Proposed EPA Rule: Clarity or Muddy Waters?

| August 27, 2014
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Public comment is currently being heard on the EPA’s Waters of the United States Proposed Rule.  Click to hear KMZU’s Kristie Cross speak with Deputy Assistant Administrator in the Office of Water at EPA Ken Kapocis:

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Click to hear Ashley McDonald  Environmental Counsel for the National Cattlemen’s Association:

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See informational flyer provided by the National Cattlemen’s Beef Association:

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The National Cattleman’s Beef Association says nearly 80,000 additional stream miles would be regulated by the EPA according to the proposal and this has the ag industry voicing their concerns.  McDonald explained what the impact could look like from their point of view.   “You’ll see some ponds in there that are connected through an ephemeral stream, “said McDonald, “Those ponds are now considered tributaries under this proposed rule because they are connected through an ephemeral stream to an otherwise jurisdictional  water.  You will see drainage ditches in there connected to jurisdictional water and tributaries under this rule,  even though they may not hold water in them but once a year, it’s still a jurisdictional water.  That’s our concern with this rule is that the exact extent is huge.  Is that appropriate for the federal government?  NCBA and others in agriculture  and other industries don’t believe it’s the proper role.”

When asked if he believes this is an overreach of the government, Kapocis said the agency is fulfilling their obligation to implement the Clean Water Act.  “The science we are using to support the rule is currently under review by our science advisory board,” said Kaposis, “Most of their questions have been related to the question of rather or not the agency went far enough.  We consider that, because Congress did not specifically define what waters are covered by the Clean Waters Act but left it to our discretion, we are making the correct policy judgement to apply the Clean Water Act as we propose to do with this rule.”

According to their website, the proposed change will not give additional power over water on farms and ranches to the EPA or the Corp, but rather that the goal is to create clarity. “What this rule would propose to do is to provide greater predictability and greater consistency in how those determinations are made as to what waters are and are not subject to the Clean Water Act.  We’re doing this by first being more clear as to what waters are in and using the Supreme Court guidance that it should be those waters that have a significant nexus to downstream navigable waters and then by also providing more information about what water features are out.”

However, those in the ag industry say the proposal, in their opinion, “muddies” the water rather than clearing it up.  McDonald explained the rule could add a significant number of ephemeral stream miles to what’s open to regulation.  “Basically, perennial streams have water in them year-round,” said McDonald, “Intermittent streams have water in them during the wet seasons of the year and ephemeral streams have water in them during and immediately following a rain event.  So, if you add the ephemerals on top of those intermittent and perennial streams, that basically fills in the entire state of Missouri.  What that looks like when you calculate it out is an additional 80,000 stream miles of dry ditches and washes that are now going to be regulated by EPA and the Corp.  So, that’s what this rule looks like to us in agriculture and that’s what terrifies us to death.”

During a recent public discussion on the proposal with agriculture industry leaders and state lawmakers, it was mentioned that the EPA is not considered a friend of the ag industry.  “I think that what we know is that we do not have the best working relationship with the agricultural industry, but from Administrator McCarthy in the Office of Water, we are committed to building a better working relationship with the agricultural industry.  We understand the significant role they play in protecting the environment.  They are the ones out there  in the countryside every single day.  It is our goal to both protect the waters and also make sure that agriculture  is able to produce the food, fiber, and fuel that is so necessary to everybody’s daily life and our economy.  We know that we have our work cut out for us, but we are committed to creating that kind of working relationship with the ag community going forward.”

The public comment session on the matter will remain open through October 20th.  Answers to frequently asked questions and additional information can be found at the EPA’s website.

 

 

 

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