Gary H. Baise
Gary H. Baise

U.S. EPA Administrator Gina McCarthy recently made a trip to Missouri where she hosted a press conference and called the concerns of producers in agriculture pertaining to the proposed definition of waters of the United States "ludicrous."

The National Cattlemen's Beef Association Environmental Counsel, Ashley McDonald, has produced an interesting response to McCarthy's waters of the U.S. comments. It is worth reading.

Many of the points relate to previous columns I have written on this subject. Ms. McCarthy says she is concerned about the Clean Water Act providing drinking water to 1 in 3 Americans.  Ms. McCarthy did not comment that her own agency administers the Safe Drinking Water Act which is the authority to require safe drinking water to Americans.

National Cattlemen's Beef Association responds to U.S. EPA comments on Waters of the U.S. rule

Administrator McCarthy emphasized that agriculture is protected through the "normal farming and ranching" exemption. What Ms. McCarthy leaves out is that most normal farming and ranching is on uplands, not wetlands, and EPA is excluded from regulation of upland activities.

Ms. McCarthy did not address the agricultural stormwater exemption. She did address the Natural Resources Conservation Service's 56 conservation practices. She claims there are 56 conservation practices to help agriculture comply with the CWA.

Let's examine one of the 56 NRCS practice standards. Ms. McCarthy makes it clear in her press conference that farmers engaging in these conservation practices have nothing to worry about from EPA.

Because virtually all farms have drainage, I reviewed the Drainage Water Management Practice Standard Code 554 for this column. Ms. McCarthy claims that if you are in full compliance of Practice Standard Code 554, you would be considered operating under normal farm practices.

The Drainage Practice Standard is defined as "The process of managing water discharges from surface and/or subsurface agricultural drainage systems." NRCS says the purpose of managing water discharges from the fields is to "reduce nutrient, pathogen, and/or pesticide loading from drainage systems into downstream receiving waters." The purpose section goes on to describe other goals such as improving the productivity, health and vigor of plants.

The NRCS Practice claims that the process of managing water drainage systems is applicable to agricultural lands with surface or subsurface drainage systems such as our tile systems in the Midwest.

 

The Practice sets forth the criteria for managing gravity drain outlets. NRCS claims that "Drainage discharges and water levels shall be managed in a manner that does not cause adverse impacts to other properties or drainage systems."

If there is a release of water from flow control structures on a farm field, then the velocity in the subsurface drains cannot exceed the velocity which is prescribed in another NRCS conservation practice.

If manure is being applied to a farm field with subsurface drainage systems, "The drain outlet shall be raised prior to and during liquid manure applications to prevent direct leakage of manure into drainage pipes..." Of course, manure applications must conform with 2 more NRCS Practice Standards. – Nutrient Management and Waste Utilization.

An operation and maintenance plan for all activities must be developed and provided in order to be in compliance with the Drainage Water Management practice. The producer's operation plan must identify the purpose of utilizing this practice including practice life safety requirements, water table elevations, and instructions for operation and maintenance of the drainage management system.

I suspect Administrator McCarthy has never personally examined NRCS's 56 conservation practices. Ms. McDonald of NCBA claims Ms. McCarthy had no input or consultations with producers prior to proposing the new EPA interpretive rule.

Additionally the NCBA response indicates that a reporter has asked Ms. McCarthy whether EPA's interpretive rule would require NRCS to become a regulator.

Ms. McCarthy responded by saying that the question was a legitimate one and that all of NRCS's exemptions were in place before EPA adopted them.

As you can see from the examination of the Drainage Water Management Practice Standard, it is extremely detailed and meticulous and the inference from EPA is that if the Practice Standard is not followed precisely, then a producer would be in violation of the CWA.

NCBA and numerous agriculture groups have urged EPA to "Ditch The Rule".  It is unknown whether EPA will ditch the rule, but if you have water running off of your farmlands through surface drainage or tile drainage, it would be worthwhile to review NRCS's 56 Practice Standards.

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.