On her second stop in a visit to the nation's heartland, EPA Administrator Gina McCarthy visited a Kansas City Agribusiness Council Luncheon Thursday to answer questions and clarify concerns on the proposed rules defining Waters of the U.S. under the Clean Water Act.
"We're all here because we know we have things to talk about," McCarthy said. "We have some serious things to talk about."
McCarthy noted the rule was proposed to clear up confusion surrounding Clean Water Act protection as a result of Supreme Court decisions in 2001 and 2006. It's also crucial to identify waters that do need protection – about 60% of stream miles in the U.S. only flow seasonally or after rain, but have a considerable impact on the downstream waters, and which approximately one in three Americans, or 117 million people, rely on.
"We know we have to take action, we know we have to propose this rule, and we know we have to finish it," she said, adding, "Unfortunately, we're having to deal with misinformation that has really becoming the story. Whether that's legitimate confusion or not, we have to address it."
The proposed rule has garnered opposition, including from a group of 30 Republican U.S. Senators and from the American Farm Bureau, which stated in an action alert that, "EPA and the [Army Corps of Engineers] are now attempting to regulate virtually all water, something Congress has explicitly chosen not to allow and which two U.S. Supreme Court decisions have rejected."
McCarthy noted some claims she's heard in Washington D.C., like that puddles will fall under jurisdiction, are completely inaccurate. "What I'm hearing in D.C. is that our new rule will shut down Fourth of July fireworks. I trust that did not happen," she said. "I also heard we're trying to regulate rain in puddles in driveways and in playgrounds. We know that none of that is true."
EPA is not trying to regulate groundwater, puddles, or every floodplain or erosion feature, and contrary to some concerns, the rule does not say all ditches are jurisdictional, McCarthy said.
"In fact our proposal specifically says we're not regulating all ditches, unlike the current existing regulations, which don't make that clarification," she said. "While some ditches are connected to larger water systems and are therefore jurisdictional, because they're vital to public health and to water quality, the vast majority of ditches simply aren't important from a water quality perspective."
If a ditch doesn't function like a stream, it can be taken off the table, McCarthy added. "Keep in mind that up to 117 million people rely on waters that only run seasonally as opposed to waters that run 24 hours of every day," she said.
"If your ditch looks and acts like a stream, it may need protection even if it doesn't run every season. That doesn't mean you need a permit just to have it run through, what it means is you should take care of that recognizing that it is vital to public health."
The interpretive rule, which explains how the proposed Waters of the U.S. rule would impact CWA exemptions for agricultural activities, has also caused concern among farmers, who fear the proposed interpretive rule could limit the conservation practices under exemption, and require them to comply with the 56 exempt practices outlined in the rule.
However, McCarthy said this is not the intent. "The interpretive rule was an effort to highlight these [56 conservation practices] as being great thing to do to make sure you never have to worry that EPA would ever coming knocking if you utilized those practices," she said.
"The 56 practices are really an attempt to clear the path for what we think of as slam dunk conservation practices, they were not an attempt or in any way would they narrow the exemptions that are currently in place for agriculture."
In addition, if a permit was not required to implement a conservation practice before, the rule as proposed does not require a permit for that practice.
"These exemptions we saw as always being self-implemented, just practices clearly identified, which means you don't need to double check with anybody at the federal level (e.g. EPA, NRCS, or Army Corps of Engineers) at any time if those practices are being considered."
On Wednesday, McCarthy began her visit to the Midwest with a tour of Bill and Judy Heffernan's farm near Rocheport, Missouri, and visiting with local farmers in a roundtable discussion.
"I recognize not all farms are the same, but I had a really cool experience yesterday," she said. "What I saw on Bill Heffernan's face as he was talking about all the work he keeps doing on his farm to be the best steward he can be, was really a common thread I've seen in every farmer's eyes when I go out and about."
"I'm beginning to understand the kind of conversations we need to develop a relationship I want to have between EPA and the ag community," she added. "Nothing's ever easy, but if we work together I believe we can make substantial progress and the developing the kind of trusting relationship you would expect to have with an agency whose purpose is public health and environmental protection – which is frankly what the ag community has also been all about."
Sensible environmental protection doesn't need to be sacrificed in order to have a strong farm economy, she said. To accomplish this, she called on farmers to take a collaborative approach with EPA and commit to focusing on facts rather than myths, and have a seat at the discussion table.
"Let's figure out how we work together for the benefit and promise of the American people," she said. "We can deliver them the protection they're looking for from EPA while continuing to have a strong robust farm economy."