Editors' Notebook

Farm groups continue to raise concern about the ultimate goal of new "interpretive rules" regarding the Clean Water Act and what constitutes "waters of the United States," which the CWA is authorized to hold sway over.

If you haven't followed our coverage on the issue, the concern is that if one takes the CWA language to its ultimate conclusion, as some lawsuit-happy citizens want to do, any mud puddle or field ditch, which ultimately drains into a regulated water body, could be regulated.

To be sure, there are those in what I'll call the radical environmental movement who would love to "connect the dots" between a ditch along a Minnesota corn field and the Gulf of Mexico and regulate -- or better yet, prohibit -- farm activities that might happen around said ditch.

New EPA Secretary Gina McCarthy seems to understand that common sense issue. Our reporter Todd Neeley had the chance to sit down with her in Kansas City this week, and she earnestly expressed the desire to come up with common sense, workable rules that allow farmers to farm, yet keeps bad things from happening to water quality.

I was among a group of ag journalists who heard the same tone from a freshly-appointed Secretary McCarthy when she spoke at a Washington, D.C. event in April. There too, her main message to farmers was one of trying to find common ground and regulate with common sense.

Farm groups don't seem convinced. This week, as McCarthy was touring Missouri, several called for her to simply throw out the new interpretive rule.

Their concern -- and it is a legitimate one -- is that the devil in any regulatory rule is in the details and in those administering the details. The proposed rule includes some 56 conservation practices that could be carried out on lands without requiring a permit. A link to those practices is here http://www2.epa.gov/….

The list is varied, from the trails livestock create that collect and guide rainwater and snowmelt into various streams, to various plantings and habitat management and field operations. McCarthy told Neeley, and others during her tour, that she thought such a list would bring peace to farmers' minds.

Hardly. Many fear the list will become ironclad, and as we've written elsewhere, that anything not on the list would either require a permit or be outlawed.

There's also the fear, again legitimate, that the time period for a farmer to get a permit to perform an unlisted act would take so long as to be unworkable. Weather and other events happen on the landscape in real time, not during a bureacracy's business hours.

So the answer, farm groups said this week, is to see the folly in a list and simply ditch it.

That's very unlikely and to me seems a bit of a waste of effort and copy-machine toner. To walk in McCarthy's shoes for a moment, the agency does need to do something. The Clean Water Act is the law of the land and any time the EPA, charged with upholding that law, appears to not be doing its job, citizens groups are quick to file lawsuits against the agency. If there's one thing I've picked up over the years of talking to various EPA officials, they're really sick of the wasted energy and dollars that go into these lawsuits.

If you read Neeley's report from Kansas City, one of the underlying messages is that McCarthy acknowledges the path ahead is going to be difficult. This week's trip itself, at least on the surface, seems a legitimate effort to reach out and hear what farmers and the ag industry have to say.

In another sign of clear thinking, EPA's proposed regulations on grain elevator dust and the Clean Air Act, announced July 9, actually rescinded language the agency had originally proposed. Once the agency learned the realities of temporary grain storage facilities, it deemed a proposed restriction unnecessary. You can find information on that in Friday's Washington Insider as well as a follow up story by Todd Neeley.

So for the moment, we can only take McCarthy's word that such common sense intentions are also at play in the Clean Water Act rule. The next 90 days or so -- the period EPA expects to take to finalize the interpretive rule -- will tell us much about the actions that result from those words. Stay tuned.

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