Association of State Wetland Managers - Protecting the Nation's Wetlands.

The Compleat Wetlander: Many Moving Parts: Keeping up with Changes to Clean Water Act Jurisdiction

On March 25, 2014 the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) released a proposed rule to clarify Clean Water Act Jurisdiction.  On the same day they issued an Interpretive Rule, effective immediately, that defines a number of NRCS Conservation Practices as being exempt from §404 permitting requirements on the basis of the §404(f)(1) exemption for normal farming, silviculture, and ranching practices.  A list of 56 specific NRCS Conservation Practice Standards were initially approved that both clarify and, in some cases, expand the existing §404 exemptions.   Both the proposed and the interpretive rule were published in the Federal Register on Monday, April 21 which begins the formal comment periods.  There is a 90 day comment period which ends July 21 for the proposed rule.  There is a 45 day comment period which ends June 5 for the interpretive rule.

In addition, back in September of last year, the U.S. Environmental Protection Agency’s (EPA) independent Scientific Advisory Board (SAB) requested public comment on “Connectivity of Streams and Wetlands to Downstream Water” posted here. The 331 page report synthesized the peer-reviewed scientific literature about the biological, chemical, and hydrologic connectivity of waters and the effects that small streams, wetlands, and open waters have on larger downstream waters such as rivers, lakes, estuaries, and oceans.  The report was written to provide the scientific basis for the proposed rule now out for public comment. At that time, the SAB also announced it had invited a panel of experts to review the report and either concur with some or all of the findings of the report and/or recommend changes.   The panel met in December to discuss the draft report. Their draft document reviewing the report was published on March 25, 2014.  Next week (on April 28 and May 2) there will be two conference calls by the panel members to further discuss and finalize their evaluation of EPA’s report on Connectivity of Streams and Wetlands to Downstream Waters.  The SAB and EPA will then presumably make changes to the connectivity report which may in turn either support or lead to changes in the proposed rule on Clean Water Act jurisdictions as it is revised to create a final rule.

It’s a lot to keep up with.

Because the Interpretive Rule took effect right away, and the comment period is only 45 days, this may be the most pressing change to review and comment on.  In the public notice the agencies specifically ask the public to comment on:

“how they (the Corps and EPA) might most effectively and efficiently conduct the proposed periodic review of exempt practices and how best to revise the list of exempt NRCS practice standards. The agencies also request comment on how they can best work together and with NRCS to provide clarity to the regulated community and the public on the exemption.”

The exemption of the 56 practices applies only to Section 404 (dredge and fill permitting) of the Clean Water Act.  All other parts of the act that might be triggered by an activity (for example a point source discharge under Section 402) still apply.  The criteria used to select the 56 exempt practices focused on selecting only those activities that do or might impact water quality.  Conservation practices that only occur in uplands are not included on the list.  Clearly some practices on the list such as Practice 657  Wetland Restoration and Practice 395 Stream Habitat Improvement and Management can impact water quality (chemical, physical or biological).  Other practices, for example fencing (Practice 382 Fence http://www.nrcs.usda.gov/Internet/FSE_DOCUMENTS/nrcs143_025692.pdf), as well as a number of other practices, at first glance may not appear to have the potential to impact water quality  and may seem to have little to do with streams and wetlands.  However, sometimes fences do cross waterways.  The same is true for other practices on the list.  They may be largely conducted in uplands, but on some occasions they are located in aquatic areas as well.

The goal in listing these conservation practices is to identify those that can be considered beneficial to meeting the goals of the Clean Water Act as long as they are implemented consistent with the Natural Resources Conservation Service national practice standard by a farmer or agricultural producer and to encourage and facilitate their use.  The comment period provides the public with the opportunity to evaluate the appropriateness of the list of practices and provide recommendations to EPA and the Corps on how to carry out the interpretive rule.

We encourage you to review both the proposed rule and the interpretive rule and provide comments.

For more information:

Federal Register Proposed Rule: Definition of ‘‘Waters of the United States’’ Under the Clean Water Act

Federal Register Notice of Availability Regarding the Exemption From Permitting Under Section 404(f)(1)(A) of the Clean Water Act to Certain Agricultural Practices

The list of 56 practices now exempt from Section 404 of the Clean Water Act

Background on The EPA Science Advisory Board Report “Connectivity of Streams and Wetlands to Downstream Waters.” is posted here and the document available online here.

Additional background and information materials can be found on the following web pages:

U.S. Environmental Protection Agency Website on Proposed and Interpretive Rules

EPA Science Advisory Board website on Connectivity Report

This entry was posted in Agriculture exemptions, Clean Water Act, Clean Water Act Jurisdiction, Connectivity to Navigable Waters, Section 404, wetlands and tagged , . Bookmark the permalink.

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