KANSAS CITY, July 10, 2014 – EPA Administrator Gina McCarthy wrapped up a two-day tour in the nation’s heartland, visiting a farm near Columbia, Kansas, and speaking yesterday to the Agricultural Business Council of Kansas City where she tried to calm some of the criticism flooding her agency over a proposed Clean Water Act rule that attempts to further define the waters of the U.S. (WOTUS)

“We know we have to take action. We know that we had to propose this rule. We know we have to finish it,” explained McCarthy. “But, while we have taken action to put a proposal out, we’re unfortunately having to deal with misinformation that’s really becoming the story.

“Whether that’s legitimate confusion or not, we have to address it….and that’s what today is all about,” she told the agribusiness leaders over lunch. “We are going to try to deal with the misinformation that none of us needs to worry about so that we can deal with the legitimate issues and concerns and make sure that they become the front seat instead of the back seat of our conversations.”

Her comments came as the agency is generating a considerable amount of controversy over the proposed rule from a wide variety of organizations. McCarthy seemed to push back against that criticism earlier this week in a media call, where she described some of the farm community’s concerns about the proposed rule as legitimate, while calling others “just ludicrous.”

But McCarthy’s tone was more contrite on Thursday. Describing farmers as the “standard-bearers for stewardship” of our nation’s land and water, McCarthy seemed to go out of her way to compliment the farmers in the audience, telling them she wanted to “thank you for myself and my family and all of the work you do.”

“We have to change the idea that the EPA and the agricultural community can’t come to an understanding about what waters need to be protected,” she told the group.

McCarthy made a point of differentiating criticisms that she’s hearing in Washington over the proposed rule from what she said were the more legitimate concerns expressed by farmers during a roundtable discussion in Missouri.

For example, she said she’s heard in D.C. that EPA is trying to regulate rain in puddles on driveways and playgrounds or that the proposed rule would have shut down the Fourth of July fireworks.

“None of that is true,” emphasized McCarthy, who took a not too subtle swipe at the American Farm Bureau Federation’s campaign to “Ditch the Rule” when she said, “We ditched the D.C. myths and talked about the issues that matter to all of us.”

However, she did not mention that various farm organizations have been meeting with EPA staff, attempting to point out what they see as flaws and uncertainties in the proposed rule and a related “interpretative” rule which lists 56 exempt Natural Resources Conservation Service (NRCS) farming and ranching practices. Much of the debate centers around the definitions of “significant nexus” and flood plain. Farmers are concerned that the proposal will lead to an expansion of the proposed rule’s regulatory scope under the Clean Water Act.

McCarthy did say that her agency is “beginning to identify those concerns and those questions and we will answer each and every one of them.”

However, she also asked her audience to “keep in mind that up to 117 million people rely on waters that run seasonally, as opposed to 24 hours a day, every day. So if your ditch looks and acts like a stream, it may need protection, even if it runs only seasonally. That doesn’t mean you need a permit, just that you should take care to ensure that it continues to serve us all well.”

Regarding the interpretive rule, McCarthy said she has “never proposed anything that I thought would be so well received as this, that has fallen totally flat on its face. I need to understand from you where we went wrong and what we need to do moving forward”.

This rule is “an effort to highlight these (exempt practices) as being great things to do to make sure that you never had to worry that EPA would come a knockin’ if you utilized any of those practices. So the 56 practices are really an attempt to clear the path for what we see as slam dunk conversation practices,” McCarthy noted.

“But some folks clearly read this as a narrowing of the scope or adding new standards. That was not the intent.

“These exemptions, we saw as always self-implementing which means you do not need to double-check with anybody at the federal level at any time if those practices are being considered,” said McCarthy. “I’m sure everyone can agree that the best discussion on jurisdictional determinations is the one that never needs to happen. That’s the goal.” 

McCarthy encouraged the group to “commit from this day forward to focus on facts. Let’s commit to getting at the table and rolling up our sleeves. I will commit to you that if you raise an issue of concern, I will address it. If you want us to think differently, about how this rule is structured, in the interpretive rule, I am not wedded to process. I only want outcomes, just like you.”

While emphasizing the importance of gathering comments and input about the WOTUS proposal, McCarthy also pointed out that there would be no further extensions of the public comment period, which ends on October 20, 2014.


“We’ve already extended the comment period. We’re hoping to continue to have the dialogue so we can take a look on the 20th about closing that comment period,” she said. “We can take a look at those comments and continue to work with the agriculture sector moving forward. That doesn’t mean the conversations stop. It means they become more directed.”


For more information on the Waters of the U.S. proposed rule and instructions on how to submit a comment click here.


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