EPA chief calls some concerns on waters rule 'just ludicrous'

By Sarah Gonzalez

© Copyright Agri-Pulse Communications, Inc.



WASHINGTON, July 9, 2014 - EPA chief Gina McCarthy says that while some of the agriculture community's concerns about the agency's proposed Clean Water Act (CWA) rule are legitimate, others are “just ludicrous.”

In a conference call with reporters on Tuesday, McCarthy said categorically that EPA has no plan to “regulate small, unconnected waters...including puddles on lawns, driveways, and playgrounds,” adding, “That's just silly.” She also said the proposal makes it clear that her agency won't regulate all ditches, and that there is no plan to regulate groundwater.

“This proposal is all about protecting waters that science tells us have a significant impact to downstream water quality. No more, no less,” McCarthy said.

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McCarthy commented in advance of a trip to Missouri on Thursday where she will tour conservation practices on Bill Heffernan's 140-acre corn and soybean farm near Rocheport and talk with other growers. Heffernan, a retired University of Missouri sociologist, is perhaps best known for his work on concentration in American agriculture. McCarthy will also give a speech on the CWA rule at the AgriBusiness Council of Kansas City.

EPA and the U.S. Army Corps of Engineers in March released a proposal to define “Waters of the U.S.” that fall under EPA's jurisdiction under the CWA as well as an “interpretive rule” that lists 56 common on-farm conservation practices that are exempt from requirements for CWA permits. The agency closed a public comment period for the interpretive rule on Monday, but comments on the Waters of the U.S. definition can be submitted until Oct. 20.

Several agricultural organizations, including the American Farm Bureau Federation (AFBF) and the National Cattlemen's Beef Association (NCBA) asked EPA to withdraw its proposals, painting them as examples of unwarranted government overreach. Because the waters of the U.S. proposal includes connected streams and wetlands as part of a system that could affect “navigable” waterways, critics say the EPA could actually end up regulating ditches. AFBF put together a public relations campaign aimed at defeating the proposal called “Ditch the Rule.”

Yet, McCarthy maintained the EPA is “not expanding jurisdiction.” She hopes the trip to

Missouri “helps us ditch the myths and misinformation and focus on facts,” taking a not so subtle swipe at AFBF's campaign.

Among their many concerns, agricultural groups are worried that the listed conservation practices in the interpretive rule are considered exempt from needing CWA permits only if they comply with USDA's Natural Resources Conservation Service (NRCS) technical standards.

Although McCarthy noted that NRCS compliance is among the “legitimate” concerns, she wants to “dismiss some of the myths” about the plan. 

“We're not narrowing exemptions” she said. “We're expanding them and providing clarity so no one needs to worry,” she said. “The bottom line is that, if you weren't supposed to get a permit before, you don't need to get one now.”

In 2006, the Supreme Court case Rapanos v. United States resulted in a split opinion on the reach of EPA's regulatory authority, specifically on whether a wetland or tributary is a “water of the United States.” Justice Anthony Kennedy wrote in his opinion that smaller waters could be regulated if they have a “significant nexus” to a “navigable water,” meaning that they must biologically and chemically affect the navigable water body.  However, the interpretation of what constitutes a “significant nexus” remains controversial. 

McCarthy said the Supreme Court opinions “told us we need a more science-based process to determine what waters are navigable and if (smaller bodies of waters) have impact on navigable waters,” hence the attempt to clarify waters of the U.S.

Although the EPA's efforts have supporters in the farming community, they are being drowned out by the critics, McCarthy said. They include AFBF, the largest general farming organization, which claims language in the CWA proposal could mean that puddles, ponds, ditches, isolated wetlands and other “ephemeral waters” could be regulated by EPA. AFBF said the regulatory authority under the proposal gives EPA and the Army Corps “the power to dictate land-use decisions and farming practices” near these water features.

In NCBA's comments to EPA on the interpretive rule, the group said the rule would make NRCS “a regulatory compliance agency, resulting in cattle producers putting less conservation on the ground.”

AFBF said the fact that since the interpretive rule went into effect months ago, when it was published in the Federal Register in April, that “precludes any meaningful public participation” in the recently closed comment period.  

Additionally, NCBA, AFBF and a group of more than 90 agricultural organizations said in comments to EPA that the interpretive rule is actually a legislative rule that must go through notice and comment rulemaking, because it requires NRCS compliance in its language. 

House Small Business and Agriculture subcommittees recently held hearings on the CWA proposal, where it found few supporters. During one hearing last month, Oregon Democrat Kurt Schrader called it the one of the “worst, egregious examples of government overreach” he's ever seen.

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