When  Congress returned after its summer recess, the House of Representatives  passed a bill (H.R. 5078) that would stop the U.S. Environmental Protection Agency and Army Corp of Engineers from finalizing and implementing the proposed Waters of the United States (WOTUS) rule. Back in April, EPA proposed the rule to clarify and define which bodies of water fall under the Clean Water Act. There currently are no plans for the Senate to consider the Act.

The Clean Water Act (CWA) prohibits the discharge of any pollutants, included dredged or fill material into “navigable waters”  unless this is done in compliance with an authorized permit. Currently the CWA administers two permitting programs: NPDES or Section 402) that allows discharges of certain permitted activities (think industrial  discharges and Confined animal feeding operations) and the Section 404 permitting program which allows discharge of dredge or fill materials into waters especially wetlands.

The intent of the proposed rule was to bring clarity to a process that all too often ended up in litigation due to confusion  as to what constituted “all other waters”. Under the CWA, waters of the U.S. are defined as traditional navigable waters; interstate waters, and all other waters that could affect interstate or foreign commerce, impoundments of waters of the U.S., tributaries, territorial seas and adjacent wetlands.

Unfortunately, confusion still reigns with some farm organizations outright opposing the rule as a “power grab” by EPA, claiming that the way it is written, every depression or farm pond will now come under government regulation, and “farming as we know it will end.”

Others stated (with considerably less hyperbole) that the rule has not provided the clarity needed. They express concerns about specific language (such as considering wetlands, lakes and ponds as tributaries  even if they have no bed, banks or high water marks) that could  indeed create problems for farmers. But supporters of the rule argue that it is necessary to protect the quality if the nation’s drinking water.

They point to the algae blooms  causing water crises across the country, like that experienced by Toledo, Ohio, which went without drinking  water for several days.  Or the spills in West Virginia last January that still worry residents as to the safety of their water.

While perhaps EPA did not provide the clarity they intended, this is still a rule in the comment making stage, with opportunities for questions and recommendations. October 20 is the deadline for public comment.  You can submit comments on the proposed rule at  www.regulations. gov/#!documentDetail;D=EPA-HQ-OW-2011-0880, Docket No. EPA-HQ-OW-2011-0880.

You can find questions and answers  on WOTUS on the National Sustainable Agriculture’s website at http://sustainableagriculture.net/blog/waters-of-the-us-qa/.   ❑

From Sept-October 2014 Rural Papers