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Commentary and Analysis Regarding Colorado Law

Proposed Rule Redefining “Waters of the United States” Under the Clean Water Act and New Interpretive Rule for Agricultural Exemption for 404 Permits

Submitted by Matthew Machado

The EPA has proposed a rule that will expand the need for federal permits under the federal Clean Water Act (CWA) for discharges or other impacts to waters of the U.S. The activities requiring such permits include discharges of “dredged or fill material” (Section 404 Permits) and permits for point source discharges of pollutants the Colorado Department of Health and Environment (CDPS Permit). Typical examples of activities requiring a 404 permit include replacement of a ditch headgate for a municipally owned ditch or digging in a wetland. Examples of activities requiring a CDPS permit include municipal stormwater discharges, CAFOs, and industrial discharges. Depending on the activity involved, obtaining a permit could take hours or take years and millions of dollars.

I. Proposed Rule Redefining Waters of the U.S.The EPA and the Army Corp of Engineer are currently considering adoption of a Proposed Rule intended to expand and/or clarify (depending on who you talk to) the types of streams and wetlands that are considered to be “waters of the U.S.,” and therefore subject to the CWA. Comments on the proposed rule may be submitted to the EPA and Corps until October 20, 2014.The proposed rule will expand the definition of waters of the U.S. to lands that have more marginal water attributes, and result in more projects requiring CWA permits. Under the current rule, the term “wetlands” generally includes those areas normally inundated sufficient to support wetlands vegetations, including swamps, marshes, bogs, and similar areas. Under the proposed rule, the focus would be less on the degree of inundation and more on the connection to a larger water body that is clearly a water of the U.S. For the most part, unless exempt (see below), tributaries and wetlands in the watershed of a stream or river will definitely be deemed waters of the U.S. Furthermore, land with more marginal water attributes in the watershed not currently considered water of the U.S. (e.g. dry gulches and drainage ditches common in Colorado) could be deemed on a case by case basis water of the U.S based on the connection and other factors (“significant nexus” test).

II. New Interpretive Rule for Normal Farming Operations:

In March, 2014 the EPA adopted an Interpretive Rule that provides detail regarding the exemption from permitting provided under section 404(f)(1)(A) of the CWA for certain agricultural activities. Farming activities do not require Section 404 permits when not conducted in lands classified waters of the United States, including wetlands, or do not involve dredged or fill material.   As long as wetlands are not converted to “upland” areas (i.e. non-wetland) as a result of routine farming and ranching operations, a 404 permit will not be required. The routine or “normal” ongoing operations include in part farming, ranching, and forestry activities, such as plowing, seeding, cultivating, harvesting, very minor construction and maintenance of drainage ditches; maintenance of irrigation ditches; construction and maintenance of farm and stock ponds; construction and maintenance of farm roads (using “best management practices”); and maintenance of dams and ditch embankments. Normal maintenance for irrigation ditches for which more than 50% of the water is used for agricultural uses (i.e. less than 50% of is used for municipal and industrial uses) is exempt from 404 permit requirements.

If the proposed rule regarding “waters of the U.S.” is adopted, the expanded scope waters of the U.S. will result in narrowing the exemption for farming activities and more activities will be deemed to be conversion of an agricultural wetland into a non-wetland area and require a 404 permit.

Although the Interpretive Rule is already in effect, the EPA will still consider comments on the proposed rule through July 7, 2014.

Other helpful links:

List of the exempted agricultural activities 404(f)(1)(A) of the CWA

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