NACD Comments on EPA Interpretive Rule on Clean Water Act Permitting

WASHINGTON, DC—June 13, 2014—The National Association of Conservation Districts (NACD) submitted comments today on the U.S. Environmental Protection Agency (EPA) Interpretive Rule (IR) Regarding Applicability of the Exemption from Permitting under section 404(f)(I)(A) of the Clean Water Act.

"Districts have more than 75 years of experience in working on locally-led clean water efforts in close partnership with the USDA Natural Resources Conservation Service (NRCS) across the nation," said NACD President Earl Garber. "Because of this expertise and national perspective, we are well positioned to provide comments regarding the Interpretive Rule and the role of NRCS within the process."

NACD's comments address three main issue areas within the IR:  1) the importance that NRCS is not placed in a compliance or regulatory role; 2) "normal farming, silviculture, and ranching" activities are exempted from permitting; and 3) producers are not required to notify regulatory agencies nor NRCS when they self-implement practices.

NACD appreciates that nothing in the IR changes the roles or responsibilities of NRCS, EPA or U.S. Army Corps of Engineers (USACE). However, NACD has concerns about the way in which NRCS will be required to respond to questions from the USACE or courts. It is extremely important that NRCS maintain its role and reputation as a "non-regulatory" body in the agricultural community.

NACD is pleased that the IR acknowledges the water quality benefits resulting from voluntary conservation practices by exempting from permitting certain practices that fall under the statute of "normal farming, silviculture, and ranching" activities.  However, we recognize that these practices are in addition to other practices that also fall under this statutory provision of "normal." There will be many Best Management Practices (BMPs) and other practices with benefits to water quality and quantity that are not currently identified on the list; for this reason, we look forward to reviewing the list at least annually to ensure it fully reflects the breadth of conservation practices being implemented across the country.

Finally, NACD is supportive that the IR will not require producers to notify regulatory agencies nor NRCS when they self-implement practices. Reducing uncertainty and the administrative burdens of applying for permits will increase conservation application. Voluntary conservation programs do not include sufficient resources to allow follow-up at a regulatory scope and scale—in order to determine that the practice is implemented in conformance with [listed] NRCS technical standards— at every site where a practice is installed.

"Conservation planning is extremely important, because what we invest in our water resources today will reduce our need for clean-up efforts in the future," said Garber. "We promote voluntary conservation.  While we prefer cooperators implement conservation practices under cooperator contracts according to NRCS standards, they are not required to for CWA purposes."

NACD's comments on the IR are based on input from its network of 3,000 conservation districts across the nation. We look forward to continuing to gather additional member input in order to provide comments on the jurisdictional question of the definition of waters of the U.S., pursuant to EPA's Proposed Rule.