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McCarthy Asked to Pull WOTUS
Thursday, February 11, 2016 3:25PM CST

By Todd Neeley
DTN Staff Reporter

OMAHA (DTN) -- In an all-encompassing hearing before the House Agriculture Committee, lawmakers pleaded with U.S. Environmental Protection Agency Administrator Gina McCarthy to withdraw the waters of the United States rule.

The rule remains in legal limbo as challenges stopping its implementation play out in federal court.

On many occasions, McCarthy has told Congress there is a need to improve relations between EPA and an agriculture community largely untrusting and fearful of the agency. In each and every instance, the administrator did not comment when asked by several members of the committee to pull the Clean Water Act rule and work together with agriculture interests to draft a new rule.

Committee members also continued to press McCarthy on the agency's use of social media during the public comment period leading up to the finalization of the rule. A Government Accountability Office report accused EPA of violating anti-lobbying laws in its use of social media aggregator Thunderclap to gin up support for the rule.

McCarthy continued to stand by the agency's belief federal laws were not violated.

"I think you have drastically manhandled our farmers on this issue," said Rep. David Scott, D-Ga. "You violated the law that expressly prohibited (the agency) from lobbying. You broke the law. It needs to be admitted. It needs to be recognized." Scott added, "Let's come clean on this so we can correct this."

In addition, Scott said he was particularly concerned with how ditches, wells and ponds could be considered jurisdictional with the new rule.

"There is a reason why farmers develop ponds, ditches and wells," he said. "These are manmade and it is an insurance policy for the drought. That's why we have that. This is a farmer's private property and it's not navigable water...EPA needs to turn back the law."

Unlike other congressional hearings when lawmakers on the right have been confrontational in questioning McCarthy -- followed by lawmakers on the left defending the EPA -- Thursday's hearing by and large lacked confrontation. Rather, McCarthy was asked questions on a variety of ag issues from both sides of the aisle and given time to respond.

"I don't think folks in the agency broke the law," McCarthy said in response to the accusations made about the use of social media. "There is a draft letter at OMB (office of management and budget) to make sure we respond appropriately to GAO."

Rep. Mike Rogers, R-Ala., said he would like to see farmers have more opportunity to be involved in voluntary efforts to address important environmental issues rather than be subject to more federal regulation.

"Many of my farmer constituents are worried and upset with regulations coming out of EPA," he said.

McCarthy acknowledged a need for the agency to improve its relationship with farmers and ranchers -- something the administrator has said since day one.

"There is a lot of work we need to do to establish our relationship with farmers," she said. "We're trying to listen and learn."


Rep. Bob Gibbs, R-Ohio, said producers in his state are concerned they will have to apply for more Clean Water Act permits from EPA as a result of the new rule. In an analysis done by EPA leading up to the final rule, the agency concluded more permits would be required and the agency's control of waters would expand.

"I'm afraid we're going to go backwards on water quality," Gibbs said. "This rule makes us go backwards and we're eroding the partnership (between EPA and states)."

Gibbs said the GAO report "is a big deal because it goes to the integrity of the whole comment process."

McCarthy said EPA legal counsel continues to disagree with GAO's conclusion that anti-lobbying laws were broken, saying, "we will pay attention to what GAO said."

House Ag Chairman Michael Conaway, R-Texas, asked if EPA will respond to the current national injunction in place stopping the implementation of the waters of the United States rule.

"What will you do now that the regulation is stayed?" he said. "Do we need to restrict your funding?"

While the rule remains tied up in court, McCarthy said the agency is working to make sure Clean Water Act guidance is implemented based on the current law.

"We're going to certainly follow the court," she said. "We hope to bring additional clarity when the clean water rule makes it through the courts."

The U.S. District Court for the Sixth District in Cincinnati is expected to rule sometime this year whether it has jurisdiction to hear the case -- even before the merits of the rule can be addressed in court.


In addition, McCarthy was questioned about a seemingly public riff between EPA and USDA on EPA's handling of pesticides and other ag chemical regulations.

A number of times in the past couple of years, USDA has openly expressed opposition on some aspects of EPA rulemaking.

"Are you ignoring USDA?" Conaway asked. "There is a distrust with EPA. Our farmers and ranchers feel under attack."

McCarthy responded, "I work very closely with (Agriculture) Secretary (Tom) Vilsack. We have great respect for USDA and its knowledge of the agriculture community. I think we have a close collaborative relationship. We always try to understand science together."

On one instance in particular, on April 6, 2015, USDA filed public comments critical of EPA's "Benefits of Neonicotinoid Seed Treatments to Soybean Production" published in the Federal Register in October 2014.

"America's farmers face numerous challenges as they work to produce the food, feed, and fiber for a strong and healthy America," USDA wrote. "On Oct. 22, 2014, EPA added an additional and unnecessary burden by publishing a portion of an incomplete risk assessment...which again puts growers in the positon of defending their pest management decisions. USDA staff had specifically requested EPA to complete the full risk assessment that would more robustly describe the benefits of neonicotinoid seed treatment for all crops.

"Instead, EPA released the report regarding soybean seed treatment without additional consideration of other crops or to USDA cautions about releasing a premature assessment of the costs and benefits of such seed treatments."

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @ToddNeeleyDTN


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