House committee hears CWA controversy

(DTN) A list of conservation and other farm practices that are exempt from the Clean Water Act are just the beginning, EPA Administrator Gina McCarthy told a House committee Thursday. The agency intends to work with the industry to identify more practices that improve water quality, she said.

On the downside, McCarthy said, because the practices are listed in a Clean Water Act interpretative rule, they could be subject to removal at some point. Not all ag practices are on the list, especially those that already require permits.

McCarthy made her remarks during the second of two Congressional budget hearings this week on the proposed 2015 EPA budget, this time before the House Interior, Environment and Related Agencies Subcommittee of the House Appropriations Committee.

"We're changing no exemption that currently exists under the law," she said. "It doesn't mean the 53 practices would have required a permit. It just means we're providing certainty. The goal is we're going to continue to add to those practices."

Though McCarthy was called to testify before two committees this week about the agency's $7.9 billion budget, in both hearings lawmakers confronted her on the newly released rule, with the most aggressive pursuit coming in the House Thursday.

The Clean Water Act has been thrown into what McCarthy said is "confusion" since Supreme Court rulings in 2001 and 2006.

In total, both rulings required EPA to reassess the jurisdiction of the act. One ruling reigned in EPA's authority and a second essentially required the agency to prove tributaries and seasonal waters have "significant" connections to jurisdictional, navigable waters.


Rep. Ken Calvert, R-Calif., said he believes the rule will expand EPA authority to even those bodies of waters that are dry most of the time.

"Every small business and farmer could be subject to a fine if you disturb a puddle on the farm," he said.

Members of the committee questioned why EPA would release the proposed rule before the work of a scientific advisory board is completed.

McCarthy indicated the role of the SAB is to review the body of science on connectivity that already has been peer reviewed.

Rep. Harold Rogers, R-Ky., said the timing of the release of the proposed rule would indicate the science already is settled.

"Shouldn't you have the scientific basis settled before you propose the rule?" he said.

McCarthy said EPA already has "a wealth of science." She said many sectors of the economy have approached EPA and "we took their concerns" into consideration.

While EPA attempts to specifically list ag practices that are and already have been exempt from the law, Calvert said, "It seems the only certainty is mandatory permits for jurisdictional waterways. Farmers are fearful. I'm hearing from farm groups there is uncertainty about agriculture exemptions that it's not so farm-friendly.

"By starting the clock before the science is completed is a way to jumpstart the process before questions can be asked."


McCarthy said she believes the rule will decrease time spent on enforcing the Clean Water Act.

"We're not expanding the types of waters we have not already been regulating," she said. "There are seasonal streams where the science is telling us are valuable in maintaining jurisdictional waters. We've been much clearer about the science in how we protect the navigable waters."

Calvert said the committee will continue to challenge EPA on the proposed rule.

"This subcommittee will continue to take whatever actions necessary to provide certainty to small businesses and farmers so they don't have to look over their shoulders for EPA," he said.

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