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Water Rules War Goes On

EPA Administrator Gina McCarthy continued her Midwest campaign to defend her agency's proposed rule on the waters of the U.S. this week with a visit Thursday to the Kansas City AgriBusiness Council. She insisted that the new rule won’t change current regulations under the Clean Water Act for farmers and ranchers.

"EPA is not regulating all activities in flood plains, or every puddle, dry wash, and erosional feature. In fact, we are doing just the opposite. If cattle cross a wet field – that’s a normal farming practice, and all normal farming practices are still exempt,” she told the group. She also reiterated that the goal of the new rule is to "protect drinking water for 117 million people."

And, if the interpretive rule the EPA has published isn’t the best way, “let’s figure that out together,” she said in her speech.

Earlier this week, a broad group of farm and agricultural interests asked the EPA to do just that -- to withdraw its interpretive rule and replace it with a more formal rule-making process that would allow more time for public comments.

They believe the EPA proposal would expand control by the agency and the U.S. Army Corps of Engineers over farming practices. Led by the National Pork Producers Council and the American Farm Bureau Federation, the group wrote a letter to officials with EPA, the Corps, and USDA to ask for that change.

The groups say they are concerned that the interpretive rule will be construed by the agencies to require compliance with USDA Natural Resources Conservation Service (NRCS) conservation practice standards if a covered activity is within a water of the U.S. – which the agencies will determine – and that a practice that fails to comply with the standards will be considered a discharge to a water of the U.S., which requires a Clean Water Act permit.

The practical effect of the rule, say the groups, is to require compliance with NRCS standards when undertaking any normal farming, silviculture, or ranching activity that federal officials consider to be located in a water of the U.S.

More than 90 state and national groups signed the letter, including CropLife America, National Cattlemen’s Beef Association, National Corn Growers Association, and National Council of Farmer Cooperatives.

Some outside experts also believe the rule will expand the Clean Water Act to small waterways. "It would seem today that anyone who owns farmland would be concerned about this," Kristine Tidgren, an attorney with Iowa State University’s Center for Agricultural Law and Taxation (CALT), told earlier this year. "One of the biggest concerns is the redefinition of 'tributaries' to seemingly include any ephemeral stream or ditch." Tidgren's analysis of the rule for CALT can be found here.

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