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EPA reps try clarifying its ‘Waters’ rule for farmers


Missouri Correspondent


KANSAS CITY, Mo. — U.S. EPA Administrator Gina McCarthy visited the Show-Me State last week on a two-day "listening tour" about the agency’s proposed "Waters of the U.S." rule.

That included visiting a Missouri farm, and a speech last Thursday to the Agricultural Business Council of Kansas City. In that address, McCarthy said she had heard concerns about the proposed rule – and wanted to set the record straight on what the rule would and would not do.

"We heard fears that EPA is regulating groundwater. This is not true; groundwater regulations do and will fall under the purview of the states," said McCarthy. "EPA is not regulating all activities in floodplains, or every puddle, dry wash and erosional feature.

"In fact, we are doing just the opposite. If cattle cross a wet field – that’s a normal farming practice, and all normal farming practices are still exempt."

She also addressed the issue of the EPA’s possible future regulation of ditches. "EPA is not saying that all ditches are jurisdictional," she told the Kansas City group. "In fact, our proposal specifically says we are not regulating all ditches – unlike the current, existing regulations.

"Why did we do that? While some ditches are connected to larger water systems and are vital to public health and water quality, the vast majority are not, and therefore not jurisdictional. Most of them don’t look or feel like a stream, so they are off the table."

McCarthy qualified that comment by saying the proposed rule could affect a ditch that "looks and acts like a stream, even if it runs only seasonally." She said, "That doesn’t mean you need a permit; just that you should take care to ensure that it continues to serve us all well."

Earlier in the week, McCarthy previewed her Missouri visit with a conference call with reporters in which she said characterizations of the Waters rule as regulating every last ditch were "silly" and "ludicrous." That did not sit well with Blake Hurst, Missouri Farm Bureau President.

"Name-calling hardly sets the stage for a productive discussion, but farmers in Missouri are willing to listen and look forward to a discussion that could be constructive, if Ms. McCarthy will treat farmers in Missouri with the respect they deserve," said Hurst.

Many farm groups opposing the rule seemed uninfluenced by McCarthy’s farm outreach in Missouri. Just before her visit, the American Farm Bureau Federation released a "Ditch the Rule" video parodying the song "Let it Go" from Disney’s movie "Frozen."

While McCarthy was in Missouri, the U.S. Soybean Federation called for the EPA to withdraw the proposed rule. The rule is also opposed by the National Cattlemen’s Beef Assoc.

The EPA is also taking heat from farm groups about its proposal that lists 56 conservation practices that would be exempted from the interpretive rule. McCarthy defended that list during her Missouri visit.

"We did not narrow exemptions; those 56 are a subset to the existing exemptions for normal farming, ranching and silviculture," she said. "That’s why we put them in a separate rule – so we could add to it as needed. No one should have to think twice about taking advantage of these conservation practices."

While farm groups opposed to the rule insist the proposal is an overreach of the federal Clean Water Act (CWA), others have applauded the EPA’s efforts to clarify the jurisdictional scope of the CWA.

"In issuing the Proposed Rule, EPA took an important and overdue step toward ensuring the protection of our nation’s wetlands, streams and other waters," said an earlier statement from the National Sustainable Agriculture Coalition.

"The CWA is the nation’s primary tool for protecting wetlands that are connected in some way to other bodies of water, such as rivers or streams; however, the scope of the CWA had been muddied by earlier court rulings., which the rule interprets."

House Republicans: About trust

The same week McCarthy reached out to agriculture interests in Missouri, members of the U.S. House Committee on Science, Space and Technology questioned Deputy EPA Administrator Bob Perciasepe about the EPA’s proposed Waters rule. Rep. Lamar Smith (R-Texas), the committee’s chair, criticized the EPA’s failure to define key terms in the proposal, in a committee hearing July 9.

"The EPA does not provide real clarity about what is or isn’t ‘water,’" he said. "Instead, the agency gives itself extraordinary power to pick and choose on a case-by-case basis. In fact, the proposed rule is 370 pages but it never actually defines ‘water.’"

Perciasepe admitted some additional work may be needed to the proposed rule, but he said the agency’s action is meant to clarify existing regulations. "EPA and the U.S. Army Corps of Engineers are undertaking a process to clarify the geographic scope of the Clean Water Act," said Perciasepe.

"I’m concerned that the information that is incorrect is having the effect of distracting a real public and national debate and discussion that needs to take place on the legal, policy and scientific underpinnings of how we run the Clean Water Act and protections of clean water in the country."

Like McCarthy, Perciasepe sought to address the farm community’s concern over possible jurisdiction of ditches. He said the proposal will actually lessen the EPA’s ability to regulate water from ditches.

"It will reduce Clean Water Act jurisdiction over ditches, compared to the 2008 guidance," he told the committee.

But comments from Rep. Chris Collins (R-N.Y.) illustrated a larger lack of trust and communication between the EPA and opponents of the Waters of the U.S. proposal.

"The problem is, the public doesn’t trust the EPA. The farmers don’t trust the EPA to not overreach. Congress doesn’t trust the EPA," said Collins, adding a majority of House members, including some Democrats, have signed a letter calling for the EPA to withdraw the proposed rule.