By Peg Bostwick, ASWM
On April 21, 2014 the U.S. Environmental Protection Agency and the Corps of Engineers issued an Interpretive Rule regarding the exemption of certain agricultural conservation practices under §404 of the Clean Water Act. An associated MOA among the Natural Resources Conservation Service, the EPA, and the Corps of Engineers defined the seemingly straightforward purpose of the rule as clarifying “the applicability of the exemption from permitting… …to NRCS conservation practice standards designed and implemented to protect and enhance water quality”. Although the interpretive rule had immediate effect, the federal agencies also requested comments on the list of practices specified as being exempted.
Eight months later, on January 29, 2015, the same agencies withdrew the rule following broad and atypically uniform opposition, in spite of limited support from some parties. For many involved in federal wetland policy, the question is what now?
The interpretive rule was, I think, a well-intentioned attempt to increase understanding of the §404 exemptions, to facilitate the work of the agricultural community, and to reduce the charges of regulatory overkill that are so often leveled at the regulatory agencies. In at least a couple of states – with some significant work by state and local staff – it almost achieved those goals. In most of the country, however, it failed at least in part because the responsible agencies simply did not account for the precarious balance that has developed at the state and local level among regulators, permit applicants, those whose work is largely exempted from §404 permit requirements (primarily farmers and foresters) along with water resource advocates, and an array of state, federal and local agencies.
Checks and balances are an integral component of our nation’s rules and regulations, and our government as a whole. People don’t like rules, but accept them as necessary if their overall interests are taken into account. With water and wetlands – natural resources where virtually every citizen and all levels of government have an interest – that balancing act is tricky indeed. If it is done well, you might say it is a thing of beauty.
And we have – ever since the 1972 Clean Water Act set these issues in motion – achieved a reasonable balance most of the time. No, don’t laugh. In most states with active wetland programs, most permit applications are processed smoothly and efficiently, and most wetlands are protected to a degree. And most of the legal battles involve the edges of things – the “end” of a stream, or the edge of a wetland that may be connected to that stream. Edges are tricky – there is often a lot going on there physically, chemically, and biologically, and also legally and socially. Obviously, our management of water resources is still evolving, especially as we respond to new scientific knowledge, shifting social pressures, and enormous destabilizing factors on the level of global climate change. There is much we can do better. However, the central need to protect wetlands and their benefits is actually very well established and accepted.
Down on the ground, an enormous number of agencies and organizations – it must be well into the thousands at the local level – have found a way to knit together federal, state, tribal and local wetland permit requirements; have figured out how to make things work given local geography and biology, local land use concerns, local water issues, local social organization, and local attitudes. Just as politics are local, that is also where you get your jeans wet and your boots muddy when it comes to wetlands and water management. Not surprisingly, a number of the groups executing this balancing act have made the point that certain parts of the federal law are a little fuzzy.
The interpretive rule must have seemed so straightforward when planned, being based on an existing list of agricultural conservation practices, and existing 404 exemptions. But the rule appeared to topple many of the existing checks and balances and processes at the state and local level that are routinely used to address exempt, or near-exempt agricultural activities. The NRCS list included actions often implemented away from agricultural operations, and others with the potential for damage in some locations. And to many farmers, the rule appeared to put a thumb on the legal scale that shifted that balance in favor of the regulators, rather than providing relief.
The exemption of certain actions under §404 is not an issue; setting boundaries is. We still need to work on those tricky edges, and the need is perhaps greater than ever – not only for food producers, but for those faced with management of water resources to manage increasingly intense storms on one hand, drought on the other, and a massive range of water quality and habitat issues in between. How can we take steps to recognize the best intentions of the interpretive rule without once again losing our balance?
It seems to this writer that our next best opportunity to do so may be through the Corps of Engineers Nationwide General Permit (NWP) process, given that the existing set of Nationwides must be replaced by March 18, 2017. The Nationwide GP’s are not perfect – in fact a number of states have negotiated with the Corps to replace them with a State Programmatic General Permit (SPGP), or a regional general permit (RGP), tailored to meet state and local legal and biological needs. But this points precisely to why the NWP process works as well as it does: it established baseline national standards, but incorporates checks and balances for other federal programs (e.g. floodplains, endangered species) and also for state and tribal programs (e.g. through §401 water quality certification, Coastal Zone consistency determination). And it provides for the alternative development of state specific criteria and procedures, including regional or state programmatic general permits to meet those needs. National consistency for core requirements is a fine idea, because it can protect the interest of both upstream and downstream states and individual citizens. However, an overzealous concentration on national consistency without the needed degree of (local) flexibility may not be the best idea in a nation as large and socially/geographically diverse as ours
We now have about 2 years to cooperate with one another and the Corps to develop and refine general permit categories to meet our collective and locally specific needs. NWP’s allow for a range of options:
- Non-reporting authorization for activities that may – while not clearly exempt under CWA – clearly have minimal impact in some geographic areas (with appropriate local conditions);
- Categories for specific states, tribes, or regions in RGPs or SPGPs;
- State or tribal certification of a NWP category based on inclusion of locally needed criteria or conditions;
- Provisions for a streamlined review and signoff of relatively minor activities where site-specific concerns must be evaluated – such as screening for drinking water impacts or presence of listed species;
- Local agreements among regulatory agencies to clarify roles and responsibilities of each in working with the public.
In spite of these options, the definition of general permits and their conditions is never easy. We would be well-advised to begin work now to prepare for 2017. Balance, after all, requires careful coordination.