By Ashley Ellixson
On April 21, 2014, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) proposed a rule to define the term “waters of the United States” under the Clean Water Act. In short, the proposed definition would broaden the current jurisdictional scope of “waters of the United States.” If the proposed rule becomes law, it has the potential to regulate even more agriculture operations. The comment period is currently open and it is vital that the agriculture industry voice its opinion of the proposed rule.
In order to clean up our waterways and prevent pollution going forward, the EPA created what we now know as the Clean Water Act (CWA) in 1972. Up until 1976, agriculture operations were not held liable under the standards created by the EPA. Since including specific agriculture entities, such as animal feeding operations, EPA, or individual states that have been granted the power, has carried out industry standards set under the CWA by distributing and regulating permits. These permits and regulations target those entities whose activities have, or may have, an impact on the “waters of the United States.”
Presently, the scope of the term “waters of the United States” is limited under the CWA to “navigable waters” which are defined as “waters of the United States, including the territorial seas.” Both the history of the CWA regulation and lawsuits involving the CWA have shown that the term “waters of the United States” has not been narrowly confined to the traditional definition of navigable waters. It is for this reason that the EPA and the Corps have proposed to define “waters of the United States.” Historically, much of the jurisdictional controversy has grown out of what constitutes “other waters.” The term “other waters” pertains to wetlands and non-wetland waters that do not fall within the category of waters subject to interstate commerce (traditional navigable waters), interstate waters, territorial seas, tributaries, or waters adjacent to waters in one of those four categories. The current definition of “other waters” consists of a non-exclusive list of examples such as intrastate lakes, rivers, streams, mudflats, prairie potholes, wet meadows and natural ponds. As you can see, these definitions and terms are not clear-cut.
In an Economic Analysis document supplementing the proposed rule, EPA and the Corps estimate that an additional 3% of all U.S. waters will be subject to CWA jurisdiction and subject to regulation. However, even though 3% may not sounds like a significant increase, it is the 17% increase in “other waters” that may be the most concerning. Arguably, the most substantial change proposed is the definition of “other waters” that would make many bodies of water per se jurisdictional, or by rule, regulated.
EPA and the Corps are now proposing that “other waters” adjacent, or neighboring, to a regulated waterbody under the CWA be categorically jurisdictional. With this proposed definition, the agencies believe they are clarifying existing case law in light of Supreme Court decisions. Also, the rule proposes that non-adjacent “other waters” will continue to require a case-by-case determination of significant nexus. What is a “significant nexus”? The EPA and the Corps have declined to define what a “significant nexus” to jurisdictional waters would be, but are requesting comment on approaches to help with defining the “significant nexus” analysis.
Another important aspect of the proposed rule for agriculture is whether any of the agriculture exclusions or exemptions have changed? Fortunately, EPA and the Corps have not proposed to change any existing statutory or regulatory exclusions, such as exemptions for normal farming and ranching, or exemptions for permitting of agricultural stormwater discharges and return flows from irrigated agriculture, or exemptions for water transfers that do not introduce pollutants into a waterbody. It is also critical to note that the agencies are not proposing to change any of the permitting processes.
This proposed rule could potentially impact more agriculture producers since the proposed rule appear to increase jurisdiction of waterways under the CWA by creating a more expansive definition of “waters of the United States.” Please take a moment and consider whether this proposed rule could affect your operation. It is essential to be aware of how this could affect the agriculture industry no matter what region of the United States it you may be located. EPA and the Corps have extended the comment period from July 21, 2014 to October 20, 2014. You can find directions for commenting and the entire proposed rule at:
The link to the Economic Analysis that accompanied the proposed rule: