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11 Things the EPA Says the Clean Water Act Rule Doesn’t Do

Several farm groups expressed concern last week about the Environmental Protection Agency’s (EPA) announcement about the Clean Water Rule. Typical of the reaction was a prepared statement by Bob Stallman, president of the American Farm Bureau Federation.

“We are undertaking a thorough analysis of the final WOTUS rule to determine whether the Environmental Protection Agency listened to the substantive comments farmers and ranchers submitted during the comment period. Based on EPA’s aggressive advocacy campaign in support of its original proposed rule – and the agency’s numerous misstatements about the content and impact of that proposal – we find little comfort in the agency’s assurances that our concerns have been addressed in any meaningful way.

“The process used to produce this rule was flawed. The EPA’s proposal transgressed clear legal boundaries set for it by Congress and the Courts and dealt more with regulating land use than protecting our nation’s valuable water resources. EPA’s decision to mount an aggressive advocacy campaign during the comment period has tainted what should have been an open and thoughtful deliberative process. While we know that farmers and ranchers were dedicated to calling for substantial changes to the rule, we have serious concerns about whether their comments were given full consideration.

“We expect to complete our review in the next few days. We are looking in particular at how the rule treats so-called ephemeral streams, ditches, small ponds, and isolated wetlands. We will decide on an appropriate course of action once that review is complete.”

What The EPA Says

In response to this statement and others, the EPA sent this statement to agricultural journalists this week. Agree or disagree, here are 11 points that the EPA says the Clean Water Act Rule does not do.  

1. The Clean Water Rule Does Not Regulate Most Ditches. Rule Text § 230.3(s)(2)(iii): “The following are not ‘waters of the United States... the following 
ditches: (A) Ditches with ephemeral flow that are not a relocated tributary or excavated in a
tributary. (B) Ditches with intermittent flow that are not a relocated tributary, excavated in a tributary, or drain wetlands. (C) Ditches that do not flow, either directly or through another water, into [a traditional navigable water, interstate water, or the territorial seas.]” 
Preamble page 169: “Moreover, since the agencies have focused in the final rule on the physical characteristics of excluded ditches, the exclusions will address all ditches that the agencies have concluded should not be subject to jurisdiction, including certain ditches on agricultural lands and ditches associated with modes of transportation, such as roadways, airports, and rail lines.”

2. The Clean Water Rule Does Not Change Exemptions For Agriculture. Preamble page 8: “Congress has exempted certain discharges, and the rule does not affect any of the exemptions from CWA section 404 permitting requirements provided by CWA section 404(f), including those for normal farming, ranching, and silviculture activities. CWA section 404(f); 40 CFR 232.3; 33 CFR 323.4. This rule not only maintains current statutory exemptions, it expands regulatory exclusions from the definition of “waters of the United States” to make it clear that this rule does not add any additional permitting requirements on agriculture.”

3. The Clean Water Rule Does Not Regulate Erosional Features. Rule Text § 230.3(s)(2)(iv)(F): “The following are not ‘waters of the United States’ . . . erosional features, including gullies, rills, and other ephemeral features that do not meet the definition of tributary . . . .” Preamble page 175: “While the proposed rule specifically identified gullies and rills, the agencies intended that all erosional features would be excluded. The final rule makes this clear.”

4. The Clean Water Rule Does Not Regulate Groundwater. Rule Text § 230.3(s)(2)(v): “The following are not ‘waters of the United States... groundwater, including groundwater drained through subsurface drainage systems.”
Preamble page 176: “The agencies include an exclusion for groundwater, including groundwater drained through subsurface drainage systems.”

5. The Clean Water Rule Does Not Regulate Farm Ponds. 
Rule Text § 230.3(s)(2)(iv)(B): “The following are not ‘waters of the United States... Artificial, constructed lakes and ponds created in dry land such as farm and stock watering ponds . . . .” 
Preamble page 173: “In the exclusion for artificial lakes or ponds, the agencies have removed language regarding ‘use’ of the ponds, including the term ‘exclusively.’ . . . [T]he agencies recognize that artificial lakes and ponds are often used for more than one purpose and can have other beneficial purposes . . ..”

6. The Clean Water Rule Does Not Regulate Land Use. Preamble page 8: “The rule also does not regulate ... land use.”

7. The Clean Water Rule Does Not Change Policy on Irrigation. Rule text § 230.3(s)(2)(iv)(A): “The following are not ‘waters of the United States... artificially irrigated areas that would revert to dry land should application of water to that area cease . . . .”
Rule text § 230.3(s)(2)(iv)(B): “The following are not ‘waters of the United States . . . Artificial constructed lakes and ponds created in dry land such as . . . irrigation ponds . . . .”
Preamble page 8: “The rule also does not . . . affect either the existing statutory or regulatory exemptions from NPDES permitting requirements, such as for agricultural stormwater discharges and return flows from irrigated agriculture . . . .”

8. The Clean Water Rule Does Not Regulate Puddles. Rule Text § 230.3(s)(2)(iv)(G): “The following are not ‘waters of the United States... puddles.” Preamble page 176: “The final rule adds an exclusion for puddles . . . . Numerous commenters asked that the agencies expressly exclude them in a rule. The final rule does so.”

9. The Clean Water Rule Does Not Change Policy On Stormwater. Rule text § 230.3(s)(2)(vi): “The following are not ‘waters of the United States... stormwater control features constructed to convey, treat, or store stormwater that are created in dry land.”
 Preamble page 177: “This exclusion responds to numerous commenters who raised concerns that the proposed rule would adversely affect municipalities’ ability to operate and maintain their stormwater systems . . . . The agencies’ longstanding practice is to view stormwater control features that are not built in ‘waters of the United States’ as non-jurisdictional.”

10. The Clean Water Rule Does Not Regulate Water in Tile Drains. Rule Text § 230.3(s)(2)(v): “The following are not ‘waters of the United States... groundwater, including groundwater drained through subsurface drainage systems.”

11. The Clean Water Rule Does Not Change Policy on Water Transfers. Preamble page 8: “The rule also does not ... affect either the existing statutory or regulatory exemptions from NPDES permitting requirements, such as for... water transfers.”

EPA officials say more information is available at Epa.gov/cleanwaterrule.

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