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EPA Administrator Clarifies Intent of Waters of US Proposed Rule

EPA Administrator Clarifies Intent of Waters of US Proposed Rule

Gina McCarthy says frivolous side issues are a roadblock to necessary serious discussions about regulation of waters of the U.S.

EPA Administrator Gina McCarthy is taking her case for the Interpretive Rule of Waters of the U.S. on the road to farm country in an intensifying effort to correct misunderstandings about the proposed rule and to gather input from farmers and ranchers.

TAKING QUESTIONS: EPA Administrator Gina McCarthy, center, takes questions from reporters following a farm tour at the Bill Heffernan farm near Columbia, Mo. At left is EPA senior water adviser Ken Kopocis.

On the scenic and historical Bill Heffernan farm near Columbia, Mo., the Administrator, along with EPA Region 7 Administrator Karl Brooks, her senior water adviser Ken Kopocis, and a handful of people from Missouri offices of USDA's Natural Resources Conservation Service, the Soil Conservation districts and Department of Natural Resources officers, offered point after point of clarity on what she sees as the intent of the interpretive rule and what it does and does not propose to regulate.

Related: Senators' Bill Aims to Block EPA Waters of the US Rule

Kopocis, asked about a Missouri Farm Bureau "Ditch the Rule" commercial that contends EPA intends to regulate the ditch along a road occupied by a canoe, said "the content of the ad appears to be at factual odds with the reality of the proposed rule."

He said that ditches and gullies are specifically exempt from regulation in the proposed rule except for a very narrow category under specific circumstances. He said the intent of the proposed rule is to spell out what is regulated and allow farmers to assume that everything else is not.

"If you have doubts, there are people to ask," he said. "But our goal is reduce the amount of time you have to spend worrying or asking to an absolute minimum."

A number of farm groups including a coalition of Kansas organizations under the umbrella of the Kansas Agricultural Association, have opposed the proposed rule and asked Congressional members to sponsor legislation to stop it.

McCarthy, who moved on to an afternoon roundtable with farmers and will address the Agribusiness Council of Kansas City on Thursday, was blunt about the purpose of her trip and clear that she is frustrated with the misinformation disseminated about the proposal, some of which she feels is deliberately misleading.

Related: Economic Review Backs AFBF Position on Waters Rule

She said a clarification of the Clean Water Act is necessary because of Supreme Court decisions in 2001 and 2006 that left a number of things unclear, including some of the rules on discharge of dredging materials.

"There are issues we need to discuss and clarify to get this rule right," she said. "We have important work to do. All the silly contentions being brought up – that we intend to regulate dry ground or stock ponds or mud puddles after a rain – all that does is get in the way of our being able to have those serious discussions."


She said the point of the proposed interpretive rule is to provide clarity to farmers about what is and is not a regulated water and to make sure that rules do not get in the way of farmers being able to do their jobs.

"I have the utmost respect for the people who produce the food, fuel and fiber for this country and for the world," she said. "I want them to feel free to do their job without worrying about who they need to talk to or who needs to be consulted. I know that there are some real concerns out there and I want to make sure those concerns are addressed in the final rule."

Related: Farmers Worry Waters of the US Interpretive Rule Will Suppress Conservation

She said the proposed rule does not add anything to EPA jurisdiction that is not in the original Clean Water Act, which exempts all of what it calls "normal farming practices."

"What we tried to do in this rule is clarify what is and is not a normal practice," McCarthy said. "In the process of trying to do that, a lot of folks thought we were narrowing normal practices down to a list. That wasn't the intent at all and that language needs to be fixed in the final rule. There are a few other things that have been brought to our attention that will also be addressed. What I am trying to do is make sure that we get this right, that the final rule does protect the quality of drinking water for all of us and still lets farmers go about their business with confidence."

Another piece of language that requires clarification is the role of NRCS and standards for conservation projects, she said.

Related: A Closer Look at EPA Water Rule Proposal

The final language will be clear that no regulatory rule is assigned to the NRCS when it comes to conservation practices nor does it require EPA permits for practices such as terraces, grass waterways, ponds to slow and contain runoff, riparian plantings or other common practices, she said.

"There are excellent cost-sharing programs offered by NRCS and they do have technical advisers that are an excellent resource people for farmers who want to undertake a conservation project," she said. "We encourage people to take advantage of that, but there is no requirement and no proposed requirement to force them to ask anybody for anything. They are perfectly free to undertake their own project and follow their own design if that is what they want to do."

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