House panel takes aim at ‘interpretive rule’ in EPA Waters of U.S. plan

By Sarah Gonzalez

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WASHINGTON, June 20, 2014 - Members of a House Agriculture subcommittee from both parties had a heated exchange yesterday with a top USDA official over the Environmental Protection Agency's proposal for defining exactly what falls under the agency's jurisdiction under the Clean Water Act (CWA).

In the hot seat was Robert Bonnie, the USDA's under secretary for natural resources and environment. He told lawmakers that an “interpretive rule” on farming and ranching exemptions under the CWA, issued at the same time as the EPA proposal to define “Waters of the U.S.,” ensures that 56 specific agricultural conservation practices, executed under the standards of the USDA's Natural Resources Conservation Service, would not be subject to CWA dredged or fill permitting requirements.

While Bonnie emphasized that the practices are completely voluntary, legislators insisted the EPA's proposal would result in NRCS functioning more like a regulatory agency, rather than one that's supposed to work with farmers to improve conservation methods. 

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Rep. Glenn Thompson, the chairman of the Subcommittee on Conservation, Energy, and Forestry, said farmers might be discouraged from employing any conservation practices “if they don't want to face consequences of the Clean Water Act,” which can include fines of $37,000 per day. “What was voluntary is now compulsory,” the Pennsylvania Republican added.  

Bonnie said communication with the agricultural community and between USDA and EPA needs to improve. 

“We do think what we've done here is increased the number of exemptions through a voluntary basis using conservation practices that are very popular with landowners,” Bonnie said. “I believe we will reduce the permitting burden and I hope we will.”

Rep. Collin Peterson, D-Minn., the ranking member of the full Agriculture Committee, also criticized the rule and submitted a list of over 100 conservation practices recognized by NRCS, half of which are not included in the EPA's interpretive rule. “How do you say you're covering everything, when it's not true?” he said.

Bonnie noted the interpretive rule is already in effect, drawing criticism from several committee members who said implementation should have followed public meetings or a comment period.

“Effectively, what we're doing is creating more confusion and more frustration,” said Rep. Scott Tipton, R-Colo.

Bonnie referred several questions from members to the EPA or Army Corps of Engineers, eliciting an objection from Thompson. “I like to trust the USDA when it comes to agriculture issues,” he said.

While Bonnie said EPA consulted with USDA when devising the interpretive rule, Rep. Kristi Noem, R-S.D., said, “You're saying it's needed for certainty, yet nobody in the agriculture industry wants this.”

Several Democratic members said the rule is ambiguous. “If this was intended to provide clarity, I can't see that that's been effective,” said Rep. Ann McLane Kuster, D-N.H.

Also testifying at the hearing was Andy Fabin, cattle producer and farmer from Indiana, Pennsylvania, representing the National Cattlemen's Beef Association (NCBA). He said the interpretive rule made him reluctant to move forward with any voluntary conservation practices. 

“If you tell a farmer he has to comply with NRCS standards or apply for a (CWA Section 404) permit, he hasn't been given any real choice at all,” Fabin said. 

NCBA and other agricultural organizations have asked EPA and the Army Corps of Engineers to withdraw their proposed definition of “waters of the U.S.,” as well as the interpretive rule.

In a press release, NCBA said EPA chose 56 exempted practices, including prescribed grazing, because they may result in a discharge into a “water of the U.S.” This effectively makes grazing a discharge activity, and cattle producers would be required to obtain a permit to graze unless they have a NRCS-approved grazing plan, said NCBA.

Another witness, Don Parrish, the American Farm Bureau Federation's senior director of regulatory relations, said if a farmer builds a fence that does not comply with NRCS standards, then he has essentially violated the Clean Water Act. Although a federal agency would be unlikely to check the property, citizen activists could file a lawsuit over a fence that isn't within NRCS standards, he said. 

Rep. Kurt Schrader, D-Ore., rejected Bonnie's repeated declarations that the interpretive rule is voluntary.

“It's crystal clear you're trying to establish regulatory guidelines by which a person farms,” Schrader said. “It is not voluntary. There are farmers and ranchers across this country that do not want to have this rule in any way, shape or form.”

Besides Bonnie, there was just one witness at Thursday's hearing who spoke in favor the EPA plan.

Scott Kovarovics, executive director of the Izaak Walton League of America, said blocking the EPA rule “only locks in the confusing, uncertain and damaging status quo.”

“Nothing could be more counterproductive than short-circuiting the public process now under way to restore Clean Water Act protections to streams and wetlands,” Kovarovics said.

Efforts in Congress to do just that appeared to be mounting.

Sen. Pat Roberts of Kansas on Thursday joined 29 other Republican senators in introducing legislation to block the EPA from implement its rule.

“After already calling on the EPA and Army Corps to withdraw the proposed rule, I want to make sure that the expansion of regulatory jurisdiction over ‘Waters of the United States' is shelved for good,” Roberts said in a news release.

“This straightforward legislation prohibits the Administrator of the Environmental Protection Agency and the Secretary of the Army from finalizing the rule or trying a similar regulation in the future.”  

On Wednesday, the House Appropriations Committee approved a spending bill for the Department of Energy and Army Corps of Engineers that includes a rider that also would prevent the EPA from pursuing the rule. And a similar rider was expected to be offered Thursday at a Senate Appropriations subcommittee markup of a FY 15 Energy and Water Development bill. That markup was postponed.

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