COLUMBIA, Mo. -- The Obama administration's attempt to assuage farmers' and ranchers' fears about a major Clean Water Act proposal has drawn flak from all corners, forcing the U.S. EPA administrator herself to concede yesterday that there are "legitimate concerns" with the effort.
At issue is the interpretive rule for agriculture that the Obama administration released in March in tandem with a major proposal to increase the number of streams and wetlands that receive automatic Clean Water Act protection following years of regulatory uncertainty.
Administrator Gina McCarthy said on a call with reporters yesterday that the interpretive rule was intended to clarify which farming practices fall under the 1972 water law's exemptions for normal farming practices "so that there's no need for us to have ongoing dialogue about what's normal and what isn't."
But a list of 56 specific conservation practices included in the interpretive rule has sparked much confusion and anger on all sides (Greenwire, April 4).
The list identifies conservation practices that would be exempt if executed to the standards set by the Department of Agriculture's Natural Resources Conservation Service (NRCS). On the list are practices that currently don't require permits as well as those that do.
The list has farmers and others wondering whether Clean Water Act exemptions for normal farming practices are being narrowed. Does it mean, they ask, that EPA permits will be required for some projects -- building fences, for example -- if they aren't done to the NRCS standard?
Some groups contend that the requirement that projects meet NRCS standards would place the USDA agency in a new, regulatory role. That, they say, would fundamentally change the agency's relationship with farmers and ranchers.
"As a conservation organization promoting voluntary stewardship, we think it is critical that NRCS not act as nor be perceived as remotely regulatory in the agricultural community," Earl Garber, president of the National Association of Conservation Districts, told EPA in his written comments on the rule.
McCarthy said yesterday that EPA was caught off-guard by the confusion.
"We thought we were doing something really good to expand the clarity, to really reward these conservation practices ... and it's been interpreted as a narrowing," she said, adding that "every exemption that was in the prior rule remains here."
But confusion has spurred calls for EPA to withdraw the interpretive rule and have it offered instead as a legislative rule.
Among those making the call are unlikely allies such as the American Farm Bureau Federation, Natural Resources Defense Council, National Pork Producers Council and Association of State Wetland Managers.
Their reasons for calling for a rethink are, of course, different.
A coalition of more than 90 farm organizations blasted the interpretive rule as a part of an effort to greatly expand federal power.
"We read the Interpretive Rule and associated materials to reflect a view of the world where Clean Water Act jurisdiction is greatly expanded and NRCS conservation measures have become a yardstick for measuring the scope of the 404(f) permit exemptions for normal farming, silviculture, or ranching activity," the groups, led by the Farm Bureau and the Pork Producers, wrote.
But environmentalists argue that the exempted conservation practices need to be scrutinized more closely to ensure that they would actually bring an environmental benefit.
"The rule must not exempt activities that Congress did not intend to evade appropriate scrutiny by pollution control officials," wrote Jon Devine, senior attorney for NRDC's water program.
McCarthy said her agency is open to making changes to clarify the rule but said that "silly" concerns being expressed by some in the agricultural community -- for instance, that puddles could be regulated or that permits could be required for moving cattle across a field -- don't belong in the conversation.
Facing critics in the heartland -- and on Capitol Hill
Today, McCarthy kicks off a two-day trip in Missouri to meet with farmers, ranchers and agribusiness leaders in a bid to dispel some of what she describes as "myths" about the rule.
Her morning schedule today features a tour of a corn and soybean farm near Columbia, where she plans to illustrate the actual effects of the regulatory proposal and the interpretive rule.
Whether McCarthy can sway the critics, however, remains to be seen. Already, members of Missouri's agricultural community are expressing frustration that they were not invited to the tour, which is open to the media, and that the round table to which they were invited is closed to the press.
"It's kind of suspicious, isn't it?" said Steve Taylor, president and executive director of the Missouri Agribusiness Association, whose group McCarthy is slated to address tomorrow.
While McCarthy tours Missouri trying to explain the rule, EPA Deputy Administrator Bob Perciasepe was struggling to do the same today on Capitol Hill.
House Science, Space and Technology Committee lawmakers on both sides of the aisle quizzed Perciasepe on the rule's reach.
"The EPA does not provide real clarity on what is and isn't water," said Chairman Lamar Smith (R-Texas).
Perciasepe said the proposal is meant to clarify, not expand jurisdiction.
Smith's response: "Nothing beyond the current regulations? Are you sure about that?"
Perciasepe said, "I am."
But lawmakers, particularly on the Republican side, weren't convinced. Some said they didn't trust EPA to give them accurate information. At least one reiterated calls for the agency to scrap the rule.
Reporter Manuel Quiñones in Washington contributed.