McCARTHY: "Before I get into what we are doing on the trip, let me remind everyone why we are actually moving forward with this rule. Our proposal actually aims to ensure waters that are vital to human health and natural resources that we rely on, all of us, are actually protected from pollution."
MCDONALD: Your statement here implies that you are seeking to bring under EPA's purview more waters that are not currently regulated, or how you put it, "protected." But this contradicts repeated statements by you and other EPA officials that this proposal does not expand the reach of the Clean Water Act and does not federalize any new waters. You cannot have it both ways. You cannot "protect" more water without expanding the Clean Water Act. Secondly, your new definition fails to recognize that these "new" waters for which you seek federal protection, are already under the jurisdiction of the states in which they reside. THEY ARE NOT WHOLLY UNREGULATED as you seem to represent. There is a rightful legal place where federal authority ends and state authority begins. Your proposal utterly and intentionally fails to recognize any sort of federal-state boundary.
McCARTHY: "The kinds of water bodies we are protecting with this rule, and with the Clean Water Act, provide drinking water to 1 in 3 Americans. That's about 117 million people. And while there are some legitimate concerns out there with the rule and many issues that we teed up ourselves in the rule to try to see comment, we are hearing some concerns that really are, to put frankly are ludicrous.
For example, some people say that EPA is going to be regulating small unconnected waters including puddles on lawns, driveways and playgrounds. Now, that's just silly. This proposal is all about protecting waters that science tells us have a significant, can have a significant, impact on downstream water quality. That's what it is, no more and no less than that."
MCDONALD: Then put it in writing Ms. McCarthy. Your significant nexus definition allows ANY connection to qualify as SIGNIFICANT, meaning that a puddle in a floodplain that might be connected through groundwater to a navigable water COULD very well be jurisdictional. That's what the words on paper mean. "Waters, including wetlands, that meet the proposed definition of adjacency, including the new proposed definition of neighboring, have a significant nexus to (a)(1) through (a)(3) waters, and this proposed rule would include all adjacent waters, including wetlands, as 'waters of the United States' by rule "Any open water in a floodplain." Proposed Rule at page 76. The new definition of "neighboring" in the proposed rule is defined as including "waters located within the riparian area or floodplain of a water identified in paragraphs (a)(1) through (5), or waters with a confined surface or shallow subsurface hydrologic connection to such a jurisdictional water." Proposed Rule at 77. The plain language of the proposal shows that a puddle that may have "shallow subsurface" connection to a jurisdictional ditch, stream, or wetland is now a jurisdictional federal water.
MCDONALD: Again Ms. McCarthy your words on paper are what matter, and the words you left off the paper make this proposal a trial lawyer's dream come true when it comes to farming and ranching operations. The ditches you claim to exclude must be located wholly in uplands, drain only uplands, and have less than perennial flow. What's the problem? You didn't define what "uplands" means to a federal bureaucrat. So we can't even be sure what ditches might qualify.
The other problem is that that the whole purpose of a ditch is to drain something and almost all ditches are going to do just that, making them not "draining only uplands." The other category of ditches you claim to exclude cannot ever contribute flow to a jurisdictional wetland, prairie pothole, creek, or another jurisdictional ditch, either directly or "through another water." Ms. McCarthy, what does the very important legal phrase "through another water" mean?
This key phrase was again left undefined, and without a definition it could be defined by an environmental activist group to be groundwater, non-jurisdictional ditches, or anything else wet. So the truth is that you again have left so many holes in the proposed definition to give your staff of regulators the flexibility they need to find that there is literally not one ditch across America that actually falls into your "excluded ditches" categories. If you don't want to regulate ditches, don't identify them as tributaries under the rule.
Maybe you would have realized this if you had looked at a few out on our operations prior to developing this rule. As it stands, and contrary to the statements you have posted on your website and on the front page of your powerpoint presentations, there was zero input from the agricultural community. ZERO.
McCARTHY: "And some say we are regulating ground water. Again, that is absolutely not true. Our proposal is very clear. We do not regulate ground water. We do not even regulate tile drainage systems. They don't need permits. And we are as clear as can be in this proposal."
MCDONALD: Your proposal is actually the farthest thing from clear. Sure, it says "groundwater is excluded" then immediately contradicts that statement by saying "shallow subsurface flow" can be the connection that links two jurisdictional waters, making the whole thing a "water of the U.S." So what is the difference between "groundwater" and "shallow subsurface flow?" Again, it must have been an innocent oversight that these key items were not defined or distinguished.
McCARTHY: "And some say that our proposal means you need to get a permit if you want your cattle to walk across your stream. Well that's also ludicrous. If cattle cross a wet field or stream, that is normal farming practices, all normal farming practices are exempt. Period. We don't shrink current exemptions, we actually expand them. You know, in fact, we work with USDA to make sure all farming exemptions under the Clean Water Act are kept intact."
MCDONALD: I'm glad you say that, because the cattle industry agrees. It is the quintessential "normal" ranching activity to graze cattle. Unfortunately, your newly crafted Interpretive Rule that came out alongside your expanded definition for "waters of the U.S." calls that into question, which means to us that we will end up in court defending our right to allow cattle to graze on pastures without a CWA Sec. 404 permit. I understand that it was not your intent to call into question cattle grazing, but yet again, I will point out that your agency's intent doesn't amount to a hill of beans in our legal system, what matters is what's on paper. Your Interpretive Rule says that farmers and ranchers cannot get the "normal farming and ranching" exemption from Sec. 404 UNLESS they comply with one of 56 NRCS conservation practices for any activity on their land. One of those 56 is the standard and specifications for Prescribed Grazing. You agency has said that cattle "discharging" into a ditch, pond, or creek is an illegal discharge unless they qualify for the exemption, which means that if you graze without a Prescribed Grazing plan you are most likely violating the Clean Water Act. While this may not have been your intent, you have opened the door to litigation where a federal judge will say "it is clear by the Interpretive Rule that if you don't have a grazing plan by NRCS you are violating the Clean Water Act if you don't have a permit." If it wasn't your intent then why did you not just say "conservation activities are considered 'normal' for Sec. 404(f)(1)(A)?"
McCARTHY: "And we added 56 conservation practices to that list. The reason that we did that is to recognize the great conservation work our farmers are engaged in with our partners at NRCS and the value that provides for water quality."
MCDONALD: You didn't "add" anything. You took an exemption that covered all conservation activities and narrowed to 56 NRCS standards and threatened farmers and ranchers that if they don't comply with the NRCS' standard and have the audacity to implement voluntary conservation measures they better get a Sec. 404 permit. The "normal farming and ranching" exemption covered everything and more than what you claim to have "given" us. Again, you had no input or consultations with the agricultural community prior to this Interpretive Rule taking effect, legal effect. How is that "engaging stakeholders" when we were left completely in the dark, to come out and find a legally binding set of new requirements for farmers and ranchers?
McCARTHY: "So let me be clear, those practices that I just mentioned, along with countless others, are normal farm practices that do not require a permit. And the bottom line is, with this proposal, that if you weren't supposed to get a permit before you don't need to get one now. That is the reality and that's what we need to talk about."
MCDONALD: Well, your language is not clear. And a press call cannot be used in court to show your good intent. Put it in writing. And perhaps share with the farmers and ranchers what you intend to do prior to doing it so we can give your our feedback since you seem to lack all knowledge about how farmers and ranchers feed the world.
A reporter on the line asked the Administrator to respond to claims that the interpretive rule would put the NRCS in a position of regulating by requiring producers to meet NRCS standards for any conservation practice to receive exemption.
McCARTHY: "You have raised one of most legitimate concerns I am hearing and it was certainly a concern we didn't anticipate. Let me explain to you where this rule came from. If you look at this rule and you look at our prior rule, you will see that every exemption that was in the prior rule remains here. There is no change in that. So normal farm practices are exempt and were very clear about that. The interpretive was actually of interest to both us and USDA and we think many of the farming community because it was a way to provide additional clarity and certainty. So when you look at the exemption it says normal farm practices, what we wanted to be clear was a subset of the normal farm practices are conservation EFFORTS that have been extremely important to the farming community, extremely important to USDA, AND conservation efforts that have great water protection value and we wanted to put those into a list that was essentially not narrowing the exemptions but making absolutely certain that you can do these things with no problem under the Clean Water Act. And we wanted to encourage it, so we thought that was actually a very, if you would, what I think of as nimble and flexible way to identify 56 out of the gate, but keep adding and it doesn't mean that those are in any way narrowing the exemptions. They are simply speaking with great clarity, so that nobody needs to worry or ask any questions to understand whether it is a normal farm practice that is exempted under the Act."