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Water

Water rule comes in under radar

Cody – With Waters of the United States Rule out for comment, Wyoming Association of Conservation Districts (WACD) Executive Director Bobbie Frank noted that another interpretive rule also impacts agriculture.

“It is imperative we all weigh in on these rules,” said Frank. “The EPA issued the jurisdictional water rule the same time they issued an interpretive rule on 404 exemptions.”

The jurisdictional rule, which addresses waters of the United States, was so controversial, it overshadowed the interpretive rule, she added. 

Frank addressed the Water Committee at the Wyoming Stock Growers Association Summer Cattle Industry Convention and Trade Show on June 5.

“EPA claims they didn’t have to advertise or notice the interpretive rule because it is an interpretation and doesn’t exert any more regulatory implications,” Frank added.

However, WACD and many other groups believe this assertion is incorrect.

“We believe they should have gone through formal rule making,” said Frank. 

Rule contents

Section 404 of the Clean Water Act notes that no one can dredge and fill in waters of the U.S. without a 404 permit.

“Congress built in exemptions for the rule,” explained Frank. “Congress said, for normal farming, ranching and cultivation, such as farming, upland conservation, etc., no permit is required. Congress intended for farmers and ranchers to conduct business without having to get a 404 permit.”

However, the interpretive rule says EPA and the Army Corp of Engineers is going to consider normal farming, ranching and conservation to mean only 56 identified practices. 

“Additionally, these practices will only be exempt if producers follow the Natural Resources Conservation Service (NRCS) standards,” Frank continued. 

Rule problems

“I think it is disingenuous to issue a rule that says producers will be exempt in jurisdictional waters if they do these 56 practices exactly like NRCS says while we are still wondering where jurisdictional water is,” Frank said. 

Additionally, Frank noted that NRCS standards are inappropriate for normal, day-to-day farming and ranching operations. 

“If someone has a Farm Bill program contract, for example, they have very specific requirements for good reasons,” she explained. “Those producers taking public funds should be required to be top-notch projects.”

Frank noted, “I don’t know that anyone ever envisioned that we would have to do everything according to NRCS standards to get an exemption.”

Regulatory burden

At the same time, Frank said EPA has claimed NRCS will not become a regulatory agency. 

“We are partners with NRCS, and they are a voluntary agency there to work with private landowners,” said Frank. “We don’t want to see NRCS stuck in a regulatory role.”

However, she continued, “The rule says, even where NRCS is not providing technical assistance, the agency plays an important role in helping to respond to issues that may arise with project-specific conformance to practice conservation standards.”

The rule is not only unfair to producers, Frank said, it puts undue burden on NRCS field staff. 

Compliance issues

Because of the regulatory burden, Frank expressed concern that local conservation priorities would be pushed aside while NRCS field staff addresses compliance with the interpretive rule. 

“The NRCS field staff has been overloaded already,” said Frank. “They can’t get out and help producers. If they start having 404 rule violation issues, landowners will be looking for help documenting that they met exemption standards. This will trump everything else.”

The result, said Frank, would be a reduction in conservation.

Fear of penalty

An increased reduction in conservation will also likely occur due to fear of fines that would result from actions that don’t qualify for an exemption.

“Landowners who want to do good things and enhance habitat and production will likely be terrified of a $37,500 per-day violation fine,” said Frank. 

“If I pull the Russian olive, that is a violation. If I slope to reduce erosion, that is another violation. Then, if I build a fence, but not to NRCS specs, that is a violation,” she gave as an example. “Each violation is $37,500 per day from the day it is implemented. That is what landowners are facing, and it is absolutely devastating.”

Frank expressed concern that landowners would opt not to undertake conservation measures, rather than chance excessive fines. 

Concerns

“In reality, this interpretive rule takes away producer’s 404 exemptions,” said Frank. “The EPA press release says this rule will give landowners more certainty.”

However, Frank noted that WACD and others believe it will have the opposite effect. 

“The rule was effective the day it was published,” Frank added. “They are not asking for revisions.”

However, EPA is accepting public comment on the rule until July 7, a deadline that was extended after repeated requests from a variety of agencies. 

“This rule becomes even more important if there is a more expansive jurisdictional capacity placed on EPA and the Army Corp of Engineers with the waters of the U.S. rule,” added Nephi Cole, policy advisor for Wyoming Governor Matt Mead. “We will address these issues aggressively.”

Saige Albert is managing editor of the Wyoming Livestock Roundup and can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it..