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House Subcommittee Holds Hearing on Clean Water Act Agricultural Exemptions

June 20, 2014


On Thursday, June 19, the Subcommittee on Conservation, Energy, and Forestry of the House Agriculture Committee held a hearing entitled, “A Review of the Interpretive Rule regarding the applicability of Clean Water Act agricultural exemptions.”

The interpretive rule was included in the joint U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps)  proposed rule for defining the waters of the U.S. that fall under EPA’s Clean Water Act jurisdiction.   The interpretive rule was effective immediately on April 3, 2014, and allows farmers and ranchers, under certain circumstances, to qualify for an exemption from Section 404 permitting requirements for discharging dredge and fill materials into jurisdictional waters.

Under the Clean Water Act, certain “normal farming activities” are exempt from requiring a Section 404 permit.  The interpretive rule clarifies that 56 agricultural practices that are based on Natural Resources Conservation Service (NRCS) standards are also exempt.  EPA, the Corps, and NRCS plan to work together under a Memorandum of Understanding (MOU) to effectively implement these exemptions and review and update the list of qualifying conservation practices.

USDA Witness

The hearing included testimony from two panels of witnesses.  First, the subcommittee heard from Robert Bonnie, USDA Under Secretary for Natural Resources and the Environment, who addressed the critical role that NRCS will play in collaborating with EPA and the Corps around education and outreach to inform producers of these exemptions.  There has been considerable confusion and concern within the agricultural community around the burden of additional requirements upon producers, and Mr. Bonnie stressed that the interpretive rule is entirely voluntary, as it does not require any landowner to undertake these activities.

In fact, he explained, the interpretive rule is based on implementation of NRCS conservation practices, which have proven to be very popular with producers, as evidence by the strong interest in USDA farm bill conservation programs (such as the Conservation Stewardship Program and the Environmental Quality Incentives Program).

Mr. Bonnie further clarified that NRCS will not become an enforcer of violations of the Clean Water Act (CWA), as the agency’s role will remain the same as it has for the past 75 years.   NRCS will participate in the implementation of the interpretive rule by helping to review and revise the conservation practices each year, and will actively seek input from the agricultural community in doing so.

Mr. Bonnie explained that the interpretive rule does not impact in any manner the current CWA exemptions around “normal farming activities,” which explicitly include “upland soil and water conservation practices.”  Rather, the interpretive rule clarifies that the 56 NRCS conservation practices listed, even when they occur in waters of the US, may also receive Section 404 exemptions, provided they are implemented in accordance with NRCS standards.   The interpretative rule is thus a clarification of and expansion upon the existing Section 404 exemptions that qualify on the basis of “normal farming activities.”

The exemption, Bonnie explained,  is also “self implementing,” which means that producers do not need to notify EPA, the Corps, or NRCS, nor do they need to seek review or certification.  NRCS can play a role by providing technical assistance or advice to implement covered practices, but producers are not required to seek out these services to be exempt.

Bonnie’s explanations fell on some deaf ears.  Among the attacks mounted on the interpretive rule by members of the subcommittee were claims that the listed practices were compulsory, which they are not, and that the exemptions would decrease the chances that farmers would undertake conservation practices, which is at best illogical. Perhaps at the core of all the vitriol directed in Bonnie’s direction was concern that the agricultural community was not consulted on the development of the rule, which, unlike many of the other unfounded claims lodged his way, is largely true.

After hearing from the subcommittee members of continued concerns from many producers in their districts, Mr. Bonnie assured the members that USDA plans to have ongoing discussions with the agriculture community and to add additional practices based on that feedback.  He again stressed that communication and outreach will be a primary objective in moving forward with implementation.

Second Panel

The second panel offered testimony from the American Farm Bureau Federation (AFBF), the National Cattlemen’s Beef Association (NCBA), the National Corn Growers Association (NCGA), and the Izaak Walton League of America.  AFBF, NCBA, and NCGA all testified in support of the agencies withdrawing the interpretive rule, while Scott Kovarovics, Executive Director of the Izaak Walton League of America, supported the rule and highlighted the inherent links between conservation practices, water quality, and sportsmen and the outdoor recreation economy.

NSAC View

The interpretive rule is not without significant problems, but those problems were largely absent from the discussion in the hearing.  Instead, significant stretches of the truth were on display more often than not.

The National Sustainable Agriculture Coalition (NSAC) will be submitting comments on the interpretive rule in the near future that will suggest there are several key shortcomings that can and should be corrected, including adding greater clarity about the exemptions for practices that occur in streams and wetlands, removing upland practices from the list, and strengthening oversight.  We will share those comments with readers when they are submitted.

In broad terms, we encourage the agencies to continue to seek input to ensure that the conservation practices eligible for exemption from Section 404 truly include practices and reflect policies that promote water quality and wetland conservation while simultaneously benefiting agriculture and critical water resources.  As subcommittee ranking member Tim Walz (D-MN) pointed out, “We don’t have to fall victim to the false dichotomy of conservation over agriculture.  It is often the farmer who is the best conservationist.  And they have to be, because their most valuable asset is the land.”

More Action on the Waters of the U.S. Rule

Despite the arguments that link conservation practices and water quality, as the House hearing was happening, Senate Republicans introduced legislation to prevent EPA and the Corps from finalizing the proposed rule to redefine the waters of the U.S.  Earlier this week, the House Appropriations Committee approved an energy and water spending bill with a rider to also block the proposed rule.

Sadly, it is probably safe to say that this rule making, along with others related to climate change, school meal nutrition standards, and other hot button issues, will likely bring the annual appropriations process to a halt later this summer, as lawmakers decide to play election year politics rather than achieving basic legislative functions like approving annual spending bills in a timely fashion.

The interpretive rule is open for public comment until July 7 through regulations.gov under Docket ID No. EPA-HQ-OW-2013-0820, and the proposed rule is open for comment until October 20 under Docket ID No. EPA-HQ-OW-2011-0880.


Categories: Conservation, Energy & Environment


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