'I'm going to get this right,' McCarthy says of muddled water rule

KANSAS CITY, Mo. -- After weeks of Capitol Hill assaults on a controversial Obama administration water proposal, U.S. EPA Administrator Gina McCarthy toured Missouri farm country this week, asking everyone she met: Tell us how to fix it.

In an interview with Greenwire before her speech to the Kansas City Agribusiness Council yesterday, McCarthy acknowledged that the rule's rollout to farmers and agribusiness has been rough. She committed to doing what it takes to make farmers and ranchers comfortable with the rule proposal, dubbed "Waters of the United States," which is aimed at clearing up years of confusion over which streams and wetlands are federally regulated.

Stirring up the most trouble has been the "interpretive rule." Intended to explain the water proposal to farmers and ranchers, the interpretive rule has confused almost everyone. McCarthy was asked if she'd been thinking about withdrawing it.

"Not at this point," she said. "It's certainly something we're going to be taking comments on, and we'll make a decision on it."

She added: "I'm not hanging on, honestly, to anything here. I am hanging onto the fact that the farming community and EPA care about water quality. It's important to all of us, and I've got to get people focused as much as I can on looking at the science to define what waters are most important. That's the whole thing."


The water proposal, which would increase the number of streams and wetlands that receive automatic protection under the Clean Water Act, would affect a wide range of industries -- from homebuilding to oil and gas development. But concerns raised by the agricultural community, which has always been exempt from key portions of the Clean Water Act, have become a political lightning rod.

McCarthy said that her agency has the bandwidth to move forward, addressing concerns about the complex and political water proposal, even while simultaneously fighting a major political battle over proposed greenhouse gas regulations for power plants.

Here's the interview (edited for clarity and brevity):

Greenwire: You've got a lot on your plate: climate and water rules that are getting a lot of attention on Capitol Hill. Can you do them both?

McCarthy: EPA's always had a lot on its plate, and we have the right people focused on the right issues. It's just about taking care of the things that are the highest priority, and these two clearly are big, big issues for us that we have to resolve.

Greenwire: Are you worried about legislative efforts to block those rules?

McCarthy: I'm not worried about that. There are certain things that you are obligated to do as an agency, and we're moving forward to meet our regulatory obligations. We'll let those issues sort of work their way through. But I feel pretty confident. I feel confident, frankly, on both.

I don't want to sound too cocky, but I think we did an extraordinary job listening to people before we put the greenhouse gas rule out for power plants ... and I think it shows. I think it's been extraordinarily well-received. I think people are rolling up their sleeves and recognizing that we didn't ask them to stretch. We asked them to take it seriously and get reasonable reductions, and we did it in a way that allows every state to recognize that they are where they are and to look at what we thought they could accomplish and to do it in a way that they can design. So it's been very well-received, actually.

And I think on the "Waters of the U.S.," one of the reasons that I'm here, actually, is to recognize the fact that we did a rule that we really intended to clarify the jurisdiction of the Clean Water Act, and there's confusion out there, and I'm here to try to knock some of that down and to make sure that people sit at a table and tell us what their real concerns are so that we have an opportunity to work through them. So I'm pretty positive on both, and I think that if we do continue with the dialogue, then we'll have an opportunity to calm people in D.C. down a little bit and let them know that we're listening to the people that they serve.

Greenwire: There's a belief among environmentalists and sportsmen who work on the water issue that they're always going to come second to climate in the administration's priorities. There's some concern that the water rule could end up the victim of a political trade.

McCarthy: This is not a trading program between rules. This is about doing our job, and EPA has always had many things going at the same time. We moved forward with the "Waters of the U.S." because it's incredibly important to define the jurisdiction of the Clean Water Act. It's been far too long having it up in the air, and we're working through it.

Greenwire: Would a rider blocking the "Waters of the U.S." rule rise to the same level as riders blocking the greenhouse gas rule? Is the administration ready to make that same sort of commitment to veto any bill that has that?

McCarthy: I don't have the position of the administration on those issues.

Greenwire: You spoke to some of the confusion around this rule. There's a lot of terms of art in it, such as "ordinary high water mark," even "wetland." What can you do to make this clear, particularly to farmers?

McCarthy: I don't think you want to feel too alone in not realizing what the current rule was; we hear a lot of that. We intended for the current rule to actually be reflected in what we were asking of agriculture, moving forward. We didn't think we were changing the rules of the game, so a lot of this is just a discussion on what the current requirements are and how we make those clearer so that there's a better understanding that we're not changing the playing field; we're not overreaching. We're not asking for waters that are vital to public supplies and drinking water to be treated differently than those same ones before. We're trying to narrow the concerns to those waters that are most important.

You know, one of the reasons to be here is that I don't think the discussions in D.C. actually can ever get you to the serious issues that the discussions we're having state by state and in particular in the heartland. And that's where, if you want to hear what real farmers have to say, I'm going to real farmers. Part of the challenge for us is to stop talking about things that are so broad in nature that they're not worth the discussion and to get to the things that are really serious. That's what we're about today, and that's what we're going to keep doing.

Greenwire: What have you learned from your visit to Missouri this week?

McCarthy: I think there remains confusion about what's jurisdictional versus what you need a permit to do. I went to a farm yesterday that had wonderful conservation features, and it was great, I think, for us to explain the reason we did the interpretive rule was to recognize all these things -- not to narrow exemptions but really highlight things that are great that we wanted people to pay attention to. It was also a great example of a farm that has a "Waters of the U.S." jurisdictional water body, but they don't need to do anything. They don't need a permit for it. They can just continue to operate as they are. So I think that's an important message.

I learned that people are anxious, that we have to do continued outreach and that people need to come to the table. I've learned that they're willing to come to the table to talk about real issues. You know, our round table [with farmers Wednesday] was real people, talking about real concerns.

Greenwire: Clearly you're making an effort to talk about this in plain language. But at the end of the day, it does come down to the rule's legal language. How do you deal with the dual needs to make the rule understandable for average people but still have it legally tight?

McCarthy: I think we are all reaching an agreement on what the intent is; I think the real work is to make sure the rule reflects that clear intent. And we have a ways to go. I mean, that's what a proposal's all about, to get the comments in so people read it. And are there two ways of reading it? Then we need to change the language so that it is as clear as we can get it. But we're not going to get to that point if we're not understanding how people are reading it, and we don't sort of get to the business at hand of making sure the final rule is clearer. So it really isn't just about talking. It's actually about listening and then making changes. And that's what this discussion is all about.

Greenwire: Reading the public comments on the interpretive rule for agriculture, it seems clear everyone is confused by it.

McCarthy: Yes, I heard that.

Greenwire: So where do you go from here?

McCarthy: I don't know. We need to look at it to see whether that is a drafting challenge that we can fix or whether or not the interpretive rule wasn't the tool that we should have used. I'm not hanging on, honestly, to anything here. I am hanging onto the fact that the farming community and EPA care about water quality, it's important to all of us, and I've got to get people focused as much as I can on looking at the science to define what waters are most important. That's the whole thing. And do it in a way that allows the farming community to continue to operate.

Greenwire: So is withdrawing the interpretive rule an option?

McCarthy: Not at this point. It's certainly something we're going to be taking comments on, and we'll make a decision on it.

Greenwire: Many people say they didn't see this rule coming and there weren't conversations leading up to it. You described the power plant rule as being, you say, strong because of conversations leading up to it. Was it a mistake not to engage more people on the water rule before its release?

McCarthy: As you might have guessed, we had a lot of conversation with [the Department of Agriculture], and USDA, in my opinion, is the one that really looks at the pulse of the farming community and really has so much on-the-ground presence. So we worked hard with them to identify this as a way to support and encourage conservation efforts. And I don't think anyone's looking at this as intending to do anything else. So it could have been the way that we wrote it, it could have been the way we presented it, but we're having those conversations now and that's the important thing. And we're going to make sure that we use the right tools in the right way in the final.

Greenwire: The list of 56 conservation practices that are exempt under the interpretive rule has raised a lot of questions.

McCarthy: What that rule intended to do was identify conservation practices that have both benefit to the farming community and benefit to water quality. So it was to encourage those. It was not intended [to], nor will it, reduce or narrow the exemptions that are in the rule currently and that are staying in the rule for the agriculture community. Those exemptions are intact. The list of conservation practices represents a subset of agriculture activities that real farmers have been wanting to do that have been raising questions about whether they are OK to do or whether a permit would be necessary. So what this was was to try to explain that these great things don't need to have a conversation. [USDA's Natural Resources Conservation Service] is not in a regulatory mode here, nor is EPA. This is basically an effort to identify self-implementing practices that are clearly not needing to have a conversation with EPA or Army Corps.

Greenwire: The interpretive rule lists practices that are done to the NRCS standard. What about practices that aren't done to that standard? For instance, if I wanted to clear some debris out of a stream but I don't do it to the NRCS standard, do I need a permit?

McCarthy: If you're significantly disturbing the stream, the question's going to be whether or not that stream needs to be protected and whether it has a significance to downstream water quality. It's not intended to narrow what is a normal farming practice, and so those are just additional conservation practices that we're trying to recognize.

At Bill Heffernan's farm [which McCarthy toured on this visit], he had a farm pond that connected to a stream that goes to downstream areas. That is a significant water body that's protected under "Waters of the U.S." So if he wants to start rummaging around and filling that in, he knows that practice requires that he go ask whether or not a permit is necessary. That has not been different. That has not changed.

Greenwire: Some of the agriculture representatives you've been meeting say they've been pleased with what you've had to say about the rule. But they say they're worried about third-party lawsuits that could lead to a different interpretation of the rule.

McCarthy: That's the reason for the rule; it's not an outcome of the rule. Right now, there is tremendous uncertainty. Right now, the Army Corps issues thousands of permits that address these issues. This is actually to narrow the uncertainty as [much as] possible. Have we succeeded? Maybe not yet. That's the reason for the comment period. But there will always be individual judgments where the science can't be determined unless you look at the case at hand.

The job we're trying to do is narrow those as much as possible. It's the uncertainty where third-party lawsuits come in, so the reason to do this is is to narrow [the uncertainty]. Can we take it away for everybody in every case? No, we can't, because national rules aren't designed to do that. That's what you get through a permit process.

But I would ask people to think about whether or not there has been significant concern about the permit process that exists and the ability of permits to be issued, and that is another issue beyond jurisdiction. But I don't think this is adding to the uncertainty. I don't think this should open up more questions about third-party lawsuits.

Greenwire: What is your timeline for finalizing the rule?

McCarthy: We're hoping to finalize it next year, but I am going to get this right.

Twitter: @AnnElizabeth18 | Email: asnider@eenews.net

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