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EPA draws praise, criticism for new clean water rule

By Sara Wyant

Depending on who you talk to, the Environmental Protection Agency’s new proposal to clarify definitions under the Clean Water Act is either a long overdue and necessary regulation to protect our nation’s water or one of the biggest federal land grabs in history. Either way, farmers and ranchers need to pay attention to the potential changes that could be coming their way after the 90-day comment period.

The 371-page proposal, which aims to clarify the long-contested definition of “waters of the United States,” would cover almost all seasonal and rain-dependent streams, while preserving CWA exemptions and exclusions for agriculture. The proposed rule follows two Supreme Court decisions, in 2001 and 2006, that left both impacted industries and the EPA in regulatory confusion.

For EPA Administrator Gina McCarthy, the proposed rule is a logical and necessary outcome, following the Supreme Court decisions.

“We are clarifying protection for the upstream waters that are absolutely vital to downstream communities,” McCarthy said. “Clean water is essential to every single American, from families who rely on safe places to swim and healthy fish to eat, to farmers who need abundant and reliable sources of water to grow their crops, to hunters and fishermen who depend on healthy waters for recreation and their work, and to businesses that need a steady supply of water for operations.” The EPA noted in a press release that about 60 percent of stream miles in the U.S. flow only seasonally or after rain, but still have a “considerable impact” on downstream waters.

The proposal, which would apply to all CWA programs, does not protect any new types of waters that have not historically been covered under the CWA and is consistent with the Supreme Court’s more narrow reading of CWA jurisdiction, the EPA and the Army Corps said.

In addition to preserving the CWA agriculture exemptions, the EPA and the Army Corps said they have coordinated with USDA to develop an “interpretive rule” to ensure that 53 specific conservation practices that protect or improve water quality will not be subject to dredged or fill permitting requirements set out in Section 404 of the CWA. The proposed rule will be open for public comment for 90 days from publication in the Federal Register. The interpretive rule for agricultural activities is effective immediately, the agencies said.

A step too far?

Several Republican members of Congress said the EPA and its partner in drawing up the proposal, the Army Corps of Engineers, had gone too far and the rule would be unduly burdensome on developers and on farm and ranch operations. Louisiana Democrat Mary Landrieu, chair of the Senate Energy and Natural Resources Committee, agreed, noting that the proposed rule “represents another example of this agency overreaching and stepping outside of its bounds without thought to the economic consequences of its actions.”

Sen. Thad Cochran, R-MS, the Senate Agriculture Committee’s ranking member, questioned the EPA’s intent with the proposed rule and encouraged the agriculture and business communities to weigh in. While noting that he was “suspect of the impact and objectives of this rulemaking, I give the agency some credit for finally choosing to use the rulemaking process and allow for public input as Congress intended,” Cochran said.

Cochran said he has been critical of actions taken by the EPA in recent years to expand the extent to which CWA can be used to tighten federal control over waterways. “Over the past five years the EPA has demonstrated a willingness to expand its regulatory reach, ignore common sense and, at times, exceed any rational reading of the law,” Cochran said. “Its actions have increased the regulatory burdens and costs on farmers, ranchers, businesses and other job creators.”

House Transportation and Infrastructure Committee Chairman Bill Shuster, R-PA, and Water Resources and Environment Subcommittee Chairman Bob Gibbs, R-OH, issued a joint statement criticizing the rule for planning to “dramatically expand federal jurisdiction” over waters and wetlands.

Shuster said the proposed rule is “another act of an imperial presidency whose reach into the lives of every American, business, farmer, and property owner continues to grow.” He said his committee will conduct an oversight hearing on the proposed rule, and that there has been bipartisan support against such a move by EPA in the past.

House Majority Whip Kevin McCarthy, R-CA, said the proposed regulation is aimed at undermining private property rights for the “sake of appeasing well-funded environmentalists.”

The National Cattlemen’s Beef Association joined in the criticism. “Under this expansion, essentially all waters in the country would be subject to regulation by the EPA and the Corps, regardless of size or continuity of flow,” the group said in a statement. NCBA President Bob McCan said ranchers will have to obtain “costly and burdensome” permits to take care of everyday chores, stifling economic growth without a corresponding environmental benefit.

The National Farmers Union disagreed. In a statement, Chandler Goule, the union’s senior vice president of programs, called the proposal “ag-friendly” and praised the EPA for listening to the NFU and other stakeholders during the rulemaking process.

“I encourage EPA to continue to rebuild trust with the agricultural community by withdrawing its proposal to reduce the Renewable Fuel Standard targets,” Goule said.

The Center for Rural Affairs said the rule would close loopholes in the law that have left more than half of the nation’s streams and millions of wetland acres unprotected from pollution.

“The proposed rule is a common-sense effort to clear the regulatory waters, protect the quality of the nation’s surface waters, and provide an environment in which economically vital activities such as hunting, fishing and birding as well as farming and ranching can both thrive and contribute to a better quality of life,” said John Crabtree, the center’s media director.

CropLife America said it is concerned about the impact the EPA’s proposed new rule under the Clean Water Act would have on crop-production products and agriculture, noting that the proposed regulations may “greatly expand these definitions to include additional bodies of water, and influence the jurisdictional reach of all programs of the CWA, creating additional unnecessary regulatory burdens for the agricultural community and applicators of pesticide products.”

“The jurisdictional reach of the Clean Water Act is the foundation of federal control over private property and business activity,” said Jay Vroom, CLA’s president and CEO, who added that the proposal could infringe on states’ rights. “CLA believes that the states must be more closely consulted on the management of their waters.”

The EPA proposal also impacts federal control over certain crop-protection product applications near bodies of water and enforcement of National Pollutant Discharge Elimination System general permits for pesticides, CLA said. The organization represents more than 60 developers, manufacturers, formulators and distributors of virtually all the crop protection products used by American farmers and growers. Its members and affiliates include Monsanto, Dow AgroSciences, John Deere, Bayer Crop Science and the Coco-Cola Co.

Vroom said “jurisdictional expansions” under the plan could trigger “unnecessary expanded oversight” of pesticide applications covered by NPDES permits. He urged Congress to pass H.R. 935, the Reducing Regulatory Burdens Act of 2013, which would amend the Federal Insecticide, Fungicide and Rodenticide Act and the CWA to clarify congressional intent and eliminate the requirement of NPDES permits for the use of pesticides approved for use under FIFRA. The House Agriculture Committee approved H.R. 935 by a voice vote this month; the House Transportation and Infrastructure Committee passed the measure in the 113th Congress.

Vroom said it was “unfortunate and ironic’’ that the EPA released the proposed regulations, which he said “threaten to unduly impact agriculture,” on March 25, National Agriculture Day, “an occasion to celebrate the great efforts of America’s farmers and ranchers.”

Editor’s note: Agri-Pulse Editor Sara Wyant can be reached at www.agri-pulse.com.

Date: 4/7/2014

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