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WOTUS' promise of ag protection not convincing

Cattle and Beef Industry News
Mar 23, 2015

—EPA administrator admits mishandling of proposed rule

WOTUS is back. But now we’re supposed to call it the “Clean Water Rule.”

Last Monday, Environmental Protection Agency (EPA) Administrator Gina McCarthy addressed the National Farmers Union (NFU) at their annual conference in Kansas. In her speech, she offered some insight into the new and improved Waters of the U.S. (WOTUS) rule.

The very next day, the House Agriculture Committee’s Conservation and Forestry Subcommittee announced the findings of its review of the rule, calling it damaging to U.S. agriculture and rural communities, as well as being outside the congressionally-granted purview of the EPA.


McCarthy stressed that the new version of the “Clean Water Rule” will be clear, guided by the overwhelming volumes of input, and practical to the needs of farmers, ranchers, and the rest of the country.

“The spirit of this rule boils down to three simple facts: First, one in three Americans get their drinking water from streams and wetlands that lack clear protection from pollution today. Second, our economy—from manufacturing and brewing to farming and ranching—can’t function without clean water. And third, the species we depend on and the places we love for recreation can’t survive without it,” said McCarthy in her prepared comments at the conference.

“We have listened to you and everyone else that took the time to comment or attend meetings with us. You will see your input reflected in the final rule. Do I expect that everyone will applaud the Clean Water Rule when it is finalized? No, that would again be a bit naive. This rule is based on two things: one, what the Supreme Court told us, and two, what the science tells us.”

Supposedly, the new final rule—set to be released sometime “this spring,” according to Mc- Carthy—will be leaner and more specifically targeted. She spoke about the complexities of water systems and the need to focus on waters that truly need to be protected.

The final rule will also supposedly be accompanied by a question-and-answer style guide with images to better explain what portions of their land may be regulated.

“You will have a catalog of your questions answered by putting together real-life things that you’re doing on your farms and ranches,” she said.

Mea Culpa

Though there was no actual apologies directly stated, McCarthy expressed regret over how WOTUS was originally presented and how it was handled.

“First, I want to tell you up front that I wish we had done a better job of rolling out our Clean Water Rule— from calling it WOTUS instead of the Clean Water Rule, to not being more crystal clear out of the gate about what we were and were not proposing, to not talking to all of you and others before we put out the Interpretive Rule,” she said to the NFU.

She also acknowledged the issues with WOTUS’ lesser sibling, the Interpretive Rule.

“We know it was right to withdraw the Interpretive Rule. We wrote it to support agriculture, but when farmers and ranchers themselves worried that the rule would be used to limit the way conservation practices were conducted and supported, it made sense to withdraw it.”

McCarthy made a point to try to reassure her agricultural audience of what the final form of the “Clean Water Rule” will and will not do. Top among those: “We’re not going to regulate puddles.”

She spoke at length regarding the coverage and definition of ditches, the definition of tributaries, and the impacts on agriculture.

“One thing absolutely won’t change—and that’s the exclusions and exemptions for agriculture in the Clean Water Act. This rule doesn’t touch them. And I want to remind folks of what that means: even in the limited number of cases where this rule will mean that a stream or wetland is clearly covered by the Clean Water Act, normal agricultural activities will continue with their current exemptions. So farmers and ranchers still won’t need an Army Corps permit to go about their business. It’s that simple, and we’ll keep it that way.”


The day after McCarthy’s speech at the NFU conference, the House Agriculture Committee’s Conservation and Forestry Subcommittee held a public hearing to review the WOTUS/Clean Water Rule. At this public hearing, Steve Foglesong, past National Cattlemen’s Beef Association (NCBA) President, very vocally countered a point McCarthy often repeated; the EPA listens and engages stakeholders.

“There was zero outreach to us in the agriculture community before the rule was proposed,” said Foglesong. “And despite what the EPA and Army Corps are saying, they did not have a meaningful dialogue with the small business community as a whole.”

He echoed a point McCarthy had made in that everyone involved wants and needs clean water. That is not at issue.

“Farmers and ranchers rely on clean water to be successful in business. But, expanding the federal regulatory reach of the EPA and Army Corps does not equal clean water.”

In their announcement regarding the public hearing, the House Subcommittee came to the conclusion the rule exceeded the scope of power Congress initially granted to the EPA and that it would cause harm to agriculture and rural communities.

“Despite strong bipartisan opposition from Congress and the public, the Obama Administration has acted to expand its federal authority,” Subcommittee Chairman Representative Glenn Thompson (R-PA5) was quoted as saying. “The EPA’s proposed rule could have serious consequences for our nation and prove to be a severe detriment to our economy, with a particularly strong impact in rural counties. Hasty movement from the EPA will only invite costly litigation, burden states and counties with compliance costs, and create obstacles to building and replacing our national infrastructure.”

It was later recommended that the EPA’s best course of action would be to “pull this regulation, work with state and local stakeholders to develop a new and proper set of recommendations, then submit these recommendations to Congress for consideration and approval.”

Other participants in the public hearing were also unconvinced by claims that agricultural exemptions and more specific definitions would safeguard agriculture.

“It is impossible to know how many farmers, ranchers and forest landowners will be visited by [EPA] enforcement staff or will be sued by citizen plaintiffs’ lawyers—and it is impossible to know when those inspections and lawsuits will happen,” said Ellen Steen, General Counsel for the American Farm Bureau Federation, according to the group’s official response to the hearing.

“What is certain is that a vast number of common, responsible farming, ranching and forestry practices that occur today without the need for a federal permit would be highly vulnerable to Clean Water Act enforcement under this rule.”

As mentioned, the final rule is expected sometime this spring. — Kerry Halladay, WLJ Editor

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