Croplife America: US EPA's waters of the U.S. rule lacks clarity

CropLife America (CLA) is concerned that the final Waters of the United States (WOTUS) rule, renamed the Clean Water Rule, creates onerous, inconsistent standards that will reduce farmers' ability to produce and will not advance clean water goals.

Signed into law by President Obama on May 27, 2015, the final rule largely maintains the structure and framework of the proposed rule and does not reflect comments submitted by the agriculture and crop protection industries.

Multiple definitions in the Clean Water Rule conflict with the intent of the Clean Water Act (CWA), making it difficult for growers to discern whether their fields contain jurisdictional areas and are subject to National Pollutant Discharge Elimination System (NPDES) permitting requirements.

Jay Vroom, president and CEO of CLA, stated, "The rule extends federal oversight into areas not noted before such as 'prairie potholes', increasing regulation while failing to make a real contribution to the protection of our water supply. We urge the U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers to engage in a genuine dialogue with all stakeholders, big and small, to develop a clean water strategy that benefits our nation."

While the rule underwent some changes during the Office of Management and Budget (OMB) review process, it still does not relieve the issues that the original rule created between agricultural practices and clean water policy.

For example, the final rule creates conflicting guidelines under the modified "adjacent waters" category that exempt areas and, at the same time, state that they are jurisdictional on a case-by-case basis.

The "adjacent waters" definition provides that waters being used for "established normal farming, ranching, and silviculture activities (33 U.S.C. 1344(f)) are not adjacent," yet the preamble notes that waters in which normal farming, ranching and silviculture activities occur may still be determined to have a significant nexus on a case-specific basis.

"The crop protection industry, along with farmers and ranchers, recognizes the necessity of ensuring clean water and other natural resources," Vroom added. "However, the current solution offered by EPA is not a realistic or appropriate step forward. All of agriculture must be a part of this conversation. Through true collaboration, we can better protect our water supply for future generations."