by Chris Clayton, DTN Ag Policy Editor
OMAHA (DTN) — The controversial waters of the United States rule continues to reflect a lack of clarity when it comes to agricultural exemptions and the relationship USDA will play in helping producers avoid needing permits and other regulatory demands.
Robert Bonnie, USDA's undersecretary for Natural Resources and Environment, testified Thursday before the House Agriculture Subcommittee on Conservation, Energy and Forestry in a contentious hearing in which House members from both parties criticized the perceived federal “land grab.”
EPA and the Army Corps of Engineers proposed in March to change the way agencies define navigable waters of the U.S. under the Clean Water Act. Coupled with that proposal was an interpretive rule regarding normal farming and ranching practices that are exempt from specific permit requirements. That interpretive rule, which went into effect when it was published in the Federal Register, adopted 56 conservation practices that would ensure exemption from the proposed rule.
The hearing came as legislation was introduced by 30 Republican senators on Thursday specifically to block EPA and the Army Corps from finalizing the water of the U.S. rule.
Subcommittee Chairman Glenn Thompson, R-Pa., began the hearing by saying the interpretive rule appears to be a new set of regulatory standards that farmers must meet to avoid violations of the Clean Water Act. Thompson said EPA and the Corps should withdraw the rule and start from scratch.
Bonnie said in his testimony that the interpretive rule was developed with the help of USDA to expand the number of agricultural exemptions under the Clean Water Act. Traditional agricultural exemptions remain, but now the 56 conservation practices, such as crossing streams with cattle, can occur in “waters of the U.S.” However, to be exempt from permits, a farmer or rancher must implement his or her conservation practices in accordance with USDA's Natural Resources Conservation Service standards.
Bonnie told lawmakers the interpretive rule “is crystal clear” in regard to protecting the traditional agricultural exemptions for farming practices. The rule increases conservation options without being subject to permit requirements.
Thompson, however, said the rule creates a standard that did not exist before. “What was voluntary is now mandatory,” Thompson said.
House Ag Committee Ranking Member Collin Peterson, D-Minn., questioned why all conservation practices were not listed. Some practices such as water drainage management were not among those 56 exempted practices. “That's going backwards from what we are doing now,” Peterson said.
Further, Peterson said the Army Corps of Engineers already “has gone off the reservation” by telling people that virtually all waters in the Prairie Pothole region will be regulated so federal agencies can restore wetlands. Peterson added there already seems to be differences in the way different Corps offices will interpret the proposed rules.
“That dog doesn't hunt,” Peterson said. “I just don't see where we are going with this.”
Several lawmakers argued the EPA rule and the interpretive language are full of ambiguity and vagueness that will open the door for more litigation and demands for permits. Moreover, farmers may become reluctant to implement conservation practices as a result, the lawmakers said.
“There's great uncertainty and these are by folks who have worked a lifetime trying to incorporate conservation practices,” said Rep. Tim Walz, D-Minn., ranking member of the subcommittee.
“My concern is what has happened now with the Clean Water Act could damage that and foment distrust among producers,” said Rep. Rick Crawford, R-Ark.
Bonnie noted the issue of defining waters of the U.S. has always been a concern to agriculture. “We do think what we have done here is increase the number of exemptions on a voluntary basis using conservation practices that are very popular with landowners,” Bonnie said. He added, “We hope this will be seen as an opportunity for agriculture.”
Bonnie acknowledged there was no direct consultation with agricultural groups before USDA completed its agreement with EPA and the Corps on the exempt practices. Further, the agreement between the three agencies will be reviewed every year to see if conservation practices should be added or removed from the exemption list.
Bonnie stood behind his argument that the end result will be a simpler process for farmers and ranchers. “We hope we will reduce the permitting burden and expect we will,” Bonnie said.
Representatives from the American Farm Bureau Federation, National Cattlemen's Beef Association and National Corn Growers Association all testified that EPA and the Corps should withdraw the proposed waters of the U.S. rule and start over.
Don Parrish, senior director of regulatory affairs for the Farm Bureau, said the Clean Water Act rule would vastly expand the area of EPA-regulated waters in a given watershed.
Andy Fabin, a Pennsylvania farmer and cattle producer, said he feared the EPA rule could cause farmers to reduce conservation practices and scale back their relationship with USDA Natural Resources Conservation Service staff.
“We are more inclined to do conservation practices because it is part of our value system as a producer, and we look to the NRCS for the guidance of a proper way to do that,” Fabin said. “If we are going to start looking to them as a regulatory body, we will be less likely to invite them onto the property or properties for that advice. I think it will have a negative impact on conservation.”
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