EPA, Corps May Withdraw Interpretive Rule On Permit-Exempt Conservation Practices

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By Amena H. Saiyid

Dec. 3 — The Environmental Protection Agency and the U.S. Army Corps of Engineers haven't ruled out the option of withdrawing a non-binding interpretive rule that outlines agricultural conservation practices that would be exempt from Clean Water Act dredge-and-fill permits due to the confusion it has caused among farmers and ranchers, an Agriculture Department official said Dec. 3.

“It is one of the options that is being considered,” Jason Weller, chief of the Natural Resources Conservation Service, told Sen. Pat Roberts (R-Kan.), the ranking member of the Senate Agriculture, Nutrition and Forestry Committee.

The committee convened the hearing to examine voluntary approaches by farmers and ranchers to improve water and soil quality.

Roberts, who will take over as the committee chairman when the 114th Congress convenes in January, asked Weller why the agencies even chose to single out 56 conservation practices as being exempt when the Clean Water Act already exempts all normal agricultural and silvicultural practices from a requirement to obtain Section 404 dredge-and-fill permits.

Weller deferred to the EPA and the corps on the need to issue the interpretive rule, saying they are reviewing the 1 million or so comments received on the waters of the U.S. proposed rule.

At the same time, Weller defended the agencies, saying “their intent was good, but unfortunately a lot of concerns were raised,” and much confusion has ensued as a result of the conservation practices that were identified in the interpretive rule.

The EPA and the corps issued the interpretive rule alongside the proposed waters of the U.S. rule in April to clarify the scope of Clean Water Act jurisdiction over the nation's waters and wetlands (79 Fed. Reg. 22,188).

The interpretive rule is an attempt by the EPA and the corps to clarify that discharges of dredged and fill material associated with current normal agricultural, ranching and silvicultural practices are exempt from the permit requirements. The rule included within its list of “normal” agricultural practices an additional 56 agricultural conservation practices, which are based on voluntary conservation measures approved by the NRCS for farmers to implement as a way to help water quality.

Meant to Cut Timeframe for Permits

Weller attempted to explain that the 56 conservation practices listed in the interpretive rule will no longer require dredge-and-fill permits, as they do now. He said the rule was meant to spare the hundreds of hours that applicants must spend in obtaining permits. Moreover, the purpose of the rule was to clarify and to streamline the permitting process, not add confusion, Weller said.

Farmers and ranchers have repeatedly expressed concern that the 56 voluntary conservation practices identified in the interpretive rule would require federal approval and certification prior to receiving permit exemptions.

Among the questions raised was the status of the NRCS as a USDA agency providing technical advice or one that would be certifying the 56 practices. Concerns also have been raised about the permit exemption status of about 100 other conservation practices that the NRCS has identified that farmers and ranchers can use.

Surprise Over Misperceptions

In response to a question by Sen. John Hoeven (R-N.D.) about the NRCS role in the waters of the U.S. rule, Weller said the NRCS did provide technical advice on the interpretive rule. On a personal note, Weller said he was “surprised” by what he called misperceptions about permitting and the confusion created by the interpretive rule.

Sen. John Boozman (R-Ark.) said the proposed rule to clarify the scope of Clean Water Act jurisdiction would have a “devastating impact” on farmers.

At the committee hearing on voluntary conservation efforts to improve water quality, Boozman raised the specter of mandates that would be imposed on farmers as a result of the waters of the U.S. rule.

Boozman, a member of the Agriculture Committee, also is the ranking member on the Senate Environment and Public Works Subcommittee on Water and Wildlife.

Urges Abandonment of U.S. Waters Rule

He joined eight other Republican leaders on House and Senate committees in a Nov. 13 letter urging the agencies to abandon the waters of the U.S. rulemaking. Boozman and other lawmakers said the proposed waters of the U.S. rule would significantly increase the amount of private property subject to federal control, including timberland, farmland and innumerable water bodies.

The proposed waters of the U.S. rule would bring under federal jurisdiction all tributaries of streams, lakes, ponds and impoundments as well as wetlands that affect the chemical, physical and biological integrity of larger, navigable downstream waters. The rulemaking would trigger Clean Water Act obligations if oil is spilled, pollutants are added or dredging and filling occurs in the waters of the U.S., as defined under the proposed rule.

To contact the reporter on this story: Amena H. Saiyid in Washington at asaiyid@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com