EPA's McCarthy pledges to make Wotus rule 'reasonable'

By Philip Brasher

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WASHINGTON, March 16, 2015 - The Obama administration is promising to rewrite its proposed Clean Water Act rule to ensure that farmers have clear guidance about what streams, ditches and ponds will be regulated.

Speaking to the National Farmers Union annual convention in Wichita, Kansas, EPA Administrator Gina McCarthy said the final rule is being prepared for White House review, and that the administration still intends to complete it this spring.  

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EPA and the Army Corps of Engineers are working to tighten the definitions of ditches, tributaries and farm-field erosional features to narrow what areas fall under the law's jurisdiction as “waters of the United States” (WOTUS), she said.

“We are going to come out with a rule that is not only reasonable but implementable,” she said.

The final rule will be accompanied by extensive guidance in a question-and-answer format that will include photographs to make it easier for farmers to understand what areas of their land might be regulated, she said.

“You will have a catalog of your questions answered by putting together real-life things that you're doing on your farms and ranches,” she said.

The National Farmers Union, unlike the larger American Farm Bureau Federation, was initially supportive of the proposed rule when it was released a year ago but later began to raise concerns as well. In comments filed last fall, NFU pressed EPA to rewrite the definitions to make clear that the agency would not increase the law's jurisdiction. NFU  is scheduled to debate its policy positions on Tuesday.

 

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McCarthy told the group that the administration had bungled the rollout of the rule and should have called it the “Clean Water rule” rather than WOTUS. “Even if we had a less-than-ideal start, that doesn't preclude us from getting this done right,” she said.

She offered no specifics about the revised language. But she said the final rule would make clear, for example, that erosional features in a farmer's field would be exempt and that the agency was considering rewriting the definition of “upland ditches” to make it less confusing.

Officials also are “thinking through ways to be more specific” about the definition of “other waters,” which includes wetlands, a critical issue in the northern Plains, she said.

She said the definition of tributary would be made clear that the rule would only cover “natural or constructed streams - the ones that could carry pollution downstream-which have to have the amount, duration and frequency of flow to look, act, and function like a tributary. They are the ones that we don't want to pollute or destroy without thinking about how to mitigate impacts downstream.”

Her remarks won't satisfy the Farm Bureau. Don Parrish, the group's senior director of regulatory affairs, noted that the administration hasn't committed to any changes in the definitions yet. “What constitutes ‘destroy and pollute' in EPA's eyes are different from what farmers might think,” he said.

EPA posted a copy of McCarthy's prepared remarks on the web.

Congressional Republicans continue to keep the heat on the administration over the issue. A House Agriculture subcommittee is holding a hearing on the WOTUS rule Tuesday afternoon and the Senate Agriculture Committee has scheduled one for March 24.

The witnesses at the House Agriculture hearing will include representatives of state and local agencies and rural electric cooperatives as well as the Farm Bureau.

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