Clean Water Act section 404(f) “interpretive rule” withdrawn after NMPF objects
In response to objections raised by the National Milk Producers Federation, the Environmental Protection Agency (“EPA”) has withdrawn an interpretive rule regarding when farmers must seek Clean Water Act permits for a laundry list of farming activities taking place near wetlands. The rule specifically stated that farmers were only exempt from needing to obtain Clean Water Act permits for certain farming practices if they complied with the National Resources Conservation Service (“NRCS”) technical conservation standards.
The EPA’s withdrawal of the rule came after the National Milk Producers Federation (“NMPF”) requested that the rule be withdrawn. In a letter to the EPA, NMPF complained that “neither the proposed rule defining waters of the United States nor the interpretive rule explaining the availability of an exemption from dredge and fill permitting requirements for producers who install certain conservation practices according to NCRS standards meets the test of effectively protecting water quality.”
According to NMPF, under the interpretive rule, “producers may qualify for section 404 exemption by implementing one of 56 conservation practices included on a list published by the EPA in conformance with NCRS technical standards.” Thus, the “[t]echnical standards produced by NCRS now form the foundation for the only [interpretive rule] published on how to gain a 404 exemption for normal farming practices,” NMPF said. However, prior to the release of the interpretive rule, “404 exemptions were granted without reference to the NCRS technical standards.”
As an example of how the new interpretive rule would impact farmers, NMPF cited the practice of harvesting hay. There, NMPF said that after the interpretive rule “a producer apparently can only gain a 404 exemption by following” a certain NCRS conservation practice standard. The NCRS standard is approximately four pages long “contains criteria for timing of harvest (no compromising plant vigor and stand longevity); for mandatory recommendations for optimum moisture content and levels as well as methods and techniques to monitor and/or determine moisture content and levels; for length of cut as well as the converse for stubble height; for a bar on contaminants.” As a result of the NCRS standards, farmers will be required to follow the NCRS standards or they run the major risk of failing to qualify for a 404 exemption.
In conclusion, NMPF stated:
NMPF and its members are committed to protecting U.S. waterways through voluntary efforts and regulatory compliance with the Clean Water Act, and we appreciate consideration of these important comments. We believe that our members will be adversely affected by the IR and that the IR will have the perverse impact of harming the longstanding trust and cooperative relationship between dairy producers and NRCS. Consequently, water quality improvements will be adversely impacted. For the reasons stated above, water quality will be better served if the IR is withdrawn and the agencies’ policy on establishing eligibility for the 404 exemption is reformulated with the benefit of more stakeholder engagement. NMPF and its members are very willing to work with the agencies and other stakeholders in this regard to ensure our mutual goal of attaining and maintaining water quality in our nation’s waters.
In a statement, a VP for NMPF said, “Our concern with the initial proposal from last year is that it could have altered the long-standing and productive relationship between farmers and the USDA’s Natural Resources Conservation Service in a way that would have made it harder for farmers to implement water conservation measures.” Had the interpretive rule not been withdrawn, NMPF said that “the NRCS would have been thrust into the role of enforcer, rather than remaining a source from which farmers could seek conservation advice.”