by the federal government to dictate land use practices stifles individual creativity, productivity, incentive and sense of stewardship.
  • Significantly expanding the definition of “Waters of the United States” to include ditches, remote waters, seeps, and drainages that flow only when it rains could bring your land under EPA regulation.
  • The term “water” as defined in the proposed regulation does not solely refer to water contained in aquatic systems, but also refers to whole watersheds that drain into the nearest “water “as defined by the new regulation.
  • EPA’s so-called exemptions will not protect producers and landowners from regulation under the proposed rule.
  • Economic growth and activity in rural communities will be adversely affected.
  • The interpretative rule narrows normal farming exemptions and ties practices to mandatory technical compliance with what used to be voluntary Natural Resources Conservation Service (NRCS) technical standards.
  • The EPA and Corps of Engineers have not adequately demonstrated the need to regulate all waters on all agricultural lands.
  • The proposed regulation is an end run around congressional intent and rulings by the Supreme Court.
  • Ask EPA to withdraw the proposed regulation in order to give the general public time to review EPA’s own scientific assessment set to be released after the public comment period closes. EPA should also review farmer, rancher and landowner comments before issuing any further water proposals.


SUBMITTING COMMENTS

Format:

U.S. Environmental Protection Agency

Attention: Docket ID No. EPA-HQ-OW-2011-0880

RE: Comments on the U.S. EPA and U.S. Army Corps of Engineers Guidance Regarding Definition of “Waters of the U.S.” Under the Clean Water Act. Docket No. EPA-HQ-OW-2011-0880

To Whom It May Concern:

I write today as a member of the National Grange, a nonpartisan 147-year-old agriculture and rural advocacy organization with more than 160,000 members across the U.S. with deep concerns over the U.S. EPA and U.S. Army Corps of Engineers Guidance Regarding Definitions of “Waters of the U.S.” under the Clean Water Act. The expanded definition has sprawling consequences, especially to America’s farmers and ranchers who provide food, fuel and fiber for our citizens and many in the global community, as well as landowners across the U.S.

Personally, I am concerned about this issue because (…).

I hope you will take this comment into consideration and use it as part of your rationale when withdrawing the proposed regulation.

Sincerely,

Your Name
Grange affiliation/hometown and state

Send To:

Via email Via mail delivery
Email address – EPA-docket@epa.gov
Subject line – EPA-HQ-OW-2011-0880
Water Docket
Environmental Protection Agency
Mail Code 2822T
1200 Pennsylvania Avenue, NW
Washington. DC 20460
Attention: Docket ID No. EPA-HQ-OW-2011-0880