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Livestock groups want EPA interpretive rule scrapped

Carol Ryan Dumas
Groups: An interpretive rule narrowing ag exemption for discharge permits under the Clean Water Act will result in prohibitive costs and legal liability for producers that will turn them away from conservation practices.

Livestock groups have filed comments on an interpretive rule by Environmental Protection Agency and the U.S. Army Corps of Engineers urging the agencies to withdraw the rule, contending it will narrow agricultural exemptions for normal ag activities near wetlands under the Clean Water Act.

The agencies say the rule — issued and made immediately effective in March — is meant to interpret and clarify congressional intent regarding dredge and fill exemptions for Clean Water Act discharge permits.

Section 404 of the Clean Water Act establishes a program to regulate the discharge of dredged or fill material into waters of the U.S., including wetlands. Regulated activities include fill for development, water resource projects, infrastructure development and mining projects.

Those require a permit before dredged or fill material can be discharged into waters of the U.S. Farming and forestry activities are exempt.

National Milk Producers Federation, separately, and National Cattlemen’s Beef Association and Public Lands Council, jointly, filed comments in opposition to new requirements on some of those farming exemptions and the exclusion of other farming exemptions.

The groups contend the rule will lead to cost-prohibitive requirements, leave producers open to litigation and discourage participation in conservation programs.

Their concern is heightened in light of the agency’s simultaneous proposed rule to “clarify” protected waterways under the Clean Water Act, which ag groups say will widely broaden regulatory authority over water and expand federal control of land uses.

The interpretive rule exempts 56 routine farming practices if producers comply with detailed Natural Resources Conservation Service technical conservation standards. Until now, those conservation standards have been voluntary and the farming practices automatically exempt from the permit process, the groups stated.

In its comments, NMPF used harvesting hay as an example. Under the interpretive rule, farmers harvesting hay may be exempt from needing a CWA permit only if they follow NRCS Conservation Practice Standard No. 511 — four pages of criteria covering timing of the harvest, moisture content of the hay, length of the cut hay, stubble height and much more.

In addition, another 114 farming practices covered by NRCS standards but not listed in the rule will be left under a cloud of suspicion and further expose farmers to legal liability, National Milk stated.

By defining very specific practices, the rule only narrows the scope of what is considered normal farming and ranching practices. Some of those practices — such as building a fence or grazing cattle – never needed a Clean Water Act permit before but will now require mandatory compliance with NRCS standards to be exempt, NCBA and PLC stated.

Removing normal ranching activities from the protection of exemption "flies in the face of Congressional intent" when Congress included "normal farming" practices in the Clean Water Act, NCBA and PLC stated.

The groups say the rule changes the role of NRCS from friendly adviser to an enforcer of the Clean Water Act, which may prompt farmers participating in the services conservation programs.

The groups also contend the interpretive rule is a major policy change and should have been issued as proposed regulation, subject to public comment before approval.



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