EPA Administrator Gina McCarthy spoke to the Agricultural Business Council on July 10 in Kansas City. One news report claims she said to forget about the myths and misinformation about EPA's proposed interpretative rule for the Clean Water Act.
I suggest you read Ms. McCarthy's remarks. It is sad to see an Administrator give an address to farmers and the ag industry which says absolutely nothing. Ms. McCarthy attempts to divert agriculture's attention by saying EPA's new rules will not shut down July 4 fireworks nor is EPA trying to regulate rain in puddles and water in driveways. She blames these statements on individuals in D.C. and claims "…here in the heartland, it reminded me how nice it is to be back in the real world."
Please Ms. McCarthy, stop attempting to condescend the audience.
If Ms. McCarthy is really serious about addressing agriculture's concerns, I suggest she read a letter sent to her office, to Robert Bonnie at USDA, and to Jo-Ellen Darcy, Department of Army on July 7, 2014, signed by several agricultural organizations. The letter is signed, for example, by the American Farm Bureau Federation, National Pork Producers Council, American Meat Institute, National Cattlemen's Beef Association, National Corn Growers Association and the list goes on and on. She never once in her speech addresses the substantive issues raised by the farm groups in the July 7 letter.
She says things like, "Farmers are more productive. Hunters and anglers enjoy pristine places, and fishing rod makers and boat builders enjoy more business. And, of course, people are healthier, because drinking water is cleaner. We all win."
Ms. McCarthy's staff should be ashamed of this speech and her condescending presentation. It was sophomoric to say the least. Not once did she address whether compliance with NRCS rules are required. EPA's fact sheet makes it clear that NCRS practices are binding. EPA is very clear that if you do not comply with the 56 NRCS standards a farmer could be in violation of the Clean Water Act.
Ms. McCarthy never addressed in her speech the fact that the definition of waters of the U.S. "…relies on extensively on the best professional judgment of agency staff to identify such waters." It might have been helpful to farm organizations and farmers that Ms. McCarthy responded to the concerns of the July 7 letter.
Another issue not addressed by Ms. McCarthy in Kansas City was ditches. Her speech says, "So what about ditches?" She states correctly that EPA is not claiming jurisdiction over all ditches, but she does say, "While some ditches are connected to larger water systems and are vital to public health and water quality, the vast majority are not and therefore not jurisdictional."
Of course, many ditches are not jurisdictional because they are upland ditches, but Ms. McCarthy, the Federal Register of March 9, 2000, states "Drainage ditches constructed in uplands that connect two waters of the United States may be considered waters of the United States if those ditches constitute a surface water connection between those two waters of the United States."
Most farm ditches drain eventually to what EPA will consider a water of the U.S.; Ms. McCarthy does not address this issue in any way in her speech.
Ms. McCarthy claims she is not expanding the definition of waters of the U.S; however, farmers are aware of cases such as U.S. v Sargent County Water Resource District, a 1992 North Dakota case. In that case the U.S. claimed it had jurisdiction because the drainage ditch cleaning debris was cast into wetland type areas or sloughs. The U.S. said it had jurisdiction because migratory birds used the slough area.
The excellent July 7 letter sent in by farm organizations to EPA which Ms. McCarthy never addressed has an interesting conclusion. It says, "If the agencies wish to encourage farmers and ranchers to continue conservation practices they should forgo a sweeping expansion of the Clean Water Act jurisdiction and they should promulgate a rule that reasonably interprets the section 404 (f)(1) exemptions…" Note the word "sweeping," Ms. McCarthy.
One news report captured Ms. McCarthy's message. "Regardless of McCarthy's reassuring message about the interpretive rule, there is still a lot of doubt in farm country about the intent of this rule."
Gary H. Baise is a principal at OFW Law (Olsson Frank Weeda Terman Matz P.C.). This article first appeared in Farm Futures magazine. The opinions presented here are expressly those of the author. For more information, go to www.OFWlaw.com.