Are Farm Practices Exempt from CWA Proposal?


by Todd Neeley, DTN Staff Reporter

OMAHA (DTN) — Some current farming practices were not exempted from a proposed new Clean Water Act rule, but EPA Administrator Gina McCarthy told a Senate committee Wednesday that doesn't mean permits will be needed for those practices.

As part of an EPA announcement on the new CWA rule Tuesday, the agency also announced a so-called interpretative rule that would exempt many conservation practices defined by USDA's Natural Resources Conservation Service from having to get clean water permits.

An interpretative rule is developed by administrative agencies when Congress finds areas in statutes where it is impractical for lawmakers to apply expertise.

“Under the proposed rule, 53 farming practices are exempt,” Sen. Barrasso, R-Wyo., said during a U.S. Senate Committee on Environment and Public Works EPA budget hearing Wednesday. “The list does not cover all existing practices. Will farmers and ranchers need to get permits?”

McCarthy said farming practices that do not require permits today won't need them when the rule becomes law.

Barrasso Press Secretary Laura Mengelkamp told DTN there are noticeable ag practices absent from the EPA proposal.

“Anything that meets the definition of point source is not exempted,” she said. “This would include rolling stock, any rolling applicator used by farmers and ranchers — like a fertilizer or manure spreader. Pesticide applications is a big one.”

Barrasso joined Nebraska Republican Sen. Deb Fischer in asking McCarthy to extend an announced 90-day comment period to 180 days. The public-comment period does not begin until EPA posts the rule in the federal register.

The interpretative rule exempts additional conservation and other agriculture practices,…. That includes irrigation canals, conservation cover, windbreaks, irrigation field ditches, filter strips, structures for water control, wetland restoration and many other practices.

McCarthy was called to testify to the committee on EPA's 2015 proposed budget.

At a time when Congressional Republicans and ag interest groups say EPA is expanding its Clean Water Act authority, members of the committee decried the agency's proposed $580 million budget cut to the nearly $1.8 billion for clean water and drinking water state revolving funds.


The release of the proposed Clean Water Act rule Tuesday did little to change minds on both sides of the issue, as the few agriculture groups that did respond publicly to the proposal remain entrenched in their positions on the rule.

The National Cattlemen's Beef Association and the American Farm Bureau Federation have said they oppose the rule because it would expand federal jurisdiction on waters not previously regulated, a point that McCarthy said Tuesday was not true.

Ag groups' concern comes from EPA's own analysis conducted last year that indeed determined that more U.S. waters would be regulated.

Many agriculture groups, including the American Farm Bureau, continue to digest the 300-plus-page rule before issuing public comment.

NCBA said in a news release Tuesday that some of its 175,000 members are “deeply” concerned by this vast overreach by the EPA and the administration. Under this expansion, essentially all waters in the country would be subject to regulation by the EPA and the Corps (U.S. Army Corps of Engineers), regardless of size or continuity of flow.”

NCBA President and Texas cattleman Bob McCan said he is concerned EPA eventually will require ranchers to seek permits for nearly every function performed on the farm.

“This is a step too far, even by an agency and an administration notorious for over-regulation,” he said in a statement.

“This proposal by EPA and the Corps would require cattlemen like me to obtain costly and burdensome permits to take care of everyday chores like moving cattle across a wet pasture or cleaning out a dugout. These permits will stifle economic growth and inhibit future prosperity without a corresponding environmental benefit. This proposed regulation and the burdensome federal permitting scheme will only hinder producers' ability to undertake necessary tasks and, in turn, result in an exodus of ranchers from the field.”

McCan said nearly “all activities on our open land will now touch a 'water of the United States' under the expanded definition. For the first time, ditches are included in the definition of a 'tributary' and now will come under federal jurisdiction. Activities near a jurisdictional ditch will now require a federal permit. Many cattle operations will be required to get Sec. 402 National Pollutant Discharge Elimination System (NPDES) permits, Sec. 404 Dredge and Fill permits or Sec. 311 Spill Prevention Control, and Countermeasure (SPCC) spill plans.

Rep. Randy Neugebauer, R-Texas, said in a statement that the rule “would dramatically expand the agency's jurisdiction.”

“This is a power-grab, plain and simple,” he said. “The EPA's role is to ensure the federal government and states are working together efficiently to reduce pollution in our nation's waterways. This rule goes far beyond that. EPA is giving itself permission to regulate anything from runoff ditches to stock ponds.”

During a press conference Tuesday, EPA's McCarthy said the new rule would save money in enforcing the Clean Water Act by avoiding confusion among regulators about which waters fall in EPA jurisdiction.


Chandler Goule, National Farmers Union senior vice president of programs, said U.S. farmers should celebrate the new rule because it will bring certainty.

“NFU has long advocated for increased certainty surrounding Clean Water Act requirements for family farmers and ranchers in the wake of complicating Supreme Court decisions,” he said in a statement.

“Today's draft rule clarifies Clean Water Act jurisdiction, maintains existing agricultural exemptions and adds new exemptions, and encourages enrollment in U.S. Department of Agriculture conservation programs.”

Goule said EPA can continue to build trust in agriculture by withdrawing its proposal to reduce volumes in the Renewable Fuel Standard.

A number of conservation, wildlife and environmental groups lauded the proposal as a good first step toward protecting wetlands and other sensitive waters.

Natural Resources Defense Council Executive Director Peter Lehner said the rule is needed to protect unprotected waters.

“This is good news for boaters, anglers, swimmers and families who rely on clean drinking water,” he said in a statement. “EPA took an important step to finally rescue these waters from legal limbo.”

John Crabtree, chief executive officer at the Center for Rural Affairs, said the rule is needed to safeguard important industries in rural America.

“The proposed rule is a commonsense 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 and safer drinking water for those of us that live here, and also for our neighbors downstream,” he said in a statement.”

Ducks Unlimited Chief Executive Officer Dale Hall said his group would like to see EPA go further with the rule.

“The release of the draft rule gets us one step closer to better defining Clean Water Act regulations in regard to wetlands,” he said in a statement,



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Posted with DTN Permission by Haylie Shipp



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