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EPA Issues New Draft Clean Water Act Guidance as its First Step in “Waters of the United States” Rulemaking

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Liza C. Moore
Foster Swift Agricultural Law Update
June 2011

On April 27, 2011, the Environmental Protection Agency (EPA) issued draft guidance for the Clean Water Act. This guidance was issued in conjunction with the Obama Administration’s release of a national clean water framework, which according to an EPA news release "showcases its comprehensive commitment to protecting the health of America’s waters."

Agriculture Secretary Tom Vilsack shared his thoughts on the Clean Water Act and the new guidance. "As our nation’s foremost conservationists, farmers, ranchers and forest owners have a values system rooted in rural America that recognizes we cannot continue to take from the land without giving something back," said Vilsack. "At USDA, we are working with farmers, ranchers and forest owners to conserve land, plant stream buffers for cleaner water, and install other conservation practices. We also will continue to invest in rural water and community facility projects that help small towns ensure their citizens have access to safe and reliable drinking water. The draft Clean Water Act guidance released today reflects USDA’s work with our federal partners by maintaining existing exemptions for ongoing agricultural and forestry activities, thereby providing farmers, ranchers and forest landowners with certainty that current agricultural and forestry activities can continue," said Vilsack.

The draft guidance is supposed to clarify how the EPA and U.S. Army Corps of Engineers (Corps) identify "waters of the United States," which are the waters covered by the federal Clean Water Act (CWA). The draft guidance also discusses these agencies’ implementation of the United States Supreme Court decisions regarding the breadth of the "waters of the United States," namely Solid Waste Agency of Northern Cook County v U.S. Army Corps of Engineers (known as the SWANCC decision) and Rapanos v United States, or Rapanos. The draft guidance explains: "The agencies expect, based on relevant science and recent field experience, that under the understandings stated in this draft guidance, the extent of waters over which the agencies assert jurisdiction under the CWA will increase compared to the extent of waters over which jurisdiction has been asserted under existing guidance, though certainly not to the full extent that it was typically asserted prior to the Supreme Court decisions in SWANCC and Rapanos." The draft guidance recognized that "decisions concerning whether or not a waterbody is subject to the CWA have consequences for State, tribal, and local governments and for private parties," and stated that "key goals of this draft guidance are to increase clarity and reduce costs" in permitting "by reducing the complexity" of existing decisions regarding the scope of the CWA.

The EPA has represented that the proposed guidance does not affect existing exemptions for agriculture. "This draft guidance does not address the regulatory exclusions from coverage under the CWA for waste treatment systems and prior converted croplands, or practices for identifying waste treatment systems or prior converted croplands. It does not affect any of the exemptions from CWA section 404 permitting requirements provided by CWA section 404(f), including those for normal agriculture, forestry and ranching practices. This guidance also does not address the statutory and regulatory exemptions from NPDES permitting requirements for agricultural stormwater discharges and return flows from irrigated agriculture." (Draft Guidance, p. 3). EPA posted another statement (linked below) indicating that the proposed guidance does not change existing agricultural exemptions.

The draft guidance is not a binding rule, but it is intended to guide agency field staff in making determinations about whether waters are protected by the Clean Water Act. EPA and the Corps will accept public comments on the guidance, and then intend to begin the rulemaking process consistent with the Administrative Procedure Act. In other words, issuing this draft guidance is the agencies’ first step towards rulemaking that clarifies the extent of Clean Water Act jurisdiction and explains which waters are considered "waters of the United States."

Groups like Michigan Farm Bureau are concerned with the proposed guidance and new action. We will continue to monitor the federal government’s actions regarding water. For more information, please visit:

Obama Administration Releases National Clean Water Framework

Also released on April 27, 2011, the Obama Administration’s national clean water framework set forth the following "new and ongoing initiatives" for the EPA, the Corps, Department of the Interior, and U.S. Department of Agriculture:

  1. Promoting innovative partnerships;
  2. Ensuring water quality to protect public health;
  3. Enhancing communities and economies by restoring important waterbodies;
  4. Innovating for more water-efficient communities;
  5. Enhancing use and enjoyment of our waters;
  6. Updating the nation’s water policies and regulations;
  7. Making better use of science to solve water problems.

Several of the framework’s initiatives pertain to agriculture, including one goal of "increased regulatory certainty for farmers." (Framework, p. 5). The framework highlighted the USDA’s Voluntary Public Access and Habitat Incentive Program, also known as Open Fields, as well as the Conservation Reserve Program and Wetlands Reserve Program. (Framework, pp. 14-15). The framework discussed the federal government’s investment in the Great Lakes Restoration Initiative and funding of rural water treatment systems. (Framework, pp. 9, 7).