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EPA releases its final Waters of the United States rule

WASHINGTON and WEST DES MOINES, Iowa – Last week, the Environmental Protection Agency released its final rule clarifying its jurisdiction over Waters of the United States under the Clean Water Act. The final document comes more than a year after the controversial proposed rule was released last April.

For farmers, many public comments voiced concerns about tile drainage, which agency Administrator Gina McCarthy told reporters last week is not regulated under the Clean Water Act. Farmers are also concerned about ditches – American Farm Bureau launched a social media campaign against EPA’s proposal with the slogan “Dtich the Rule.” But McCarthy says the final rule’s language on ephemeral and intermittent ditches, respectively, is clear.

Excluded from jurisdiction under the Clean Water Act are “ephemeral ditches that are not a relocated tributary or excavated in a tributary,” McCarthy told reporters. “That language seems pretty clear to me. That’s verbatim what’s in the rule. [The others are] intermittent ditches that are not a relocated tributary, excavated in a tributary, or drained wetlands. So, in other words, if you used to be a stream, and now you’re only a ditch; if you still look and act like a stream, you’re a stream. If you never were one; if all you’re doing is changing a drainage pattern on a farm or ensuring that your land is not increasing in terms of erosion, that is perfectly OK. So I think we’ve been very clear on this.”

Of course other questions linger on other types of farming activities, like applying fertilizer or herbicide. To get those answers, American Farm Bureau President Bob Stallman says a thorough analysis of the final rule is necessary.

Iowa Agriculture Secretary Bill Northey also reacted in a prepared statement, noting the task of sifting through and attempting to understand the full impact of the nearly three hundred pages.

In a press release National Farmers Union President Roger Johnson described the final rule as an improvement over the proposed rule, though NFU remains concerned that farmers still lack regulatory certainty.

EPA received more than one million public comments concerning the rule, and officials say input from farmers and ranchers, factored heavily into their decisions. For example, farm groups are encouraging Iowa farmers to implement new conservation practices from the Iowa Nutrient Reduction Strategy, but altering landscape features may alter EPA’s jurisdiction as well.

Deputy Assistant Administrator of EPA’s Office of Water, Ken Kopocis, said the rule attempts to support conservation efforts. .

”We wanted to make sure that those opportunities continue,” said Kopocis. “In fact, we created some new exclusions for things like grass swales which I know are common in Iowa as a way to slow silt runoff and nutrient runoff from farm fields so that was another area where we went in listened to folks that we want to make sure we can encourage in terms of people’s actions and not discourage.”

President of Iowa Farm Bureau, Craig Hill, says the rule did little to clear up farmers’ concerns about complying with EPA’s rule in the course of normal farm work. He says that confusion alone might talk a lot of producers out of conservation practices they otherwise would have tried.

“Whether they’re lawful or not is now brought into question,” he explains. “So the practices we’re doing, the things that we thought were good and proper and best management may not be lawful if you read this document. So there’ll be great concern, great apprehension, and great reluctance to perform conservation knowing that you could be assessed a fine, a penalty, or be charged with breaching the Clean Water Act.”

To hear more about EPA’s new WOTUS rule, click the audio player above this story.