Ag Policy Blog
Todd Neeley DTN Staff Reporter

Thursday 07/17/14

AFBF not Impressed by EPA Reaction to Ag Concerns

American Farm Bureau Federation President Bob Stallman said in a statement Thursday that the industry's attempts to reach out to EPA officials have been unsuccessful on many of the issues of concern for agriculture in the proposed Clean Water Act rule.

This comes on the heels of EPA Administrator Gina McCarthy's trip to Missouri last week, during which she met with farmers and gave a speech in front of agribusiness representatives, in an attempt to begin to calm the waters on the proposed rule.

"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," 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. We have therefore decided to take our arguments to a wider audience, as well. Farm bureau is dedicated to communicating to farmers, their elected representatives and the public how the proposed rule will impose costly and time-intensive federal permitting regimes on commonplace and essential practices that our nation's farmers and ranchers depend on.

"Agency inspectors and courts will apply the rule, not EPA's talking points. It's time for the agency to ditch this rule and start over."

The AFBF released to Congress a 16-page response Wednesday evening, to a July 7 blog written by EPA Acting Assistant Administrator Nancy Stoner, "Setting the Record Straight on Waters of the US," countering her point by point. In a news release Thursday, AFBF said that Stoner had made "numerous inaccurate and misleading comments" about the proposed rule.

One of the main concerns expressed by farmers and farm groups is that the 56 conservation practices listed in an interpretative rule released along with the larger CWA rule, essentially would narrow those practices exempt from the law by requiring farmers to follow Natural Resource Conservation Service specifications on those practices.

EPA continues to send mixed signals on this issue.

Last week in Missouri EPA Administrator Gina McCarthy told DTN in an interview that the list wasn't meant to be all-inclusive and it doesn't mean those practices not listed aren't exempt. In the interpretative rule it reads, "Rather, Section 404(f)(1) exempts only those discharges associated with activities of essentially the same character as named." The rule allows EPA to add more identified practices to the list. The rule says the activities must be implemented "in conformance with NRCS technical standards."

During an EPA webinar Wednesday, Stoner said the practices are required to meet NRCS technical standards to be exempt. However, she said farmers don't necessarily need to be under contract with NRCS for conservation practices to qualify.

This would appear to leave out a number of practices that may benefit water quality, yet do not conform with NRCS standards.

In the AFBF document responding to Stoner's blog, the group said the identified practices may be meaningless because of the expansion of EPA authority.

"The categories of exemptions are still there, but because of the expansion of jurisdiction over more small, isolated wetlands and land features like ditches and ephemeral drains, fewer farmers will benefit from the exemptions," AFBF said. "The exemptions for activities occurring in 'waters of the U.S.' have been interpreted by the agencies to be ridiculously narrow (e.g., you can plow and plant in a wetland, but only if you have been farming there since 1977, and only if you do not alter the hydrology of the wetland, and you cannot apply fertilizer or herbicide there without an NPDES permit)."

One of the mantras repeated often by EPA is that the proposed rule does not protect any waters not historically covered in the Clean Water Act.

AFBF said in its response to Stoner's blog, however, that "The Supreme Court said twice that EPA's 'historical' scope of regulation was unlawful. Prior to the Supreme Court decisions, EPA used the 'migratory bird rule' to regulate nearly all waters. EPA's proposed new rule based on the 'connectivity' of all waters is just as broad and just as unlawful. The proposed rule is a cynical attempt to overcome the Supreme Court decisions by finding that virtually all waters have a 'substantial nexus' to navigable waters."

Stoner said in the blog that NPDES, or national pollution discharge elimination system, permits required for discharges to waters of the U.S., would not be required by farmers to apply fertilizer to fields or surrounding ditches or seasonal streams.

AFBF said in the document, however, that farmers will need permits in those situations.

"If there are jurisdictional 'wetlands' (low spots) or ephemerals (drainage areas) within farm fields or ditches beside or within farm fields, and if even miniscule amounts of pesticide or fertilizer fall into those features (intentionally or not)," AFBF said, "this would be an unlawful 'discharge' of 'pollutant' that would trigger liability of up to $37,500 per discharge per day without an NPDES permit."

Read the AFBF document here, http://tinyurl.com/…

Follow me on Twitter @toddneeleyDTN

Posted at 10:41AM CDT 07/17/14 by Todd Neeley
Comments (8)
This is really serious. I hope farmers are writing their representatives and commenting during the comment period.
Posted by Unknown at 1:44PM CDT 07/17/14
I've already sent my comment. Farmers should consider how onerous permitting would be. Mother Nature doesn't take a two or three day vacation every week like the permitting office would. Worst of all, imagine that you need to apply additional nitrogen fertilizer (wet weather caused too much loss) and the government permitting office closes down indefinitely due to lack of budget appropriations.
Posted by Curt Zingula at 6:22AM CDT 07/18/14
Where was AFB when the EPA was promoting the SPCC rules to get fuel containment dikes built on farms? The language supporting that rule was essentially what they are now promoting. Oh, yeah -- AFB developed a consultants package to charge farmers to develop SPCC plans! I asked my NDFB to oppose expansion of SPCC but they didn't. AFB and several states made money promoting SPCC. And just NOW they are finally getting around to opposing what they were once complicit in promoting?!
Posted by LeeFarms at 7:36AM CDT 07/18/14
I just finished reading Jerry's article about Conservation Groups ideas of the new CWA rules. When these groups view private land as there land (our wetlands) there are big problems. I would like to use others property as I wish but that would be unconstitutional and against other various laws. Clearly they want to make rules they don't have to live by them. The waterfowl numbers are at all time highs yet these groups say wetlands are being lost, the facts just don't add up. In South Dakota alone the goose population is so high there is a call to shoot a 50 bird daily limit. Surely this doesn't sound like conservation to me. Habit control should be one of the first things to look at instead of a massacre. Obviously there are too many wetlands. The waterfowl numbers state the facts, wetlands have actually become bigger and more plentiful than ever the data backs it up. The CWA was implemented to reduce harmful high concentrations of contaminants in navigable waters. Many cities are directly discharging untreated storm sewer drainage currently with permits. The rural farmers are now the minority and are falsely being accused of all of the water problems yet not much public outcry for the linear foot pollution rate of cities. If wetlands are truly more valuable than cropland, which these groups and now the EPA are stating, then the landowners with these wetlands need to be compensated fairly, that means at values higher than that of the most valuable cropland around. That is not happening. This is a takings. This is a violation of the 5th amendment. Farmers and farm groups have always worked to do the best we can and have worked with conservation groups, but clearly these groups are over stepping the line. They are beginning to help pass policy that is leading to condemnation of private cropland. This will lead this nation to higher food costs and threatened our food independence as a country.
Posted by Unknown at 5:07PM CDT 07/18/14
I will also add that this has been all been put together by these groups starting with adding wetland compliance to crop insurance in the farm bill. Now you add in the EPA ruling and you stop all new drainage and give people in not only the EPA but also NRCS extreme regulatory power. The fines and pay backs of crop insurance subsides will break any farm. You could be drowning with a torrential rain and be forced to drown, YOU WILL BE IN VIOLATION TO SAVE YOURSELF! Don't believe me, ask producers in northeast South Dakota. There is no justice or liberty with rules like this limiting private property rights. When the public has more rights on your property than the land owner has we have lost what it means to be the United States and what all of the soldiers of this country have fought for.
Posted by Unknown at 10:28PM CDT 07/18/14
I will also add that this has been all been put together by these groups starting with adding wetland compliance to crop insurance in the farm bill. Now you add in the EPA ruling and you stop all new drainage and give people in not only the EPA but also NRCS extreme regulatory power. The fines and pay backs of crop insurance subsides will break any farm. You could be drowning with a torrential rain and be forced to drown, YOU WILL BE IN VIOLATION TO SAVE YOURSELF! Don't believe me, ask producers in northeast South Dakota. There is no justice or liberty with rules like this limiting private property rights. When the public has more rights on your property than the land owner has we have lost what it means to be the United States and what all of the soldiers of this country have fought for.
Posted by Unknown at 10:28PM CDT 07/18/14
Around here the bigger the farmer the more they disk the waterways and soil erosion is rampant .No regs . no crop ins. subsidies.
Posted by melvin meister at 10:07AM CDT 07/21/14
Melvin sounds to me that your addressing HEL issues not wetland issues. I stick to my words.
Posted by Unknown at 7:36PM CDT 07/21/14
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