Vilsack Says Leaked Draft of EPA Clean Water Act Rule Not Final

Posted January 20, 2014

Secretary of Agriculture, Tom Vilsack, told the American Farm Bureau Federation (AFBF) that the leaked EPA draft rule does not necessarily reflect the position of the U.S. Environmental Protection Agency (EPA), according to an article by Bloomberg BNA available here.

Vilsack said, “We have been assured by the EPA that the draft rule that was leaked, that was unfortunately leaked, does not necessarily reflect the position of the EPA,” echoing the administration’s statement in November by EPA Administrator Gina McCarthy before a House Science, Space and Technology Committee hearing.

“We need to wait and see what comes out of EPA,” said Vilsack.

The day before, AFBF President Bob Stallman warned the Obama Administration that the nation’s farmers and ranchers are prepared to “battle” EPA over its regulatory reach under the Clean Water Act (CWA).  Stallman said, EPA’s draft rule is proposing to extend CWA authority to “nearly every body of water in the country, whether it is navigable or not.”

On September 17, 2013, the EPA and the Army Corps of Engineers submitted the draft rule to the Office of Management and Budget for interagency review. The rule is due in proposed form this year and aims to clarify the definition of “waters of the United States” subject protection under the Clean Water Act.  Additional information on the draft rule is available here.

The proposed rule will be based on a study, recently released by the EPA, on the connectivity of smaller streams and wetlands to larger, downstream waters, according to a Bloomberg BNA article available here.  The study is available here

The “rule would not propose changes to existing permitting exemptions and exclusions, including those that apply to the agricultural sector” according to Nancy Stoner, EPA acting assistant for water and Lek Kadeli, EPA acting assistant administrator for research and development.  The rule would exempt agricultural stormwater runoff, normal silvicultural activities, and irrigation ditches, among other waters from National Pollutant Discharge Elimination System (NPDES) permitting requirements under Section 402 of the Clean Water Act.  In addition waste treatment ponds and wetlands filled prior to December 1985 for use as cropland would remain exempt.

The proposed rule would, instead, “clarify that artificial ornamental ponds, artificially irrigated areas, areas artificially flooded for rice growing, pits excavated for land fill, and others would be excluded” from CWA jurisdiction.

For more information on the Clean Water Act, please visit the National Agricultural Law Center’s website here.  Recent information on EPA’s regulation under the CWA is available here.