Interpretive rule could erode conservation advancements

Rule increases risk of litigation, could disincentivize conservation practices and erode beneficial relationship between farmers and NRCS officials.

Andy Fabin, cattle producer and farmer from Indiana, Penn., is more inclined to do conservation practices on his land because of how he values the land, and looks to the Natural Resources and Conservation Services as a source of expertise and help.

But that could all change if NRCS becomes part of a regulatory scheme under the proposed expanded definition of waters of the U.S. and interpretive rule which outlines 56 conservation practices as normal farming practices if they meet NRCS standards.

“If we look at NRCS as a regulatory body, we’re less likely to invite them on our property and ask for advice,” Fabin testified in a House Agriculture subcommittee hearing, adding it will have a negative impact on conservation.

Fabin, who raises cattle and farms 3,500 acres of corn, soybeans, wheat and rye, explained, “If the interpretive rule remains in place, farmers and ranchers across the country will slow their adoption of conservation practices.”

For property owners like Fabin, the ephemeral streams, ponds and ditches found across their pastures would fall under the Environmental Protection Agency and Army Corps of Engineers’ jurisdiction, and would require permits for any activities taking place on the land. While the agencies have exempted 56 farming and ranching practices, as long as they meet the specific Natural Resource Conservation Service standards, any deviation from these standards can result in fines of up to $37,500 per day.

When the EPA and the Corps proposed an expanded definition of the waters of the U.S., it also released an interpretive rule on the Normal Farming and Ranching exemptions under Sec. 404 of the Clean Water Act that went into effect immediately which outlined 56 conservation practices approved by the NRCS.

Members of agricultural groups as well as members of the House Agriculture Committee came to the conclusion during a hearing June 19 on the interpretive rule that what was intended to provide clarity for farmers could in fact increase the risk of litigation, create more confusion for farmers, cause a disincentive for implementing conservation practices and could erode the valued relationship that currently exists between farmers and NRCS officials.

Chip Bowling, first vice president of the National Corn Growers Assn. and farmer from Newburg, Md., echoed similar sentiments that he voluntarily chooses to do many conservation practices on his farm, but very rarely takes part in actual NRCS programs. Continuing a long-standing favored partnership farmers and NRCS officials have could be in jeopardy under newly proposed interpretation of normal farming practices, he shared.

NRCS defends rule

NCBA, American Farm Bureau Federation and NCGA testified in support of the agencies withdrawing the interpretive rule. Fabin said if anything, all conservation practices should be considered part of the normal agricultural activities.  

Robert Bonnie, under secretary for Natural Resources and Environment at USDA, explained that NRCS worked closely with EPA and the Corps in establishing the interpretive rule and a Memorandum of Understanding which at a minimum has the agencies meeting annually to look at the approved list and see if any additions or changes need to be made.

Bonnie was questioned several times as to whether NRCS would become an enforcer and he said the programs would continue to be voluntary. He stated that the outlined exemptions would help producers “save both time and money” by not requiring them to go through the permitting process.

He said USDA thinks providing additional voluntary options for agriculture if they want to use it is over the long-term a “great deal for agriculture.”

Don Parrish, director of regulatory affairs at the American Farm Bureau Federation, said that currently NRCS technical standards, technical assistance and cost-share are voluntary programs. Although farmers may not agree with every requirement in the technical standards, they understand that following the standards is the choice they make when signing up for cost-share. “The interpretive rule changes all that,” he testified.  

Parrish went on to say that the agencies have confused policymakers, media and farmers and ranchers by claiming that the interpretive rule provides additional exemptions. “Legally it actually narrows the exemption,” he said. “It provides them with nothing they didn’t already have.”

Rep. Kurt Schrader (D., Ore.) said the approach should be about outcomes, and not specific practices or about agencies prescribing what farmers and ranchers can or cannot do on their property.

To clarify the impact, Parrish shared that right now in Iowa, 67% of the grassed waterways and 50% of all terraces are installed with personal funds. “The interpretive rule will bring that private conservation under a cloud of confusion or halt it all together,” Parrish said.

He said the Clean Water Act is a strict liability statute, and the NRCS standards are too complicated for that strict rule of law. The result will be citizen litigation.

Bowling said he regularly invites neighbors to tour his farm, but the fact remains that the public likes farmers, but don’t particularly like the ways farmers farm. “The day is coming when I’m not going to be able to explain my situation, but will have to prove it in the court of law,” he said.

View thearchive hearing and testimony here.

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