THE newly proposed waters of the U.S. rule is meant to provide clarity and certainty for farmers to do what they do, which is farm, Environmental Protection Agency Administrator Gina McCarthy told the North American Agricultural Journalists conference April 7.
"EPA's intent was not to increase the permitting burden," McCarthy said. "It was actually to try to reduce that by providing more clarity through the process itself."
If a farmer was not legally required to have a permit before, the rule does not change that permit status moving forward, she explained.
Most important, McCarthy noted, the rule exempts current normal farming activities, including plowing, seeding and cultivating. It also excludes 56 approved conservation practices.
Specifically, McCarthy said the rule will not expand the scope of EPA's jurisdiction over U.S. farmland and will not regulate groundwater or tile drainage systems. EPA is not taking over additional lands or exercising authority over ditches. The rule also excludes any ditch that could carry ephemeral water.
She emphasized that the rule is "not a land grab."
There has been some criticism about the list of 56 conservation practices as it could potentially make other practices more likely to be regulated. McCarthy explained that the list was a way of using the U.S. Department of Agriculture's conservation programs so farmers do not to have to ask if those practices are considered "normal farming practices."
The claim that the 56 approved practices will act as a narrowing of exemptions was overridden by McCarthy, who said a proposed interpretative rule with USDA actually will allow the agencies to recognize new conservation practices without having to reopen or re-clarify the waters of the U.S.
"All we're trying to say is, 'Let's keep adding to that 56 so (farmers) never have to ask, never have to worry about narrowing exemptions,'" she explained. "If we didn't phrase it right, tell me how, because that's what we want to do."
Last Thursday, McCarthy spoke to members of the National Cattlemen's Beef Assn. (NCBA) who were in Washington, D.C., for a legislative conference. NCBA, as well as many major agricultural groups, have been critical of the EPA rule.
Jason Hitch, a fifth-generation farmer from Guymon, Okla., who operates a feedyard, produces pork and also farms cropland, said the rule stirred the pot rather than providing the clarity promised.
Hitch explained that some of the ways EPA enumerated certain practices or defined how water is held or transported as exclusions was a surprise because agriculture didn't realize those were under EPA's purview.
Hitch pointed out that McCarthy did say she was surprised by NCBA's feeling that the rule was a land grab, but he said the fact that EPA either claimed jurisdiction or provided an exclusion seemed like an expansion of how the agency had exerted its control in past instances.
Hitch said ignorance may have been bliss, as many questions still remain unanswered.
McCarthy said she plans on having more conversations with agricultural groups — as evidenced by her appearance before NCBA — to understand how they are reading the rule differently, or at least in a different way from EPA. McCarthy pointed out that EPA spent a lot of time trying to enhance the rule in the process with USDA.
McCarthy noted that this is not a final proposal but "the start of another level of dialogue with the agricultural community and other stakeholders to make sure we can all get behind a final rule moving forward."
She said if adjustments need to be made, EPA certainly will do so based on comments it receives.