Proposed EPA Water rule

The U.S. Environmental Protection Agency proposes some new rules to clarify Clean Water Act protection. Some people and organizations have concerns about that, and the EPA has now responded to those concerns. Comment periods are still open for you to provide input directly to EPA about the proposed rule.

Here’s the EPA’s Waters of the United States Proposed Rule. EPA says clarification of the Clean Water Act was requested by a broad range of state, tribal, and local government agencies and elected officials and NGOs, ranging from AASHTO to the National Association of State Foresters. One of the two examples EPA cites of state enforcement problems is on the Flint River in Georgia:

Recreation in Lake Blackshear, Georgia

Challenges in proving jurisdiction hampered enforcement efforts when a large animal feeding operation in Georgia. Discharged liquid manure to tributaries. Unhealthy levels of viruses and bacteria were found downstream in Lake Blackshear, used for waterskiing and other water recreation.

Source: Georgia Department of Natural Resources, State Parks and Historic Sites.

EPA links a 331-page scientific report, Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence, preliminary draft of September 2013, which includes this interesting passage on page 5-11, which would seem to indicate that forested riparian buffers do mostly stop agricultural runoff from getting into rivers, although it doesn’t say what effects those pesticides and fertilizers have on the forests. I added the emphasis so you can easily see the sentence about Georgia coastal plains:

300x296 Terraine, in Water Connectivity, by John S. Quarterman, for, 0 September 2013 As subsurface flow passes through riparian areas, vegetative demand for dissolved nutrients also can reduce nutrient loads (Vidon et al., 2010). More than three-quarters of the dissolved nitrate transported from agricultural fields to a Maryland river (Vidon et al., 2010) were removed by riparian forests. Nitrate N was removed at a rate of 45 kg ha-1 yr-1 as subsurface flow moved from agricultural fields through riparian zones to nearby streams (Peterjohn and Correll, 1984). In the coastal plains of Georgia, riparian forests retained more than 65% of the nitrogen and 30% of the phosphorus contributed from nearby agriculture (Vidon et al., 2010). In southern Pennsylvania, a forested riparian area had a subsurface NO3 budget with an average removal of 90 kg NO3 ha-1 yr-1, which was 26% of the total nitrate input (Newbold et al., 2010).

The report does not mention any of the WWALS rivers, nor the Flint, Satilla, or Altamaha, but there is a paragraph about ions in the Chattahoochee. Aquifers are a major subject of the report. It never mentions the Floridan Aquifer, taking its examples from the High Plains. although it does say this on page 4-8:

300x150 Groundwater, in Water Connectivity, by John S. Quarterman, for, 0 September 2013 Infiltration is especially significant in arid, semiarid, and karst river networks, where water in intermittent and ephemeral streams recharge groundwater aquifers (Brahana and Hollyday, 1988; Hughes and Sami, 1992; Sharma and Murthy, 1995; Constantz et al., 2002). These aquifers supply water to rivers and other water bodies downgradient.

That report has on every page this reminder:

This document is a draft for review purposes only and does not constitute Agency policy.

So maybe we could get some direct examination of our south Georgia and north Florida situation into later drafts.

Meanwhile, Farm Bureau doesn’t like the EPA’s proposed rule, American Farm Bureau Tells Members to ‘Ditch’ EPA Water Rule, 2014-04-22, which includes:

“Congress, not federal agencies, writes the laws of the land,” Stallman said. “When Congress wrote the Clean Water Act, it clearly intended for the law to apply to navigable waters. Is a small ditch navigable? Is a stock pond navigable? We really don’t think so, and Farm Bureau members are going to be sending that message.”

As the Supreme Court just reaffirmed, the EPA can indeed make rules related to existing laws. Robert Barnes wrote for the Washington Post 23 June 2014, Supreme Court: EPA can regulate greenhouse gas emissions, with some limits,

“It bears mention that EPA is getting almost everything it wanted in this case,” Justice Antonin Scalia said in announcing his opinion from the bench. “It sought to regulate sources that it said were responsible for 86 percent of all the greenhouse gases emitted from stationary sources nationwide. Under our holdings, EPA will be able to regulate sources responsible for 83 percent of those emissions.”

Back to the Farm Bureau article:

300x440 Wetlands, in Water Connectivity, by John S. Quarterman, for, 0 September 2013 EPA contends that an entire set of exemptions will protect many farmers from the burdensome new rule. But Stallman counters that those exemptions will only apply to farming that has been ongoing since the 1970s, not new or expanded farms. Even for those farms, the exemptions do not cover weed control, fertilizer use or other common farm practices. The already narrow exemptions, Stallman says, have existed for years but have been further narrowed by EPA guidance issued simultaneously with the proposed rule.

“The EPA exemptions offer no meaningful protection for the hundreds of thousands of farmers and ranchers whose operations and livelihoods are threatened by this expansion of EPA’s regulatory reach,” Stallman says.

OK, that’s all pretty vague. And if the real complaint here is that weed control through massive pesticide use and overuse of chemical fertilizers can’t be allowed to run off into wetlands and rivers, I’m not sure I see a problem with EPA regulating that, especially when the Farm Bureau includes no specifics whatever as to what in the proposed rule would be a problem. I do find it troubling that Farm Bureau said “weed control” but not “pesticides” or “herbicides”. And I’m a Farm Bureau member.

In EPA’s own response to those concerns, Nancy Stoner wrote 30 June 2014, Setting the Record Straight on Waters of the US,

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 those 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 EPA’s proposal.

300x220 Confining, in Water Connectivity, by John S. Quarterman, for, 0 September 2013 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.

EPA’s proposal will bring 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 permitting exemption for stock ponds, does not require permits for normal farming activities like moving cattle, and does not regulate puddles.

EPA’s 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 welcome input on the proposed rule to make sure we get it right.

The Nancy Stoner article goes on with details about farms, ranches, ditches, cows, erosion, and ponds. I don’t know whether what she wrote will satisfy Farm Bureau, because FB didn’t include enough detail to tell. Me, I lean towards the side of a discussion that actually includes evidence, and that’s the EPA in this case.

You can comment directly on the proposed rule through 21 July 2014. EPA has also reopened a comment period on Exemption From Permitting Under Section 404(f)(1)(A) of the Clean Water Act to Certain Agricultural Conservation Practices until 17 June 2014. Before you comment, here is the actual proposed rule, Definition of Waters of the United States Under the Clean Water Act.


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