Milk Producers Raise CWA Permitting Concerns in Interpretive Rule Comments

Milk Producers Raise CWA Permitting Concerns in Interpretive Rule Comments

NMPF urges EPA to withdraw interpretive rule that accompanied the proposed 'waters of the U.S.' revision

The National Milk Producers Federation on Monday asked the Environmental Protection Agency to withdraw recent guidance concerning when farmers must seek Clean Water Act permits for farming activities near wetlands.

The EPA guidance, officially called an Interpretive Rule, was issued in March alongside the revised "waters of the U.S." proposal.

The rule outlines CWA permitting exemptions for 56 farming practices – if they comply with detailed Natural Resources Conservation Service standards.

NMPF urges EPA to withdraw interpretive rule that accompanied the proposed 'waters of the U.S.' revision

Until now, these standards have been voluntary, and the farming practices exempt from the permit process – and NMPF says this change could discourage water conservation by changing the long-standing relationship between farmers and NRCS.

Related: Farmers Worry Waters of the US Interpretive Rule Will Suppress Conservation

In comments filed Monday, NMPF said the guidance changes NRCS's role from that of a conservation partner to an enforcer of the Clean Water Act on EPA's behalf. 

"Until now, NRCS has been the place producers could go for conservation advice, while EPA was charged with ensuring compliance with the Clean Water Act," said Jamie Jonker, NMPF's Vice President for Sustainability & Scientific Affairs. "The cooperative relationship with NRCS made it more likely farmers would adopt water conservation practices.

"Unfortunately," Jonker said, "the interpretive rule moves NRCS into an enforcement role and, in the process, could set back conservation efforts."

Hay making a concern
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.

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"Many dairy farmers harvest hay without any reference to NRCS standards," said Jonker.  "Will these farmers now be forced to comply with Standard No. 511? If so, many will simply choose not to work with the NRCS. As a result, there will be less water conservation on farms, not more."

Related: Cattleman Testifies on EPA's Waters Rule for House Small Business Committee

Jonker noted that NMPF has drawn up a detailed environmental handbook based on NRCS standards but tailored specifically to dairy farmers. "Under the IR, producers who follow the handbook apparently will not qualify for a permit exemption," Jonker said. "Having invested time and money in producing the handbook, NMPF is now forced to ask if it was worth it to try to do the right thing."

Additional points in the NMPF comments:
•           While EPA argues that meeting the NRCS standards is still voluntary, in practice it is mandatory, since failure to comply may expose farmers to legal liability.
•           More than 100 farming practices covered by NRCS standards but not listed the IR are left under a "cloud of suspicion" and further expose farmer to legal liability.
•           As a major policy change, the IR should have been issued as a proposed regulation, with public comments in advance of approval, rather than as guidance that is immediately applicable.

"NMPF and its members are committed to protecting U.S. waterways through voluntary efforts and regulatory compliance with the Clean Water Act," NMPF said. "(But) the IR will have the perverse impact of harming the longstanding trust and cooperative relationship between producers and NRCS.  Consequently, water quality improvements will be adversely impacted."

The National Cattlemens Beef Association filed similar comments Monday, also suggesting withdrawal of the interpretive rule on concerns that it could hinder conservation participation.

TAGS: USDA
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