Lawmakers put off Clean Water Act fight

By Philip Brasher

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WASHINGTON, Dec. 10, 2014 - The Clean Water Act provisions in the massive fiscal 2015 spending agreement are likely to do little to slow an effort by farm groups to kill a proposed rule defining the law's jurisdiction.

The bill, which is headed to floor votes in the House and Senate in coming days, is silent on the proposed rule. The bill does include a provision ordering the administration to adhere to the existing farming exemptions from the law's Section 404 permitting requirements.

But that language appears “intended to reinforce existing exemptions for discharges subject” to the permit requirements,” said Jon Devine, a senior attorney with the Natural Resources Defense Council. “Since we of course believe that the agencies should follow the law, underlining it is unobjectionable.”

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Don Parrish of the American Farm Bureau Federation said the bill doesn't “address any of our concerns” with the proposed rule, which the group argues will significantly expand the law's jurisdiction. The rule defines what areas are regulated as waters of the United States, or WOTUS.

A second provision in the bill would kill a separate interpretive rule that details the standards farmers would have to meet to qualify for the Section 404 exemption, but withdrawing that measure won't be particularly controversial.

Environmentalists said the interpretive rule went too far in defining exempt agricultural practices, but farm groups didn't like the measure either. They argued that it would make the Department of Agriculture's voluntary standards for a range of farming practices, including forage management and fencing, effectively mandatory. Producers likely wouldn't qualify for the Clean Water Act exemptions if they didn't adhere to the USDA standards, farm groups say.

Devine said, “Overall, we are very grateful to congressional leaders and the White House who fought to keep the bill free of a frontal assault on the clean water rule that the agencies have proposed, so that critical effort can continue to move forward.”

The interpretive rule isn't the only measure congressional leaders agreed to kill via the legislation. The bill would take the unusual step of demanding that USDA rescind a series of regulations on the livestock and poultry industry for protecting rights of producers. Previous bills had merely blocked the department from enforcing the regulations, and the industry was unable to get a provision included in the 2014 Farm Bill to kill the rules.

Ferd Hoefner of the National Sustainable Agriculture Coalition said the repeal provision was “blatantly anti-farmer.” “Adoption of the rider will deny farmers protection from retaliation when they use their first amendment rights, deny them the right to a jury trial, and even deny them the right to know how the prices they receive are calculated,” he said.

Tom Super of the National Chicken Council said his members “look forward to turning our attention to other important issues.”

Appropriators continue to use conservation and energy programs as a piggy bank to fund other priorities within USDA. The Environmental Quality Incentives Program, which subsidizes the cost of land and water conservation measures, would be funded at less than $1.35 billion under the spending bill, compared to the $1.6 billion authorized by the 2014 Farm Bill.

Meanwhile, enrollments in the Conservation Stewardship Program, which rewards producers for soil and water conservation practices, would be capped at 7.74 million acres, well under the 10 million acres a year the farm bill authorized. The cut saves just $7 million in fiscal 2015 but $400 million over 10 years.

The bill would instead put more money into combatting agricultural diseases, food safety and rural development. USDA's Animal and Plant Health Inspection Service would see its budget rise nearly $50 million to $871 million in part to fight citrus greening disease and the Porcine Epidemic Diarrhea virus. The funding increase also would provide $740,000 for APHIS to speed approvals of new biotech products.

Advocates of buying more food aid overseas were shut out in the bill. The Senate Appropriations Committee earlier this year narrowly approved spending $35 million to purchase some commodities in or near the countries where the food is to be distributed, but the bill provides no money for that purpose. The farm bill authorized $80 million a year in such purchases, known as “local and regional procurement,” or LRP.

The issue isn't likely to go away, although key appropriators remain opposed to funding non-U.S.-sourced food aid. Following the Senate committee action, the House voted 223-198 to put $10 million for LRP purchasing in its version of the agriculture appropriations bill. Such purchasing is designed to accelerate the delivery of aid while providing a market for poor farmers.

While the bill would leave the WOTUS rule alone, the spending agreement would block some other environmental measures, including EPA regulations on lead in ammunition and fishing tackle.  The Fish and Wildlife Service would be blocked from protecting species of sage grouse under the Endangered Species Act.

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