Clean Water Act Exemptions Questioned


by Todd Neeley, DTN Staff Reporter

OMAHA (DTN) — EPA on Wednesday touted the exemption of several agricultural and conservation practices from a proposed change to the Clean Water Act rule. The president of the American Farm Bureau Federation argued, however, that the 56 practices are not all-inclusive and that U.S. farmers will face new cost and regulatory burdens if the rule goes into effect.

Most notably, AFBF President Bob Stallman testified before the House Subcommittee on Water Resources and the Environment that young farmers could be hit particularly hard. That's because many of their operations don't necessarily meet the definition of “ongoing” required to qualify for exemptions.

The Clean Water Act currently does not require Section 404 permits for many farming activities that date back to 1977. That could change.

“Newer farms, or farms where farming ceased since 1977 and later resumed, or sometimes even farms that have switched from one crop to another since 1977, will all fall outside of the exemption,” Stallman said.

Agricultural groups are aggressively lobbying against the rule. EPA announced earlier this week that it would extend the public comment period from July 21 to Oct. 21 — meaning EPA likely would not finalize the rule until after the November elections.

Stallman said he is concerned the proposed rule will “render the normal farming exemption meaningless.” The so-called recapture provision of Section 404 of the Clean Water Act negates an exemption where farming “impairs the flow or reduces the reach of navigable waters.”

EPA has solicited the help of USDA's Natural Resources Conservation Service in identifying conservation practices that would be exempt from the rule. In doing so, EPA decided exempt practices would have to comply with NRCS standards.

“Many of the listed conservation practices are extremely common farming and ranching practices such as fencing, brush management and pruning shrubs and trees — which we believe are already exempt,” Stallman said.

He added, “The agencies claim to be 'clarifying' the exemption for 56 listed activities, but, at the same time, the interpretive rule requires compliance with specific NRCS standards — something that was never required before to qualify for the 'normal' farming and ranching exemption. Therefore, the practical effect of the interpretive rule is to narrow the existing exemptions, rather than broaden them as EPA claims.”

Farm Bureau has made it clear the group wants EPA to “pull the rule.”


An interpretive rule released along with the larger rule, Stallman said, does not clarify which regulatory agency has final authority on compliance with NRCS standards. The rule states a farmer not enrolled in a USDA cost-share program is responsible for ensuring the practice meets all NRCS requirements.

“Ultimately, however, EPA has reserved its Clean Water Act authority to make all final determinations,” Stallman said. “Even if a farmer and NRCS believe that the practice meets the appropriate standards, EPA presumably could veto that determination.”

While EPA officials said during the release of the rule in April that they want to encourage expanded conservation practices, the rule currently does not exempt residue and tillage management, reduced tillage, ponds and cover crops.

“The implication of not listing these practices is that they will require a section 404 permit if any incidental discharge of 'dredged or fill' material occurs,” Stallman said. “This could have a chilling effect on the implementation of conservation practices on farms and ranches.”

Rep. Tim Bishop, D-N.Y., took Stallman to task about the Farm Bureau's 2008 position that called for EPA to write a rule instead of enacting through guidance a new definition of waters of the U.S. Bishop asked Stallman whether the Farm Bureau had changed its position.

“We did ask for a rulemaking,” Stallman said, “but not this. We want a rule that sets boundaries.”


EPA Deputy Administrator Bob Perciasepe and Jo-Ellen Darcy, assistant secretary of the Army for civil works, said in testimony before the committee that the proposed rule would not expand federal jurisdiction on more waters of the U.S.

Darcy said the law still would cover 5{0a3336b3da8cf935de4f3eb78fe29508c4b8b5ebd27d01af2d815614325d533e} fewer waters than prior to U.S. Supreme Court decisions in the past decade. Still, the proposed rule would expand the number of waters covered by the act by 3{0a3336b3da8cf935de4f3eb78fe29508c4b8b5ebd27d01af2d815614325d533e}, she said. In addition, she said the law will “bring additional clarity” and reduce the number of lawsuits filed.

Perciasepe said EPA stands by the agency's cost-benefits analysis of the proposed rule that found the benefits to outweigh the costs.

“We concluded that the proposed rule would provide an estimated $388 million to $514 million annually of benefits to the public, including reducing flooding, filtering pollution, providing wildlife habitat, supporting hunting and fishing, and recharging groundwater,” he said in his written testimony. “The public benefits significantly outweigh the costs of about $162 million to $278 million per year for mitigating impacts to streams and wetlands, and taking steps to reduce pollution to waterways.”


Rep. Bill Shuster, R-Pa., chairman of the House Committee on Transportation and Infrastructure, said the proposed rule is creating more confusion.

“I am extremely concerned that there are serious flaws with this rule. Twice, the Supreme Court has told the agencies that there are limits to federal jurisdiction under the Clean Water Act, and that they had gone too far in asserting their authority. Now the administration has taken those Supreme Court rulings and cherry-picked discreet language from them in an attempt to gain expanded authority over new waters, rather than heeding the directive of the court.”

Rep. Bob Gibbs, R-Ohio, said there is concern the new rule will “undermine” the federal/state partnership in regulating clean water.

“In promoting this rule, the agencies are implying to the public that massive amounts of wetlands and stream miles are not being protected by the states, and that this rule, which will essentially federalize all waters, is needed to save them,” Gibbs said. “However, nothing is further from the truth. States care about and are protective of their waters.”

Northern Ag Network Note:  CLICK HERE to learn about the American Farm Bureau's “Ditch the Rule” campaign.  To read what is being proposed and submit your comments, visit the Federal Register.



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Posted with DTN Permission by Haylie Shipp



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