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By Donna Sullivan, Editor While EPA secretary Gina McCarthy aims to re- assure farmers and ranchers that the proposed WOTUS rule is not as much of an over-reach as many fear, most agriculture groups sim- ply aren't buying it. Aaron Popelka, vice president of legal and governmental af- fairs for Kansas Livestock Association, addressed pro- ducers at the Beef Producers Information seminar during the Flint Hills Beef Fest, ex- plaining the concerns with the rule that attempts to de- fine Waters of the United States and how they fall under Clean Water Act juris- diction. While McCarthy has stat- ed that much of the uproar has been due to misunder- standings, Popelka ques- tions how that could even happen. "I spent six years in D.C. and I've watched this process work," he said. "They have an army of lawyers down at EPA. They've scrubbed this thing over and over again before they ever released it and to say 'That's not what we in- tended?' Come on. You're telling me that ten, twenty lawyers who read over this thing multiple times didn't see that? I don't think so." Stressing the importance of producer involvement, Popelka stated, "If you're not at the table, you might be for dinner. EPA is getting ready to serve up filet of farmer with a side of ranch- er. And for dessert, it's going to be the housing and con- struction industry." The Clean Water Act reg- ulates the discharge of pol- lutants or dredge and fill into navigable waters. The term navigable waters is de- fined as Waters of the Unit- ed States. "Well, that's clear as mud," Popelka quipped. With the authority given to them by Congress, EPA and the U.S. Army Corps of En- gineers came up with a rule defining the scope of Waters of the United States that was last updated in 1993. Ac- cording to Popelka, since then there have been a few Supreme Court decisions stating that their definition of WOTUS was too broad. While many waters are undisputedly jurisdictional using the informal, "Can you float a canoe on it" stan- dard, it's the possibility of other waters being deemed jurisdictional that raises concerns. The rule states that all tributaries to naviga- ble waters are in, whereas Justice Kennedy said in a 2006 Supreme Court deci- sion that tributaries have to pass a significant nexus test to be considered jurisdic- tional. "So already EPA is going outside the bounds of what the Supreme Court es- tablished for them," Popelka charged. The proposed rule includes all wetlands adja- cent to navigable waters or a tributary, which also doesn't pass the significant nexus test established by Justice Kennedy. In defining the terms, concerns arise. A tributary, for instance, is defined as "physically characterized by a bed, bank and ordinary high water mark, which con- tributes flow either directly or through another water, and ponds that contribute flow directly or indirectly to another water. "So that just tells me, I don't need to have water in this thing," Popelka explained. "I just need to have a bed, a bank and a high water mark. Start thinking about your pastures and farm fields. We have seasonal erosion in farm fields, dry areas in pastures where that could easily apply. It can flow into anoth- er water, then another water and then hit the navigable water." Popelka maintains that whether intentional or not, what EPA classifies as mis- understandings won't matter once this administration is gone and another one is in- terpreting the rule, or if it By Donna Sullivan, Editor Ramona rancher Tracy Brunner, who serves as vice president for National Cat- tlemen's Beef Association (NCBA), addressed his peers at the WIBW Radio Beef Producers Information Seminar during the Flint Hills Beef Fest on August 22. Brunner outlined some of the work NCBA is doing in Washington D.C. on be- half of ranchers, as well as their efforts in communicat- ing with large customers such as McDonald's and WalMart, and the consuming public. "Our carbon footprint is not nearly as great as what was once indicated," he said. "Cattle for the most part are not consumers of natural re- sources, but simply recy- clers and are part of an on- going ecological cycle." While the regeneration of re- sources is something cattle- men are familiar with, Brun- ner acknowledged that most of the general public, as well as corporate customers and the boards they deal with, are not. "We've invested in sustainability research, and we disseminate that infor- mation to our major cus- tomers, like McDonald's and WalMart, that get ques- tions and pressure from their customers. So we do a serv- ice to the industry and to them as well, finding infor- mation and sharing it with them," he said. Issues in management is another area Brunner says NCBA works diligently. Cit- ing "the cow that stole Christmas" in 2003, when a case of bovine spongiform encephalopathy (BSE) was discovered in the United States, Brunner pointed out that thanks to a contingency plan that had been devel- oped and went into effect al- most immediately, no drop in beef demand occurred. "Information was dissemi- nated and the safety of the beef supply was assured and that message was conveyed throughout the country," he said. NCBA receives funding from the beef check-off when the state beef councils collect fifty cents of each dollar assessed and sends it to the national program. Brunner says this allows the money to be leveraged for more effectiveness. Implemented in 1985 at $1 per head, Brunner says there are many who believe it's time to raise that amount. "I can only ask you, what kind of business would raise their prices to their cus- tomers 200-300 percent without some corresponding increase in its investment, not only in research and pro- motion, but also to at least stabilize that demand?" he asked. "Polling consistently indicates that 70-75-80 per- cent of cattlemen endorse and support the work of the beef check-off. Will cattle- men allow a small minority to hold back their invest- ment in their future? I think not." Brunner explained that other issues NCBA is work- ing on are the Waters of the United States (WOTUS) rule that EPA has proposed, which he called exponential government over-reach that is too restrictive and costly. "It's an effort to rule by ad- ministrative order, circum- venting elected representa- tive government, unilateral- ly writing the law," he said. "It's not for the common good, but I believe in the in- terest of central control purely for the sake of power." The Endangered Species Act is another subject that The Rezac Land and Livestock team pens their calves in the penning event at the Flint Hills Beef Fest Ranch Rodeo. The team was made up of Jay Rezac, Russell Rezac, Corey Lundberg and Tyrel McClintock. Twelve teams competed in the rodeo in events that included penning, mugging, doctoring and cow milking. Buck Creek and Robbins Ranch took first place in the rodeo with Lonesome Pine Ranch taking second and Scribner Ranch, third. Photo by Ken Sullivan Cowboys compete at Flint Hills Beef Fest Brunner describes NCBA ef- forts during Flint Hills Beef Fest Popelka outlines concerns with proposed WOTUS rule Aaron Popelka, vice president of legal and governmental affairs for Kansas Livestock Association, described industry concerns over EPA's proposed WOTUS rule. Continued on page 3 Tracy Brunner, vice presi- dent for National Cattle- men's Beef Association (NCBA) discussed the work of NCBA during the Beef Producers Informa- tion Seminar at Flint Hills Beef Fest. Continued on page 6

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