Ag groups oppose interpretative CWA rule

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The same day EPA and the U.S. Army Corps of Engineers (the Corps) published a proposed rule to redefine what waters fall under federal jurisdiction of the Clean Water Act, an “interpretative rule” was also published (and went into effect immediately) that brought USDA NRCS into the mix by listing 56 specific conservation practices that will not be subject to Clean Water Act dredge and fill (Section 404) permitting requirements. The agencies were attempting to interpret what Congress meant when it included a statutory exemption for “normal farming, silviculture and ranching activities” under Section 404.

The agencies proudly issued statements proclaiming that farmers and ranchers need not worry – the exemptions in the interpretive rule, in conjunction with the proposed rule, will protect them from any additional permitting requirements under the law. Their proverbial pats on the back have been met with resistance from agriculture groups, however, who say the interpretive rule is nothing more than the federal government trying to pull a fast one on farmers and ranchers.

The National Cattlemen’s Beef Association, National Corn Growers Association and a coalition of nearly 100 organizations led by the American Farm Bureau Federation and National Pork Producers Council have filed comments recently urging the agencies to withdraw the interpretive rule immediately. By listing 56 specific practices, NCBA’s Ashley McDonald says the interpretive rule actually narrows the scope of what is considered normal farming and ranching practices.

“These practices, such as building a fence, or grazing cattle, never needed a permit before, but now require oversight by NRCS and mandatory compliance with its standards,” McDonald says.

NCBA says the original statutory exemption already covers “normal” farming and ranching activities but that the IR will require ranchers to meet strict, and often costly, national conservation standards in order to receive the exemption for many routine, everyday activities like building and maintaining fence, prescribed grazing and prescribed burning. The result, NCBA says, is “to force farmers and ranchers to comply with once voluntary NRCS standards, or face draconian penalties {up to $37,000 per day} for violating the CWA, in effect making those standards mandatory.”

The groups also said that the IR has binding authority with new, specific legal obligations under the Clean Water Act, making it a substantive rule. Under the Administrative Procedures Act, a substantive rule must go through the normal rulemaking process, which includes specific requirements with regard to notice and comment periods, in the federal government. Calling it an interpretive rule allowed the agencies to skirt those requirements.

Despite differing opinions about the CWA proposed rule and IR, from the federal agencies that proposed the rules to the stakeholder groups fighting it, all who’ve spoken out on rules seem to have one point in common:  All are committed to protecting water quality. Unfortunately, NCBA says the result of the IR will be less participation in voluntary and cost-share conservation programs at NRCS.  

“Historically, NRCS and its field personnel have been seen as a friend to agriculture; helping producers achieve goals in production and conservation through technical and financial assistance,” McCan says. “Now, they will simply be an extended arm of the EPA, spending their time checking compliance of voluntary conservation activities.”

EPA Administrator Gina McCarthy traveled to Missouri this week to try to ease concerns among the agricultural community regarding the IR and the proposed rule. She was the featured speaker at the regular meeting of the Kansas City Agribusiness Council and toured a farm in Rocheport, Mo. Additionally, Nancy Stoner, EPA acting assistant administrator for water, penned a blog recently claiming to “set the record straight” on the “waters of the U.S.” proposed rule and IR. Sticking to EPA’s “we’re only seeking to clarify our jurisdiction” claims, Stoner explains the agency’s point of view on the proposal.

While the IR is in effect, the agencies will continue accepting comments on the proposed rule until October 20. Comments can be submitted online through the federal government rulemaking portal.

We’ll have more coverage of the proposed rule and IR the coming weeks at Drovers CattleNetwork. But we also want to hear from you. Do you rest easier at night because the interpretive rule provides necessary assurances that EPA isn’t going to be knocking on your door requiring costly federal permits on your farm or ranch? Or are you among the agricultural stakeholders who’ve sounded the alarm and want EPA and the Corps to walk away from the rule? Leave your comments below. 

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Craig A. Moore    
Billings, MT  |  July, 11, 2014 at 11:00 AM

I find it humorous that agencies like this are so concerned about making places like the Chesapeake Bay Area pristine once again, and keeping it that way, but have no concern that about an average of 440 acres per day go under construction EVERY DAY in that area.

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