NFU asks for water rule clarifications

EPA's proposed water rule has created less clarity, not more as intended, NFU board said.

When the Environmental Protection Agency (EPA) released its proposed waters of the U.S. rule in the spring, the National Farmers Union was one of the few agricultural groups to quickly praise the proposal. Now, in a letter to EPA administrator Gina McCarthy, NFU says the general sense from its board is that the proposed rule has “created less clarity, not more as intended.”

Earlier this week the NFU board conducted a call with McCarthy. NFU president Roger Johnson said a number of questions were posed, but the board “did not feel that its questions were adequately answered.”

In the letter Johnson said that it may not always be possible to answer definitively whether a specific body of water is considered a water of the U.S. because some determinations need to be made on a case-by-case basis. “However, to the extent possible, it is important to do everything you can to reduce confusion and anxiety surrounding jurisdiction,” he said to McCarthy in the letter.

He added that failure to do so will lead to more resentment in rural America. Johnson explained that EPA’s reputation was “very severely damaged in farm country” with the recent proposal to scale-back the Renewable Fuels Standard and this likely led to the “surliness with which the WOTUS proposal rule was received.”

NFU asked EPA to provide a map with estimates of which bodies of water will be considered jurisdictional to EPA’s regulation. 

The letter asked for clarification regarding jurisdiction of wetlands. Acting administrator for water Nancy Stoner has said that only 5% of the estimated 20 million acres of wetlands in the Prairie Pothole region would be considered under the WOTUS proposal, but NFU was seeking confirmation of that estimate.

NFU also asked if vernal pools, wetlands or other unconnected bodies of water that may be seasonal in nature, if jurisdiction is unclear, how would determinations be made? Would the U.S. Army Corps of Engineers have to come to the specific farm or ranch, or does EPA make the determination from Washington, D.C. or another office using satellite imagery?

EPA has said that the proposed rule increases jurisdiction by 3.2% of current jurisdictional acres. NFU questioned which areas of the country will that 3.2% come from?

Questions were also posed about coordination with state agencies and the treatment of unconnected bodies of water that are seasonal. NFU also asked for a definition of standard farming practices and if an approved standard farming practice changes, would the farmer need to get a permit.

Farm Bureau concerns

The American Farm Bureau Federation is also outlining its concerns. It recently released to Congress a comprehensive document that responds, point by point, to what the group sees as numerous inaccurate and misleading comments made by EPA.

AFBF’s document explains – with specific citations to the proposed rule and other authorities – how the rule would give EPA broad Clean Water Act jurisdiction over dry land features and farming practices long declared off-limits by Congress and the nation’s highest court.

“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,” AFBF president Bob 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.

“Agency inspectors and courts will apply the rule, not EPA’s talking points,” Stallman added.

EPA’s Ditch the Myth

For several months the AFBF has touted a Website – Ditch the Rule - designed to highlight what it sees as concerns with EPA’s proposal.

Now the EPA has created its own site to counter the “myths” being circulated. The agency’s Ditch the Myth Website tries to lay out how the proposed rule “cuts through red tape to make normal farming practices easier while also ensuring that waters are clean for human health, communities and the economy.”

In a Webinar Wednesday, Stoner explained the agency doesn’t want to spend a lot of time talking about things not in the proposal, but instead “talk about what it really says” and make it better by working together.

Stoner also reported during the Webinar that the Science Advisory Board is expected to release its peer-reviewed analysis of the connectivity report that is touted as the science which backs up the rule. She said she expects the board to release its findings ahead of the Oct. 20 comment period close date.

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