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Setting the Record Straight on Waters of the US

2014 June 30
Nancy Stoner

June 30, 2014
4:56 pm EDT

Nancy Stoner, Acting Assistant Administrator for Water

Updated July 7, 2014

There’s been some confusion about EPA and the Corps’ proposed “Waters of the U.S.” rule under the Clean Water Act, especially in the agriculture community, and we want to make sure you know the facts.

We know that we haven’t had the best relationship with the agriculture industry in the past, but that doesn’t mean we aren’t and we can’t do better.  We are committed to listening to farmers and ranchers and in fact, our proposed rule takes their feedback into account.

The rule keeps intact all Clean Water Act exemptions and exclusions for agriculture that farmers count on. But it does more for farmers by actually expanding the list of up-front exemptions. We worked with USDA’s Natural Resource Conservation Service and the Army Corps of Engineers to exempt 56 additional conservation practices. These practices are familiar to many farmers, who know their benefits to business, the land, and water resources.

Farmers and ranchers are on the land every day, and they are our nation’s original conservationists. The American agriculture economy is the envy of the world, and today’s farmers and ranchers are global business professionals—relying on up-to-the minute science to make decisions about when to plant, fertilize, and irrigate crops.

Both EPA and farmers make decisions based on facts—so here are the facts about the proposal.
When Congress passed the Clean Water Act in 1972, it didn’t just defend the mighty Mississippi or our Great Lakes; it also protected the smaller streams and wetlands that weave together a vast, interconnected system. It recognized that healthy families and farms downstream depend on healthy headwaters upstream.  But two Supreme Court cases over the last 15 years confused things, making it unclear which waters are “in,” and which are “out.”

That confusion added red tape, time, and expense to the permitting process under the Clean Water Act. The Army Corps of Engineers had to make case-by-case decisions about which waters were protected, and decisions in different parts of the country became inconsistent.

So EPA and the Corps are bringing clarity and consistency to the process, cutting red tape and saving money. The proposed Waters of the U.S. rule does not regulate new types of ditches, does not regulate activities on land, and does not apply to groundwater. The proposal does not change the exemption for stock ponds, does not require permits for normal farming activities like moving cattle, and does not regulate puddles.

The agencies’ goals align with those of farmers: clean water fuels agriculture—and we all depend on the food, fuel, and fiber that our farmers produce. We at EPA and the Corps welcome input on the proposed rule to make sure we get it right.

Here are clarifications on a few points of confusion about the proposed rule. For further information, check out:

The EPA and the Army Corps are NOT going to have greater power over water on farms and ranches.

  • The Clean Water Act and its regulations have multiple exclusions and exemptions from jurisdiction and permit requirements.  The proposed rule does not change or limit any of them.
  • The agencies also worked with USDA to develop and publish through an interpretive rule, a list of NRCS agricultural conservation practices that will not be subject to CWA permitting requirements.  These practices encourage conservation while protecting and improving water quality.

The proposed rule will NOT bring all ditches on farms under federal jurisdiction.

  • Some ditches have been regulated under the Clean Water Act since the 1970s.
  • The proposed rule does not expand jurisdiction.
  • For the first time, the agencies are clarifying that all ditches that are constructed in dry lands, that drain only dry lands, and don’t flow all year, are not “waters of the U.S.” This includes many roadside ditches, and many ditches collecting runoff or drainage from crop fields.
    • Ditches that are IN are generally those that are essentially human-altered streams, which feed the health and quality of larger downstream waters. The agencies have always regulated these types of ditches.
    • Ditches that are OUT are those that are dug in dry lands and don’t flow all the time, or don’t flow into a jurisdictional water.
  • Farmers, ranchers and foresters continue to receive their exemptions from Clean Water Act Section 404 permitting requirements when they construct and maintain their ditches, even if ditches are jurisdictional.

The proposed rule does NOT mean permits are needed for walking cows across a wet field or stream.

  • Normal farming and ranching activities are not regulated under the Clean Water Act.

The proposed rule will NOT apply to wet areas on fields or erosional features on fields.

  • Wet areas on crop fields are not jurisdictional.
  • The proposal specifically excludes erosional features from being “waters of the U.S.”

EPA and the Corps are NOT taking control of ponds in the middle of the farm.

  • The proposed rule does not change existing practice regarding farm ponds.
  • The rule does not affect the existing exemption Congress created under section 404 for construction and maintenance of farm or stock ponds.
  • The proposed rule would for the first time specifically exclude stock watering ponds from jurisdiction in rule language.

Editor's Note: The views expressed here are intended to explain EPA policy. They do not change anyone's rights or obligations.

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14 Responses leave one →
  1. Stuart Smith permalink
    July 1, 2014

    The following is all totally wrong in not correct in any measure: Farmers and ranchers are on the land every day, and they are our nation’s original conservationists. The American agriculture economy is the envy of the world, and today’s farmers and ranchers are global business professionals—relying on up-to-the minute science to make decisions about when to plant, fertilize, and irrigate crops.

  2. Stewart Melvin permalink
    July 1, 2014

    I have worked in soil and water conservation engineering for the past fifty years, and find the explanation of “dry ditches” to be either humorous or, what’s worse, devious. I certainly hope it isn’t the latter.
    Did all you folks in EPA grow up in the desert where dry washes may not drain to a navigable water? Please come out to the humid portion of the country and show me a “ditch” that doesn’t flow to a navigable water. On my farm and on every farm in the humid area of this country, water that runs off from farm fields flows in sheet flow for a short distance, then into a rivulet, then into a rill, then into a small channel, such as an ephemeral gully, or perhaps a grass waterway but finally into a ditch that has bed and banks, then into small streams, larger streams and finally on my farm, the Mississippi river.
    After this very inadequate explanation of how the regulation of all these “dry” ditches are exempt from jurisdiction, you offer all the NRCS practices that are supposed to allow us to farm without regulation based on the list of practices. I notice that essentially all water erosion control structural practices are conveniently left off this “comprehensive” list, such as terracing, sediment and water control basins, erosion control structures, drainage management,and even waterways that are fixing a small gully. If we have to go through the process of getting a permit prior to fixing problems that show up after large runoff events, we will be relegated to excessive permitting costs, loss of time, and in many cases too strict design requirements. I can’t think of anything that EPA can do to discourage land conservation and improvement more than this action!
    Please come out of your bureaucratic shell and visit the real world. I would invite anyone to come to my farm and explain to me how I am exempted to fix a problem that has occurred in the last week after 5-8 inches of rain, and not have to more spend time and money with this “clarification” than I will the next few days on my own without this latest power grab by the government telling me how to do it better than I know now.

    • Matt permalink
      July 3, 2014

      The following is from the link to the “Q&A” page for these rules:

      “•If a permit was not needed for a particular practice before, a permit won’t be needed now.
      •These 56 practices clarify and add to all of the practices that are being implemented in the field today and currently considered normal farming and exempt from permitting. The interpretive rule adds to what is exempt.
      •The “normal farming” exemption is broader than these 56 practices. So if farmers implement other practices, or don’t use NRCS funds, they would continue to be exempt in the same way they are now.
      •This rule is self-implementing, which means that a farmer is not required to seek approval from or consult with any agency (including USDA, EPA, and the Corps) to implement a conservation practice and be exempt from permitting.”

      Practices like those that you are referring to regarding erosion control have always been exempted from the 404 permit. this statement from above confirms this as well:

      “The proposed rule will NOT apply to wet areas on fields or erosional features on fields.
      •Water-filled areas on crop fields are not jurisdictional.
      •The proposal specifically excludes erosional features from being “waters of the U.S.”

      • farmer permalink
        July 10, 2014

        Sounds a lot like “If you like your insurance, you can keep your insurance” to me.

  3. Blake Roderick permalink
    July 1, 2014

    When and where are you planning these “barnstorming” sessions. Send me a link on your website that gives the details and announcements please.

  4. nuffalready permalink
    July 2, 2014

    The EPA relationship hasnt been good with oil producers either. Most farmers have an interest in oil by the way. It took the industry 15 years of litigation, and lobbying to force EPA to make sense on their SPCC rule. Then, if there is a spill, hang on to your hats. Somehow your OPS squad gets wind of these things, and they land in force. You know the squad. Big EPA motor homes with satellite dishes. These characters take over everything, running up cleanup costs exponentially, tearing out facilities, looking for other ‘infractions’, etc etc. Then after the motor homes finally roll on to the next ‘emergency’ your legal team swoops in. The are looking to reap at least $2 million per incident after costs. This are punitives we suppose (you know) to protect the earth.
    So we cheered when the SCOTUS ruled against you twice, and here you are back again. Yikes and double yikes.

  5. Time and Expense permalink
    July 2, 2014

    Any time in addition to exactly where do you think you’re planning most of these “barnstorming” consultations. Mail me personally a hyperlink on your web page giving the main points in addition to press releases make sure you.

  6. William J. Gradle permalink
    July 7, 2014

    Ms Stoner,

    How does this proposed rule affect the private forestland owner in the sustainable management of their ecosystems that include wildlife, carbon sequestration, and timber resources?

    Bill Gradle
    Illinois Forestry Association

  7. Traci Narkewicz permalink
    July 9, 2014

    If Federal Agencies didn’t lie routinely to the American people your article might have some credence. But it doesn’t.

  8. Fish Kill permalink
    July 9, 2014

    I think jurisdiction is appropriate. As would the courts.

    Fish and game jurisdiction does not include drainage ditches.

    It is a shame that cities often straddle waterways. But the outlands also need protection. I don’t know if excluding the brownfields is good thing or not, but waterways are the most critical.

  9. farmer permalink
    July 10, 2014

    Why don’t you get together with American Farm Bureau Federation and convince them that we are ok. I trust them. Maybe they are overstating how bad it is but sometimes things are written one way and then interpreted another way. Also EPA gets forced, via lawsuit, to do what the regulations say even if the folks proposing them say that’s not how they will be interpreted.

    one of the things that bothers me is that the regulators can be wrong and just go onto the next job but this is stuff I have to live the rest of my life with. I am a farmer. do you want me to continue doing this or to just go away???

  10. Dr Emad Gomaa permalink
    July 11, 2014

    I want protocol help to complete some researches in water resources pollution in Egypt

  11. tom sewell permalink
    July 31, 2014

    Please no more national government rules on our water. Let the local in each area set their own rules in place.

  12. Bud Thomas permalink
    February 11, 2015

    If I am correct I pay the taxes on my land. I understand that epa needs to be sure we do not interrupt the flow of major creeks and waterways or fill them with mud. But this is how i make my living and it doesn’t make a difference to you whether a pond is built or not . In other words keep your greedy government hands out of my pocket.

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