Stabenow Calls for More Info on Waters of U.S. Rule

Senate ag chairwoman Stabenow says more information on the Waters of the U.S. rule would provide farmers certainty regarding the rule's stipulations

Published online: Aug 28, 2014 Irrigation
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Sen. Debbie Stabenow, D-Mich., chairwoman of the Senate Committee on Ag, said earlier this month that farmers need more clarity on the U.S. EPA and Army Corps of Engineers’ proposed Waters of the United States definition.

The clarity, a letter Stabenow and 12 other senators sent to the EPA and Army Corps said, would help farmers make sure the "waters" rule doesn't have unintended effects on agriculture and on conservation efforts.

The Waters of the U.S. regulation is intended to clarify which waters are regulated under the Clean Water Act, though many farm groups say the definition expands the scope of the EPA's jurisdiction.

"While we have long been supporters of the Clean Water Act protecting our nation's water resources, we want to make sure that the proposed jurisdictional rule and the interpretive rule do not have unintended effects on agriculture and on the conservation practices currently used by many of our nation's farmers and ranchers," the letter reads.

The letter addressed one key concern of farmers and ranchers—that the waters rule's interpretive rule regarding exempt conservation practices could undermine progress made in the 2014 Farm Bill.

"Voluntary conservation practices supported by USDA and expanded in the 2014 Farm Bill are the federal government's largest investment in the conservation of private working lands and critical to maintaining clean water, clean air, wildlife habitat, and other benefits," the letter said.

"The proposed 'waters of the US' rule and the interpretive rule could undermine progress made in the 2014 Farm Bill if they create an atmosphere of uncertainty that results in fewer conservation practices or significant new burdens for our nation's farmers and ranchers."

The letter asks the agencies six specific questions for clarification to ensure the intent of the rule is met—to promote conservation practices and provide regulatory certainty for farmers and ranchers.

The following are questions taken directly from the senators' July letter to EPA Administrator Gina McCarthy, Secretary of the Army John McHugh, and USDA Secretary Tom Vilsack.

  1. Agency documents and congressional testimony state that the purpose of the interpretive rule is to provide certainty to farmers and ranchers by stating in advance that specific conservation practices are exempt from CWA permitting. However, before the release of the interpretive rule, the idea that conservation practices could ever trigger CWA permitting did not exist. By carving out a specific exemption for a certain number of conservation practices, an assumption has been created that but for this list, these certain conservation practices would have required a CWA permit.  Is this true?
  2. Privacy is of great concern to farmers, ranchers and forest owners.  Many groups we have heard from are worried the interpretive rule could expose farmers and ranchers to citizen suits if they are not in compliance with NRCS standards.  Can you tell us if the increased threat of citizen suits is real and if there are steps that EPA can take to insulate agriculture from unnecessary citizen suits?
  3. The interpretive rule has also raised questions over requirements for conservation practices not included on the list. Many farmers and ranchers believe conservation practices have always qualified for the Section 404 "normal farming" activity exemption. However, issuing an interpretive rule with a finite number of conservation practices suggests that this was not always the case.  Many stakeholders are concerned that conservation practices not included in the list of 56 practices automatically require a CWA permit. Can you clarify what the interpretive rule means for NRCS conservation practices not included on the list of 56 exempt practices?  Did the EPA, Army Corps, and NRCS consider broadening the interpretive rule to cover more conservation activities? 
  4. Another question the interpretive rule raises is its effect on existing conservation efforts.  NRCS provides important and valuable resources for conservation; but, as you know, there are many conservation efforts which do not involve NRCS financial or technical resources.  Some stakeholders are concerned that requiring NRCS compliance in order to qualify for a CWA permit exemption could be damaging to existing conservation work not carried out with NRCS.  For example, NRCS worked with the dairy industry to create the Dairy Environmental Handbook, which outlines best management practices for producers.  Some of these practices are based on NRCS standards; however, they do not necessarily mirror NRCS requirements.  If a producer follows guidelines in the Handbook, rather than guidelines from NRCS, will they be subject to liability under the CWA?  Does the interpretive rule make this problem worse or does it help producers in this situation?
  5. Switching attention to the proposed "waters of the US" rule, many questions have been raised about intermittent streams and low-lying areas on fields.  Some concerned stakeholders believe that flow and runoff from fields may be categorized as tributaries, and thus regulated under the proposed rule.  To this point, the proposed rule states that ephemeral features located on agricultural lands that do not possess a bed and bank are not tributaries.  We believe defining the term bed and bank will significantly help resolve confusion as to which agricultural features can be classified as tributaries. Does the agency have plans to define these terms?
  6. Farm drainage and ditches also raise significant concerns.  EPA and the Army Corp clearly states in the proposed rule that upland ditches are exempt from permitting.  In a guidance document on the EPA website, it states that the agency intends to include ditches collecting runoff or drainage from crop fields as upland ditches.  However, the rule itself mentions only "ditches that are excavated wholly in uplands, drain only uplands, and have less than perennial flow." Many producers are concerned because their farms contain fields in floodplains.  Because the ditches on these low-lying fields would not be considered upland ditches, they are concerned that these ditches are now jurisdictional.  Can you please address this concern?

 

 Source: Farm Progress

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