McCarthy Says Agencies Didn't Anticipate Regulatory Role for USDA in Water Act Rule

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By Amena H. Saiyid  

July 8 — The Environmental Protection Agency and the U.S. Army Corps of Engineers (USACE) didn't anticipate a regulatory role for the Agriculture Department in developing their interpretive rule to clarify Clean Water Act permitting exemptions associated with “normal” agricultural activities, EPA Administrator Gina McCarthy said July 8.

“It's a concern we didn't anticipate,” McCarthy told news reporters in a teleconference prior to meetings with farmers in Missouri and Kansas on the proposed waters of the U.S. rule and the accompanying interpretive rule.

McCarthy didn't elaborate why the agencies didn't envisage this role when writing the rule but said it's a “legitimate” concern that has been raised in comments on the interpretive rule.

However, she dismissed as “myths” that the interpretive rule would limit or narrow the scope of normal agricultural, ranching and silvicultural practices that have historically been exempt from dredge-and-fill permits under Section 404 of the Clean Water Act.

“If you weren't supposed to get a permit before, you don't need one now,” McCarthy said.

Interpretive Rule Clarifies Exemptions

The EPA and the corps issued the interpretive rule to clarify that discharges of dredged and fill material associated with existing normal agricultural, ranching and silvicultural practices are exempt from permitting requirements under Section 404 of the Clean Water Act.

The rule also included within its fold of “normal” agricultural practices an additional 56 agricultural conservation practices, which are based on voluntary measures approved by the USDA Natural Resources Conservation Service for farmers to implement as a way to help protect water quality.

McCarthy said the agencies chose to include a subset of farming practices in the interpretive rule that have been most important in enhancing water and soil quality. The aim wasn't to narrow exemptions but rather to make it “absolutely certain” that these activities could be carried out without violating the Clean Water Act.

The EPA and the corps issued the interpretive rule in connection with the proposed waters of the U.S. rule April 21. The interpretive rule took effect immediately, but the agencies took comment on it until July 7.

NRCS Standards Endorsed

In a memorandum of understanding with the NRCS, the EPA and the corps said discharges of dredged and fill material would only be exempt “when they are conducted in accordance with NRCS standards.”

Such language prescribing Clean Water Act exemptions on the basis of compliance with NRCS voluntary standards has caused consternation among farming and ranching groups.

The National Association of Conservation Districts (NACD), the American Farm Bureau Federation (AFBF), the Kansas Livestock Association and the Arizona-based Yavpai Cattle Growers are among groups expressing “serious” concerns in comments to the agencies on the rulemaking package that the interpretive rule is turning voluntary conservation practices into practices that are mandatory and enforceable under the Clean Water Act, thereby placing NRCS in an oversight role.

Farm Bureau Raises Issue

In comments filed July 7, Dale Moore, farm bureau executive director for public policy, cited concerns about the mandatory effect of the NRCS voluntary standards.

“How a farmer conducts that farming activity, however, is no longer voluntary under the Interpretive Rule—it is clearly prescribed by the now mandatory NRCS standards,” Moore said.

He said the agencies aren't just mandating that a farmer build a fence, “but if a farmer chooses to build a fence across a jurisdictional feature, the [interpretive rule] mandates that the fence be built in accordance with NRCS standards in order to qualify as a ‘normal’ farming activity.”

Moore said the agencies shouldn't have made the interpretive rule take effect upon publication but should have subjected it to notice and comment as a traditional rule before making it final.

Unlike other rules, an interpretive rule, or guidance, isn't meant to amend existing regulations or impose new mandates, according to the farm bureau.

Interpretive Rule Called ‘Regulation.'

Moore said this interpretive rule is a regulation that must be promulgated under the Administrative Procedure Act because it binds farmers and ranchers with new, specific legal obligations under the Clean Water Act. Moreover, he said, the EPA and the corps have amended existing regulations by interpreting the statutory term, “normal farming, ranching and silviculture” at 40 C.F.R. Part 232.3(c)(1)(ii)(A) and 33 C.F.R. Part 323.4(a)(1)(ii).

The farm bureau joined more than 90 national, state and regional associations, including the Missouri Corn Growers Association, the Kansas Pork Association and Croplife America, in urging the agencies to withdraw the interpretive rule for a number of reasons, including the binding nature of the rule.

The National Association of Conservation Districts (NACD), which represents the nation's 3,000 conservation districts, also expressed its concerns about what it said was the changing role of the NRCS.

Changing Role Cited

In the association's June 13 comments, NACD President Earl Garber mostly agreed with the agencies' intention to clarify the agricultural scope of exemptions. However, he also was concerned that the interpretive rule would change the NRCS from an agency that offers technical advice on voluntary conservation practices to one that might have to review permit compliance with conservation practices.

Although administration officials repeatedly have said the NRCS will have no oversight role, the NACD, the farm bureau and the Kansas Livestock Association point to the memorandum of understanding reached between the NRCS, the EPA and the corps that belies those remarks.

Garber was particularly concerned about the way in which the NRCS will be required to respond to questions from the corps, EPA or the courts.

NRCS May ‘Review’ Permits

“For example,” Garber asked in his comments, “could the rule result in EPA or USACE staff making determinations in the field (or on paper) about what does or does not meet NRCS technical standards? Could the rule result in regulatory agency requests to NRCS to review permits? Or might the rule draw regulators' or stakeholders' insistence for regulatory agency access or public access to producers' conservation plans as a regulatory accountability measure—a serious impediment to voluntary conservation program participation?”

Among the environmental groups, the Illinois-based Prairie River Networks, which also is a state affiliate of the National Wildlife Federation, expressed its concern about the reach of the interpretive rule.

Writing on behalf of the network, Stacy James, a water resources scientist, urged the agencies to set up a shared website to explain the rule and to hold a joint webcast on the rule.

“I remain unclear on whether permits are required for practices not on the exemption list, or for practices on the list but for which NRCS standards are not followed,” James wrote, urging the agencies to clarify the misunderstanding.

To contact the reporter on this story: Amena H. Saiyid in Washington at

To contact the editor responsible for this story: Larry Pearl at

More comments, identified by Docket No. EPA-HQ-OW-2013-0820, on the interpretive rule clarifying the applicability of Clean Water Act exemptions are available at

The National Association of Conservation Districts comment is available at

The American Farm Bureau Federation comment is available at

The comment by the coalition of more than 90 agriculture, livestock and poultry groups is available at

The Prairie River Network comment is available at: