Ag Policy Blog

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/…

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