Friday, June 20, 2014

House panel takes aim at ‘interpretive rule’ in EPA Waters of U.S. plan

Members of a House Agriculture subcommittee from both parties had a heated exchange yesterday with a top USDA official over the Environmental Protection Agency's proposal for defining exactly what falls under the agency's jurisdiction under the Clean Water Act (CWA). In the hot seat was Robert Bonnie, the USDA's under secretary for natural resources and environment. He told lawmakers that an “interpretive rule” on farming and ranching exemptions under the CWA, issued at the same time as the EPA proposal to define “Waters of the U.S.,” ensures that 56 specific agricultural conservation practices, executed under the standards of the USDA's Natural Resources Conservation Service, would not be subject to CWA dredged or fill permitting requirements. While Bonnie emphasized that the practices are completely voluntary, legislators insisted the EPA's proposal would result in NRCS functioning more like a regulatory agency, rather than one that's supposed to work with farmers to improve conservation methods. Rep. Glenn Thompson, the chairman of the Subcommittee on Conservation, Energy, and Forestry, said farmers might be discouraged from employing any conservation practices “if they don't want to face consequences of the Clean Water Act,” which can include fines of $37,000 per day. “What was voluntary is now compulsory,” the Pennsylvania Republican added. Rep. Collin Peterson, D-Minn., the ranking member of the full Agriculture Committee, also criticized the rule and submitted a list of over 100 conservation practices recognized by NRCS, half of which are not included in the EPA's interpretive rule. “How do you say you're covering everything, when it's not true?” he said. Also testifying at the hearing was Andy Fabin, cattle producer and farmer from Indiana, Pennsylvania, representing the National Cattlemen's Beef Association (NCBA). He said the interpretive rule made him reluctant to move forward with any voluntary conservation practices. “If you tell a farmer he has to comply with NRCS standards or apply for a (CWA Section 404) permit, he hasn't been given any real choice at all,” Fabin said. NCBA and other agricultural organizations have asked EPA and the Army Corps of Engineers to withdraw their proposed definition of “waters of the U.S.,” as well as the interpretive rule. In a press release, NCBA said EPA chose 56 exempted practices, including prescribed grazing, because they may result in a discharge into a “water of the U.S.” This effectively makes grazing a discharge activity, and cattle producers would be required to obtain a permit to graze unless they have a NRCS-approved grazing plan, said NCBA. Another witness, Don Parrish, the American Farm Bureau Federation's senior director of regulatory relations, said if a farmer builds a fence that does not comply with NRCS standards, then he has essentially violated the Clean Water Act. Although a federal agency would be unlikely to check the property, citizen activists could file a lawsuit over a fence that isn't within NRCS standards, he said...more

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