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Rule could devastate on-farm conservation

Cattle and Beef Industry News
Jun 30, 2014

Perspectives on what Interpretive Rule would do differ wildly

— Perspectives on what Interpretive Rule would do differ wildly

By now you have certainly heard about the Environmental Protection Agency’s (EPA’s) and Army Corps of Engineers’ proposed draft rule on the Waters of the U.S. (WO- TUS). It has become a lightning rod of agricultural attention for the far-reaching, disastrous effects it could have on every element of daily life on the farm or ranch.

But have you heard of the Interpretive Rule?

The Interpretive Rule (IR) is an element of WOTUS that is as important (if not more so), given its direct impact on agricultural exemptions and the future of voluntary conservation.

“Under Section 404 of the Clean Water Act (CWA), which is the dredge and fill program, there is a list of exempted activities, one of which is called the ‘normal farming and ranching exemption,’” Ashley McDonald, Environmental Counsel for the National Cattlemen’s Beef Association, explained to WLJ. “That exemption is what the Interpretive Rule is supposed to be interpreting.”

The IR details 56 specific permitting-exempt activities. The more overtly ranching-oriented exemptions on the list include:

• Brush management;

• Prescribed burning;

• Fencing;

• Firebreak;

• Forage harvest management;

• Prescribed grazing;

• Grazing land mechanical treatment; and

• Range planting.

“They’re saying, ‘It’s our interpretation that the normal farming and ranching exemption means or includes only these 56 conservation practices and only if they’re done to the NRCS [Natural Resources Conservation Service] standard,’” McDonald expanded.

Prior to the IR, everyday ranching activities and conservation practices on the farm were exempted without being specifically enumerated, though some examples were given in the CWA’s Section 404. Now, according to a widespread interpretation of the IR by the agricultural community, only the 56 items on the list are exempted from the permitting requirement. There’s the catch of the NRCS standards. An otherwise exempted activity can still require a 404 permit if it is not done according to NRCS standards.

Both the EPA and the NRCS have a different story on the IR, however. The EPA has frequently claimed—in official releases, announcements by EPA officials, countless interviews, and in the rule itself—that the list of 56 exempted practices are in addition to currently existing exemptions for farming and ranching activities under the CWA.

“It is important to emphasize that this interpretive rule identifies additional activities considered exempt from permitting under Section 404, but does not affect, in any manner, the scope of agriculture, silviculture, and ranching activities currently exempt from the permitting under Section 404 including, for example, plowing, seeding, cultivation, minor drainage, etc.,” reads the IR.

NRCS also maintains that the 56 practices of the IR are in addition to existing exemptions.

“It is important to emphasize that this interpretive rule identifies additional activities considered exempt from permitting under Section 404, but does not affect, in any manner, the scope of agriculture, silviculture, and ranching activities currently exempt from the permitting under Section 404 including, for example, plowing, seeding, cultivation, minor drainage, etc.,” reads the IR.

NRCS also maintains that the 56 practices of the IR are in addition to existing exemptions.

“The existing exemptions to Section 404 permitting under the CWA (normal farming, ranching and silvicultural practices, and upland soil and water conservation practices) remain in effect and the IR does not change that,” said an NRCS representative in response to an emailed query by WLJ.

“NRCS shares the view that IR has increased the flexibility for agriculture to implement these conservation practices in waters of the U.S. without having to notify regulatory agencies or seek a permit. Some of these same practices may also be implemented in uplands, and in that case are already covered under the existing normal farming practices exemption.”

The purpose for the IR, again as stated in its own text and by the EPA and Army Corps of Engineers, is to increase clarification over what practices are exempted under the 404 permitting requirement. Jack Field, Executive Vice President with the Washington Cattlemen’s Association, however, sees the rule as accomplishing the exact opposite.

“The reality of this is that their effort to clarify does nothing but muddy the waters. Now there is great ambiguity.”

A dangerous precedent

Confusion over what is exempt and what isn’t aside, some see danger in the very language of the IR.

“One of the 56 standards they have picked is prescribed grazing,” noted Mc- Donald with concern. “By choosing these 56 exemptions because they have the potential to discharge into the water, they are saying those cattle grazing are the discharge. They are saying that if they step into a wetland on that pasture and you don’t have a prescribed grazing plan by NRCS, then apparently that’s a discharge under 404 and you need a 404 permit. That’s never been asserted before. Nobody has ever said that under the Clean Water Act you need a 404 permit to graze cattle.”

McDonald agreed that the rule effectively establishes a precedent of grazing cattle— as well as the other 55 exempted activities—being automatic sources of discharge, regardless of actual activities.

For un-exempted activities, a 404 permit must be sought through the Army Corps of Engineers. The permit is subject to public and interest group comment, according to the Corps’ permitting website, and can be a very lengthy and costly endeavor. If activities judged to discharge into a water of the U.S., which are not exempted or done without the benefit of a 404 permit, fines under the CWA can run in the tens of thousands of dollars and can reoccur on a daily basis.

Voluntary or mandatory?

The language of requirement regarding the NRCS standards has caused discomfort with some in the ranching community.

“If you don’t follow [NRCS’] standards on one of these 56 exemptions, you’re going to be in violation of the Clean Water Act if you touch a water,” summarized McDonald.

“I don’t know what you consider mandatory, but for my purposes, if you’re saying ‘you either face fines of $33,500 per day, or you comply with our standards,’ that’s not really much of a choice.”

Both McDonald and Field voiced concern on the transformative effects the IR is having or will have on the NRCS.

“This IR will place [NRCS] into the policeman role,” said Field after noting the NRCS has always been a voluntary, incentive-based conservation program.

“We’ve had great relationships with NRCS agents on the ground,” said McDonald. “All of our producers do. They work well with NRCS. NRCS is not seen as regulatory agency, you know, there’s not that fear.”

Field agreed, noting that people in his area have had great relations with the NRCS. But now, they both said, things have changed or quickly could change.

“Now they’re going to wield this power that, one, was never given to them by Congress and, two, they’ve never been seen to have by producers,” McDonald observed. “We’ve already seen the [Army Corps of Engineers] in numerous states sending over requests to NRCS asking, ‘does this practice in compliance with your standards?’ So essentially, NRCS is going to have the yes or no vote to decide whether someone is violating the Clean Water Act or not.”

The NRCS representative disputed this characterization, however.

“The IR does not change NRCS’s role with respect to working with producers in voluntary conservation efforts. The agency has no regulatory responsibility under the CWA and the IR does not change that.”

Unintended consequences

If generalizations can be made about the ranching community, this is one of the safest: Regulation and government mandates inspire deep distrust and suspicion in those who work the land. McDonald argued that as NRCS moves into the role of yet another regulator, relations with the ranching community are likely to deteriorate.

“Folks are not going to have that good relationship with them. They’re not going to go to NRCS for guidance or assistance, and they won’t participate in this voluntary system unless they are now forced to. I really think it will have a detrimental effect on voluntary conservation.”

Field wholeheartedly agreed that the shift in NRCS’ role relative to ranchers will have an overwhelmingly negative effect.

“Oh, undoubtedly. Undoubtedly. It will effectively end voluntary conservation,” he said, adding that the potential to disrupt or end voluntary conservation should be a huge concern to all involved parties.

NCBA and cattle association officials aren’t the only ones on this line of thought. Rancher Jesse Davis, sixth generation to work the historic Sierra Bonita Ranch in Arizona, voiced considerable concern for the well-being of wildlife in the Arizona desert if WOTUS and the IR become the law of the land.

“The really terrible thing is, if they do this, there’s probably a ton of man-made structures that will not be maintained for wildlife, and wildlife in the Arizona desert, and Arizona in general, is highly dependent on manmade structures by ranchers in order to survive,” he told WLJ.

He fears that, under the specter of increased liability under CWA and uncertainty regarding what constitutes a “significant nexus” to waters of the U.S. under WO- TUS, many water catchments will effectively be too risky for ranchers to maintain.

“Without us maintaining them [stock tanks, water catchments], and them deteriorating, they would no longer catch water. Therefore those animals would have to go a longer distance to find water and in that endeavor, they would no doubt expire.”

Davis explained that in his area of southeastern Arizona, there are very little naturally-formed means to catch rain runoff—nearly the area’s sole water source—which necessitates stock tanks and other manmade systems to trap water.

Not only would WOTUS cast these efforts into uncertainty with the significant nexus issue, but the IR could make any sort of alteration or maintenance a costly affair.

“Not only are they hurting industry, they’re actually contradicting what they’re trying to do with conservation. They would devastate wildlife,” he said in no uncertain terms. “They’re trying to control the water, yet what are they going to do to supply the wildlife with water if we’re not here to do it for them?” On this topic, the NRCS representative reiterated that NRCS will not have any CWA regulatory authority, but recognized the need to reach out to concerned producers.

“NRCS has no CWA regulatory responsibilities. However, we do plan to increase communications with agricultural interests, producers, and others to clarify how the exemptions made possible through the IR can be used and reinforce that NRCS is not a regulatory agency. Our role remains one of conservation experts working one-on-one with producers across the country, and our staff is there to support the farmers, ranchers and forestland owners.

We will continue to provide that support and ensure producers have all the information, tools and expertise we can offer.”

The potential negative impact on conservation and wildlife isn’t the only unintended consequence predicted of the IR. While speaking at length about the uncertainty created by the IR, Field opined that the way is paved for even more environmental litigation.

“I don’t think it’s that big of a stretch legally for a trial attorney or an environmental organization to say ‘well, NRCS took the time to make this list, so this must be all that’s on there.’ I’m certain there will be a challenge if the rule goes through.”

He went on to explain his perspective—one shared by everyone from a ranching perspective WLJ talked to for this story and in the past—that the 56 exemptions outlined in the IR take the place of previous exemptions, in opposition to the EPA´s, Corps´, and NRCS´ claims.

“I’m not an attorney and I don’t even play one on TV, but if I can come to that conclusion, I’m certain that attorneys that live by and feed the environmental machine off of the Equal Access to Justice Act will interpret it the same way, thus wreaking havoc upon the natural resource-based industries that have relied upon that exemption since its inception.”

Voices of ag sought

As an interpretive—rather than a legislative—rule, the IR went into effect immediately upon being published in the April 21 Federal Register without requirement of a public comment period. The EPA and Army Corps of Engineers did open a public comment period extending through July 7, but the choice to seek opinion after the fact has raised eyebrows.

“It went into effect as soon as it was published in the Federal Register and they decided to take comments on it. You’ve got me why they did it in that order,” commented McDonald, laughing.

Though the reasoning behind EPA’s and the Corps’ “publish now, seek comments later” approach puzzled both McDonald and Field, the IR could be overturned.

As mentioned, the comment period for the IR is still open. As of publishing, there were a total of 70 comments submitted electronically—67 on the original comment docket and three on the new docket opened after the comment period was extended. This compares to the nearly 192,000 electronic comments on WOTUS.

Comments can be submitted in a number of ways, as listed below. Remember that all comments submitted will become public, so do not include any identifying information in the comment itself that you are not comfortable being publically known.

• Online: Comments can be submitted at regulations.gov using Docket ID EPA-HQ- OW-2013-0820-0058. This is the second comment docket opened for this issue.

• Email: Send emailed comments to ow-docket@epa.gov with EPA-HQ-OW-2013 -0820-0058 as the subject line.

• Mail: Send your original comment plus three copies to Water Docket, Environmental Protection Agency, Mail Code 2822T, 1200 Pennsylvania Ave. NW, Washington, DC 20460. Attention: Docket ID No. EPA- HQ-OW-2013-0820. — Kerry Halladay, WLJ Editor

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