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EPA rule clears up confusion about streams protected by Clean Water Act

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Farmers who are unsure about whether seasonal streams flowing through agricultural land are protected by the Clean Water Act should benefit by a proposed rule that plainly defines which waters are affected.

Proposed in late March by the Environmental Protection Agency and the Army Corps of Engineers, the interpretive rule attempts to clarify public confusion about the protection of streams and wetlands under the Clean Water Act, according to an EPA press release. Supreme Court decisions in 2001 and 2006 made determining which streams and wetlands were protected by the law complex and confusing. To address that, the new proposal includes definitions of protected streams that are easy for farmers and landowners to understand.

The proposed rule offers an interpretive definition for intermittent streams that do not flow 12 months a year, according to the EPA. Under that definition, protected streams must have an ordinary high water mark, gullies and erosional features, and banks along the edge of the stream bed in which water flows. Protected streams also must be determined to have significant impact on a downstream water body.

Current Clean Water Act exemptions and exclusions for agriculture operations would be preserved under the proposed rule. An interpretive rule for agricultural land has been developed to ensure that 56 specific conservation practices that protect or improve water quality are not subjected to dredging or fill permitting requirements. Any agriculture activity that does not result in the discharge of a pollutant to U.S. waters still would not require a permit.

Following a three-month public comment period, the federal agencies will finalize and adopt the rule under the Clean Water Act.

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