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EPA Keeps Burning Bridges

EPA Keeps Burning Bridges
The EPA's waters of the U.S. rule continues to raise red flags for agriculture.

EPA continues to be a bit of a dirty word in the countryside. Despite Environmental Protection Agency administrator Gina McCarthy’s best attempts to clean up the agency’s act and build a bridge with the agricultural community, she keeps finding herself burning bridges.

The agency already had many in agriculture in an uproar over its proposed lower Renewable Fuels Standards for biofuels last fall. National Farmers Union president Roger Johnson explained that EPA’s reputation was “very severely damaged in farm country” with the proposal to scale-back the Renewable Fuels Standard and this likely led to the “surliness with which the WOTUS proposal rule was received.”

EPA administrator Gina McCarthy visited a Missouri farm July 9 but her words continue to have problems resonating with farmers. (Photo: PJ Griekspoor)

EPA has tried to spin its wheels in overdrive in an attempt to help ease the concerns of agricultural groups with its proposed changes to the Clean Water Act. McCarthy left the beltway and visited a farm and with agricultural stakeholders earlier this month.

But she didn’t find any friends when ahead of her trip she said agriculture’s concerns were “ludicrous” and “silly.” Kansas Farm Bureau President Steve Baccus said it’s disappointing to hear ag’s reservations about the agency’s “Waters of the United States” and “Interpretive Rule” proposals dismissed as “ludicrous” by McCarthy, especially when the public comment period is still open.

“In a democratic society, citizens have the right – and the responsibility – to speak up when government decisions impact their way of life. In turn, a government that derives its power from the governed must be willing to listen to its citizens and truthfully answer questions,” Baccus said.

McCarthy spent plenty of time trying to correct what EPA characterized as myths and misconceptions from the agricultural community. Specifically EPA said it has no intention of regulating ponds and puddles, would not regulate every ditch and won’t be regulating groundwater.

Ditch the rule or myths?

For several months the American Farm Bureau Federation has touted its Ditch the Rule Website designed to highlight what it sees as concerns with EPA’s proposal. The Farm Bureau also recently released to Congress a comprehensive document that responds, point by point, to what the group sees as numerous inaccurate and misleading comments made by EPA.

AFBF’s document explains – with specific citations to the proposed rule and other authorities – how the rule would give EPA broad Clean Water Act jurisdiction over dry land features and farming practices long declared off-limits by Congress and the nation’s highest court.

“AFBF and several state Farm Bureaus have met with the EPA repeatedly, and each time agency officials have declined to grapple with the serious, real world implications of the rule,” AFBF president Bob Stallman said. “EPA is now engaged in an intensive public relations campaign, and we believe its statements are directly contrary to the reality of the proposed rule.

The EPA has created its own site to counter the “myths” being circulated. The agency’s Ditch the Myth Website tries to lay out how the proposed rule “cuts through red tape to make normal farming practices easier while also ensuring that waters are clean for human health, communities and the economy.”

But Ashley McDonald, National Cattlemen’s Beef Assn. environmental counsel, said despite all the promises made by McCarthy and EPA in general, what matters are the words on paper and currently EPA has given itself “enough leeway to find a puddle jurisdictional.” McDonald said, “The words you left off the paper make this proposal a trial lawyer’s dream come true when it comes to farming and ranching operations.” (Read McDonald’s full rebuttal of McCarthy’s claims.)

When EPA released its proposed waters of the U.S. rule in the spring, the National Farmers Union was one of the few agricultural groups to quickly praise the proposal. Now, in a letter to McCarthy, NFU says the general sense from its board is that the proposed rule has “created less clarity, not more as intended.”

On July 15 the NFU board conducted a call with McCarthy. NFU president Roger Johnson said a number of questions were posed, but the board “did not feel that its questions were adequately answered.”

In the letter Johnson said that it may not always be possible to answer definitively whether a specific body of water is considered a water of the U.S. because some determinations need to be made on a case-by-case basis. “However, to the extent possible, it is important to do everything you can to reduce confusion and anxiety surrounding jurisdiction,” he said to McCarthy in the letter.

He added that failure to do so will lead to more resentment in rural America. Johnson explained that EPA’s reputation was “very severely damaged in farm country” with the recent proposal to scale-back the Renewable Fuels Standard and this likely led to the “surliness with which the WOTUS proposal rule was received.”

EPA continues to claim it’s willing to work with agriculture to develop a rule everyone can be happy with at the end of the day. But agricultural groups are right to ask for more clarification in writing to make sure courts aren’t doing the interpreting themselves.

Legislative fixes

The House Transportation and Infrastructure Committee this week passed by voice vote legislation sponsored by Rep. Steve Southerland, R-Ill., that would prevent the U.S. Environmental Protection Agency and the Army Corps of Engineers from finalizing a regulation that would expand their jurisdiction over various waters of the United States.

Southerland’s bill, the “Waters of the United States Regulatory Overreach Protection Act of 2014,” H.R. 5078, which has 37 cosponsors, is similar to legislation, S. 2496, sponsored by Sen. John Barrasso, R-Wyo., that is pending in the Senate Environment and Public Works Committee.

The House Appropriations Committee advanced their 2015 Interior and Environment Appropriations bill that restricts funding for EPA related to the Waters of the U.S. regulation. A similar provision was included in the House Energy & Water Appropriations bill for fiscal year 2015. The White House issued a veto threat against that bill citing the provision as an element in its decision. 

Sen Charles Grassley, R-Iowa, said, with Congress likely to roll several of the spending bills into an catch-all bill this fall, he hoped that Senate Republicans would insist on similar language to block the clean water rule. "I hope we would be able to force that at the last minute," he told reporters in a news conference July 15.

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