U.S. EPA Administrator Gina McCarthy unveiled a major Clean Water Act rule proposal last week by emphasizing it would provide "certainty" to industries and individuals whose work encroaches on wetlands and streams.
Among those McCarthy most wanted to reassure: farmers and ranchers, a crucial block that the Obama administration must sway if the proposal is to have a chance of being finalized.
Agriculture Secretary Tom Vilsack stayed on message yesterday, telling House lawmakers "the purpose of this is to provide clarity and certainty for producers."
But the Obama administration is struggling to convince agribusinesses and farmers. Even the proposal's most ardent backers fret that the administration flubbed its effort to sow "certainty."
The word, it turns out, is stirring up trouble.
To regulators, "certainty" is usually used in a legal context. Is there consistency in how a law's applied? Does it seem logical and clear? And in the case of the Clean Water Act proposal, does it meet tests laid out by the Supreme Court in its two confusing rulings on federal wetland oversight?
EPA and the Army Corps of Engineers intend for the proposal to clear up the confusion created by the high court by having nearly all small streams and wetlands near them get automatic federal protection. Certainty and clarity are achieved, EPA claims, because there would be fewer case-by-case decisions. Everyone, the agency says, would know that certain waters are categorically in.
But "certainty" means something else for farmers. Their bottom line: Does the rule make clear what they can do without running afoul of the law?
"To farmers, certainty means having clear rules or policies in place so that they can make long-term decisions," said Brittany Jablonsky, spokeswoman for the National Farmers Union, which has backed the rule proposal in hopes it would clean up the muddled regulations left in the Supreme Court's wake.
The Obama administration stresses that its proposal would carry forward the exemptions laid out in the 1972 water law for agricultural and forest practices. Moreover, the agencies added some additional exemptions for conservation practices and spell those points out in a fact sheet and "interpretive rule" focused on agriculture. Both were released along with the formal proposed rule (Greenwire, March 25).
Vilsack said in an interview yesterday the regulatory agencies stressed to him the rule wasn't intended to affect farmers' everyday practices and were open to working with the Department of Agriculture to clarify this.
"For agricultural purposes, they really tried to reaffirm that normal agricultural practices [aren't] involved. They tried to re-emphasize it's not about drain tiles; it's not about more regulations on ditches. It's not about wastewater treatment facilities -- it's not about any of that stuff," he said. "From my perspective, EPA has been willing to talk and willing to listen, and there's still more discussion to take place."
But so far, the agencies have failed to convey that message to farmers who claim to be even more confused than before.
First, many say they are befuddled by the agencies' use of the term, "interpretive rule." For the record, it's a rule that is intended as guidance to government officials in the field. But it doesn't require a notice and comment period, so both supporters and opponents of the proposal have wondered if the next administration could make dramatic changes.
"Understand the concern that people have that, 'Oh they're just putting this in the interpretive rule, which they can change at any time,'" Rep. Mike Simpson (R-Idaho) told McCarthy at a hearing last week.
Patrick Parenteau, a professor at Vermont Law School who has extensive experience on Clean Water Act matters, said an interpretive rule is seen by courts a form of "housekeeping."
"It's binding on the government," he said. "If an individual regulatory office were to adopt a very different interpretation of what was exempt, not only would they be in trouble with their bosses in Washington, but that would be the basis for a challenge."
The 53 additional exemptions for conservation practices that regulators released with the proposed rule are also confusing people.
Stakeholders are struggling to understand why those 53 practices were included -- and why others that they say provide the biggest boost to water quality aren't on the list.
"This is 53 practices out of 180 -- so why not the other ones?" asked Ferd Hoefner, policy director for the National Sustainable Agriculture Coalition, which supports the proposed rule. "They have left the biggest conservation practices off the list -- nutrient management, integrated pest management, conservation tillage."
By listing just some conservation practices as exempt from dredge-and-fill permitting, farm groups ask, does that mean others require permits?
Moreover, some of the conservation practices omitted from the list are environmentally sensitive versions of what every farmer does today under the Clean Water Act exemptions for normal farming practices. So, Hoefner asks, are the normal versions of them exempt but the conservation versions not?
Patty Lawrence, chief of staff for USDA's Natural Resources Conservation Service, said the initial list of 53 exemptions was culled from NRCS's master list of conservation practices because they met two criteria: They are aimed at water quality and they might be used near jurisdictional waters.
"The 53 practices listed in the interpretive rule were identified because of their water quality purpose and potential for use in aquatic, riparian and wetland areas," she said. "Conservation practices generally used in upland areas are not addressed under the interpretive rule because they are covered under the existing exemption for normal farming, ranching and silvicultural activities and upland soil and water conservation practices."
Then there's a question about what a farmer must do to qualify for these exemptions.
Don Parrish, senior director of regulatory relations at the American Farm Bureau Federation -- a staunch opponent of the proposal -- called the NRCS version of a practice "not just the gold standard," but "the Bentley, platinum standard."
For instance, Parrish said that there is a major difference between the type of fencing that an average farmer would want to install and the type that the NRCS standard requires.
And the potential for multiple interpretations of these practices has environmental and sustainable agriculture groups concerned about the fact that the interpretive rule would allow farmers to self-certify that the practice is being implemented in accordance with the NRCS standard.
"Sometimes this type of practice may be well-intentioned, but not well-informed and not a practice that actually conserves streams, wetlands, water quality, or fish and wildlife habitat," said Jan Goldman-Carter, senior manager for wetlands and water resources at the National Wildlife Federation.
For instance, she said, a farmer that goes into a stream to clear out debris that was washed in during a storm might end up causing additional erosion and water quality problems. But that activity might be interpreted as exempt under the practice of "clearing and snagging," she said.
"That just seems like eventual litigation waiting to happen," the National Sustainable Agriculture Coalition's Hoefner said.
But NRCS's Lawrence said that for an activity to qualify for the exemption, it must match NRCS standards.
"In order for an individual to be covered under the exemption for one or more of the 53 listed conservation practices," she said, "it must be part of an ongoing agricultural or silvicultural operation, and it must be implemented according to NRCS standards and specifications."
'That word is very loaded'
Then there's another problem: Several states have passed or are exploring "regulatory certainty" laws for agriculture that would do something very different from what EPA and the Army Corps are proposing.
The programs vary, but they typically allow farmers to voluntarily implement conservation activities above and beyond what is currently required and receive a guarantee that they won't face additional regulatory requirements for some time.
For instance, USDA and EPA signed an agreement with Minnesota in 2012 to help the state develop a program that would provide producers immunity from regulation under Minnesota's water quality standards in exchange for implementing certain conservation practices.
To some in the agriculture community, these types of programs are what they think of when they hear regulators talking about "certainty."
"That word is very loaded and to have EPA use it in the fact sheet right up at the front -- I think that's causing some confusion," Hoefner said.
NRCS says the documents are most definitely not offering any sort of regulatory immunity. For one thing, the interpretive rule and the list of conservation practice exemptions deal only with Section 404 of the Clean Water Act -- restrictions on dredging and filling -- not the sections that focus on pollution discharges. Many of those programs are in fact handled by the states.
"Agricultural water quality certainty programs are developed and administered by state agencies," Lawrence said. "There is no intended link between these state-run programs and the Clean Water Act interpretive rule, although it is possible that they can complement one another."
But for farmers, ranchers and other regulated entities that aren't versed in the nuances of the Clean Water Act, those types of distinctions may be lost.
"Our organization deals with conservation practices all the time and in all sorts of different ways at very detailed levels, and it's not clear to us," Hoefner said. "So if it's not clear to us, I can't imagine it's very clear to other people."
Reporter Amanda Peterka contributed.
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