[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]



 
                   A REVIEW OF THE INTERPRETIVE RULE
 REGARDING THE APPLICABILITY OF CLEAN WATER ACT AGRICULTURAL EXEMPTIONS

=======================================================================

                                HEARING

                               BEFORE THE

                 SUBCOMMITTEE ON CONSERVATION, ENERGY,
                              AND FORESTRY

                                 OF THE

                        COMMITTEE ON AGRICULTURE
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             SECOND SESSION

                               __________

                             JUNE 19, 2014

                               __________

                           Serial No. 113-14


          Printed for the use of the Committee on Agriculture
                         agriculture.house.gov


                                 ______

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                        COMMITTEE ON AGRICULTURE

                   FRANK D. LUCAS, Oklahoma, Chairman

BOB GOODLATTE, Virginia,             COLLIN C. PETERSON, Minnesota, 
    Vice Chairman                    Ranking Minority Member
STEVE KING, Iowa                     MIKE McINTYRE, North Carolina
RANDY NEUGEBAUER, Texas              DAVID SCOTT, Georgia
MIKE ROGERS, Alabama                 JIM COSTA, California
K. MICHAEL CONAWAY, Texas            TIMOTHY J. WALZ, Minnesota
GLENN THOMPSON, Pennsylvania         KURT SCHRADER, Oregon
BOB GIBBS, Ohio                      MARCIA L. FUDGE, Ohio
AUSTIN SCOTT, Georgia                JAMES P. McGOVERN, Massachusetts
SCOTT R. TIPTON, Colorado            SUZAN K. DelBENE, Washington
ERIC A. ``RICK'' CRAWFORD, Arkansas  GLORIA NEGRETE McLEOD, California
SCOTT DesJARLAIS, Tennessee          FILEMON VELA, Texas
CHRISTOPHER P. GIBSON, New York      MICHELLE LUJAN GRISHAM, New Mexico
VICKY HARTZLER, Missouri             ANN M. KUSTER, New Hampshire
REID J. RIBBLE, Wisconsin            RICHARD M. NOLAN, Minnesota
KRISTI L. NOEM, South Dakota         PETE P. GALLEGO, Texas
DAN BENISHEK, Michigan               WILLIAM L. ENYART, Illinois
JEFF DENHAM, California              JUAN VARGAS, California
STEPHEN LEE FINCHER, Tennessee       CHERI BUSTOS, Illinois
DOUG LaMALFA, California             SEAN PATRICK MALONEY, New York
RICHARD HUDSON, North Carolina       JOE COURTNEY, Connecticut
RODNEY DAVIS, Illinois               JOHN GARAMENDI, California
CHRIS COLLINS, New York
TED S. YOHO, Florida
VANCE M. McALLISTER, Louisiana

                                 ______

                      Nicole Scott, Staff Director

                     Kevin J. Kramp, Chief Counsel

                 Tamara Hinton, Communications Director

                Robert L. Larew, Minority Staff Director

                                 ______

           Subcommittee on Conservation, Energy, and Forestry

                 GLENN THOMPSON, Pennsylvania, Chairman

MIKE ROGERS, Alabama                 TIMOTHY J. WALZ, Minnesota, 
BOB GIBBS, Ohio                      Ranking Minority Member
SCOTT R. TIPTON, Colorado            GLORIA NEGRETE McLEOD, California
ERIC A. ``RICK'' CRAWFORD, Arkansas  ANN M. KUSTER, New Hampshire
REID J. RIBBLE, Wisconsin            RICHARD M. NOLAN, Minnesota
KRISTI L. NOEM, South Dakota         MIKE McINTYRE, North Carolina
DAN BENISHEK, Michigan               KURT SCHRADER, Oregon
VANCE M. McALLISTER, Louisiana       SUZAN K. DelBENE, Washington

                                  (ii)


                             C O N T E N T S

                              ----------                              
                                                                   Page
Peterson, Hon. Collin C., a Representative in Congress from 
  Minnesota, submitted information...............................   103
Thompson, Hon. Glenn, a Representative in Congress from 
  Pennsylvania, opening statement................................     1
    Prepared statement...........................................     3
    Submitted material:
        Letter from Agribusiness Association of Iowa, et al......    85
        382A--Fence (standard wire)..............................    87
        AL Job Sheet No. AL382-1.................................    94
Walz, Hon. Timothy J., a Representative in Congress from 
  Minnesota......................................................     4
    Submitted letter.............................................   108

                               Witnesses

Bonnie, Robert, Under Secretary for Natural Resources and 
  Environment, U.S. Department of Agriculture, Washington, D.C...     6
    Prepared statement...........................................     7
Parrish, Don, Senior Director, Regulatory Relations, American 
  Farm Bureau Federation, Washington, D.C........................    32
    Prepared statement...........................................    33
Fabin, Andy, Producer, Fabin Bros. Farms, Indiana, PA; on behalf 
  of National Cattlemen's Beef Association; Pennsylvania 
  Cattlemen's Association........................................    55
    Prepared statement...........................................    57
Bowling, Chip, First Vice President, National Corn Growers 
  Association, Newburg, MD.......................................    62
    Prepared statement...........................................    63
Kovarovics, Scott, Executive Director, Izaak Walton League of 
  America, Inc., Gaithersburg, MD................................    68
    Prepared statement...........................................    70

                           Submitted Material

Moyer, Steve, Vice President of Government Affairs, Trout 
  Unlimited, submitted letter....................................   109
Wenger, Paul, President, California Farm Bureau Federation, 
  submitted statement............................................   111


                   A REVIEW OF THE INTERPRETIVE RULE

 REGARDING THE APPLICABILITY OF CLEAN WATER ACT AGRICULTURAL EXEMPTIONS

                              ----------                              


                        THURSDAY, JUNE 19, 2014

                  House of Representatives,
        Subcommittee on Conservation, Energy, and Forestry,
                                  Committee on Agriculture,
                                                   Washington, D.C.
    The Subcommittee met, pursuant to call, at 10:05 a.m., in 
Room 1300 of the Longworth House Office Building, Hon. Glenn 
Thompson [Chairman of the Subcommittee] presiding.
    Members present: Representatives Thompson, Gibbs, Tipton, 
Crawford, Ribble, Noem, Benishek, Walz, Negrete McLeod, Kuster, 
Nolan, McIntyre, Schrader, DelBene, and Peterson (ex officio).
    Staff present: Brent Blevins, John Goldberg, Josh Maxwell, 
Nicole Scott, Patricia Straughn, Skylar Sowder, Anne Simmons, 
Keith Jones, Liz Friedlander, Mary Knigge, John Konya, and 
Riley Pagett.

 OPENING STATEMENT OF HON. GLENN THOMPSON, A REPRESENTATIVE IN 
                   CONGRESS FROM PENNSYLVANIA

    The Chairman. Good morning, everybody. This hearing of the 
Subcommittee on Conservation, Energy, and Forestry entitled, A 
Review of the Interpretive Rule Regarding the Applicability of 
the Clean Water Act Agricultural Exemptions, will come to 
order.
    I want to welcome everyone this morning. Good morning. 
Welcome to today's Conservation, Energy, and Forestry 
Subcommittee hearing. One of the foremost issues facing 
agriculture today is newly proposed rules released by the 
Environmental Protection Agency and the U.S. Corps of Engineers 
concerning the Clean Water Act's definition of the waters of 
the United States. Now, we have heard much publicly from the 
Obama Administration about their perceived need for this rule, 
and there have also been many strong concerns voiced from 
stakeholders and Members of Congress, including myself and 
several Members of this Subcommittee. Many experts have 
suggested that upon closer review, the specifics of the new 
rule appear to be nothing more than a power grab meant to 
expand the jurisdiction of these two agencies into areas the 
Federal Government does not currently have a foothold.
    However, an important related issue that has not received 
as much attention is the new Interpretive Rule known as the IR, 
and the Memorandum of Understanding between the EPA, the Army 
Corps and the USDA. This document was released concurrently 
with the Waters of the U.S. proposed rule. Now, the 
Interpretive Rule, which was enacted immediately, presumes to 
offer farmers a dredge-and-fill permit exemption for normal 
farming, ranching and silvicultural activities under section 
404 of the Clean Water Act if, and only if, those farmers 
comply with conservation guidelines that until this time have 
historically been voluntary.
    Now, this agreement identifies 56 conservation practice 
standards established by the National Resources Conservation 
Service and will automatically meet the agriculture exemption 
for normal farming activities conducted in the waters of the 
United States unless you are receiving government assistance. 
The NRCS standards have always been a voluntary guideline for a 
farmer or rancher in jurisdictional waters. But under this 
enacted rule, a producer must now meet a federally mandated 
standard. Failure to do so would create a situation where 
farmers must obtain permits under the Clean Water Act if the 
EPA or the Army Corps agree to authorize them or face stiff 
penalties. In fact, the enforcement actions under the Clean 
Water Act could cost upwards of $37,000 per day.
    Until this point, the NRCS has always had sole authority to 
design and amend conservation practice guidelines. However, 
under the new Memorandum of Understanding, the EPA and the Army 
Corps of Engineers are free at any time to amend the list of 
conservation practices that would qualify for these limited 
exemptions.
    It is beyond my comprehension why these agencies have not 
chosen to include their list of 56 practices in the regulation. 
Doing so would guarantee regulatory transparency and provide 
producers input if or when the agencies chose to restrict the 
list of practices that would qualify for an exemption.
    The Obama Administration has said that the Interpretive 
Rule is intended to clarify what normal farming practices can 
be exempt from dredge-and-fill permits on a water of the United 
States under the Clean Water Act. The Administration has been 
very adamant to point out that they do not intend for this to 
be a power grab or expansion of authority but merely a way to 
eliminate ambiguity for producers and landowners. However, we 
will hear from farmers and other experts today that this list 
of practices maybe unnecessary. Many producers believe that 
listing these approved conservation practices provides nothing 
that the producers don't already have and only invites more 
Federal regulations. And while the Obama Administration has 
created this list of supposed exemptions under the dredge-and-
fill permitting, farmers still have no protection under this 
proposal from the numerous other mandates of the Clean Water 
Act including pesticide application permits under section 402.
    Under the Clean Water Act proposal, more farmers and 
ranchers will be captured under the Federal Government's 
jurisdiction. The new exemptions agreed to by the EPA, the Army 
Corps of Engineers and USDA have only created a new set of 
government regulatory standards that farmers and ranchers must 
now meet.
    I hope today's testimony may shed light on the reasoning 
for the Administration's Interpretive Rule and for the 
Memorandum of Understanding and will allow our witnesses to 
voice their concerns on this issue.
    Last week the Administration announced an extension on the 
comment period for both the waters of the United States 
proposed rule and the Interpretive Rule. It is my hope that 
public comment combined with this hearing and other 
Congressional action will persuade the Administration to 
withdraw the current proposed waters of the United States and 
Interpretive Rules and start from scratch.
    Now, I thank each of our witnesses for being here today and 
I look forward to hearing your testimony.
    [The prepared statement of Mr. Thompson follows:]

Prepared Statement of Hon. Glenn Thompson, a Representative in Congress 
                           from Pennsylvania

    Good morning. I want to welcome everyone to today's Conservation, 
Energy, and Forestry Subcommittee hearing.
    One of the foremost issues facing agriculture today is the newly 
proposed rules released by the Environmental Protection Agency (EPA) 
and the U.S. Army Corps of Engineers concerning the Clean Water Act's 
definition of the waters of the United States.
    We have heard much publicly from the Obama Administration about 
their perceived need for this rule.
    There have also been many strong concerns voiced from stakeholders 
and Members of Congress, including myself and several Members of this 
Subcommittee.
    Many experts have suggested that, upon closer review, the specifics 
of the new rule appear to be nothing more than a power grab meant to 
expand the jurisdiction of these two agencies into areas the Federal 
Government does not currently have a foothold.
    However, an important related issue that has not received as much 
attention is the new Interpretive Rule--known as the ``IR''--and the 
Memorandum of Understanding (MOU) between EPA, the Army Corps, and the 
USDA.
    This document was released concurrently with the Waters of the U.S. 
proposed rule.
    The Interpretive Rule, which was enacted immediately, presumes to 
offer farmers a ``dredge and fill'' permit exemption for normal 
farming, ranching, and silvicultural activities under section 404 of 
the Clean Water Act, if--and only if--those farmers comply with 
conservation guidelines that until this time have historically been 
voluntary.
    This agreement identifies 56 conservation practice standards 
established by the Natural Resources Conservation Service (NRCS) that 
would automatically meet the agriculture exemption for normal farming 
activities conducted in waters of the U.S.
    Unless you are receiving government assistance, the NRCS standards 
have always been a voluntary guideline for a farmer or rancher in 
jurisdictional waters.
    But under this enacted rule, a producer must now meet a federally 
mandated standard.
    Failure to do so, would create a situation where farmers must 
obtain permits under the Clean Water Act--if the EPA or Corps agree to 
authorize them--or face stiff penalties.
    In fact, the enforcement actions under the Clean Water Act could 
cost upwards of $37,000 per day.
    Until this point, the NRCS has always had sole authority to design 
and amend conservation practice guidelines.
    However, under the new Memorandum of Understanding, EPA and the 
Corps are free at any time to amend the list of conservation practices 
that would qualify for these limited exemptions.
    It is beyond my comprehension why these agencies have not chosen to 
include their list of 56 practices in regulation.
    Doing so would guarantee regulatory transparency, and provide 
producers' input, if or when the agencies choose to restrict the list 
of practices that would qualify for an exemption.
    The Obama Administration has said the Interpretive Rule is intended 
to clarify what normal farming practices can be exempt from dredge and 
fill permits on a water of the U.S. under the Clean Water Act.
    The Administration has been very adamant to point out that they do 
not intend for this to be a power grab or expansion of authority, but 
merely a way to eliminate ambiguity for producers and landowners.
    However, we will hear from farmers and other experts today that 
this list of practices may be unnecessary.
    Many producer groups believe that listing these approved 
conservation practices provides nothing that producers don't already 
have, and only invites more Federal regulation.
    And while the Obama Administration has created this list of 
supposed exemptions under dredge and fill permitting, farmers still 
have no protection under this proposal from the numerous other mandates 
of the Clean Water Act--including pesticide application permits under 
section 402.
    Under the Clean Water Act proposal, more farmers and ranchers will 
be captured under the Federal Government's jurisdiction.
    The new exemptions agreed to by EPA, the Corps and USDA have only 
created a new set of government regulatory standards that farmers and 
ranchers must meet.
    I hope today's testimony may shed light on the reasoning for the 
Administration's Interpretive Rule and the MOU and allow our witnesses 
to voice their concerns on this issue.
    Last week the Administration announced an extension on the comment 
period for both the Waters of the U.S. proposed rule and the 
Interpretive Rule.
    It is my hope that public comments, combined with this hearing and 
other Congressional action, will persuade the Administration to 
withdraw the current proposed Waters of the U.S. and Interpretive Rules 
and start from scratch.
    I thank each of our witnesses for being here today and I look 
forward to hearing your testimony.
    I now recognize the Ranking Member for his opening statement.

    The Chairman. I now recognize my good friend, the Ranking 
Member, for his opening statement.

OPENING STATEMENT OF HON. TIMOTHY J. WALZ, A REPRESENTATIVE IN 
                    CONGRESS FROM MINNESOTA

    Mr. Walz. Well, thank you, Chairman Thompson. I want to 
thank my friend also for giving us this opportunity to discuss 
the issue of clean water, the impact on agriculture and 
conservation and our rural communities. Thank you also, 
Chairman, for putting together a very strong panel. I am 
appreciative. Under Secretary Bonnie, thank you for being here 
and helping give your input and your perspective on this, and 
to the witnesses who are here. It is a strong panel 
representing producers as well as the conservation communities, 
and for that, I am grateful.
    We are here today to review the Interpretive Rule, NRCS's 
role and the applicability of the Clean Water Act agricultural 
exemptions. The premise of the Interpretive Rule is 
conservation practices which benefit water quality and remain 
consistent with NRCS technical standards should be exempt from 
Clean Water Act 404(a) permitting. I think the central question 
for us in this discussion will be whether or not the 
Interpretive Rule incentivizes conservation practices and 
whether those practices actually enhance water quality while at 
the same time providing clarity to producers who deserve 
certainty.
    We all know that this is a business where there are lots of 
uncertainties. As we speak now, much of my district is 
underwater, and in one county alone, we have lost 100,000 acres 
of soybean and corn crops, and so those uncertainties and the 
impacts of water, lack thereof, too much and how those 
producers are able to farm their land is critical.
    Conservation is this Subcommittee's bread and butter too. 
Members of our staff worked tirelessly throughout the farm bill 
process to craft policies that incentivize conservation, 
promotes sustainable practices and protect our watersheds. We 
have proven that we don't have to fall victim to the false 
dichotomy of conservation over agriculture. We found solid 
conservation practices can and do lead to stronger economic 
conditions. We have discussed the environmental and economic 
benefits of conservation practices to farmers many times here. 
Oftentimes it is the family farmer who is the best 
conservationist and have to be because their most valuable 
asset is the land.
    Sportsmen and farmers have had a very close relationship, 
and we have witnessed this throughout the farm bill process. 
Many farmers are sportsmen, and many sportsmen hunt on private 
land owned by farmers. Hunting and fishing and general outdoor 
recreation is a prime example and one of the reasons we invited 
representatives from the Izaak Walton League here. Forty-seven 
million Americans hunt and fish. Outdoor recreation is a nearly 
$700 billion industry and supports well over a million jobs. 
This industry relies on clean water and productive wetlands, 
but it also relies on a collaborative working relationship with 
the agricultural sector and private landowners.
    I don't have to look any further than my own district to 
see the significance of this relationship. I have farmers in 
southeast Minnesota who use NRCS technical assistance and 
leverage EQIP dollars to improve management practices, increase 
overall productivity on their lands, clean up streams and open 
those streams to trout fishermen. Now those very streams are 
some of the best in the upper Midwest, and sportsmen flock from 
surrounding states to fish those streams as well as the 
producer producing more off the land. Everyone is a winner when 
we craft good policy which incentivizes conservation practices. 
The sportsmen and agriculture sector have worked together in 
the past to achieve significant victories for both conservation 
and production agriculture. I am optimistic that in the spirit 
of pragmatism that both groups demonstrated throughout the farm 
bill debate will continue to guide future policy discussions.
    I look forward to discussing the issue of the Interpretive 
Rule, the impact it is going to have on both producers and 
conservation in a good-faith effort to make sure that 
conservation is incentivized and disagreements are resolved.
    With that, I yield back, Mr. Chairman.
    The Chairman. I thank the gentleman.
    The chair would request that other Members submit their 
opening statements for the record so the witnesses may begin 
their testimony to ensure there is ample time for questions.
    I would like to welcome our first witness to the table, Mr. 
Robert Bonnie. Mr. Under Secretary, thank you for being here. 
Mr. Bonnie serves as the Under Secretary for Natural Resources 
and Environment with the USDA.
    Mr. Bonnie, please begin when you are ready.

    STATEMENT OF ROBERT BONNIE, UNDER SECRETARY FOR NATURAL 
                RESOURCES AND ENVIRONMENT, U.S.
          DEPARTMENT OF AGRICULTURE, WASHINGTON, D.C.

    Mr. Bonnie. Good morning, Mr. Chairman and Ranking Member 
Walz. I appreciate the opportunity to be here today.
    Thank you for the opportunity to be here today to discuss 
the Interpretive Rule, which expands the number of agricultural 
exemptions from permitting under the Clean Water Act.
    The Interpretive Rule was released by the Environmental 
Protection Agency at the same time that the proposed rule on 
jurisdiction of the Clean Water Act was released for public 
comment. Today I would like to describe the Interpretive Rule 
for the Subcommittee, USDA's role in helping to shape it, and 
the anticipated benefits for agriculture, conservation and the 
nation's waters.
    The Interpretive Rule is EPA's interpretation of the 
existing exemption for normal farming, ranching and 
silvicultural practices under the Clean Water Act related to 
discharges of dredged and fill material. Under current law, 
normal farming activities are exempt when they are part of an 
established farming operation and do not change the reach or 
use of waters. Normal farming includes things like plowing, 
cultivating, minor drainage, harvesting, and upland soil and 
water conservation practices. The Interpretive Rule does not 
affect any of those existing agricultural exemptions. Indeed, 
it adds to them, making even more room for agriculture. This is 
an important point because there has been some criticism that 
the Interpretive Rule might narrow the exemptions for 
agriculture. It doesn't, and the Interpretive Rule itself is 
crystal clear on this point. The rule text says that the rule 
``does not affect in any manner the scope of agriculture, 
silviculture and ranching activities currently exempt from 
permitting.''
    With the Interpretive Rule, now an additional 56 
conservation practices from stream crossings to wetland 
enhancement carried out in waters of the United States are no 
longer subject to permitting requirements. Producers can follow 
the conservation practice standard and implement practices on 
their own. They don't need to notify the Army Corps or the EPA. 
They don't need to ask for review or certification of the 
exempt practice from NRCS or anyone else, and they don't need 
to apply for a permit. Producers may want to get technical help 
from NRCS if they have questions about a conservation practice 
but it is not a requirement. And use of the exemption is 
entirely voluntary.
    In addition, the Interpretive Rule is based on 
implementation of NRCS's conservation practices, which have 
proven to be very popular with producers as evidenced by the 
strong interest in USDA farm bill conservation programs, all of 
which are tied to implementation of those conservation 
practices. The Interpretive Rule is about increasing options 
and promoting voluntary conservation to benefit agriculture and 
water quality.
    Let me tell you a little bit about USDA's role in the 
development of the Interpretive Rule. USDA worked closely with 
EPA and the Army Corps to find new opportunities and 
flexibility for agriculture that fit with producers' 
operational objectives and also provide water quality benefits. 
USDA reviewed its over 160 NRCS conservation practices and 
evaluated whether, first, those conservation practices might be 
carried out in waters of the United States, and second, the 
conservation practice is designed to enhance and protect water 
quality. USDA also entered into a Memorandum of Understanding 
with EPA and the Army to guide how the agencies will work 
together to manage the list of exempted conservation practices. 
At a minimum, the agencies will review the risk annually to see 
how the exemptions are working and if changes are needed. The 
MOU also clarifies the role and responsibilities of each 
agency.
    NRCS's role remains the same as it has been for over 75 
years. We work with farmers, ranchers and other land managers 
to assist with the voluntary efforts to plan and install 
conservation practices that meet their needs and objectives. 
NRCS has sole responsibility for developing, reviewing and 
revising its conservation practice standards to guide that work 
with producers.
    We are already seeing positive examples such as in North 
Carolina where a stream channel restoration project is now 
moving forward. There, landowners who are following NRCS 
practice standards to implement the stream channel restoration 
project are now able to move forward without notifying the Army 
Corps or obtaining a permit. As a result, the producers more 
quickly restore the channel while foregoing the costs of a 
permit. Further, NRCS staff time is freed up to provide direct 
technical assistance to other producers.
    The Interpretive Rule signals a new opportunity for 
recognizing the value of producers' conservation efforts. There 
is no sector of the economy that cares more about water than 
agriculture. America's farm and ranch families make decisions 
every day that help to improve and secure our water resources. 
The Interpretive Rule will make those decisions and actions a 
little easier and produce a substantial benefit for farms and 
ranches, their communities and the nation as a whole.
    Mr. Chairman, this concludes my statement. Thank you again 
for the opportunity to be here today. I am happy to answer any 
questions.
    [The prepared statement of Mr. Bonnie follows:]

    Prepared Statement of Robert Bonnie, Under Secretary for Natural
Resources and Environment, U.S. Department of Agriculture, Washington, 
                                  D.C.

    Good morning, Chairman Thompson, Ranking Member Walz, and Members 
of the Subcommittee. Thank you for the opportunity to be here today to 
discuss the Interpretive Rule (IR) regarding the applicability of 
certain agricultural exemptions from section 404 permitting under the 
Clean Water Act (CWA).
    The IR was released by the U.S. Environmental Protection Agency 
(EPA) and the U.S. Department of the Army, Civil Works (Army) at the 
same time that the agencies released their proposed rule on the 
jurisdiction of the CWA. While the IR stands on its own, it has been 
viewed in the context of the CWA proposed rule, resulting in widely 
divergent perspectives on the impact and role of the IR. Today, I would 
like to describe the IR, USDA's role in helping to shape the IR, and 
the benefits USDA anticipates for agriculture, conservation, and the 
nation's waters.

The Interpretive Rule
    When a Federal agency provides a statement of how it interprets a 
statute, that statement is called an interpretive rule. The IR relates 
to the existing exemption for normal farming, ranching, and 
silvicultural practices under section 404(f)(1)(A) of the CWA regarding 
discharges of dredged and fill material into waters of the United 
States. With the IR, EPA and Army are recognizing shifts in agriculture 
since the 1970s when the CWA came into effect, and clarifying that 
certain conservation activities in waters of the U.S. following Natural 
Resources Conservation Service (NRCS) conservation practice standards 
are also exempt from CWA section 404 dredge and fill permitting 
requirements as ``normal farming'' activities.
    The CWA exempts normal farming, ranching, and silvicultural 
activities, such as plowing, cultivating, minor drainage, and 
harvesting for the production of food, fiber, and forest products, and 
upland soil and water conservation practices when they are part of an 
established farming operation and do not change use of waters, and 
where the flow or circulation of those waters may not be impaired or 
the reach reduced. The IR clarifies that this existing exemption also 
includes 56 conservation practices, from stream crossings to wetland 
enhancement, which can occur in waters of the U.S. To be exempt, these 
practices must be implemented in accordance with the applicable NRCS 
conservation standards.
    Specifically, the IR provides that: ``Normal farming necessarily 
includes conservation and protection of soil, water, and related 
resources in order to sustain agricultural productivity along with 
other benefits to environmental quality and continued economic 
development. `Upland soil and water conservation practices' are 
explicitly identified in the statute as `normal' farming activities, 
and conservation activities within the waters of the U.S. that includes 
discharges in waters of the U.S. and that are designed to protect and 
enhance the waters of the U.S. have been determined to be of 
essentially the same character.'' [emphasis added] Just to be clear, 
the IR clarifies that the 56 additional agriculture conservation 
practices fall under the statutory exemption and do not require a 
section 404 permit.
    The IR exemption is ``self-implementing'' meaning that producers do 
not need to notify the regulatory agencies or seek review or 
certification. This means that producers can follow the conservation 
practice standard and implement practices on their own, without NRCS 
involvement, and not be required to seek a 404 permit. Producers may 
choose to seek technical advice or assistance from NRCS, conservation 
districts, technical service providers, or others with agricultural 
conservation expertise to implement covered practices, but they are not 
required to do so. Further, there is no requirement that a producer 
choose to exercise the exemption. They may consult with the Army 
regarding how the CWA applies to their activities if that is their 
preference. The benefit of the IR is that it provides clarity for 
agricultural producers, promotes conservation, and benefits agriculture 
and water resources.

USDA Role in the IR
    USDA worked closely with EPA and Army to evaluate opportunities to 
clarify the type of practices that occur in waters of the U.S. that may 
involve a discharge of dredge or fill material and result in water 
quality benefits, so that producers can more easily implement 
conservation measures that achieve their operational objectives.
    USDA assisted EPA and Army by identifying NRCS conservation 
practices to be considered as exemptions through the IR. NRCS has over 
160 conservation practices, which are designed and developed to assist 
producers in their voluntary conservation efforts to address their 
natural resource and operational objectives. NRCS conservation practice 
standards are science-based--drawing upon research, academic, and 
agricultural expertise. The standards are reviewed and updated on a 
scheduled basis, and are subject to public notice and comment to ensure 
wide opportunity for input. Final standards reflect public input and 
the best science--basic and applied--at the time.
    In recommending specific practices to be exempt through the IR, 
NRCS evaluated if:

   The conservation practice could be applied in waters of the 
        United States (i.e., it is not entirely an upland-located 
        conservation practice); and

   The conservation practice is designed to enhance and protect 
        water quality.The resulting list of practices complements the 
        previously recognized exemptions for normal farming and 
        ranching activities and upland soil and water conservation 
        practices and provides new flexibility for agriculture.

    A Memorandum of Understanding (MOU) signed by EPA, Army, and USDA 
outlines how the three agencies will collaborate on maintaining and 
managing the list of conservation practices exempted under the IR. The 
cooperating agencies will convene on at least an annual basis to review 
the practice list and decide on any modifications to the list to ensure 
the rule continues to provide additional clarity to the agriculture 
community while achieving water quality benefits.
    The MOU also clarifies the roles and responsibilities of each 
agency to ensure that there is a clear distinction between the 
regulatory and technical assistance responsibilities. NRCS 
responsibilities outlined in the MOU focus on working with farmers, 
ranchers, and other land managers to assist with their voluntary 
efforts to plan and install conservation practices that meet their 
needs and objectives. The development, review, and revision of the NRCS 
conservation practice standards themselves are the sole responsibility 
of NRCS. Finally, I want to make clear that the IR and the MOU in no 
way affect the voluntary nature of NRCS work with producers in 
implementing conservation practices and programs.

Benefits for Agriculture
    The IR signals a new opportunity for recognizing the value of 
producers' conservation efforts across the nation. We know that 
voluntary conservation works and that it is delivering benefits for 
agriculture and natural resources. USDA's Conservation Effects 
Assessment Project (CEAP) provides ample evidence of the water quality 
benefits of conservation practices. These scientific assessments are 
borne out by evidence on the ground. Consider the recent Southwest Farm 
Press report that highlights:

          ``Voluntary conservation practices place Oklahoma among the 
        water quality elite for another year. Farmers, ranchers and 
        other landowners have helped remove nine more streams from 
        Oklahoma's 303(d) list of impaired streams.''

    The April 3rd IR streamlines the regulatory landscape. For example, 
landowners who are following NRCS practice standards to implement a 
stream channel restoration project in North Carolina are able to move 
forward without going through a notification or permitting process. The 
benefit--they can move more quickly to restore the channel and deliver 
intended water quality benefits, and technical staff time is freed up 
to provide direct technical assistance to other producers.

Conclusion
    Thank you again for this opportunity to discuss the Interpretive 
Rule, which recognizes the value of agricultural conservation efforts 
in benefitting water resources and brings additional flexibility for 
producers. The list of successes will grow as the agencies and 
producers gain more understanding of the opportunity provided by the 
IR. There is no sector of the economy that cares more about water than 
agriculture. America's farm and ranch families make decisions every day 
that help to protect and ensure our water resources. The IR will make 
those decisions and actions a little easier and produce a benefit for 
farms and ranches, their communities, and the nation as a whole. USDA 
looks forward to continuing to work with EPA and Army to achieve 
positive outcomes for agriculture, conservation, and the nation's 
waters.
    Mr. Chairman, this concludes my statement. Thank you again for the 
opportunity to be here today and I will be happy to answer any 
questions you may have.

    The Chairman. Well, thank you, Mr. Bonnie.
    The chair would like to remind Members that they will be 
recognized for questioning in the order of seniority for 
Members who were present at the start of the hearing. After 
that, Members will be recognized in order of their arrival, and 
I appreciate the Members' understanding. I now take the liberty 
of recognizing myself for 5 minutes of questioning.
    Once again, Mr. Bonnie, thank you for being here today. 
There is quite a bit of concern and uncertainty among the 
industry with this issue, and we are hoping to achieve some 
level of clarity today.
    The EPA has issued the Interpretive Rule to clarify that a 
long list of conservation practices are exempt from dredge-and-
fill permit requirements under the Clean Water Act section 404 
exemption for normal farming and ranching activities so long as 
the practices comply with NRCS's standards. So as I understand 
it, a farmer only qualifies for any one of these exemptions if 
the farmer follows NRCS's standards. Is that correct?
    Mr. Bonnie. That is correct.
    The Chairman. Now, how does that compare to the current 
law?
    Mr. Bonnie. Under current law, there is no presumption that 
not following those standards is somehow a violation of the 
Clean Water Act. What we have tried to do is provide clarity 
that these 56 practices are exempt so that landowners have 
certainty that they can move forward with those under the Clean 
Water Act without having to seek a permit.
    The Chairman. So must a farmer currently meet NRCS 
standards to qualify for normal activities that are exempt 
under section 404? Do they have to meet those standards in 
order to qualify for----
    Mr. Bonnie. For this particular--under the Interpretive 
Rule for this particular--for the Interpretive Rule, yes, they 
have to meet those standards.
    The Chairman. So we have actually gone from voluntary to 
compulsory?
    Mr. Bonnie. The Interpretive Rule is entirely voluntary. It 
doesn't require any landowner to undertake any of these 
activities. If they want to undertake these activities, we have 
given them an exemption, clarity that there is an exemption for 
doing that.
    The Chairman. So if we don't want them to experience a 
world of hurt, then they will have to comply?
    Mr. Bonnie. Well, I am not sure I would say that our 
conservation practices are a world of hurt.
    The Chairman. Well, if they don't want to be facing the 
consequences of the Clean Water Act and all of its--up to 
$37,000 fines a day, the presence on the farm, the interruption 
of farming activities, interruption of providing affordable, 
high-quality and safe food for the nation, if they don't want 
to, it really is compulsory to--what was voluntary is now 
mandatory.
    Mr. Bonnie. I disagree, with all due respect, with the 
characterization. I think what we have done is provide a menu 
of activities that they can undertake and have clarity that 
they won't be in violation of the Act.
    The Chairman. I think that is going to be the topic of 
today's discussion, so we will get into it more.
    I have a little bit of time left. Is it true that any or 
all of these exemptions can be changed, curtailed or even 
eliminated by NRCS without written notice to the public or 
without public input?
    Mr. Bonnie. So our plan and the MOU lays this out, to 
review these exemptions annually with EPA and the Corps. We 
take this MOU very seriously. We didn't enter into it lightly, 
and we are going to do the best we can to not only maintain the 
56 exemptions that are in there but look for opportunities to 
add to it.
    The Chairman. So what you are telling me is, you are going 
to take the complexities of three major players--your agency, 
the Army Corps of Engineers, the Environmental Protection 
Agency--and they are going to subject to changing this thing on 
at least an annual basis. Is there a--can you tell the 
Committee or submit for the record the process by which the 
NRCS establishes these standards, what input farmers have in 
their development and what happens if farmers disagree with 
NRCS?
    Mr. Bonnie. So we have, over the last several years, have 
heard a lot of input from agriculture on this issue, and one of 
the things we have heard is about the importance of certainty 
and looking for ways to expand exemptions. As we met with the 
EPA and the Corps to discuss the Clean Water Act, that was one 
of our primary concerns, and in working with those two 
agencies, we looked at practices that we thought both are 
practices that can be done in waters of the United States and 
that provided water quality benefits.
    The Chairman. Well, I find myself in an unusual situation 
because I am a fan of NRCS. I was just with a large group of 
your employees yesterday talking to them. But I find today that 
in this situation--I think you are sincere when you say you 
take farmers' interests, because you put boots on the ground. 
But with this Interpretive Rule, there was no public comment 
period, to the best of my knowledge, and there wasn't even 
notice. It went into effect immediately upon its publishing and 
so somehow we have veered away from the NRCS that I am 
accustomed to.
    My time has expired. We are going to try to stay within the 
limit so we can give everybody lots of time for questions, and 
I am pleased to yield to my good friend, the Ranking Member--
oh, I am sorry. I am going to yield to the Ranking Member of 
the full Committee, Mr. Peterson from Minnesota.
    Mr. Peterson. Thank you, Mr. Chairman. I appreciate it. I 
appreciate your holding this hearing.
    Mr. Bonnie, it has been told to me that nothing is going to 
change here and that we are going to include all of the 
practices that are currently being done. So apparently under 
this deal, the practice no. 554 water drainage management is 
not listed as a practice, it is something that currently is 
being done. Why was that left off?
    Mr. Bonnie. As I responded earlier, we looked at two 
criteria for these, whether they were water quality benefits 
and as well if they are done in waters of the United States. We 
tried to choose practices that did that. Our hope is that we 
may be able to provide additional practices, going forward.
    Mr. Peterson. But that is going backwards from what we are 
doing now, how do you say that you are covering everything? It 
is not true.
    And my experience out there, since this has come out, is 
the Corps of Engineers has gone off the reservation, and there 
was one meeting where they stood up and said we are going to go 
from navigable waters to all waters in the Prairie Pothole 
Region because we are going to restore all the wetlands. One of 
their people said that. The NRCS has a MOU with the Corps that 
they are going to follow the NRCS determination.
    I have another situation where a guy wants to build a dairy 
farm, and NRCS is willing to permit it and has a mitigation 
situation, which he wants to comply with, and the Corps is 
standing in the way.
    So I don't get this that you say that nothing is going to 
change. In my experience in what is going on out there, that is 
not the case at all, and are things like dikes and levees on 
WRP and wetland easement programs, are they subject to section 
404 permits? How about tiling? I mean, that is what you are 
saying, that they will still be subject to section 404----
    Mr. Bonnie. Not in the----
    Mr. Peterson.--now we are not doing that?
    Mr. Bonnie.--Interpretive Rule but in the proposed rule, 
there is now an exemption for till drainage related to 
groundwater.
    Mr. Peterson. There is?
    Mr. Bonnie. Yes.
    Mr. Peterson. So what is the difference between the 
Interpretive Rule and the----
    Mr. Bonnie. So the Interpretive Rule interprets normal 
farming and ranching and provides clarity that these 56 
practices don't require a permit under section 404.
    Mr. Peterson. Why were these others left off then? Why were 
they left off there and put in this other place?
    Mr. Bonnie. Well, as I mentioned earlier, we followed two 
criteria for which exemptions made the list, and with respect 
to the Corps, as it affects the Interpretive Rule, we are 
committed to having conversations and have already started that 
process with the EPA and the Corps to ensure that they 
understand that there is consistency across the country in how 
we look at the Interpretive Rule.
    Mr. Peterson. Well, I wouldn't hold my breath because the 
Corps in Omaha has a whole different perspective than the Corps 
in St. Paul, and that is something I run into all the time as 
well. What about the dirt piles that are left after you till? 
You know, when you till you get a little bit of dirt on the top 
of the ground. Apparently they are saying that that is 
requiring a permit, the section 404 permit?
    Mr. Bonnie. I don't know the answer to that question. It is 
probably a more suitable question for EPA or the Corps. We 
were--in our conversations around the proposed rule itself, 
again, our emphasis is looking for ways that we could expand 
some of the exemptions for agriculture.
    Mr. Peterson. Well, it seems to me you have left some of 
these things off and we need to--the other thing that concerns 
me is, we had a letter in one situation where out there the 
Corps is telling people that they can't get to this for 8 to 12 
months, and so they are going out there trying to grab more 
jurisdiction and they can't even do the work they have now and 
somehow or another I am going to go explain to people that this 
is better? That dog doesn't hunt, and I just don't see where we 
are getting with this.
    Mr. Bonnie. The commitment I make to you, sir, is that we 
are going to do our best to make sure there is consistency as 
it relates to the Interpretive Rule with how the three agencies 
view it. NRCS is in charge of its own standards. As I noted, no 
landowner has to go get certification or otherwise check in 
with any of the three agencies.
    Mr. Peterson. Well, are you going to guarantee me that we 
are not going to go backwards from all the progress we have 
made in Minnesota with NRCS working with these other agencies 
that what is going on here is not going to move us backwards?
    Mr. Bonnie. I am going to commit to you that we are going 
to do our level best to make sure that is the case.
    Mr. Peterson. And that is what seems like is going on now, 
and that would be a bad outcome.
    Thank you. I yield back.
    The Chairman. The gentleman yields back. I now recognize 
the gentleman from Ohio, Mr. Gibbs, for 5 minutes.
    Mr. Gibbs. Thank you, Mr. Chairman. Thank you for holding 
this important hearing.
    Last week in my Subcommittee, Water Resources under 
Transportation and Infrastructure, we had the Deputy 
Administrator of the EPA, Robert Perciasepe, and Jo-Ellen 
Darcy, the Assistant Secretary for the Army Corps, as well as 
other stakeholders on the panel, and after several rounds of 
questions and two panels, it is safe to say we didn't get our 
questions answered, and it is troubling for farmers and 
ranchers and home builders, everybody. There is a lot of 
uncertainty out there. Also on the proposed rule, it is clear 
that no state EPA has come out in support of it.
    But the Interpretive Rule we are discussing today that was 
effective in March is concerning, and I am concerned about how 
this Interpretive Rule may discourage producers from 
participating in conservation practices due to a mandatory and 
expensive permitting process and lack of clarity.
    I want to follow up on the Chairman's question a little 
bit, and as you stated, Mr. Bonnie, if you are doing a 
conservation practice, one of these 56, and you are in 
compliance working with NRCS, you are exempt. I am looking 
through the list here. Is it safe to say that if a farmer/
producer goes out and is doing a practice like structure of a 
water control or building a fence and has not worked with the 
NRCS or maybe he is just doing it himself, he would not be 
exempt? Is that true?
    Mr. Bonnie. No, they do not have to work with NRCS. As long 
as they follow the practice standard, they are exempt. There is 
no required certification from NRCS or any other agency.
    Mr. Gibbs. Who is the enforcement mechanism?
    Mr. Bonnie. There is no requirement for any landowner to 
check with any Federal agency. All they have to do is follow 
the standard.
    Mr. Gibbs. Well, my concern is with the proposed underlying 
rule, the expansion of waters in the United States, EPA could 
come in and you could say exempt and they could challenge if 
that farmer is not in compliance with NRCS, so that is going to 
be----
    Mr. Bonnie. It doesn't change any of the--anything as it 
relates to the proposed rule but what we would argue is that we 
have provided additional certainty to these 56 practices and 
the landowner will be better off because of that.
    Mr. Gibbs. Well, I guess time will tell, but it is a very 
concerning issue.
    Also, those exemptions, even if you are in compliance with 
NRCS, only exempts you from section 404 permitting. I have a 
bill, H.R. 935, Reducing Regulatory Burdens Act of 2013, about 
NPDES permitting under section 402. My question in there is if 
a farmer is exempt from doing structure or water control on 
this 56 exemption list, exempt under section 404, if they 
expand the waters in the United States, wouldn't they be liable 
under section 402 for permitting and also be liable for 
possible lawsuits?
    Mr. Bonnie. So this doesn't change anything related to 
section 402. As you point out, it is only for section 404. The 
existing exemptions for storm water runoff or irrigation return 
flow still apply for section 402.
    Mr. Gibbs. Especially with the expansion of waters of the 
United States, because currently under the Clean Water Act, 
agriculture had a blanket exemption from the sections 402, 404 
permits but under the rule if they expand jurisdiction, which 
you will hear in the next panel that they are--we heard that 
last week in my committee--then they would be opened up to more 
regulatory burden and possible citizens' lawsuits. Would you 
agree?
    Mr. Bonnie. Potentially, yes.
    Mr. Gibbs. So that is a real concern.
    Also in the rule, in the underlying rule, there is a lot of 
ambiguity and vagueness, and it seems to me that things are 
really stacked on the regulatory side. It gives them the 
flexibility because what I would document as proof, they stated 
in my committee that they would look at things on a case-by-
case basis and gives them the flexibility if they want to 
enforce this or not enforce this, and I could see the attempt 
by USDA here to say we are doing these 56 exemptions but I 
think that there is enough ambiguity in the vagueness in the 
underlying rule that these exemptions don't maybe go to the 
root of what you are trying to do. I really have concerns to 
that, and I think that is an issue that--and I would concur 
with the Chairman that this rule ought to be laid on the table, 
the underlying rule, the proposed rule and the Interpretive 
Rule because I don't think it is helpful. I think we can look 
forward to having less conservation activities on farms because 
of fear of doing anything opens up the door to litigation and 
permitting and delays in getting those permits if they are 
required to get those permits.
    I yield back my time.
    The Chairman. I thank the gentleman and now recognize the 
Ranking Member for 5 minutes.
    Mr. Walz. I would yield some of my time to the full 
Committee Ranking Member.
    Mr. Peterson. I thank the gentleman.
    I have a list here of the conservation practices from NRCS, 
and over \1/2\ of them are not listed. The ones circled in red 
are listed, the others aren't. So I would like to submit this 
to Mr. Bonnie and have him explain to us why these ones that 
aren't included, why they weren't included.
    [The information referred to is located on p. 103.]
    Mr. Walz. I thank the Ranking Member.
    Thank you, Mr. Bonnie. I think what you are hearing is--and 
again, you have good actors trying to get this right. I can 
tell you that what is being conveyed by my colleagues is what I 
am hearing also, that there is great uncertainty, and these are 
by folks that have lived a lifetime of trying to incorporate 
conservation practices to the best of their ability while still 
trying to produce on the land. I think you are hearing this. I 
hope you are hearing from folks that want to get this right but 
there is little doubt there is confusion, and we need to get to 
the heart of why that is.
    One of the questions, and it kind of got hit on--and I am 
certainly in full disclosure, I am biased to Article I of the 
Constitution that it is our job to do it. I am always curious 
when an agency goes out and sets a rule how much input did the 
stakeholders have. Because I am hearing from some of my folks 
that they felt pretty blind-sided by this. They felt like there 
wasn't collaboration. Could you kind of explain a little bit to 
me of what type of outreach was done to get the input of those 
stakeholders?
    Mr. Bonnie. As you know, for the Administration, this is a 
rule, waters of the United States. There has been earlier draft 
guidance that was put out. There has been ongoing conversations 
with USDA and agriculture around this issue broadly as it 
applies to waters of the United States over the last 5 years. 
We have had a number of conversations with folks in agriculture 
about their concerns, and one of the concerns we continued to 
hear was the need for certainty, the need to broaden 
exemptions. We viewed the Interpretive Rule as a way to be 
responsive to those concerns. We have a public comment period 
right now on the Interpretive Rule that will close in July but 
that is not going to be the end. We hope we will have an 
ongoing conversation with agriculture on this to improve its 
implementation. If there are opportunities to add additional 
practices, we want to hear that as well.
    The other thing we will do is as much outreach as we can, 
both to agencies and agriculture, to inform them about how the 
Interpretive Rule is to work.
    Mr. Walz. Did you anticipate there would be this type of, I 
guess, concern and level of concern? Did it surprise you when 
you heard this or were you prepared for that?
    Mr. Bonnie. Well, on the one hand, I would say it is 
obviously clear that this issue, waters of the United States, 
broadly has always been of deep concern to agriculture and 
forestry as well. We understand that. We understand that doing 
things around this can be controversial. We do think that what 
we have done here is increased the number of exemptions through 
a voluntary basis using conservation practices that are very 
popular with landowners so that we hope that this will be 
something that will be accepted as the opportunity that we 
think it is.
    Mr. Walz. I do worry, and the gentleman from Ohio brought 
up a great point, that we have to be very careful in doing this 
so that we don't disincentivize people that want to do this 
right, because our goal is to get this conservation right. The 
goal is to--and I want to be clear--regulations that are smart, 
that clean our waters, that allow for other industries to 
thrive aren't burdensome. Those are smart. But if they do get 
to that point of being burdensome or they become a lack of 
clarity or they become, it is easier not to do it, I think that 
is a concern. I hear this from folks that I can absolutely tell 
you, Mr. Under Secretary, are committed to getting this right--
feel that confusion.
    When I hear this, just as an example, now, how do I go 
out--and you have heard this from someone--just something as 
simple as this: someone wants to do fencing. What kind of--what 
happens there? What changes for them if they were doing fencing 
2 years ago and they want to do fencing under this Interpretive 
Rule? What is different and why would someone, these folks be 
confused about this?
    Mr. Bonnie. Well, the fencing standard by NRCS is pretty 
short and it is very broad. If a landowner basically builds a 
fence that is in keeping with that, and I would submit to you 
that standard, I would submit to you that is going to be a 
fairly easy standard to meet, they are going to have a clear 
exemption under the Act. They can either do that themselves by 
getting the standards off the website, for example. They can 
reach out to NRCS if they want to do that. NRCS may be willing 
to cost-share that action. They can reach out to a technical 
service provider or others, purely voluntary, don't have to 
reach out to the Federal Government if they don't want to, any 
of the agencies. It is just an option, a voluntary option that 
they can take if they want.
    Mr. Walz. Your interpretation, your understanding and you 
are telling me for clarity on this, nothing changed for those 
people? They are not open for any more lawsuits?
    Mr. Bonnie. All we have done is provided an additional 
option for someone that wants to seek some clarity about an 
exemption under the Act.
    Mr. Walz. Okay. With that, I yield back, Mr. Chairman.
    The Chairman. I thank the gentleman and now recognize the 
gentleman from Arkansas for 5 minutes.
    Mr. Crawford. I thank the Chairman.
    I am a little concerned about the 56 practices too, and so 
I want to also associate myself with the Ranking Member as 
well.
    Also, the other thing that the Chairman mentioned is the 
relationship the NRCS has had up to this point with farmers. I 
think it has been certainly consistent in my district as well 
that the NRCS has been looked at as a source of technical 
expertise with respect to things like surface water retention 
and things of this nature. But as my friend from Ohio pointed 
out in our Subcommittee hearing last week, it seems like the 
NRCS has been sort of caught up in this issue with the EPA and 
the Corps of Engineers to become now somewhat of a regulatory 
body. I never got an answer last week so I will try it with 
you. One of the interpretations in the Clean Water Act from the 
Supreme Court is significant nexus. So when we talk about a 
section 402 permit as an example and somebody has some drift in 
that waterway then is in contact with a regulated waterway, 
does that constitute significant nexus and who makes that 
interpretation?
    Mr. Bonnie. I will do the best I can. It is probably a 
better question for EPA or the Corps. I believe spray drift is 
not regulated. I believe that if you apply a pesticide directly 
to a water, that that can be subject to regulation, and I 
believe if you follow the recommendations of the specific 
pesticide that you are in compliance with section 402.
    Mr. Crawford. My other concern, among others--I have 5 
minutes, I could never enumerate the concerns I have about this 
but I will do my best in the time that I am given. As an 
example, so we talk about spray drift, some of these things. 
What about a cattleman? If you have ever been around cattle, 
they are going to eliminate where they please. So your cow 
walks into a stock pond that may be draining into a ditch that 
flows into a regulated waterway and eliminates. Who is going to 
address that issue? Is the cattleman now subject to a lawsuit?
    Mr. Bonnie. Again, probably a better issue for EPA or the 
Corps but I would say it very much strikes me as a normal 
farming and ranching activity. I would say that in the 
Interpretive Rule, we have added a practice for livestock 
crossing if there are concerns there.
    Mr. Crawford. And then this was alluded to, fence building. 
Obviously--and I go back to my comments about the technical 
resources available that are provided by NRCS which up to this 
point have been--particularly in my district, there have been 
some great projects as a result of interaction and 
collaboration with NRCS, and we would like to keep it that way. 
Is the NRCS now going to--their core competency up to this 
point has never been fence building. But it sounds like now 
there is going to be a standard set prescribed by the NRCS as 
an option, and we hear that repeated, but it doesn't sound like 
we are giving our producers really any options to avoid being 
caught up in regulatory regime here.
    Mr. Bonnie. So we have long had a standard for fences. I 
would be happy to provide it to your staff. As someone who has 
grown up on a horse and cow farm, I have been around a lot of 
fences. I think most producers would meet the standard fairly 
easily.
    With respect to NRCS becoming a regulatory agency, again, 
there is no requirement that any landowner seek NRCS's 
certification for any of these practices.
    Mr. Crawford. Okay. Let me ask you this, and again, I 
didn't get this answer from the EPA or the Corps. Who actually 
makes the determination on significant nexus? Is this something 
that the three agencies are going to get together and say, 
``Yes, that is a significant nexus and we are going to go 
forward and regulate?''
    Mr. Bonnie. USDA is not involved in regulation of that 
aspect of the Clean Water Act or any aspect of the Clean Water 
Act.
    Mr. Crawford. And the other issue I have is if a farmer is 
not following an NRCS standard, is that by interpretation, does 
that mean they are in violation of the Clean Water Act? Are 
they subject to a $37,500 fine?
    Mr. Bonnie. Absolutely not. There is no presumption that 
not following NRCS practices somehow violates the Clean Water 
Act.
    Mr. Crawford. Well, I appreciate your testimony today, and 
again, I share the concerns that the Chairman has. I think we 
have--our producers have enjoyed a very productive relationship 
with the NRCS up to this point, and my concern is that what has 
happened now in regards to the Clean Water Act could compromise 
that relationship and foment distrust among producers with 
respect to the NRCS, and with that, I yield back.
    The Chairman. I thank the gentleman for yielding back. I 
just want to point out, in terms of the exchange on the 
pesticide spraying, I mean, just a little clarification to kind 
of contrast what you said. The EPA currently regulates 
pesticide spraying and they have, to the best of my knowledge, 
two additional restrictions pending that they are considering.
    Mr. Bonnie. That is right, and I didn't mean to suggest 
otherwise if I did.
    The Chairman. Okay. Now I am pleased to recognize the 
gentleman from North Carolina, Mr. McIntyre, for 5 minutes.
    Mr. McIntyre. Thank you. Thank you very much, and thank you 
for being here today.
    I have two or three questions I would like to get answered 
so I will just go right through them. First of all, in North 
Carolina, several state agencies have standards for many of 
these activities that differ from the NRCS standards. Will 
these activities be exempt from section 404 permits only if 
they adhere to the NRCS standards?
    Mr. Bonnie. Yes.
    Mr. McIntyre. Even though they otherwise meet all the 
necessary state regulations?
    Mr. Bonnie. Yes.
    Mr. McIntyre. Okay. So this is adding a layer of additional 
standards now that they are going to have to meet?
    Mr. Bonnie. Entirely voluntary.
    Mr. McIntyre. Then if they are--I guess that raises the 
question, you did say earlier and you just repeated, they are 
entirely voluntary. You said earlier no landowner has to get 
certification. You said earlier this is just meant to provide 
additional certainty. Yet now you are saying even though they 
are already meeting the requirements of the state and even 
though they already have done everything necessary for this 
section 404, they have to meet these NRCS standards.
    Mr. Bonnie. No. If they are meeting the requirements of 
section 404, then they are fine. The Interpretive Rule doesn't 
do anything to change the exemptions already existing.
    Mr. McIntyre. All right. Well, I guess we have an old 
saying in the South, ``If it ain't broke, don't fix it,'' and 
if it is entirely voluntary, as you have just said, and no 
landowner is required to get certification, several of our 
stakeholders, some of whom are in the audience and that we will 
be hearing from on the second panel, have asked to withdraw the 
Interpretive Rule. What would be the consequences then of 
withdrawing it if it is entirely voluntary?
    Mr. Bonnie. Well, in my opening testimony, I talked about a 
landowner in North Carolina who has utilized this and foregone 
both the expense and the delay in a permit. We think we can 
save both time and money through this exemption like we have in 
that example I used in North Carolina. We think we are 
providing additional options, voluntary options, for producers 
if they want to use it, and we think over the long term that 
will be of great value to agriculture.
    Mr. McIntyre. Okay. And I respect the fact that that is an 
opinion because you have said three times there that we think. 
Obviously there are other thoughts that are occurring, and we 
appreciate you coming to answer our questions. So I would hope 
that you would think about withdrawing the Interpretive Rule 
because if it is not adding anything of additional quality and 
if the requirements can legally otherwise be met, then this is 
indeed adding another layer that has to be considered. For 
instance, the Interpretive Rule and the regulations that cover 
the existing Clean Water Act exemptions for agriculture say 
that an activity must be part of an established or ongoing 
practice to qualify as not needing a dredge-and-fill permit. 
What is meant by established or ongoing? And some have 
suggested activities on a farm that took place in 1977 are not 
established but those that took place after 1977 are ongoing. 
Is that correct, and is 1977 a magic date or is there some 
other specified date?
    Mr. Bonnie. I am not aware of the issue related to the year 
1977. I think the established and ongoing applies to the normal 
farming and ranching exemption. I think the most important 
thing, as I understand it--again, probably a better question 
for EPA and the Corps--the most important thing is that there 
not be a change in the use of a water of the United States, and 
I think that is the most important piece about this exemption.
    Mr. McIntyre. Okay. It was in 1977 that Congress amended 
the Clean Water Act by exempting routine farming, silviculture 
and ranching activities, 33 U.S. Code 1344. So that is where 
that date comes from, and that would be again a practical 
application question of this. So as we consider these concerns, 
the listing of these additional practices and if they are 
indeed supposed to provide additional certainty, it sounds 
clearly from the questions being asked and the concerns being 
raised today that actually it is providing additional 
uncertainty. I would encourage, if that is truly the intent of 
the rule, which you have said it is, is to provide additional 
certainty, then it needs to be revisited before it is 
implemented.
    And so we appreciate your coming before us today to hear 
our concerns. We appreciate the hearing. That is the reason for 
the public input, and if July sounds like it is too soon of a 
time to implement this, we would ask it be tabled until there 
can be more certainty.
    And with that, I yield back. Thank you, Mr. Chairman.
    The Chairman. I thank the gentleman from North Carolina and 
now recognize the gentleman from Michigan, Mr. Benishek, for 5 
minutes.
    Mr. Benishek. Thank you, Mr. Chairman.
    Mr. Bonnie, I am curious as to who you consulted with 
before putting out this Interpretive Rule because we have a lot 
of people here that say they weren't consulted. So you said you 
consulted with people in agriculture. Who exactly was that?
    Mr. Bonnie. Let me be clear about what I meant by that. I 
didn't mean to suggest that we consulted with folks on the 
specifics related to the Interpretive Rule. We have had ongoing 
conversations with agriculture for a long time about the Clean 
Water Act, how it applies to agriculture, and we have had 
ongoing conversations with folks in agriculture about the need 
for broadening those exemptions.
    Mr. Benishek. Who are those people that you consulted with?
    Mr. Bonnie. We hear regularly from livestock groups, from 
other groups that have concerns about the need for further 
clarity and exemptions in the Clean Water Act.
    Mr. Benishek. Have any groups here in the audience been 
consulted about this?
    Mr. Bonnie. Well, again, I----
    Mr. Benishek. Raise your hand.
    Mr. Bonnie. Don Parrish and I have had lot of conversations 
about the Clean Water Act. He would say, as would I, that we 
never had a conversation about the specifics of the 
Interpretive Rule.
    Mr. Benishek. Well, I have another question, the difference 
between a legislative rule and an interpretive rule. My 
understanding is that an interpretive rule sort of defines the 
rule of law. A legislative rule actually makes the law. It 
seems to me that this Interpretive Rule actually is a 
legislative rule and that would require a comment period 
because it actually defines 56 things that weren't previously 
defined as the law but now it is. So how is this not, what you 
call an Interpretive Rule, how is this not a legislative rule, 
which would require a comment period?
    Mr. Bonnie. We do have a comment period. It is up until 
July. What the Interpretive Rule does, it interprets what 
normal farming and ranching activities are, and defines that as 
including conservation practices and particularly the 56 
conservation practices that we have laid out.
    Mr. Benishek. I guess this is not my understanding of what 
the difference is because my understanding is that the 
interpretive actually interprets what the law says and then 
your rule seems to define it, which is the definition of a 
legislative rule, and I don't understand why the comment period 
wouldn't take place before you do a rule rather than after you 
do the rule. What is the reason for that?
    Mr. Bonnie. We wanted to include conservation in normal 
farming and ranching activities. We wanted to expand the number 
of exemptions. Our hope is that we have reflected what we have 
heard from agriculture and can continue to do that as this goes 
forward and we hear both concerns and praise about how this 
thing rolls out.
    Mr. Benishek. But as I understand it, this comment period 
is about the underlying rule, not the Interpretive Rule.
    Mr. Bonnie. There are two comment periods. The comment 
period for the proposed Clean Water Act Waters of the U.S. rule 
is open until October. We have a comment period for the 
Interpretive Rule open until July 7th.
    Mr. Benishek. Why is it that we have to be changing this 
rule every year?
    Mr. Bonnie. Well, our hope is that with conversations with 
EPA and the Corps, that there may be opportunities to add 
additional practices, look at this Interpretive Rule as it is 
played out.
    Mr. Benishek. Isn't that really hard on people that 
actually have to comply with these rules that they are subject 
to having it changed every single year?
    Mr. Bonnie. Well, what I would say is that I think this is 
again entirely voluntary. We think we have provided additional 
options for conservation and for landowners to undertake 
conservation activities. So we hope that this will be seen as 
an opportunity for agriculture.
    Mr. Benishek. I will yield back the remainder of my time.
    The Chairman. I just want to say, Secretary Bonnie, I am 
starting to lose track of how many times on agriculture 
questions you are deferring to the Army Corps of Engineers and 
the EPA, which is a big part of my concern. I trust the USDA 
when it comes to agricultural practices. And I yield back, and 
the gentleman yields back.
    It is my pleasure to introduce the gentlelady from New 
Hampshire, Ms. Kuster, for 5 minutes.
    Ms. Kuster. Thank you very much, Mr. Chairman, and thank 
you, Mr. Bonnie, for appearing before us today. We are 
bipartisan in our concerns that have been expressed certainly 
from agricultural producers in New Hampshire and many states 
across the country.
    I agree with the opening comments, that the farmers in my 
district do care a great deal about the environment and about 
the land including mitigating runoff from streams and wetlands 
and ensuring that their animals have access to clean water, et 
cetera. The concerns that you are hearing are related to the 
level of engagement in the process by the agricultural 
community, and I share the concerns that have been expressed 
here on both sides of the aisle that the stakeholders in my 
district did not feel included in this process. With that being 
said, I guess the question at this point is, what are the plans 
that NRCS has moving forward on outreach and education because 
it may come as a surprise to some people that these are 
voluntary, given the context of the rulemaking that is going 
forward at the EPA, which nobody interprets that to be 
voluntary. I mean, there is a great deal of concern, and 
already this is nothing new to you but we are venturing into a 
volatile area when the topic is navigable waters and you end up 
talking about ditches and not even streams. In our region, 
these are seasonal. There is nothing navigable about these 
waters. So I just would ask if you could spend some time on how 
the Department of Agriculture and the NRCS can move forward to 
educate farmers who are trying to do the right thing but in my 
district, these are small farms. These are not big corporate 
farms. They don't have lawyers. They don't have the ability. 
They don't even have the time to contend with a whole new set 
of rules.
    Mr. Bonnie. So with respect to the Interpretive Rule, we 
are trying to do the best job we can at educating our own staff 
that interact with a lot of your producers and others with 
respect to the Interpretive Rule, so we will do the best job we 
can there. We are also having conversations with EPA and Army 
Corps so they understand this as well. We have done other 
pieces of outreach. For example, we have put a Q&A up on our 
website that explains what the Interpretive Rule is and what it 
isn't. We are going to continue to do those efforts, and again 
emphasize that this is entirely voluntary, that it provides 
options for landowners if they want to use them and we think 
can be helpful to them in putting conservation practices into 
place on their land.
    Ms. Kuster. Might I suggest that we have a built-in 
process, and I am a new Member of Congress and new to the 
Agriculture Committee but one of the things that I have been so 
impressed by is the network of organizations and people all 
across this country who are very, very involved in--they rely 
on these organizations to keep them abreast. As I say, they 
don't have time themselves. Is there any plan for outreach to 
these organizations, many of them are represented in this room, 
and if not, could you incorporate that into your planning?
    One of the things about government regulation generally and 
in this particular case, you are familiar with the concept of 
the Interpretive Rule. I think it is pretty clear that others 
are not, and frankly, I am an attorney, the idea that this was 
intended to provide clarity, I can't see that that has been 
effective. Could you consider reaching out to these 
organizations to help engage the dialogue, engage the farmers 
and the producers in the dialogue? I think you would have a 
much better outcome and frankly a much better understanding--
they would have a better understanding of what your intentions 
are.
    Mr. Bonnie. Absolutely. We will continue to do that.
    Ms. Kuster. Thank you. I will yield back. Thank you.
    The Chairman. I thank the gentlelady. I now recognize the 
gentleman from Colorado, Mr. Tipton, for 5 minutes.
    Mr. Tipton. Thank you, Mr. Chairman.
    Mr. Bonnie, thanks for being here. I would like to follow 
up a little bit on some of Mr. Benishek's questions. You 
referenced Don Parrish, who I assume is in the building here 
today. Has it been your experience that the ag community is 
coming in and saying regulate us more?
    Mr. Bonnie. Of course not.
    Mr. Tipton. Of course not. So when we are talking about 
actually hearing--this is a classic example of the cart before 
the horse, putting out an Interpretive Rule to begin with and 
then we are going to gather comments afterward. Explain to me, 
help me understand the sense of that.
    Mr. Bonnie. As I said before, we have heard for the last 
several years a lot of comments of concern of the Clean Water 
Act itself, the need for additional exemptions. In response to 
that, we believe the Interpretive Rule----
    Mr. Tipton. Additional exemptions, so what people are 
saying is, we are regulated too much.
    Mr. Bonnie. Well, our----
    Mr. Tipton. Is that what you are hearing?
    Mr. Bonnie. We are hearing a lot of concerns about the 
comments of concern from agricultural producers, absolutely, 
and our response to that was to put together with EPA and the 
Corps an Interpretive Rule that we think will provide some 
options there for increased exemptions.
    Mr. Tipton. Can you understand how disconcerting this has 
to be to our farm and ranch community and other segments of our 
economy when we are saying, hey, that is probably a better 
question for the EPA or for the Corps?
    Mr. Bonnie. Well, when it comes to the proposed rule 
itself, I don't want to speak on behalf of the Corps or the 
EPA. I can provide some insight there, but my job today is to 
talk to you about the Interpretive Rule and how it can address 
some of the concerns of agriculture.
    Mr. Tipton. But when that is put together collectively, 
effectively what we are doing and what we are seeing is not 
creating certainty but more confusion, more frustration 
effectively coming out of the Federal Government that says hey, 
we are here to help, and the shiver runs up the spine of every 
independent producer that is out there.
    Mr. Bonnie. Well, I would say NRCS has a strong record of 
working with our producers who have developed a lot of trust 
over the years. We think this provides additional options if 
producers want to seek out NRCS. As I said before, they don't 
have to. And so we hope this adds to the tools that producers 
have to comply with the Clean Water Act.
    Mr. Tipton. Can you give me a little bit of clarity? 
Because as you were going through your testimony, you were 
saying that it applies to established farming areas. What if 
there is an adjacent field that hasn't been farmed? A farmer/
rancher buys that. Does it then apply, different rules apply to 
that land that they purchased?
    Mr. Bonnie. If it is not a water of the United States, they 
are free to farm and ranch.
    Mr. Tipton. I have to tell you, I don't know what is not 
going to be applicable to the waters of the United States. You 
know, this is the biggest water grab in American history coming 
out of the EPA trying to be able to control water and impacts 
that that is going to be.
    Mr. Bonnie, the USDA has stated that the Interpretive Rule 
only applies to adjacent neighboring waters, and it has also 
been said when USDA is able to show a hydrologic underground 
connection however tenuous, you will regulate those waters, 
even though they fall outside your stated application of the 
rule. Can you explain to me how those two statements don't 
conflict?
    Mr. Bonnie. I don't understand the question.
    Mr. Tipton. When you are saying you aren't going to 
regulate it, there are going to be applicable rules, we had a 
directive coming out of the Forest Service that is certainly 
going to be applicable to the farm and ranch community in terms 
of underground water, but you aren't going to be regulating it, 
how is this not a conflict?
    Mr. Bonnie. Groundwater in the proposed Clean Water Act 
rule is not regulated. I think it is an exemption that----
    Mr. Tipton. You need to get ahold of the Forest Service. 
They are just putting out a directive.
    Mr. Bonnie. The Forest Service has put out a directive that 
will clarify and provide some consistency across the way we 
address groundwater as part of resource management plans, 
projects and other things. The purpose of that directive is to 
provide greater consistency across the Forest Service. It 
doesn't provide any new authorities to regulate groundwater. It 
is purely about consistency.
    Mr. Tipton. Actually, if you read through that, my 
interpretation of it and apparently we have all got the freedom 
to be able to look at this is, farmer-rancher could divert 
legally out of a stream to be able to fill a stock pond, to be 
able to irrigate a field, they are going to be in violation.
    Mr. Bonnie. Stock ponds are specifically exempt under the 
Clean Water Act.
    Mr. Tipton. Not if you are looking at that groundwater rule 
that is going to be--this again, it actually just points to the 
government coming in. We have added 174,000+ pages of 
regulations. Four thousand new regs are coming down the 
pipeline right now. And when you are talking about an annual 
review coming up, what kind of certainty is that going to give? 
I think several Members have spoken of that.
    Mr. Bonnie. Yes. The purpose of the annual review is to 
look at the practices, see if there are additional ones that we 
can add to this and to see how the Interpretive Rule is being 
carried out.
    Mr. Tipton. My time has expired. Thank you, Mr. Chairman. 
Thank you, Mr. Bonnie.
    The Chairman. I thank the gentleman. His time has expired. 
I now recognize the gentlelady from California for 5 minutes.
    Mrs. Negrete McLeod. Thank you, Mr. Chairman. I have no 
questions.
    The Chairman. The gentlelady yields back. I now recognize 
the gentlelady from South Dakota, Mrs. Noem, for 5 minutes.
    Mrs. Noem. Thank you, Mr. Chairman, and Mr. Under 
Secretary, in South Dakota we have had ongoing problems with 
NRCS with inconsistent policy from county to county, a backlog 
of problems, some producers waiting months, if not years, for 
determinations, so it hasn't always been a good experience. 
Some counties are very good; some are not. And these 
determinations impact how a producer is able to participate in 
programs, and you say you want producers to participate in 
programs because it is better for our water quality and 
conservation practices but NRCS is making it very difficult for 
producers to participate. Now while they are working to address 
this backlog of determinations, what issues surrounding wetland 
determinations need to be resolved to provide producers with 
certainty so that they can farm without being worried about 
being out of compliance?
    Mr. Bonnie. We do have a backlog on wetland determinations, 
not only in your state but in the Upper Great Plains. We have 
reduced the backlog. We have put additional resources. We 
announced earlier this year even additional resources on top of 
what we have already put there to reduce the backlog. We are 
also working to improve consistency across the wetland 
determinations because, as you point out, there has been some 
inconsistency.
    Mrs. Noem. Also, I have a question. If the Army Corps of 
Engineers comes to you and asks if a private landowner's 
practice is in compliance or out of compliance with NRCS 
standards or someone calls the NRCS and tells them someone is 
not following the standards, will NRCS have to look into it?
    Mr. Bonnie. We have no regulatory requirements or 
responsibilities under the Clean Water Act.
    Mrs. Noem. You have absolutely no requirement if somebody 
comes to you and says a producer is out of determination, 
including the Army Corps of Engineers, to look into it or to--
--
    Mr. Bonnie. No, and as I understand, in the farm bill, 
there are requirements that we respect landowners' privacy in 
terms of what they are doing on the ground. So----
    Mrs. Noem. Who would look into that situation?
    Mr. Bonnie. Well, the Interpretive Rule doesn't change 
anything about the----
    Mrs. Noem. You are not quite sure if somebody is concerned 
or the Army Corps of Engineers wants a determination? You won't 
provide it and you don't know who will?
    Mr. Bonnie. No, we provide compliance determinations 
related to wetlands, yes, but that----
    Mrs. Noem. The Army Corps of Engineers----
    Mr. Bonnie.--relates to our USDA programs, not to the Clean 
Water Act.
    Mrs. Noem. Which adds to the backlog and the workload that 
you have to deal with.
    Mr. Bonnie. We do have a backlog and, as I said, we are 
working to reduce it.
    Mrs. Noem. Well, under this proposed Interpretive Rule, 
some activities are exempt if they follow NRCS standards. So do 
the standards ever change?
    Mr. Bonnie. Every 5 years we review standards on a rolling 
basis for all our conservation practices.
    Mrs. Noem. So it looks to me that in 2015, do you know how 
many of those exemptions are up for review?
    Mr. Bonnie. I don't.
    Mrs. Noem. It looks like about 30 of them, to me, are up 
for review, and potentially we could see farmers who are in 
compliance today but in 2015 if NRCS decides to update them, 
they could be out of compliance. Is that correct?
    Mr. Bonnie. I don't believe that will be the case because 
these conservation practices, the Clean Water Act, the 
exemption is from dredge and fill, so the concern is when the 
practices are being put in place. So I believe the practices 
being put in place, I don't think there will be a problem here.
    Mrs. Noem. So they are grandfathered if they have done the 
practice prior to 2015? It is when somebody does a new project 
in 2015 and forward is when the new standard is going to apply?
    Mr. Bonnie. Yes.
    Mrs. Noem. Okay. And the producers will be notified of 
those changes and that will therefore because we have 30 of 
these 56 exemptions, going forward, you believe that will 
provide them with more certainty?
    Mr. Bonnie. We hope it will.
    Mrs. Noem. Okay. Well, if this rule provides that kind of 
certainty for the agriculture industry, I am baffled because 
none of the agriculture industry wants this. Nobody is in favor 
of it. So that is what I am struggling with today is that you 
are here and you are telling us this is necessary, that it is 
needed for certainty, for confidence of these practices, yet 
nobody in agriculture wants this. How do you reconcile that?
    Mr. Bonnie. As I said before, we have tried to be 
responsive to concerns related to the broader Clean Water Act 
as part of this. We think we have provided additional certainty 
as it relates to these 56 practices. Our expectation over time 
is that producers will see that as they utilize this and that 
they will see this as an opportunity. Again, it is entirely 
voluntary.
    Mrs. Noem. Yes, you have been saying that over and over but 
thing is, is that if we want people to participate in 
conservation programs and we want them to do activities on 
their land that improves our water quality, then we want to 
make it easy for them to participate and we want to make it so 
that they want to be involved and they can see the improvements 
on their land and we don't want them to have to worry about 
falling out of compliance all the time, and that is the thing 
that is making this so difficult to reconcile. Obviously the 
agriculture industry has weighed in here and said this makes it 
much more difficult. They are very concerned about it, and yet 
we have no comment period and the NRCS is steamrolling ahead, 
and I firmly believe that this activity should be rethought by 
your agency, your department and get into consultation with the 
agriculture industry.
    With that, I will yield back, Mr. Chairman.
    The Chairman. The gentlelady yields back.
    Just one point of clarification on a question that the 
gentlelady had asked. The grandfathering until 2015, is that 
grandfathering before 2015? Is that in the EPA and the Army 
Corps of Engineers proposed plan?
    Mr. Bonnie. No, I am not suggesting--the point I was trying 
to make is most of these practices, the exemption against 
dredge and fill is against dredge and fill, and so a lot of the 
concern is when you put the practice in place, so my suggestion 
is that I think when these practices are put in place, that is 
when the exemption is most pertinent to the producer. So I am 
not sure that the fact that the practices will change over time 
will have a significant impact on producers.
    The Chairman. So this grandfathering may be okay with NRCS 
but we don't know about--we actually don't know whether the 
grandfathering is recognized under the proposed rule that EPA 
and Corps of Engineers has.
    Mr. Bonnie. Well, again, I don't want to introduce--I am 
not suggesting that there is grandfathering. What I am 
suggesting is the way this plays out on the landscape, I don't 
think this will be a substantial problem.
    The Chairman. I do too. I am pleased to recognize the 
gentleman from Minnesota, Mr. Nolan, for 5 minutes.
    Mr. Nolan. Thank you, Mr. Chairman. I want to thank 
Chairman Thompson and Ranking Member Walz for conducting this 
hearing, and Mr. Bonnie, thank you for being here. I am not 
going to take much time.
    I do want to associate myself with the remarks of my 
colleagues here with regard to the need for clarity, and we 
appreciate the fact that you are at least attempting to do that 
but the concerns that have been expressed here for agricultural 
producers with regard to the Army Corps and their inability to 
review permits in a timely manner. That is a serious matter, 
the uncertainty that exists out there, the need for more 
outreach and for more accurate information here.
    I particularly want to associate myself with the comments 
from the gentlewoman from South Dakota, Mrs. Noem, when she 
says that we are all greatly concerned about conservation, and 
whatever it is we do, we want to encourage more conservation. 
So there is no one here in my judgment that is against that. On 
the contrary, we are very much for that.
    So with that in mind, I do want to just ask one question 
with regard to that, and that is this: if fewer people fish 
because the small streams are polluted and if fewer people hunt 
because the wetlands have been drained, then would you expect 
that economic activities associated with hunting and fishing 
would be greatly diminished?
    Mr. Bonnie. Absolutely. Outdoor recreation is an enormous 
driver of the economy, so clean water is critical to that.
    Mr. Nolan. Well, thank you. I think from time to time we 
need to remind ourselves what the purpose is here, but that 
doesn't in any way diminish the need for clarity and certainty 
and a process that is expeditious and encourages rather than 
discourages.
    And then just one last question. When are you projecting 
that the final rules will be determined and implemented?
    Mr. Bonnie. So the Interpretive Rule is being implemented 
right now. The interpretation was good when it came out. In 
terms of the EPA proposed waters of the United States rule, I 
believe the comment period runs through October.
    Mr. Nolan. But then when would you expect implemented?
    Mr. Bonnie. So implementation of the Interpretive Rule is 
going on right now. In terms of the proposed Clean Water Act 
rule, certainly towards the end of the year at the earliest but 
I don't claim to be an expert on when that rule will be 
finalized.
    Mr. Nolan. Later this year or early next year?
    Mr. Bonnie. I believe that is correct.
    Mr. Nolan. Okay. Thank you.
    Thank you, Mr. Chairman. I yield back the balance of my 
time.
    The Chairman. Does the gentleman yield?
    Mr. Nolan. Sure.
    The Chairman. I appreciate it.
    Mr. Bonnie, first of all, there was an exchange. I think it 
was with our full Committee Ranking Member about how fencing 
was now going to have to be permitted, but in your words, it 
was going to be fairly simple. I have some of the regulations, 
the diagrams, the complexities of it, and it is all different 
by fence type, so we may disagree on the definition of the word 
simple.
    Mr. Bonnie. I have the fencing standard here, which I am 
happy to give to staff as well.
    The Chairman. Yes. Excellent. Well, we have it in hand 
here, and it is different by each state, and it speaks to the--
I am not sure when it comes to regulations if there is anything 
that is really simple.
    We have had a lot of discussion about how you talked about 
this is normal farming practices, but then in the same breath 
you keep talking about additional exemptions. Well, if it is 
normal farming practices, it is counterintuitive to say that 
you are going to be granting somehow in the future additional 
exemptions. It is either normal farming practices or it is not, 
and the whole thing of opening this up on a regular basis with 
NRCS, the Corps of Engineers, the EPA allowing for revision--
and I know you have alluded to it is going to increase 
flexibility but it also equally opens it up to additional 
restrictions and more layers and layers of regulations in the 
future, as you know, is that true?
    Mr. Bonnie. NRCS's goal remains to put conservation on the 
ground with producers in partnership with producers. We think 
this will help us do that, and as we look----
    The Chairman. If that was the case for a greater 
flexibility and promoting conservation, why is that not in the 
regulation? Why is that not specifically laid out to just take 
away the possibility that this will be a mechanism by which the 
Corps or the EPA or USDA would make farming almost impossible 
to do in the future?
    Mr. Bonnie. Well, so EPA has already--the Clean Water Act 
already has upland conservation practices that are exempt from 
the Clean Water Act section 404. What this does is add 
additional practices, clarifies through this Interpretive Rule 
that these 56 practices are exempt. So again, we think we have 
provided additional certainty.
    The Chairman. Would you disagree, though, the way it is 
written, it also opens it up that the EPA, the Corps of 
Engineers or USDA that work together at least annually, at 
least once a year, it opens it up for more burdensome over-
regulation in the future?
    Mr. Bonnie. I guess I would disagree with the 
characterization because this is voluntary. It doesn't require 
oversight by NRCS, EPA or the Corps and makes no presumption 
that something isn't on the list that is necessarily a 
violation.
    The Chairman. The presumption precludes any of those 56 to 
be taken away, correct?
    Mr. Bonnie. No. I mean, it is possible that some of those 
56 could be taken away in the future. Again, as I said earlier, 
we entered into this MOU lightly. We think that there are 
opportunities to additional practices there.
    The Chairman. Well, I would obviously encourage you to 
enter into this with more due diligence, not lightly, and I 
apologize for violating my own rules. Whoops. I now recognize 
Mr. Ribble for 5 minutes.
    Mr. Ribble. Thank you, Mr. Chairman. I have a whole list of 
questions but actually I am going to divert a little bit, and 
the question I really want to ask you is, what are the 
takeaways that you have as a result of this hearing and what 
specific action items will that translate to when you leave 
here?
    Mr. Bonnie. Well, clearly we need to continue to focus on 
outreach both within our own agency, with the other agencies to 
make sure that this is applied consistently and we continue to 
do outreach with the agricultural community to explain what 
this is.
    Mr. Ribble. So basically your takeaway is, you have a 
communication problem?
    Mr. Bonnie. Yes, we can do a better job of communicating. I 
think we continue to believe that this creates opportunities 
for agriculture to put conservation on the ground.
    Mr. Ribble. I would say with all due respect, Mr. Bonnie, 
that it is more of a confusion problem than a communication 
problem, and you mentioned a couple times that the standards 
are currently voluntary, but in your view, doesn't including 
them as specific exemptions from the Clean Water Act convert 
those practices from voluntary to regulatory?
    Mr. Bonnie. I don't believe that is the case. This is 
entirely voluntary. No producer has to use any of these 
exemptions.
    Mr. Ribble. Okay. In that case, which agency will be 
responsible for inspecting farms that claim conservation 
exemptions under this Interpretive Rule?
    Mr. Bonnie. There is no requirement that there be any 
inspection that takes place.
    Mr. Ribble. I yield back, Mr. Chairman.
    The Chairman. The gentleman yields back. I now recognize 
Mr. Schrader for 5 minutes.
    Mr. Schrader. Thank you, Mr. Chairman.
    With all due respect, Mr. Bonnie, this is a nightmare. It 
is probably one of the worst, egregious examples of government 
overreach I have ever seen in my lifetime. I have been involved 
in public service for way too many years, I guess, but the fact 
that NRCS has joined in this illicit grabbing of private 
property with EPA and the Corps just doesn't become an agency 
that I have had a lot of respect for in the past. I am very 
disappointed.
    What was wrong with the 100+ conservation practices you had 
on your list? Now there are only 56. What was wrong with those? 
What were you doing wrong and hurting our environment?
    Mr. Bonnie. We weren't doing anything wrong.
    Mr. Schrader. So why are those not all on this list?
    Mr. Bonnie. Because there are two things that we looked at. 
One was, was it a practice that could be done in waters of the 
United States. There are----
    Mr. Schrader. The agency is the only determiner of what is 
an acceptable practice. Do you know the exact correct fencing 
standards are going to protect that stream and there is no 
other fencing practice that could possibly help that stream?
    Mr. Bonnie. No, we wouldn't presume that.
    Mr. Schrader. Then why are you dictating in these 
regulations specific guidelines for fencing? I am on the Small 
Business Committee. We had a hearing. We had a cattleman come 
in doing the right thing. The stream is in much better shape 
because he did some fencing, kept the cattle out. That fencing 
would not meet your standard. I mean, it seems to me it is 
crystal clear that you are trying to establish regulatory 
guidelines, standards by which a person farms and you have no 
business doing so.
    Mr. Bonnie. I don't believe we are trying to do that.
    Mr. Schrader. That is exactly what you are doing. There are 
only 56 ways. I see it. I am reading it right here, man. There 
are only 56 ways you can do things.
    Mr. Bonnie. It is voluntary.
    Mr. Schrader. And it is not voluntary. You keep saying 
that. That is wrong. There is nothing voluntary about getting 
your butt sued because you didn't do one of these 56 practices. 
That is what is going to happen.
    Mr. Bonnie. There is no presumption that not doing these 
practices----
    Mr. Schrader. You need to get out of Washington, D.C., and 
get back on the ground. There are farmers and ranchers across 
this country that do not want to have this rule in any way, 
shape or form. Did you or did you not have a public hearing and 
comment period before the Interpretive Rule?
    Mr. Bonnie. No, we did not.
    Mr. Schrader. No, you did not. Any God-fearing 
environmentalist would have your head. Heck, they would be 
living in trees around your house, for God's sake, for not 
having that. How can you possibly defend what you are doing 
here? The Supreme Court clearly says, clearly says, clearly 
says, United States, okay, waters of the United States must 
refer to relatively permanent, standing or flowing bodies of 
water, not occasional, not intermittent, not ephemeral flows, 
and your hydrologic connection is not sufficient.
    Mr. Bonnie. I think you are referring to----
    Mr. Schrader. Other waters--you have a whole rule on other 
waters here. Why is a ditch----
    Mr. Bonnie. It is not our rule. You are referring to the 
proposed Clean Water Act waters of the United States rule. That 
is not our rule.
    Mr. Schrader. It is part of what is coming down the pike 
beyond this egregious Interpretive Rule that you already have. 
How can you justify even relating to that when the Supreme 
Court case says specifically those waters should not be part of 
this discussion?
    Mr. Bonnie. Well, again, the waters of the United States 
rule is not USDA's rule, it is EPA and the Army Corps. What we 
have done here has created----
    Mr. Schrader. Do you agree that the other waters, as an 
NRCS person, do you agree that other waters should be involved 
in this Clean Water Act interpretation, going forward?
    Mr. Bonnie. I think other waters is part of the statute, as 
I understand it.
    Mr. Schrader. No, it isn't. That is the whole point. The 
Supreme Court has specifically said you are not supposed to be 
dealing with this. I hope you communicate that to our friends 
in the EPA and our friends in the Corps.
    Mr. Bonnie. One of the things we have encouraged is 
increase some of the exemptions under the current rule and into 
the proposed rule.
    Mr. Schrader. Mr. Chairman, all I have to say is, I have 
made my point clear that NRCS unfortunately is giving up its 
jurisdiction. It is starting to prescribe what men and women 
can and can't do on their own property way beyond what protects 
the health, safety and welfare of the navigable rivers related 
to navigable rivers, waters of our great country, and it is a 
shame that people have the hubris in this community to think 
that they can dictate to farmers and ranchers that live, sweat, 
take care of the steward where there are stewards of the land 
out there, specific practices. It should be about outcomes. It 
should be about outcomes, Mr. Bonnie. You are missing the point 
here entirely. It is not about prescribing what men and women 
can't do or can do on their own private property, and I yield 
back.
    The Chairman. I thank the gentleman. I am going to yield to 
the Ranking Member for a point of clarification.
    Mr. Walz. Mr. Bonnie, I just--and I am trying to get this, 
and you are hearing the frustration. I am hearing from you. I 
am trying to clarify this, and I really think people are trying 
to get this right. Tell me this, if I frame it like this, prior 
to the Interpretive Rule if a farmer carried out a practice 
that is now listed in the rule, did that farmer have to get a 
section 404 permit? And if they did, isn't the purpose of the 
Interpretive Rule now so they don't have to? Is that what you 
are saying?
    Mr. Bonnie. In some cases, there will be practices where 
there will be a requirement for a section 404 permit. In other 
cases----
    Mr. Walz. How often did that happen?
    Mr. Bonnie. I don't know.
    Mr. Walz. But that is your point, so at the heart of this, 
what you are saying, if this were interpreted the way you are 
seeing it and the way the Interpretive Rule is and the 
questions that were valid that there should have been input and 
all that aside, if this is working as you would like to see 
them work the best, this is what it should alleviate?
    Mr. Bonnie. We hope we will reduce the permitting burden 
and we expect we will.
    Mr. Walz. Okay. Thank you. I yield back.
    The Chairman. I thank the gentleman.
    I would like to seek unanimous consent to enter into the 
record a number of things that we have referenced today, two 
things and one thing that has not been referenced. One is the 
NRCS 382A, the fence or standard water, the conservation 
practice job sheet, with all the specifications, it will be 
subject to permitting. A copy of a letter entered into the 
record from essentially the Iowa agriculture community, and 
from multiple stakeholders in the State of Iowa expressing 
their concerns regarding the Clean Water Act jurisdiction and 
NRCS technical standards. This is a letter dated June 18, 2014, 
to Secretary Vilsack. I request unanimous consent to enter that 
into the record. And finally, the document that the full 
Committee Ranking Member made reference to, which is the USDA 
list of conservation practices, and this document has been 
amended with noting the ones that are now exempt but leaves a 
significant number of practices that are identified by USDA and 
NRCS as conservation practices which will now not be--which are 
not exempt. So without objection, those are so entered.
    [The documents referred to are located on p. 87.]
    The Chairman. I also have a copy that the Ranking Member 
had asked me to share with you, Mr. Bonnie, and we will make 
sure you get that before you leave, and I want to thank you for 
your testimony. I would encourage you if at all possible, 
because we have not had a lot of communications and input on 
this beforehand, staying around for the second panel. I think 
it would be very enlightening for USDA and would certainly 
encourage you and hope that you will be able to do that, and 
with that, you are excused. I appreciate your being here.
    Mr. Bonnie. Thank you for your time today.
    The Chairman. Thank you.
    We will now take some time to--I want to welcome our second 
panel of witnesses to the table, and let us go ahead and get 
started with that process.
    While we are finishing getting organized here, I would like 
to welcome our second panel of witnesses to the table: Mr. Don 
Parrish, Senior Director, Regulatory Relations, with the 
American Farm Bureau Federation; Mr. Andy Fabin, Producer, 
Fabin Bros. Farms, Indiana, Pennsylvania, who is here on behalf 
of the National Cattleman's Beef Association; Mr. Chip Bowling, 
First Vice President, National Corn Growers Association with a 
large operation just south of the capital city in Newburg, 
Maryland; and Mr. Scott Kovarovics--how did I do? Excellent. It 
is a good day. I really do not like to mess up people's names. 
There is only one thing that you come in and out of this world 
with, and it is your name, and we all deserve to get it 
accurate. So thank you, sir. He is Executive Director of the 
Izaak Walton League of America out of Gaithersburg, Maryland.
    I want to thank the witnesses, and we will proceed here. 
Before you, as you see, we have the light system. We try to 
adhere as much as possible. You don't need to stop cold turkey 
on red but if you would finish whatever thought you are in the 
middle of, bring that to a proper conclusion so we can get 
around to hear all the testimony that each of you brings today 
and that we value so much and have an opportunity for dialogue 
with the questions we have here
    So Mr. Parrish, with that, I recognize you for 5 minutes.

           STATEMENT OF DON PARRISH, SENIOR DIRECTOR,
           REGULATORY RELATIONS, AMERICAN FARM BUREAU
                  FEDERATION, WASHINGTON, D.C.

    Mr. Parrish. Thank you, Mr. Chairman. Thank you, Members of 
the Committee, for holding this hearing today. I am Don 
Parrish. I am the Senior Director of Regulatory Affairs for the 
American Farm Bureau Federation.
    I have been dealing with the Clean Water Act for over 20 
years. My wife says I talk about it in my sleep. I am here to 
share my perspective on the Interpretive Rule.
    I would like to begin my testimony, though, with a little 
bit of an overview of the Clean Water Act regulatory proposal. 
This map that is in front of you corresponds with the current 
Code of Federal Regulations. Now, what you see on this map is 
47 miles of permanent streams, 96 miles of intermittent 
streams. Those are the dotted blue lines. The gray lines are 
roads. The roads try to avoid those waters. What is interesting 
about this is that this is the current approximation of current 
jurisdiction. Go to the Code of Federal Regulations if you 
disagree. Look at it. It deserves your examination.
    What I want to express to you is that this is the limit of 
current jurisdiction. This is not all the waters that are in 
this watershed. This is 48 square miles, roughly 30,000 acres, 
so it is not that big a map. But note that any waters beyond 
this in this map happens to be of an area in Kentucky is 
regulated by the State of Kentucky.
    EPA in the next slide is changing three definitions: the 
term tributary, the term adjacent water, and the term other 
waters. This is what the jurisdictional reach looks like after 
those changes in definition.
    This map turns blue. EPA will control virtually all land 
use on this 30,000 acres. Those little blue lines, this is what 
they look like. This may look like a stream but this is a heavy 
rainfall running across the cornfield, and this land that is 
under this storm water is going to be a water of the United 
States regardless of whether that water is there or not because 
it contains a bed, bank and ordinary high-water mark.
    Let me turn my attention to the Interpretive Rule. The 
Interpretive Rule establishes binding and enforceable 
requirements for farmers. Currently, NRCS technical standards, 
NRCS technical assistance and NRCS cost-share programs are, as 
Mr. Bonnie says, voluntary, but the Interpretive Rule changes 
that.
    For 37 years, farmers could conduct normal agricultural 
practices on the land but now practices are only going to be 
exempt if you follow NRCS's conservation practices. And with 
regard to who is going to referee this issue, going forward, 
``even where NRCS does not provide technical assistance, the 
agency plays an important role in responding to these issues 
that arise regarding project-specific conformance with 
conservation practice standards,'' and they are going to have 
citizen litigation looking over their shoulder to do it.
    The Corps of Engineers and EPA are also assuming a role 
that the law does not give them, neither the farm bill nor the 
Clean Water Act, to adjust these standards. Farmers deserve 
better. They deserve direct, they deserve clear understanding 
because the Clean Water Act is a strict liability statute and 
that carries criminal and civil penalties. NRCS standards are 
complicated. They are far too complicated for strict liability 
under the Clean Water Act.
    I will leave you with three takeaways. Agencies have 
confused you, they have confused the media and they have 
confused farmers. This IR provides farmers with nothing they 
didn't already have.
    Second, in Iowa right now, 67 percent of all grass 
waterways and 50 percent of all the terraces are funded out of 
the farmer's pocket with no USDA or EPA or Corps of Engineers 
or NRCS funding. That conservation is going to be under now a 
cloud of suspicion. It is under a cloud that is probably going 
to be result in that conservation being halted.
    And third, and this picture bears it out, normal farming 
exemptions are for activities. It does not exclude the land 
that is under this storm water from being called a water of the 
United States in the future, and that type of proposal, it 
invites litigation and it is going to invite EPA right into the 
middle of how we farm into the future.
    There is only one solution. They have to withdraw it, and 
they have to make darn sure that farmers don't have to comply 
with NRCS standards to be compliant with the Clean Water Act 
normal farming practices.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Parrish follows:]

    Prepared Statement of Don Parrish, Senior Director, Regulatory 
      Relations, American Farm Bureau Federation, Washington, D.C.

    Thank you, Mr. Chairman and Members of the Subcommittee, for 
holding today's hearing and for inviting me to testify. I am Don 
Parrish, senior director of regulatory affairs for the American Farm 
Bureau Federation (AFBF). I have been employed at AFBF for more than 20 
years, for much of the time focused on issues related to the Clean 
Water Act, including the issues involved in the interpretative rule 
which is the subject of today's hearing. I am pleased to share my 
perspective on that rule and its potential impact on agricultural 
producers and I would like to underscore that the views I express are 
my own.
    The proposal that the Environmental Protection Agency (EPA) and the 
U.S. Army Corps of Engineers published in the Federal Register on April 
21 ostensibly seeks to ``clarify'' the authority of these two agencies 
to regulate ``navigable waters'' which are defined in the Clean Water 
Act as the ``waters of the United States.'' The proposal has broad 
implications for many sectors of the economy, and in particular for 
agriculture. Just last week, the President of the American Farm Bureau 
Federation, Bob Stallman, testified before the Water Resources 
Committee of the House Transportation and Infrastructure Committee on 
the impact this rule would have on growers. I have attached a copy of 
Mr. Stallman's testimony to this statement and would like to request 
that it be included in the record of this hearing.
    The rule proposed by the agencies would affect all Clean Water Act 
programs. This assertion of authority is critically important, and 
while it goes beyond the subject of today's hearing, I would strongly 
encourage the Members to examine its potential impact on all these 
programs.
    My testimony today, however, will focus on the Interpretive Rule 
Regarding the Applicability of Clean Water Act section 404(f)(1)(A) 
(IR) and the Memorandum of Understanding (MOU) among EPA, the Corps and 
USDA. With respect to these matters, I would like to make two initial 
observations:

   The interpretative rule is not a proposal: it became 
        effective immediately upon publication in the Federal Register, 
        without advance public notice and comment, and it establishes 
        binding and enforceable requirements for farmers. For these 
        reasons, the IR, in the view of many legal experts, is 
        unlawful.

   By this action, EPA and the Corps have effectively limited 
        Congressionally authorized exemptions that have been in place 
        for 37 years. They have done this in several ways:

    b First, for the listed practices, the IR explicitly limits the 
            exemption to circumstances where the farmer or rancher has 
            complied with what are otherwise voluntary conservation 
            standards. Even ``landowners not relying on NRCS for 
            technical assistance have the responsibility to ensure the 
            implementation of the conservation practices is in 
            accordance with the applicable NRCS conservation practice 
            standard. It is important to emphasize that practices are 
            exempt only where they meet conservation practice 
            standards.''

    b Second, for practices that are not listed and that also are not 
            specifically listed in the statute (for example, practice 
            #378 ponds, #600 terraces and #635 vegetative treatment 
            areas), the IR creates a new cloud of doubt about the 
            exempt status of those activities. If clarification was 
            required as to the exempt status of these practices, one 
            must wonder why the agencies chose not to clarify the 
            exempt status of other practices. In addition, since the IR 
            and the listed practices could be changed by the agencies 
            any time, farmers and ranchers have no assurances that the 
            list of 56 practices will not be further curtailed in the 
            future.

    b Third, the agencies have given NRCS an unprecedented role in 
            Clean Water Act enforcement: ``where NRCS is not providing 
            technical assistance, the landowner has the responsibility 
            to ensure that implementation of the conservation practice 
            is in accordance with the applicable NRCS conservation 
            practice standard. Even where NRCS is not providing 
            technical assistance, the agency plays an important role in 
            helping to respond to issues that may arise regarding 
            project specific conformance with conservation practice 
            standards.'' There is nothing in the law granting NRCS this 
            authority.

    b Fourth, NRCS has allowed the Corps and the EPA an unprecedented 
            role in identifying, reviewing and updating NRCS 
            agricultural conservation practices and activities. Nothing 
            in the law justifies that role.

    These actions by the agencies create tremendous uncertainty and 
risk for farmers and ranchers--especially in light of the proposed 
rule's broad expansion of ``navigable waters.'' Congress provided broad 
statutory exemptions for normal farming, silviculture and ranching 
activities. However, Congress also limited those exemptions, so that 
even ``normal'' farming, silvicultural and ranching activities require 
a Clean Water Act section 404 permit if the activity may impair the 
flow or circulation of navigable waters or reduce the reach of 
navigable waters.
    The proposed rule would categorically regulate as ``navigable 
waters'' countless ephemeral drains, low spots, ditches and other 
features across the countryside--features that are wet only when it 
rains and features that may be miles from the nearest truly 
``navigable'' water. These features intersect and crisscross the land 
that farmers and ranchers use to grow food, fiber and fuel. If the 
proposed rule is finalized, even otherwise exempt activities such as 
plowing or discing--or the 56 listed practices--will require a section 
404 permit if the ``flow or circulation'' of these ephemeral features 
``may be impaired'' or the reach of these features may be reduced.
    I have attached comments on the Interpretive Rule and request that 
they be included as part of the hearing record.
    Let me, however, lay out concerns that are broadly felt in the 
agricultural community:

    1. Farmers and ranchers as well as the public deserve direct and 
        clear communications from the agencies on highly technical and 
        complex regulatory issues. The Clean Water Act is a strict 
        liability statute that can carry significant criminal and civil 
        liabilities and can bring with it citizen lawsuits by activist 
        organizations.

    2. The IR and MOU are insufficient notice to farmers and ranchers 
        of an enforceable change to the Congressionally authorized 
        exemptions for ``normal'' agricultural practices. It is clear 
        from the IR, MOU and fact sheets that the legal obligations to 
        comply with the IR fall squarely on farmers and ranchers and 
        not the agencies.

    3. Even if farmers and ranchers are able to comply with the 
        complicated NRCS practice standards, such compliance does not 
        insulate their land from any section 402 permitting 
        requirements or other regulatory impacts resulting from the 
        agencies' proposed broadened definition of ``waters of the 
        United States.'' In other words, while ``normal farming 
        exemptions'' exempt certain agricultural activities it does not 
        exempt or exclude any newly defined water from CWA 
        jurisdiction.

    4. The agencies have confused policymakers, the media, and farmers 
        and ranchers by claiming that the IR provides additional 
        exemptions when it actually narrows the ``normal'' farming and 
        ranching exemption by imposing otherwise voluntary technical 
        standards and burdensome new requirements for farmers and 
        ranchers.

    5. The agencies' decision to accept comments only after the IR is 
        fully effective and enforceable precludes any meaningful public 
        participation and is clearly in conflict with the 
        Administrative Procedure Act (APA).

    6. The IR does not provide farmers and ranchers with additional 
        permit exemptions beyond what has already been authorized by 
        Congress. Congress amended the CWA in 1977 to exempt ``normal'' 
        farming, ranching and silviculture activities from section 404 
        ``dredge and fill'' permit requirements.

    7. Despite the agencies' characterization, the IR is a legislative 
        rule and is thus inconsistent with the APA.

The Interpretive Rule is a Legislative Rule that is Subject to APA 
        Requirements
    AFBF does not agree with the agencies' characterization of the 
404(f)(1)(A) IR as ``interpretive.'' Despite the agencies' 
characterization, the IR is a legislative rule. The APA draws a 
distinction between legislative rules, which are subject to notice and 
comment requirements, and interpretive rules or IRs, which are not 
subject to such requirements. 5 U.S.C.  553(b)(3)(A). Interpretive 
rules merely interpret existing law and policies; legislative rules 
establish new policies that an agency treats as binding. Actions that 
are binding must comply with the APA, regardless of how they are 
labeled.
    The IR is a regulation that must be promulgated under the APA 
because the IR clearly binds farmers and ranchers with new, specific 
legal obligations under the Clean Water Act. The IR modifies existing 
regulations interpreting the statutory term ``normal farming, ranching 
and silviculture.'' 40 CFR  232.3(c)(1)(ii)(A); 33 CFR  
323.4(a)(1)(ii). The IR purports to continue existing statutory and 
regulatory exemptions, but instead the IR narrows the 404(f)(1)(A) 
exemption by identifying 56 activities that will be exempt only if they 
are conducted consistent with NRCS conservation practice standards and 
as part of an established (i.e., ongoing) farming operation. Under the 
IR, previously voluntary NRCS conservation standards are made fully 
enforceable as part of the CWA regulatory program. The legal 
obligations to comply with the IR fall squarely on farmers and ranchers 
and not the agencies.
    If a farmer operating an ``established'' farming operation conducts 
a farming activity or conservation practice that results in a discharge 
of dredge or fill material into a water of the U.S., the IR clearly 
states that the activity ``must be implemented in conformance with NRCS 
technical standards.'' Failure to comply with the standards results in 
an unlawful discharge in violation of the CWA. This could subject the 
farmer to CWA penalties. Therefore this so-called interpretive rule is 
a legislative rule that imposes binding legal obligations on farmers 
and ranchers.

Contrary to the Agencies' Statements, the IR Does Not Provide 
        Additional Exemptions for Farmers and Ranchers
    Contrary to the agencies' statements, the IR does not provide any 
additional exemption for farmers and ranchers beyond what Congress 
authorized. In fact, as a matter of separation of powers, Members of 
Congress should be skeptical that the agency even has the authority to 
provide additional or expanded exemptions. Since the publication of the 
IR, agency officials and agency websites have claimed that there is no 
change to the existing CWA section 404(f)(1) exemption for ``normal'' 
agricultural activities on ``established'' operations and that somehow 
the IR is providing additional protections for agriculture. See Op-Ed 
on agriculture by Administrator McCarthy, March 25, 2014 (``But it 
doesn't stop there--[the rule] does more for farmers by actually 
expanding those exemptions.'') However, the IR does not provide farmers 
and ranchers with additional permit exemptions beyond what has already 
been authorized by Congress. Congress amended the CWA in 1977 to exempt 
``normal'' farming, ranching and silviculture activities from section 
404 ``dredge and fill'' permit requirements. 33 U.S.C.  1344(f)(1). 
Contrary to the agencies' assertions, the IR has effectively narrowed, 
rather than expanded the current exemptions, and NRCS conservation 
standards that were previously voluntary are now fully enforceable as 
part of the CWA regulatory program. As the MOU notes, ``[d]ischarges in 
waters of the U.S. are exempt only when they are conducted in 
accordance with NRCS practice standards.'' MOU at 3. Thus, the 
agencies' public statements about the IR are not only misleading but 
contradict the actual language of the IR documents.

The IR Applies only to the Section 404 Program
    It appears that the agencies are overstating the significance of 
the ``normal'' farming exemption, which does not apply to discharges 
regulated under the CWA National Pollutant Discharge Elimination System 
(NPDES) program. Even if the IR would somehow benefit some farmers or 
ranchers, it cannot insulate any farm or ranch from any section 402 
NPDES permitting requirements that may now result from the expansive 
definition of ``waters of the United States'' under the agencies' 
proposed rule to redefine the scope of jurisdiction under the CWA. The 
exemption is simply inapplicable to that separate permitting program. 
Thus, while a farmer may be able to plant cover crops in jurisdictional 
waters under the IR without a 404 permit (assuming compliance with NRCS 
standards), that same farmer would face CWA liability for applying 
fertilizer or pesticide to those same fields without a section 402 
NPDES permit.

The IR will Result in More Time-Intensive and More Costly Requirements 
        for Farmers and Ranchers
    Before the IR, farmers and ranchers did not need to satisfy 
federally mandated practice standards for ``normal'' agricultural 
activities subject to CWA section 404(f)(1)(A) exemptions. Farmers 
could engage in ordinary farming activities without the need for a 
section 404 permit, a jurisdictional determination as to whether the 
discharges were occurring in waters of the United States, or a site-
specific pre-approval. As a result of this IR, it may be more onerous 
to qualify for 404(f)(1)(A) exemptions.

The IR Adds Confusion and the Agencies Have Failed to Clarify Key 
        Issues Regarding the Application of the 404(f)(1)(A) Exemptions
    The IR provides little context or explanation regarding how the EPA 
and the Corps interpret the 404(f)(1) exemptions--an area already 
associated with great confusion within the agricultural community.
    The agencies have also failed to provide clarity on the following 
important issues:

    1. Whether a farmer needs pre-approval for any normal farming 
        activities not listed;

    2. Whether pre-approval is required if the farmer implements one of 
        the 56 listed practices in ``Waters of the U.S.'' without 
        complying with NRCS conservation practice standards;

    3. Whether the 124 NRCS conservation practices not specifically 
        listed are also exempt from section 404 permit requirements as 
        ``normal'' farming activities if they incidentally result in a 
        discharge of dredged or fill material;

    4. How the IR will be enforced;

    5. Whether and how a farmer should ensure compliance with the NRCS 
        conservation standards (according to the MOA, if the farmer 
        does not seek technical assistance from NRCS in identifying and 
        implementing the conservation standards, the farmer has the 
        responsibility to ensure that implementation of the 
        conservation practices is in accordance with the applicable 
        NRCS standard or the practice will not be exempt);

    6. The interplay between the IR and state agricultural programs and 
        requirements;

    7. The interplay between the NRCS (authority for agricultural 
        programs and technical assistance with implementing the NRCS 
        standards) and the Corps and EPA (CWA authority); and

    8. Whether the regulated community and the public will have any 
        opportunity for comment on changes to the list of covered 
        conservation practices as the agencies consider additions or 
        deletions in the future.

Conclusion
    Farmers and ranchers are concerned that the agencies have taken 
otherwise voluntary conservation standards and turned them into what 
are now Clean Water Act compliance tools. It is also unthinkable to 
have NRCS become the ``normal farming police'' or an enforcement agency 
for EPA and the Army Corps.

                              Attachment 1
            statement of the american farm bureau federation
     before the house transportation and infrastructure committee 
            subcommittee on water resources and environment
regarding: potential impacts of proposed changes to the clean water act 
                           jurisdiction rule
      by bob stallman, president, american farm bureau federation
June 11, 2014

I. Introduction
    The American Farm Bureau Federation thanks the Committee for 
holding this hearing and welcomes the opportunity to offer its 
perspective about the impacts of the Environmental Protection Agency's 
and Army Corps of Engineers' ``Waters of the U.S.'' proposed rule. AFBF 
has carefully analyzed the proposed rule and has concluded that it 
poses a serious threat to farmers, ranchers and any other individual or 
business whose livelihood depends on the ability to use the land.
    The proposal published April 21, 2014, in the Federal Register 
would categorically regulate as ``navigable waters'' countless 
ephemeral drains, ditches and other features across the countryside 
that are wet only when it rains and may be miles from the nearest truly 
``navigable'' water. It would also regulate small, remote 
``wetlands''--which may be nothing more than low spots on a farm 
field--just because those areas happen to be adjacent to a ditch or 
located in a floodplain. EPA says its new rule will reduce uncertainty, 
and I suppose that much is true. There will not be much uncertainty if 
the Federal Government could regulate every place where water flows or 
stands when it rains.
    A picture is worth a thousand words, so I would ask that Members of 
the Committee look at some of the images EPA has used to publicize the 
proposed rule. Compare those images with the types of features commonly 
found on agricultural land, which we believe would be swept 
inappropriately into Federal jurisdiction.
EPA's Images



Images from Farm Bureau Members



    We believe that the proposed categorical regulation of these land 
features amounts to an attempted end-run around Congress and two 
Supreme Court rulings. The Supreme Court, in separate decisions in 2001 
and 2006, ruled that Congress meant what it said in the Clean Water 
Act: ``navigable waters'' does not mean all waters. Yet the proposal 
will significantly expand the scope of ``navigable waters'' subject to 
Clean Water Act jurisdiction by regulating innumerable small and remote 
``waters''--many of which are not even ``waters'' under any common 
understanding of that word. To farmers, ranchers and other landowners, 
these features look like land, and this proposed rule looks like a land 
grab.
    Contrary to EPA's assurances to farmers and ranchers, this 
expansion of Federal regulatory reach would essentially negate several 
longstanding statutory exemptions for agriculture. Congress established 
these exemptions to prevent Federal permit requirements--and potential 
permitting roadblocks--for working the land and growing our nation's 
food, fiber, and fuel. Under this rule, farmers and ranchers will have 
to get Federal permits for ordinary and essential agricultural 
activities, just because those activities may cause dirt, fertilizer or 
crop protection products to fall into a dry ditch or a low spot on the 
field.
    In addition to our concerns about the rule itself, we are concerned 
that EPA and the Corps have established a 90 day comment period that 
directly coincides with the planting and growing season, when farmers 
and ranchers have limited time to learn about the rule and comment on 
it. We ask the Committee to support an extension of the comment period. 
We also urge Committee Members to vigorously oppose the rule as it is 
currently proposed.

II. The Proposed Rule Significantly Expands the Definition of 
        ``Navigable Waters''
    The proposed rule adopts three primary definitional changes that 
result in a significant expansion of Federal control over land and 
water resources across the nation.

   First, the proposed rule regulates ``ephemeral streams'' as 
        tributaries. ``Ephemeral streams'' are just dry land most of 
        the time. To a farmer, an ``ephemeral stream'' is often simply 
        a low area across the farm field.

   Second, the proposed rule categorically regulates as 
        ``tributaries'' all ditches that ever carry any amount of water 
        that eventually flows (over any distance and through any number 
        of other ditches) to a navigable water. Ditches are commonplace 
        features prevalent across farmland (and the rest of the 
        nation's landscape).

   Third, the proposed rule would regulate all waters deemed 
        ``adjacent'' to other jurisdictional waters (including dry 
        ditches and ephemerals) plus any ``other waters'' that have a 
        ``significant nexus.'' These categories have the potential to 
        sweep into Federal jurisdiction vast numbers of small, isolated 
        wetlands, ponds and similar features on farmlands nationwide.

    These changes, described in more detail below, will trigger 
substantial new roadblocks and costs for farming, ranching, the 
construction of homes, businesses and infrastructure, and innumerable 
other activities across the countryside. EPA's public relations 
campaign notwithstanding, the proposed rule expands Clean Water Act 
jurisdiction beyond its current scope (as properly limited by the 
Supreme Court) and far beyond the scope intended by Congress in 1972.
A. Ephemeral Drainages Are ``Tributaries'' Under the Proposed Rule
    The American Heritage Dictionary (1982) defines ``tributary'' as 
``a stream or river flowing into a larger stream or river.'' This 
common understanding of ``tributary'' simply does not include so-called 
``ephemerals''--low areas or ditches that carry water only when it 
rains.
    The proposed rule, however, would define ``tributary'' to include 
all areas of dry land where rainwater sometimes flows through an 
identifiable path or channel, so long as that path or channel 
ultimately leads (directly or through any number of other paths or 
channels) to a creek or stream that in turn ultimately flows to 
navigable waters. The agencies propose to identify a ``tributary'' 
based on the presence of a bed, bank, ordinary high water mark (OHWM) 
and any minimal amount of flow that eventually reaches navigable 
waters.

   The terms ``bed'' and ``bank'' simply mean land with lower 
        elevation in between lands of higher elevation. All but the 
        flattest terrain will have natural paths of lower elevations 
        that water--obeying the laws of gravity--will follow.

   ``Ordinary high water mark'' is an equally broad term that 
        encompasses any physical sign of water flow, such as changes in 
        the soil, vegetation or debris. When rainwater flows through 
        any path on the land, it tends to leave a mark. The agencies 
        themselves recognize that the definition of OHWM is vague, 
        ambiguous and inconsistently applied.\1\ In fact, an official 
        from the Corps' Philadelphia District has observed that, due to 
        inconsistent interpretations of the OHWM concept, as well as 
        inconsistent field indicators and delineation practices, 
        identifying precisely where the OHWM ends is nothing more than 
        a judgment call.\2\
---------------------------------------------------------------------------
    \1\ GAO Report ``Waters and Wetlands: Corps of Engineers Needs to 
Evaluate Its District Office Practices in Determining Jurisdiction,'' 
Feb. 2004.
    \2\ Presentation by Matthew K. Mersel, USACE, ``Development of 
National OHWM Delineation Technical Guidance,'' March 4, 2014.

   The agencies make no bones about their view that the 
        frequency, duration and volume of flow will no longer have any 
        relevance to determining whether a feature, like the low spot 
        on a farmer's field, is jurisdictional. Low areas where 
        rainwater channels will be ``navigable waters'' if they carry 
        any rainwater that eventually reaches an actual navigable 
---------------------------------------------------------------------------
        water.

    We all know that water flows downhill, and, at some point, much of 
that water eventually finds its way into a creek, stream or river. Yet 
based on nothing more than the flow of rainwater along a natural 
pathway across the land, the agencies propose to categorize vast areas 
of otherwise dry land as ``tributaries'' and therefore ``navigable 
waters.'' These are areas that the average person would not recognize 
as a stream, let alone ``navigable waters'' appropriate for regulation 
by two Federal agencies. It would be funny if it were not so 
frightening.
    The following photos show a farm field in central Michigan over the 
course of 2 weeks. The path where rainwater flowed on April 14, 2014, 
was almost completely dry by April 25. However, demarcations in the 
vegetation show that water flowed there. If the water that flowed 
through this field eventually found its way to a creek, stream or ditch 
that in turn eventually flowed to navigable waters, then this farmer's 
field could be ``navigable water'' under the proposed rule.







    A bed, bank and OHWM are common features on lands that are 
perfectly dry, except when it rains. Indeed, in Rapanos, Justice 
Kennedy expressed deep concern that the physical indicators of a bed, 
bank and OHWM are so broad that they could be used to assert 
jurisdiction over waters that have no significant nexus to 
traditionally navigable waters. (547 U.S. at 781-82.) That is precisely 
what the agencies have done. Rather than asserting jurisdiction only 
where specific features are found to have a significant effect on 
navigable waters (accounting for the volume of flow, proximity, etc.), 
the agencies classify all ephemeral features as jurisdictional waters 
if any flow can reach a traditional navigable water. Such a broad 
assertion of Federal jurisdiction takes ``waters of the U.S.'' far 
beyond what Congress intended in 1972--and far beyond what this body 
and the American public should tolerate.

B. Nearly Every Ditch Across the Country Could Be Regulated as a 
        Tributary Under the Proposed Rule
    In its public outreach on the proposal, EPA repeatedly insists the 
rule ``does not expand jurisdiction over ditches.'' This is simply 
false.
    The proposed rule would categorically regulate as ``tributaries'' 
virtually all ditches that ever carry any amount of water that 
eventually flows (over any distance and through any number of other 
ditches) to a navigable water.
    The only excluded ditches would be a narrowly defined (one might 
say mythical) category of ditches ``excavated wholly in uplands,'' 
draining only uplands, and with less than perennial flow.\3\ The 
preamble explains that this exclusion applies only to those ditches 
that are excavated in uplands (the term uplands is not defined in the 
proposed rule, but presumably means not waters or wetlands) at all 
points ``along their entire length.'' 79 Fed. Reg. at 22,203.
---------------------------------------------------------------------------
    \3\ The rule would articulate an additional ``exclusion'' for 
ditches that ``do not contribute flow'' of any amount to actual 
navigable waters. However, such ditches would not meet the expansive 
``tributary'' definition anyway. Further, such ditches are presumably 
quite rare, as the primary purpose of most (if not all) ditches is to 
carry water.
---------------------------------------------------------------------------
    The exception is essentially meaningless. One would be hard pressed 
to find a ditch that at no point along its entire length includes 
waters or wetlands.

   First, over the last several decades, the agencies have 
        expanded their regulatory footprint by broadening the criteria 
        for classifying land as ``wetland'' (e.g., expanding the list 
        of wetland vegetation). In many cases, low spots on the 
        landscape that were not considered wetlands in the 1970s and 
        1980s would certainly be considered wetlands today. Since the 
        purpose of ditches is to carry water, many ditches will tend to 
        develop ``wetland'' characteristics and therefore not be 
        ``wholly in uplands.''

   Second, because the purpose of a ditch is to carry water, 
        few ditches are excavated along the tops of ridges. The most 
        logical places to dig storm water ditches are at natural low 
        points on the landscape. Clearly, most ditches will have some 
        section that was excavated in a natural ephemeral drain or a 
        low area with wetland characteristics. Such ditches will not 
        qualify for the proposed exclusion for ``wholly upland'' 
        ditches.

   Third, the ``less than perennial flow'' requirement will 
        likely disqualify many irrigation ditches from the exclusion. 
        Irrigation ditches do not just carry storm water; they carry 
        flowing water to fields throughout the growing season as 
        farmers and ranchers open and close irrigation gates to allow 
        the water to reach particular fields. These irrigation ditches 
        are typically close to larger sources of water, irrigation 
        canals or actual navigable waters that are the source of 
        irrigation water--and they channel return flows to those source 
        waters. In arid sections of the nation, these irrigation 
        ditches, and the valuable surface water that flows through 
        them, are highly regulated by state authorities that 
        appropriate water based on vested water rights and permit 
        systems. Under the proposed rule, such irrigation ditches will 
        also be federally regulated as ``tributaries.''

    Given the expansive definition of ``tributary'' and the extremely 
limited exclusion, the vast majority of ditches in the U.S. will be 
categorically regulated as ``navigable waters'' under the proposed 
rule. The results could be startling. For example, the typical suburban 
homeowner would likely be surprised to find that EPA and the Corps view 
the roadside ditch at the edge of her lawn as ``navigable water'' 
worthy of the full weight of Clean Water Act protections. She would 
also likely be surprised to find that landscaping, insect control or 
even mowing the grass in that ditch are violations of the Clean Water 
Act. Yet that will be the result of the proposed rule.
    Will EPA seek enforcement against a homeowner mowing the lawn? 
Probably not. But the fact that it could illustrates the ridiculous 
implications of the proposed rule. In addition, if the agencies will 
have to pick and choose which discharges they actually regulate, then 
the rule hardly provides the certainty that the agencies claim.

C. Virtually Every Other Water Feature Can Be Regulated Under the 
        Proposed Rule as Either an ``Adjacent Water'' or ``Other 
        Waters''
    The proposed rule would regulate all waters deemed ``adjacent'' to 
other ``waters of the U.S.''--including ``tributaries'' (ditches and 
ephemerals). The agencies broadly define ``adjacent'' as 
``neighboring,'' which includes features located in the ``riparian 
area'' \4\ or floodplain of any other jurisdictional water, or features 
with a ``shallow subsurface . . . or confined surface hydrologic 
connection.'' \5\ Whether any of these characteristics exist will be 
determined in the agency's ``best professional judgment.'' 79 Fed. Reg. 
at 22208. Thus, the exact scope of ``adjacent'' waters is left to the 
vagaries of inconsistent regulators.
---------------------------------------------------------------------------
    \4\ ``Riparian areas'' are defined in terms useful only to a 
hydrologist: ``an area bordering a water where surface or subsurface 
hydrology directly influence the ecological processes and plant and 
animal community structure in that area.''
    \5\ The preamble explains that wetlands or ponds that ``fill and 
spill'' to ditches or other ephemeral features during intense rainfall 
would be viewed as having a confined surface hydrologic connection to 
those features. 79 Fed. Reg. at 22208. Such wetlands or ponds would 
therefore be ``navigable waters,'' no matter how small or remote they 
are from true navigable waters.
---------------------------------------------------------------------------
    Long, linear features, such as ditches, will have floodplain and 
riparian areas around them--and will often have ``hydrologic 
connections'' to nearby wetlands or ponds. For this reason, the 
inclusion of small, isolated wetlands, ponds and similar features that 
are ``adjacent'' to ditches would sweep into Federal jurisdiction 
countless small and otherwise remote wetlands and ponds that dot the 
nation's farmlands.
    The following image shows the 100 year and 500 year floodplain of 
Muddy Creek (a true navigable water) superimposed on a farmer's 
property in Missouri. Under the proposed rule, EPA and the Corps could 
determine any ``water'' within the shaded areas to be ``adjacent'' to 
Muddy Creek. Of course, more ``waters'' still could be swept in as 
``adjacent'' to the ditches and ephemerals that flow toward Muddy 
Creek.



        Source: FEMA Floodplain Maps.

    For those ``other waters'' that do not fall within the broad 
categories of ``tributary'' or ``adjacent'' waters (e.g., even more 
isolated wetlands, ponds and the like), the proposed rule establishes 
jurisdiction where those waters have a ``significant nexus'' to another 
``water of the U.S.'' ``Significant nexus'' means ``more than 
speculative or insubstantial effect'' that a water, alone or in 
combination with other similarly situated waters in the region, has on 
the ``chemical, physical or biological integrity'' of a navigable 
water. The same ``region'' would be interpreted as the ``watershed that 
drains to the nearest traditional navigable water, interstate water or 
the territorial seas . . .'' 79 Fed. Reg. at 22212. The preamble 
provides page after page of potential scientific indicators of 
physical, biological and chemical connections. See 79 Fed. Reg. at 
22213-14. The possibilities are so numerous and broad that regulators 
will have no difficulty finding a significant nexus for even the most 
minor features when combined with all similar features in the 
watershed.\6\
---------------------------------------------------------------------------
    \6\ For example, ``[f]unctions of waters that might demonstrate a 
significant nexus include sediment trapping, nutrient recycling, 
pollutant trapping and filtering, retention or attenuation of flood 
waters, runoff storage, export of organic matter, export of food 
resources, and provision of aquatic habitat.'' 79 Fed. Reg. at 22213.
---------------------------------------------------------------------------
D. EPA's Public Statements Regarding the Proposed Rule are Misleading
    The proposed rule and EPA's public statements in support of it are 
misleading to the public and regulated communities. The proposal is 
cloaked in scientific-sounding jargon and words that evoke images of 
rivers, streams and swamps--images that bear no resemblance to the land 
features the rule would regulate. For example:

   ``Waters'' (as used in the rule) can be ditches or low spots 
        on a field that are dry except when it rains.

    ``Bed, bank and ordinary high water mark'' includes land 
        with only subtle changes in elevation--any land where rainwater 
        naturally channels as it flows downhill.

   ``Wetland'' has come to mean areas where water-tolerant 
        vegetation can be found, even if the land isn't particularly 
        ``wet'' most of the time.

    To the general public, such terms may conjure images of flowing 
waters or swamps appropriate for Clean Water Act protection and 
regulation. In reality, they are being used to regulate land as if it 
were water--and ``navigable water'' at that.
    EPA has claimed repeatedly that the proposed rule would not assert 
jurisdiction over ``new types of waters'' or beyond waters that were 
``historically covered'' and would ``not expand jurisdiction over 
ditches.'' These statements are misleading, at best--and the last one 
is simply false.
    First, the text and preamble of the current regulations 
(promulgated in 1986 by the Corps and in 1988 by EPA) contain no 
reference to ``ephemeral'' streams or drains. Likewise, the regulations 
say nothing to suggest that ditches can be ``tributaries.'' EPA and the 
Corps have asserted in guidance and in enforcement actions that certain 
ditches and ``ephemeral streams'' are subject to CWA jurisdiction as 
``tributaries,'' but that is ad hoc ``regulatory creep,'' not proper 
notice-and-comment rulemaking. In other words, the fact that EPA and 
the Corps have at times asserted jurisdiction over these ``types'' of 
features does not make it right--and does not make it lawful to 
categorically regulate virtually all ditches and ephemerals.
    Second, ``historically''--i.e., before the Supreme Court's ruling 
in SWANCC--there was no real limit to the scope of CWA jurisdiction as 
interpreted by EPA and the Corps. The agencies unlawfully asserted 
jurisdiction over any waters to the full reach of the interstate 
commerce clause. That interpretation was resoundingly rejected by the 
Supreme Court in SWANCC. Since 2007, however, agency guidance has 
asserted jurisdiction over ``non-navigable tributaries'' only after a 
case-by-case analysis of whether a particular feature has a 
``significant nexus'' to true navigable waters. Key to that analysis is 
the volume, duration and frequency of flow, as well as proximity to 
downstream navigable waters. Under the proposed rule, the volume, 
duration and frequency of flow--as well as distance to navigable 
waters--are deemed irrelevant. See 79 Fed. Reg. at 22206 (``tributaries 
that are small, flow infrequently, or are a substantial distance from 
the nearest [navigable water] are essential components of the tributary 
network.''). All such ditches and ephemeral drains will be 
categorically deemed to be ``navigable waters'' if they carry any flow 
that ever reaches navigable waters. That--whether EPA says so or not--
is a substantial expansion of Federal jurisdiction.
    EPA makes much of the fact that the proposed rule ``preserves'' 
existing Clean Water Act exemptions and exclusions for agricultural 
activities. But under the proposed rule, ordinary farming and ranching 
activities will require a Clean Water Act permit despite Congress' 
clear intent to exempt those activities.
    According to Administrator McCarthy's March 25 op-ed aimed 
specifically at the agricultural community:

          The rule keeps intact existing Clean Water Act exemptions for 
        agricultural activities that farmers count on. But it doesn't 
        stop there--it does more for farmers by actually expanding 
        those exemptions. We worked with USDA's Natural Resources 
        Conservation Service and USACE to exempt [56] additional 
        conservation practices.

    As explained below, these assurances also are misleading--another 
attempt to cloak the true impact of this rule.

III. Statutory Exemptions Intended to Prevent Federal Permit 
        Requirements for Common Farming and Ranching Activities Will Be 
        Rendered Almost Meaningless Under the Proposed Rule
    When it adopted the Clean Water Act, Congress specifically included 
several critical statutory exemptions for agriculture, each of which is 
severely undermined by the proposed rule.

   Section 404 exemption for ``normal'' farming and ranching 
        activities

   Section 404 exemption for construction of farm or stock 
        ponds

   Agricultural storm water discharges

    These exemptions demonstrate a clear and consistent determination 
by Congress NOT to impose Clean Water Act permit requirements on 
ordinary farming and ranching activities--weather-dependent and time-
sensitive activities that are necessary for the production of our 
nation's food, fiber and fuel. However, the proposed rule's assertion 
of jurisdiction over ditches and low spots on farm fields will render 
those exemptions almost meaningless.

A. Section 404(f) Exemption for ``Normal'' Farming and Ranching 
        Activities
    In the mid-1970s, when the Corps began to define ``navigable 
waters'' to include certain wetlands--so as to make farming, ranching 
and forestry practices within those wetlands potentially subject to 
Clean Water Act regulation--Congress amended the Act to specifically 
exempt ``normal'' farming, ranching and forestry from section 404 
``dredge and fill'' permit requirements. 33 U.S.C.  1344(f)(1). Thus, 
``normal farming, silviculture, and ranching activities such as 
plowing, seeding, cultivating, minor drainage, harvesting for the 
production of food, fiber, and forest products, or upland soil and 
water conservation practices'' are generally exempt from section 404 
permitting requirements. 33 U.S.C.  1344(f)(1)(A). Only if the 
activity's purpose is to convert an area of navigable water into a use 
to which it was not previously subject, or where the reach of navigable 
waters may be reduced, (e.g., to convert wetland to non-wetland) will 
the activity require a 404 permit. 33 U.S.C.  1344(f)(2) (the so-
called ``recapture'' provision).
    On March 25, 2014, the agencies issued an immediately effective 
``interpretive rule'' concerning the application of ``normal'' farming 
exemptions to 56 listed conservation practices. Although EPA claims to 
have ``expanded'' agriculture's Clean Water Act exemptions through this 
interpretive rule, that is not true. Rather, as described below, the 
interpretive rule provides no meaningful protection from the harmful 
implications of the expansion of ``navigable waters'' and, in fact, 
further narrows the already limited ``normal'' farming exemption.

1. The Normal Farming Exemption Only Applies to Section 404 ``Dredge 
        and Fill'' Permitting, Not NPDES Permitting or Other Clean 
        Water Act Requirements
    The normal farming exemption only applies to the section 404 
``dredge and fill'' permit program. It provides no protection from 
potential liability and requirements of any other part of the Clean 
Water Act, including section 402 National Pollutant Discharge 
Elimination System (NPDES) permit requirements for discharges of other 
``pollutants.'' The agencies' proposed expansion of jurisdiction means 
that everyday weed control, fertilizer applications and any number of 
other commonplace and essential farming activities may trigger Clean 
Water Act liability and section 402 permit requirements if even small 
amounts of dust, nutrients or chemicals fall into dry ditches, 
ephemerals or low spots (small ``wetlands'') located beside, between or 
within farm fields.
    The normal farming exemption also will not protect farmers from new 
restrictions (or prohibitions) on farming practices that arise from the 
establishment of water quality standards and ``total maximum daily 
loads'' under Clean Water Act section 303 for the ditches, ephemerals 
and other features EPA now plans to sweep into Federal jurisdiction. 
These requirements apply to all ``navigable waters'' under the Act, and 
thus they will apply to dry ditches, ephemerals and low spots on 
fields, too, if those features are defined as jurisdictional waters.

2. The Normal Farming Exemption Only Applies to Farming or Ranching 
        Ongoing Since the 1970s
    Since 1977, the agencies have narrowly interpreted the ``normal'' 
farming, ranching and silviculture exemption to apply only to 
``established'' operations ``ongoing'' since 1977 (when the exemption 
was enacted and the Corps' implementing regulations were adopted). See, 
e.g., U.S. v. Cumberland Farms of Connecticut, Inc., 647 F. Supp. 1166 
(D. Mass. 1986), affirmed 826 F.2d 1151 (1st Cir. 1987), cert. denied, 
484 U.S. 1061 (1988). Newer farms, or farms where farming ceased since 
1977 and later resumed, or sometimes even farms that have switched from 
one crop to another since 1977, will all fall outside of the exemption. 
See, e.g., Borden Ranch P'ship v. U.S. Army Corps of Eng'rs, 261 F.3d 
810, 815 (9th Cir. 2001), aff'd 537 U.S. 99 (2002) (finding that 
conversion of ranch lands to orchards and vineyards falls outside 
normal farming exemption). Therefore, if the new interpretive rule 
provides any benefit for any farmers and ranchers, it will only be for 
those who have been farming or ranching continuously at the same 
location since 1977. See Interpretive Rule at 2.
    Reading the preamble to the proposed rule closely, one can see how 
regulating ephemeral drains as ``waters of the U.S.'' would render the 
normal farming exemption meaningless. The reason lies in the so-called 
``recapture'' provision of section 404(f)(2). This provision negates 
the exemption where farming impairs the flow or reduces the reach of 
navigable waters. In the context of discussing ephemeral 
``tributaries'' in the proposed rule, the agencies reveal that if 
plowing or discing the soil on farmland eliminates what would otherwise 
be an identifiable bed, bank and OHWM, that farming requires a section 
404 permit because it has reduced the reach of jurisdictional waters. 
See 79 Fed. Reg. at 22204, fn. 8, and accompanying text. Of course, 
this means that any plowing that has already eliminated a bed, bank or 
OHWM of an ephemeral drain in a farm field without a 404 permit was (in 
the view of the agencies) a violation of the Act.

3. The Agencies Have Further Narrowed the Normal Farming Exemption By 
        Making It Contingent on Compliance With NRCS Standards
    To the extent a farmer or rancher has a long-standing operation 
that would qualify as ``normal'' farming and ranching, the new 
interpretive rule further narrows the existing exemption by requiring 
compliance with NRCS technical standards for the 56 listed conservation 
practices. Many of the listed ``conservation practices'' are extremely 
common farming and ranching practices--such as fencing, brush 
management and pruning shrubs and trees--which we believe are already 
exempt.
    The agencies claim to be ``clarifying'' the exemption for 56 listed 
activities, but, at the same time, the interpretive rule requires 
compliance with specific NRCS standards--something that was never 
required before to qualify for the ``normal'' farming and ranching 
exemption. Therefore, the practical effect of the interpretive rule is 
to narrow the existing exemptions, rather than broaden them as EPA 
claims. The rule explicitly states that farmers who deviate from NRCS 
standards will not benefit from the exemption.\7\ Farmers who could 
previously undertake these activities (which, again, include things as 
commonplace as fencing) as part of their ``normal'' farming or ranching 
now must comply with NRCS standards or risk Clean Water Act 
enforcement.
---------------------------------------------------------------------------
    \7\ See Interpretive Rule at page 2 (``To qualify for this 
exemption, the activities must be part of an `established (i.e., 
ongoing) farming, silviculture, or ranching operation,' consistent with 
the statute and regulations. The activities must also be implemented in 
conformance with NRCS technical standards.'').
---------------------------------------------------------------------------
    The interpretive rule does not clarify which regulatory agency has 
final authority on compliance with NRCS standards--but the answer 
appears to be EPA. The rule states that a farmer not enrolled in a USDA 
cost share program is responsible for ensuring the practice meets all 
NRCS criteria, and NRCS is responsible for ensuring the practice meets 
the criteria where there is a USDA contract. Ultimately, however, EPA 
has reserved its Clean Water Act authority to make all final 
determinations. Even if a farmer and NRCS believe that the practice 
meets the appropriate standards, EPA presumably could veto that 
determination.
    The new rule also raises questions about the status of other 
practices for which NRCS has developed standards, but that are not 
included in the list of 56 conservation practices. Examples include `` 
`Residue and Tillage Management, Reduced Tillage' (practice #345), pond 
(practice #378), and cover crop (practice #340).'' The implication of 
not listing these practices is that they will require a section 404 
permit if any incidental discharge of ``dredged or fill'' material 
occurs. This could have a chilling effect on the implementation of 
conservation practices on farms and ranches.
    Further, EPA and the Corps could alter or retract the interpretive 
rule at any time. Even for those farmers who may perceive value in the 
``assurances'' offered by this new guidance, the fact that it could be 
changed or eliminated at any time, without advance public notice, robs 
them of that so-called assurance. For that matter, the standards to 
which the exemption is now tied can be unilaterally changed by NRCS at 
any time without rulemaking. We see little value or certainty for 
farmers under these circumstances.

B. Section 404 Exemption for Construction or Maintenance of Farm Ponds
    Another agriculture-related exemption in section 404 of the Act is 
the exemption for ``construction or maintenance of farm or stock ponds 
or irrigation ditches.'' 33 U.S.C.  1344(f)(1)(C). This provision 
exempts from 404 ``dredge and fill'' permit requirements any discharge 
of dredge or fill materials into waters of the U.S. for the purpose of 
construction or maintenance of farm or stock ponds or irrigation 
ditches.
    Through guidance and enforcement actions, the Corps has interpreted 
the farm pond exemption narrowly and applied the so-called 
``recapture'' provision broadly. If construction or maintenance of the 
pond results in earth-moving activities that reduce the reach or change 
the hydrology of a water of the U.S., the Corps takes the position that 
the ``recapture'' provision applies and the discharge is unlawful 
without a permit. In the Corps' view, impounding a jurisdictional 
feature is an unlawful ``dredge and fill'' discharge, and the resulting 
impoundment is itself ``waters of the U.S.'' 77 Fed. Reg. 22188, 22201 
(Apr. 21, 2014). In the experience of many farmers, where wetlands or 
non-navigable ``tributaries'' are involved in farm or stock pond 
construction, the recapture provision essentially swallows the 
exemption. Farmers have been ensnarled in litigation and enforcement 
due to the creation of ponds that impound small ephemeral streams. See, 
e.g., http://agfax.com/2014/03/21/epa-vs-rancher-clean-water-act-
battle-dtn/ (EPA asserting jurisdiction over rancher's stock pond used 
to support ongoing farming activities).
    The proposed rule will further limit farmers' and ranchers' ability 
to build and maintain farm ponds. As explained above, the proposed rule 
will establish jurisdiction over virtually every ephemeral drain as a 
``tributary.'' Thus, any impoundment of those drainage features will be 
an unlawful discharge absent a section 404 permit, and the resulting 
farm pond itself will become ``waters of the U.S.'' In addition, any 
construction of a farm pond in a small low spot (``wetland'') swept 
into Clean Water Act jurisdiction under the ``adjacent'' or ``other 
waters'' provisions of the proposed rule (discussed above) will also 
require a section 404 permit and will result in a pond that is itself 
waters of the U.S.
    This aspect of the rule will affect countless (maybe most) farm and 
stock ponds. By expanding jurisdiction to include common ephemeral 
drains and isolated wetlands, the rule will prohibit the impoundment of 
these natural drainage or depressional areas that are often the only 
rational way to construct a farm or stock pond. Farm or stock ponds are 
typically constructed at natural low spots on the farm or ranch 
property, to capture storm water that enters the pond through sheet 
flow and ephemeral drains. Depending on the topography, pond 
construction may be infeasible without diking a natural drainage path 
on a hillside.
    The proposal includes an exclusion from the definition of waters of 
the U.S. for ``artificial lakes or ponds created by excavating and/or 
diking dry land and used exclusively for such purposes as stock 
watering, irrigation, settling basins, or rice growing.'' This 
exclusion is almost meaningless because, as discussed above, ``dry 
land'' is interpreted to exclude anything that qualifies as a wetland 
or any ephemeral feature where storm water naturally channels. This 
leaves little ``dry'' land available for the construction of farm 
ponds. Put simply, farm and stock ponds are not excavated on hill tops 
and ridges, they are excavated at low spots where water naturally flows 
and collects. Thus, the proposed farm pond exclusion will be 
meaningless for most farmers and ranchers.

C. Exemption for Agricultural Stormwater and Irrigation Return Flows
    Another key agricultural exemption in the Clean Water Act applies 
to ``agricultural storm water discharges'' and ``irrigation return 
flows.'' Under this exemption, precipitation runoff and irrigation 
water from farms and ranches is specifically excluded from regulation 
as a ``point source'' discharge. The exemption applies even if the 
storm water or irrigation water contains ``pollutants'' and is 
channeled through a ditch or other conveyance that might otherwise 
qualify as a ``point source'' subject to Clean Water Act section 402 
NPDES permit requirements. The exemption shows Congress' clear intent 
to exclude farmers and ranchers from Clean Water Act liability and 
permitting for activities on farm and ranch lands that may result in 
``pollutants'' being carried by precipitation or irrigation flows into 
navigable waters.
    The proposed rule would severely undermine this exemption by 
regulating as ``waters of the U.S.'' the very ditches and drains that 
carry storm water and irrigation water from farms. As drafted, the 
statutory exemption applies to pollutants discharged to navigable 
waters carried by storm water or irrigation water, which would 
typically flow through ditches or ephemeral drains. However, the 
exemption arguably does not cover the direct addition of pollutants 
into ``navigable waters'' by other means (such as materials that fall 
into or are sprayed into navigable waters).
    Because storm water and irrigation ditches and ephemeral drains are 
ubiquitous on farm and ranch lands--running alongside and even within 
farm fields and pastures--the proposed rule will make it impossible for 
many farmers to apply fertilizer or crop protection products to those 
fields without triggering potential Clean Water Act liability and 
permit requirements. A Clean Water Act pollutant discharge to navigable 
waters arguably will be deemed to occur each time even a molecule of 
fertilizer, pesticide or dust falls into the jurisdictional ditch, 
ephemeral or low spot--even if the feature is dry at the time of the 
purported ``discharge.'' \8\ Thus, farmers will have no choice but to 
``farm around'' these features--allowing wide buffers to avoid 
activities that might result in a discharge--or else obtain an NPDES 
permit for farming. Technically, cattle or horses would need to be 
fenced out of ephemerals and low spots to avoid a direct ``discharge'' 
of manure. This is contrary to Congressional intent and would present a 
substantial additional hurdle for farmers to conduct essential 
practices to grow and protect their crops and livestock.
---------------------------------------------------------------------------
    \8\ Courts have long held that there is no de minimis defense to 
Clean Water Act discharge liability.
---------------------------------------------------------------------------
IV. Practical Implications for Farmers and Ranchers
    Farming is a water-dependent enterprise. Whether they are growing 
plants or animals, farmers and ranchers need water. For this reason, 
farming and ranching tend to occur where there is either plentiful 
rainfall or adequate water available for irrigation (via ditches). Not 
surprisingly, America's farm and ranch lands are an intricate maze of 
ditches and ephemeral drains. As explained above, under the proposed 
rule, virtually all of these features would be categorically regulated 
as ``navigable waters.''
    If the drains and ditches that cross between, among and within farm 
fields and pastures are regulated as ``navigable waters,'' the 
implications for farmers and ranchers will be disastrous. Except for 
the very narrow section 404 exemptions discussed above, regulating 
these features as jurisdictional ``waters'' would mean that any 
discharge of a pollutant (e.g., soil, dust, ``biological material'') 
into those ditches and drains is unlawful, absent a Clean Water Act 
permit. Typical farming activities, such as plowing, planting, discing, 
insect and disease control, and fence building in or near ephemeral 
drains, ditches or low spots could be a violation of the Clean Water 
Act, subject to civil penalties of up to $37,500 per violation per 
day--or even higher criminal penalties--unless a permit is obtained.

V. The Proposed Rule Suffers from Several Procedural Flaws
    The agencies' economic, technical and small business analyses are 
severely flawed. First, according to an expert review by Dr. David 
Sunding, the agencies' economic analysis contains numerous glaring and 
problematic errors that ``are so severe as to render [the economic 
analysis] virtually meaningless.'' \9\ Second, the proposed rule relies 
on the draft Connectivity Synthesis Report that is still undergoing 
vetting and peer review by the Science Advisory Board (SAB). Rather 
than wait for the final SAB report before drafting a proposed rule that 
purports to rely on the science contained in that report, the agencies 
plowed forward with a proposed rule that relies on a draft. It is clear 
that the agencies are not properly taking the science into account and 
that the outcomes have been pre-determined. Finally, the agencies have 
refused to meaningfully comply with the Regulatory Flexibility Act 
(RFA). The agencies erroneously certified that the proposed rule would 
not have a significant economic impact on a substantial number of small 
entities. This certification flies in the face of the undeniably 
``significant'' impacts the proposed rule will have on small 
businesses.
---------------------------------------------------------------------------
    \9\ Report by Dr. David Sunding, ``Review of 2014 EPA Economic 
Analysis of Proposed Revised Definition of Waters of the United 
States'', May 15, 2014. Prof. Sunding holds the Thomas J. Graff Chair 
of Natural Resource Economics at the University of California, 
Berkeley. He is the founding director of the Berkeley Water Center and 
currently serves as the chair of his department. He has won numerous 
awards for his research, including grants from the National Science 
Foundation, the U.S. Environmental Protection Agency and private 
foundations.
---------------------------------------------------------------------------
A. The Economic Analysis Significantly Underestimates the Increase in 
        Jurisdiction
    The Sunding Report concludes that ``the EPA analysis relies on a 
flawed methodology for estimating the extent of newly-jurisdictional 
waters that systematically underestimates the impact of the definition 
change.''
    A threshold problem with EPA's economic analysis is that it 
analyzes the implications of only one category of Clean Water Act 
jurisdiction under the new proposed rule, ``other waters.'' As 
discussed above, the proposed rule includes broad new definitions 
(e.g., ``tributary'' and ``neighboring'') that will categorically sweep 
into Clean Water Act jurisdiction countless features currently subject 
to only case-by-case regulation based on a significant nexus analysis. 
However, the economic analysis focuses solely on how jurisdiction might 
change for ``isolated waters'' that are not jurisdictional under the 
current Clean Water Act framework, but that are likely to become 
jurisdictional under an expanded definition of ``other waters.''
    As Dr. Sunding found, the database EPA used to estimate economic 
implications for incremental expansion of jurisdiction does not track 
information on these new terms and categories of jurisdiction. For 
example, EPA's economic analysis recognizes that the ``isolated 
waters'' category does not take into account the rule's new aggregation 
principle, and explains that EPA could not assess the potential impacts 
of aggregation of other waters within a watershed without ``actual 
field experience.'' Indeed, EPA's analysis also acknowledges that there 
will be additional costs to the Corps to update the system to ``reflect 
needed data elements'' as a result of the rule's new jurisdictional 
categories. EPA does not alter its analysis to account for this major 
deficiency. As a result, numbers extrapolated from the records, which 
do not marry up with the draft rule's categories of jurisdiction, are 
not useful for approximating the economic implications of the 
percentage of increase in jurisdiction or the increase in 
jurisdictional acreage.
    Second, the analysis relies on FY 2009/2010 as the baseline year 
for estimating impacts. FY 2009/2010 was a period of significant 
contraction in the nation's economy, and the housing market 
specifically, due to the financial crisis. As a result of this 
contraction, there were fewer construction projects and significantly 
smaller projects than in periods of normal economic activity. In 
statistical terms, this is an issue of sample selection, where due to 
exogenous events the sample selected for the analysis is not 
representative of the overall population. Because the report bases its 
findings on this period of extremely low construction activity, the 
result is artificially low numbers of applications and affected acres. 
By using the number of permits issued in 2010 as a baseline, EPA 
significantly underestimates the affected acreage. It's hard to imagine 
that only 1,300 acres would be affected, as EPA claims, when more than 
106 million acres of wetlands are currently being used for agricultural 
purposes.\10\
---------------------------------------------------------------------------
    \10\ USDA National Resources Inventory.
---------------------------------------------------------------------------
    Third, EPA's economic analysis only considers permitting data from 
section 404 to estimate the potential additional percentage of acres 
that would come under jurisdiction. EPA then assumes that every other 
section of the Clean Water Act would be affected the exact same way as 
section 404, applying the estimated increase in percentage of acres 
impacted to all other relevant sections of the Clean Water Act. There 
is no reason to believe that this is a valid approach given significant 
differences in location and in permitting requirements for different 
economic activities. EPA recognizes this limitation,\11\ but does 
nothing to address it.
---------------------------------------------------------------------------
    \11\ EPA 2011. Draft Guidance on Identifying Waters Protected by 
the Clean Water Act, p. 3.
---------------------------------------------------------------------------
B. The Economic Analysis Significantly Underestimates the Cost of the 
        Proposed Rule
    EPA's economic analysis is further flawed because it underestimates 
the cost of the proposed rule by relying on section 404 permitting cost 
data that are nearly 20 years old. To make matters worse, these costs 
are not adjusted for inflation or any other changes in the permit 
system. Moreover, EPA's analysis omits the costs of avoidance and 
delay, which are likely the largest out-of-pocket expenses for anyone 
seeking a Corps permit. While estimations of these costs are included 
in the report cited by EPA, they are inexplicably absent from EPA's 
``review and synthesis.'' According to the report EPA cites, individual 
section 404 permit application costs were measured as $43,687 plus 
$11,797 per acre of impacts to ``waters of the U.S.'' For nationwide 
permits, costs were measured as $16,869 plus $9,285 per acre of 
``waters of the U.S.'' impacted.\12\ If those figures were updated to 
2014 dollars in order to account for inflation the application costs 
are even more astounding. In 2014 dollars, individual section 404 
permit application costs would be $62,166 plus $16,787 per acre of 
impacts to ``waters of the U.S.'' For nationwide permits, costs would 
be $24,004 plus $13,212 per acre of ``waters of the U.S.'' impacted. 
(See Sunding Report at 17.)
---------------------------------------------------------------------------
    \12\ Sunding and Zilberman, The Economics of Environmental 
Regulation by Licensing: An Assessment of Recent Changes to the Wetland 
Permitting Process, Natural Resources Journal, Vol., 42, p. 74.
---------------------------------------------------------------------------
    EPA's analysis further underestimates costs for some programs, like 
section 303 (state water quality standards, ``total maximum daily 
loads'' and implementation plans) and section 402, by assuming them to 
be ``cost-neutral or minimal'' without providing any analysis to 
support this assumption. The effects of expanded jurisdiction are 
likely to vary significantly from program to program; however, careful 
assessment of program-specific effects is omitted in lieu of 
simplistic, generalized estimations.
    EPA acknowledges that additional permit applications may require 
increased consultation with other agencies, which would drive up the 
price tag of a definitional change. EPA, however, omits these costs 
from its analysis.

C. The Economic Analysis Significantly Overestimates Benefits of the 
        Proposed Rule
    EPA's analysis is also flawed for reasons of overestimation. 
Relying on third-party, outdated studies, EPA overestimates an average 
willingness to pay for wetland mitigation. These studies are highly 
problematic because they are old--nine of the ten studies EPA used are 
more than a decade old (the oldest is nearly 30 years old)--and do not 
provide accurate estimates of benefits. Many were not published in 
peer-reviewed journals.
    EPA calculates benefits based on an unstated and improbable 
assumption that all of the incremental wetlands affected by the 
definitional change would be completely destroyed if Federal 
jurisdiction were not expanded. EPA then (1) presumes that benefits 
calculated for a specific geography and time can be readily applied 
elsewhere, forcing a comparison between different types of wetlands 
being considered, and (2) makes the assumption that the public would be 
willing to pay the same amount to protect an isolated low spot or pond 
as they would a high-value wetland. This significantly biases EPA's 
analysis. Even the studies cited by EPA show highly localized impacts 
that are not broadly applicable beyond the study site.
    EPA makes little effort to account for changes in economic trends, 
recreational patterns and state preferences over time. Finally, EPA 
suggests there may be ``across the board'' savings in program 
enforcement related to increased clarity in the Clean Water Act 
program.
    Taking these underestimates and overestimates into account, Dr. 
Sunding concludes that EPA's analysis suffers from a lack of 
transparency and that the methodology, errors and omissions render it 
virtually meaningless.

D. The Agencies' Rulemaking Does Not Take Into Account Scientific and 
        Technical Underpinnings
    The agencies' proposed rule relies on a draft review of the 
scientific literature on ``connectivity'' currently under review by an 
SAB. The agencies have drafted the proposed rule in reliance on the 
draft Connectivity Synthesis Report, without waiting for the SAB's 
final report. Sending a proposed rule to OMB for interagency review 
before the SAB completes its peer review demonstrates that the agencies 
are not properly taking the science into account and that the outcomes 
have been pre-determined. Any proper rulemaking should begin with an 
agency collecting, developing and then appropriately evaluating all of 
the relevant science. The agency should seek to validate or correct its 
understanding of the science through conducting independent scientific 
peer review. Finally, the agency should use what is learned through a 
vetting process to inform any policy or regulatory decisions.
    Instead, EPA has asked the SAB to engage in a post hoc review of a 
severely limited portion of the science that will be used to justify a 
rule that has already been written. EPA's decision to develop a rule 
based on a scientific report that has not undergone external scientific 
peer review calls into question the legitimacy of the rulemaking 
process. EPA should allow the SAB to complete its review. The agencies 
should extend the comment period on the proposed rule until after this 
process is complete and the report is thoroughly vetted to ensure that 
any final rule is based on the final, peer-reviewed connectivity 
report.

E. The Impacts to Small Business Are Staggering
    On April 23, the House Small Business Committee added the proposed 
rule to its website alerting small businesses to burdensome Federal 
regulations. According to Committee Chairman Sam Graves (R-Mo.), the 
``EPA and Corps are proposing to expand the jurisdiction of the Clean 
Water Act to include nearly every damp patch of land in the United 
States.'' Graves termed the proposed rule a ``regulatory overreach,'' 
saying:

          [This] means small businesses and landowners may need costly 
        permits and face lengthy delays for ordinary activities on 
        private property. Projects may need to be redesigned or 
        relocated to satisfy Federal regulators. Worse, permit 
        applications may be denied. This extraordinary intrusion into 
        the lives of many farmers, ranchers and small business owners 
        has the likely potential to be economically devastating and 
        must be stopped.

    The agencies have not properly complied with the procedural 
requirements of RFA. The agencies try to dodge the RFA by claiming that 
the ``scope of regulatory jurisdiction in this proposed rule is 
narrower than that under the existing regulations.'' 79 Fed. Reg. at 
22220. Therefore, ``because fewer waters will be subject to the Clean 
Water Act under the proposed rule than are subject to regulation under 
the existing regulations, this action will not affect small entities to 
a greater degree than the existing regulations . . . [and] will not 
have a significant adverse impact on a substantial number of small 
entities.'' Id. The agencies thus erroneously conclude that no RFA 
analysis is required.
    But there can be no question that the proposed rule has direct 
effects not only on regulated entities, but also on the entire nation. 
The scope of Clean Water Act jurisdiction has implications that 
permeate all sections and programs under the Act, such as section 303 
water quality standards and total maximum daily loads, section 311 oil 
spill prevention control and countermeasures, section 401 water quality 
certifications, the section 402 NPDES program and the section 404 
dredge and fill permit program. These programs regulate countless 
diverse small business activities across the nation, from farming and 
roadside produce stands, to home building, to manufacturing and energy 
development. The agencies' proposal expands these Clean Water Act 
programs geographically to cover more areas across the landscape 
including ditches, dry washes and desert drainages. When public or 
private property is deemed ``waters of the United States'' by the 
agencies, there are numerous impacts that flow from that determination, 
including the reduced value of land, the need to hire consultants to 
prepare permits, delays, restrictions on land use and the cost of 
complying with permitting requirements, including mitigation--not to 
mention the potential for permit denial or the cost of forgoing a 
project entirely rather than take on the bureaucracy. These widespread 
impacts are felt acutely by small businesses.
    In Florida, for example, it is estimated that 40 percent of the 
value of farmland is directly attributable to its future development 
potential.\13\ Thus, when Clean Water Act regulatory jurisdiction or 
permitting requirements are expanded over farmland, the value of that 
land decreases significantly because of the associated regulatory 
burdens. For farmers and ranchers, their land is typically their 
principal asset and frequently provides collateral for loans and other 
capital purchases needed to operate their farm or ranch. The agencies' 
determination that Clean Water Act jurisdiction exists over ditches and 
other features on farmland may affect small farmers' ability to obtain 
loans.
---------------------------------------------------------------------------
    \13\ Plaintiga, A.J., Lubowski, R.N., and R.N., Stavins, The 
Effects of Potential Land Development on Agricultural Land Prices, 52 
J. of Urban Economics 561, 581 (2002).
---------------------------------------------------------------------------
    As another example, agricultural insect, weed and disease control 
will increasingly be subject to NPDES requirements under EPA's new 
permit program for pesticides.\14\ Some small business owners have 
estimated that it will cost an additional $50,000 per year to comply 
with the new paperwork burden imposed by the pesticide permit program 
alone.\15\ These burdensome NPDES requirements place severe limitations 
on the location and operation of many activities undertaken by small 
entities. Expanding the scope of waters that are regulated as ``waters 
of the United States'' to ditches and other ephemeral features only 
adds to the ``waters'' at issue in the pesticide general permit and 
thus exacerbates the complexities and costs of implementing this 
program.
---------------------------------------------------------------------------
    \14\ It is estimated that under the new NPDES permit program for 
pesticides, 365,000 new sources will be required to obtain NPDES 
permits, but this estimate was made prior to, and does not account for, 
the expansion of jurisdiction proposed in the Draft Guidance. See EPA, 
``Background information on EPA's Pesticide General Permit,'' http://
cfpub.epa.gov/npdes/pesticides/aquaticpesticides.cfm (viewed Jun. 26, 
2011).
    \15\ See Responsible Industry for a Sound Environment, ``Comments 
in Response to Draft National Pollutant Discharge Elimination System 
(NPDES) Pesticide General Permit for Point Source Discharge from the 
Application of Pesticides,'' Docket No. EPA-HQ-OW-2010-0257, http://
www.regulations.gov/#!documentDetail;D=EPA-HQ-OW-2010-0257-0490 (Jul. 
19, 2010).
---------------------------------------------------------------------------
    The bottom line is that the expansion of the waters regulated under 
the Clean Water Act has enormous implications for small business 
entities that the agencies have not considered, much less explained.

VI. Conclusion
    Farmers, ranchers and other landowners will face a tremendous new 
roadblock to ordinary land use because of this proposed rule. The rule 
will make it more difficult to farm and ranch, build homes, develop 
energy resources and otherwise use the land. Farm Bureau believes the 
proposed rule will have a detrimental effect on existing farmers, on 
encouraging new and beginning farmers to enter the profession and 
potentially on landowners' willingness to undertake conservation 
practices.
    The agencies have obscured rather than explained the rule's impacts 
on farmers, ranchers and others.
    We need Congress' help to fight this rule.
    Thank you for the opportunity to explain our opposition to the 
Waters of the U.S. proposed rule. We would be glad to provide any 
further information the Committee may need.

                              Attachment 2
June 6, 2014

  Damaris Christensen,
  Office of Water (4502-T),
  Environmental Protection Agency,
  Washington, D.C.;

  Chip Smith,
  Office of the Deputy Assistant Secretary of the Army (Policy and 
    Legislation),
  Washington, D.C.;

  Stacey Jensen,
  Regulatory Community of Practice (CECW-CO-R),
  U.S. Army Corps of Engineers,
  Washington, D.C.

Re: [EPA-HQ-OW-2013-0820; 9908-97-OW]

    To Whom It May Concern:

    These comments are submitted for the record on the EPA and Corps of 
Engineers (Corps) ``Notice of Availability Regarding the Exemption From 
Permitting Under section 404(f)(1)(A) of the Clean Water Act to Certain 
Agricultural Conservation Practices,'' 79 Fed. Reg. 22276 (April 21, 
2014). Our comments address the two documents (referred to as Guidance) 
associated with the Federal Register notice, the ``Interpretive Rule 
Regarding the Applicability of Clean Water Act section 404(f)(1)(A)'' 
(IR) and the ``Memorandum of Understanding'' (MOU) among EPA, the Corps 
and USDA.
    The American Farm Bureau Federation (AFBF) has significant concerns 
with the both the substance and process by which EPA, the Corps and the 
Natural Resources Conservation Service (NRCS) (together, the agencies) 
developed this Guidance. AFBF recommends that the agencies withdraw the 
Guidance immediately and ensure that any future changes to the normal 
farming exemptions comply with the Administrative Procedure Act (APA).
    Given the short comment deadline and the agencies' refusal to grant 
an extension of time, AFBF is providing comments by June 5, 2014. 
However, AFBF is scheduled to meet with the agencies on June 13. If 
that meeting generates clarification or additional information that 
warrants further comment, AFBF will submit additional comments to the 
record.

I. The 404(f)(1)(A) Is a Legislative Rule That Is Subject to APA 
        Requirements
    AFBF does not agree with the agencies' characterization of the 
404(f)(1)(A) Interpretive Rule (IR) as ``interpretive.'' Despite the 
agencies' characterization, the IR is a legislative rule. The APA draws 
a distinction between legislative rules, which are subject to notice 
and comment requirements, and interpretive rules or guidance, which are 
not subject to such requirements. 5 U.S.C.  553(b)(3)(A). Legislative 
rules, which do not merely interpret existing law or propose policies, 
but which establish new policies that an agency treats as binding, must 
comply with the APA, regardless of how they are labeled.\1\
---------------------------------------------------------------------------
    \1\ See, e.g., Appalachian Power Co. v. EPA, 208 F.3d 1015 (D.C. 
Cir. 2000) (striking down emissions monitoring guidance as legislative 
rule); Natural Res. Def. Council v. EPA, 643 F.3d 311 (D.C. Cir. 2011) 
(vacating guidance that allowed states to propose alternatives to 
statutorily required fees for ozone non-attainment areas as legislative 
rule that required notice and comment); National Mining Ass'n v. 
Jackson, 856 F. Supp. 2d 150 (D.D.C. 2011) (finding challenge to EPA 
guidance and process memoranda met criteria of final agency action 
because, among other things, they `` `reflect[] an obvious change' . . 
. in the permitting regime set forth in section 404 of the Clean Water 
Act and in the regulations implementing that provision''); New Hope 
Power Co. v. U.S. Army Corps of Eng'rs, 746 F. Supp. 2d 1272, 1283-84 
(S.D. Fla. 2010) (striking Corps guidance purporting to amend the prior 
converted croplands exclusion because it amounted to new legislative 
and substantive rules that created a binding norm and the Corps failed 
to comply with the APA).
---------------------------------------------------------------------------
    The IR is a regulation that must be promulgated under the APA 
because it binds farmers and ranchers with new, specific legal 
obligations under the Clean Water Act (CWA). The IR modifies existing 
regulations interpreting the statutory term ``normal farming, ranching 
and silviculture.'' 40 CFR  232.3(c)(1)(ii)(A); 33 CFR  
323.4(a)(1)(ii). The IR purports to continue existing statutory and 
regulatory exemptions, but instead the IR narrows the 404(f)(1)(A) 
exemption by identifying 56 activities that will be exempt only if they 
are conducted consistent with NRCS conservation practice standards and 
as part of an established (i.e., ongoing) farming operation. Under the 
IR, previously voluntary NRCS conservation standards are made fully 
enforceable as part of the CWA regulatory program. The legal 
obligations to comply with the IR fall squarely on farmers and ranchers 
and not the agencies.
    Both the IR and the conservation standards inventoried in the IR 
are written in mandatory terms, using the words ``shall'' and ``must'' 
to describe exactly how a farmer must comply with the 56 NRCS technical 
standards, often to exacting detail. If a farmer operating an 
``established'' farming operation conducts a farming activity or 
conservation practice that results in a discharge of dredge or fill 
material into a water of the U.S., the IR clearly states that the 
activity ``must be implemented in conformance with NRCS technical 
standards.'' Failure to comply with the standards results in an 
unlawful discharge in violation the CWA, subjecting the farmer to CWA 
penalties. As a result, on its face, this so-called ``interpretive'' 
rule is a ``legislative'' rule that imposes binding legal obligations 
on the public.
    The agencies' decision to accept ``comments'' only after the 
guidance is fully effective and enforceable precludes any meaningful 
public participation and is in clear violation of the APA. Contrary to 
the agencies' public statements, the agencies conducted no significant 
public outreach during the development of the Guidance. Nonetheless, 
the Guidance has been in effect and enforceable against farmers since 
its publication in the Federal Register on April 21, 2014. In light of 
the agencies' total failure to conduct outreach to the agricultural 
community and the resulting confusion, the entities that purportedly 
``benefit'' from the Guidance did not have the opportunity to express 
their concerns that they will face serious enforcement consequences if 
they conduct their farming, ranching and silvicultural activities as 
they have in the past. For all these reasons, we strongly recommend 
that the agencies withdraw the Guidance immediately and ensure that any 
future changes to the normal farming exemptions comply with the APA.

II. AFBF Has Several Major Substantive Concerns With the Guidance
    With such a short comment period and the agencies' refusal to grant 
an extension of the comment deadline, the public has not been given 
adequate time to analyze the Guidance and provide meaningful comments. 
Based on a preliminary review, however, AFBF has several major concerns 
that we urge the agencies to address.

A. Contrary to the Agencies' Statements, the Guidance Does Not Provide 
        Additional Exemptions for Farmers and Ranchers
    Since the publication of the IR, agency officials and agency 
websites have claimed that there is no change to the existing CWA 
section 404(f)(1) exemption for ``normal'' agricultural activities on 
``established'' operations and that somehow the Guidance is providing 
additional protections for agriculture. See Op-Ed on agriculture by 
Administrator McCarthy, March 25, 2014 (``But it doesn't stop there--
[the rule] does more for farmers by actually expanding those 
exemptions.'') However, the IR does not provide farmers and ranchers 
with additional permit exemptions beyond what has already been 
authorized by Congress. Congress amended the CWA in 1977 to exempt 
``normal'' farming, ranching and silviculture activities from section 
404 ``dredge and fill'' permit requirements. 33 U.S.C.  1344(f)(1). We 
therefore dispute the agencies' assertions that farmers need 404 
permits to conduct any of the 56 practices listed in the agencies' IR 
if those practices are conducted as part of an established operation, 
because those activities already qualify as ``normal'' farming, 
ranching and silviculture activities. The agencies' new interpretation 
does not provide additional protections for agriculture. Contrary to 
the agencies' assertions, the Guidance has effectively narrowed, rather 
than expanded the current exemptions, and NRCS conservation standards 
that were previously voluntary are now fully enforceable as part of the 
CWA regulatory program. As the MOU notes, ``[d]ischarges in waters of 
the U.S. are exempt only when they are conducted in accordance with 
NRCS practice standards.'' MOU at 3. Thus, the agencies' public 
statements about the Guidance are not only misleading but contradict 
the actual language of the guidance documents.
    Moreover, the IR and MOU are insufficient notice to farmers of an 
enforceable change to the Congressionally authorized exemptions for 
``normal'' agricultural practices.

B. The Guidance Applies Only to the Section 404 Program
    It appears that the agencies are overstating the significance of 
the ``normal'' farming exemption, which does not apply to discharges 
regulated under the CWA National Pollutant Discharge Elimination System 
(NPDES) program. While the Guidance states the exemption for ``normal 
farming'' activities is applicable to the 404 program regulating 
discharges of dredge and fill materials, there is significant confusion 
in the farming community about the applicability to other parts of the 
CWA. EPA has exacerbated that confusion through its statements such as 
the following in EPA's ``fact sheet on benefits for agriculture'': 
``The proposed rule will: Preserve current agricultural exemptions for 
Clean Water Act permitting, including: Normal farming, silviculture, 
and ranching practices.''
    Even if the IR would somehow benefit some farmers or ranchers, it 
cannot insulate any farm or ranch from any section 402 NPDES permitting 
requirements that may now result from the expansive definition of 
``waters of the United States'' under the agencies' proposed rule to 
define the scope of jurisdiction under the CWA. The exemption is simply 
inapplicable to that separate permitting program. Thus, while a farmer 
may be able to plant cover crops in jurisdictional waters under the IR 
without a 404 permit (assuming compliance with NRCS standards), that 
same farmer would face CWA liability for applying fertilizer or 
pesticide to those same fields without a section 402 NPDES permit. The 
public deserves more direct and clear communications from the agencies 
on these highly technical and complex regulatory issues.

C. The Guidance will Result in More Time-Intensive and More Costly 
        Requirements for Farmers and Ranchers
    Before the IR, farmers and ranchers did not need to satisfy 
federally mandated practice standards for ``normal'' agricultural 
activities subject to CWA section 404(f)(1)(A) exemptions. Farmers 
could engage in ordinary farming activities without the need for a 
section 404 permit, a jurisdictional determination whether the 
discharges were occurring in waters of the United States, or a site-
specific pre-approval. As a result of this IR, it may be more onerous 
to qualify for 404(f)(1)(A) exemptions.
    The 56 listed NRCS conservation practice standards include typical 
farming activities, such as ``irrigation canal or lateral,'' 
``irrigation field ditch,'' ``mulching,'' and ``fence,'' all of which 
were already exempt from regulation under section 404(f)(1)(A) if 
conducted as part of an established farm or ranch operation. The NRCS 
conservation practices are detailed,\2\ and may be more time-intensive 
and expensive to implement than the methods currently used by farmers 
and ranchers. Under the Guidance, however, farmers and ranchers are not 
provided any flexibility in how they conduct normal farming activities 
on their land. Now, in order to qualify for section 404 exemptions that 
previously would not have required NRCS standards compliance, ranchers 
and farmers must now comply with the onerous NRCS practice standards.
---------------------------------------------------------------------------
    \2\ For example, for fences (practice code 382), the NRCS 
conservation practice standards require (among other things): (1) 
fencing materials, type and design to be of a high quality and 
durability; (2) fences shall be designed, located and installed to meet 
appropriate local wildlife and land management needs and requirements; 
(3) when appropriate, natural barriers should be utilized instead of 
fencing; (4) the fence design and location should consider erosion, 
flooding potential, and stream crossings; (5) fences across gullies, 
canyons, or streams may require special bracing, design, or approaches; 
and (6) regular inspection of fences as part of an ongoing maintenance 
program, including a schedule for inspections after storms, repair or 
replacement of loose materials, removal of trees/limbs, replacement of 
water gaps, repair of eroded areas, and repair or replacement of 
markers or other safety and control features. See http://
www.nrcs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb1144464.pdf.
    As another example, for field borders (practice code 386), the NRCS 
conservation practice standards require (among other things): (1) 
minimum field border widths based on local design criteria, but at a 
minimum 30 feet with a vegetation stem density/retardance of moderate 
to high; (2) utilization of plants with physical characteristics 
necessary to control wind and water erosion to tolerable levels (no 
plant listed by the state as a noxious or invasive species shall be 
established in the field border); (3) elimination of ephemeral gullies 
and rills present in the planned border area; (4) select species that 
provide adequate habitat, food source, and/or cover for the wildlife 
species of interest; (5) establish plant species that will produce 
adequate above--and below--ground biomass for the site to increase 
carbon storage and plant species that improve air quality; and (6) 
planned operation and maintenance, including removing sediment from 
above, within, and along the leading edge of the field border and 
avoiding vehicle traffic when soil moisture conditions are saturated. 
See http://www.nrcs.usda.gov/Internet/FSE_DOCUMENTS/
stelprdb1241318.pdf.
---------------------------------------------------------------------------
    Moreover, as discussed above, even if farmers and ranchers are able 
to comply with the complicated NRCS practice standards, such compliance 
does not insulate their land from any section 402 permitting 
requirements now resulting from the agencies' proposed broadened 
definition of ``waters of the United States.''

D. The Guidance Adds Confusion and the Agencies Have Failed To Clarify 
        Key Issues Regarding the Application of the 404(f)(1)(A) 
        Exemptions
    The Guidance provides little context or explanation regarding how 
the EPA and the Corps interpret the 404(f)(1) exemptions--an area 
already associated with great confusion within the agricultural 
community. In addition, the agencies have refused to provide even the 
most basic information in the IR or answer clarifying questions.
    For example, the agencies have failed to clarify what constitutes 
``established/ongoing'' farming, even though our research indicates 
that only farming ``ongoing'' since 1977 would qualify. See, e.g., U.S. 
v. Cumberland Farms of Connecticut, Inc., 647 F. Supp. 1166 (D. Mass. 
1986), affirmed 826 F.2d 1151 (1st Cir. 1987), cert. denied, 484 U.S. 
1061 (1988). This is a key fact that should be clarified to the public 
if the agencies are purporting to invite farmers and ranchers to engage 
in these practices within waters of the U.S. without fear of CWA 
liability. The agencies also have failed to clarify whether the listed 
practices must always comply with NRCS standards to qualify for the 
exemption--or only when the practices (e.g., fence building) are 
undertaken for the purpose of conservation (as opposed to other 
purposes). The agencies might reasonably make a policy choice to make 
NRCS standards ``mandatory'' as a condition of obtaining Federal 
conservation funds to implement the conservation practices. However, 
under no circumstances should the agencies be able to impose CWA 
liability (loss of a statutory exemption) as a consequence of a 
farmer's failure to comply with NRCS standards.
    The agencies have also failed to provide clarity on the following 
important issues:

   Whether a farmer needs pre-approval for any normal farming 
        activities not listed;

   Whether pre-approval is required if the farmer implements 
        one of the 56 listed practices in Waters of the U.S. without 
        complying with NRCS conservation practice standards;

   Whether the 124 NRCS conservation practices not specifically 
        listed are also exempt from section 404 permit requirements as 
        ``normal farming activities'' if they incidentally result in a 
        discharge of dredged or fill material;

   How the IR will be enforced;

   Whether and how a farmer should ensure compliance with the 
        NRCS conservation standards (according to the MOA, if the 
        farmer does not seek ``technical assistance'' from NRCS in 
        identifying and implementing the conservation standards, the 
        farmer has the responsibility to ensure that implementation of 
        the conservation practices is in accordance with the applicable 
        NRCS standard or the practice will not be exempt);

   The interplay between the IR and state agricultural programs 
        and requirements;

   The interplay between the NRCS (authority for agricultural 
        programs and ``technical assistance'' with implementing the 
        NRCS standards) and the Corps and EPA (CWA authority); and

   Whether the regulated community and the public will have any 
        opportunity for comment on changes to the list of covered 
        conservation practices as the agencies consider additions or 
        deletions in the future.

III. Conclusion
    In sum, the Guidance raises more questions than it answers. Most 
importantly, as stated above, the agencies have violated the APA in 
finalizing this Guidance without complying with the rulemaking process. 
Moreover, the agencies have mislead the public by claiming that the 
Guidance provides additional exemptions when it actually narrows the 
``normal'' farming and ranching exemption by imposing burdensome new 
requirements for farmers and ranchers.
    For all these reasons, AFBF urges the agencies to withdraw the 
Guidance immediately and ensure that any future changes to the normal 
farming exemptions comply with the APA.
            Sincerely,

            
            
Dale W. Moore,
Executive Director, Public Policy.

    The Chairman. Thank you, Mr. Parrish. I appreciate it.
    Mr. Fabin, you are now recognized for 5 minutes.

STATEMENT OF ANDY FABIN, PRODUCER, FABIN BROS. FARMS, INDIANA, 
  PA, ON BEHALF OF THE NATIONAL CATTLEMEN'S BEEF ASSOCIATION; 
                          PENNSYLVANIA
                    CATTLEMEN'S ASSOCIATION

    Mr. Fabin. Thank you. Good morning. My name is Andy Fabin. 
I raise cattle and row crops in Indiana, Pennsylvania. I am 
testifying before you today as a member of the National 
Cattleman's Beef Association and the Pennsylvania Cattlemen's 
Association. Thank you to the Chairman and Ranking Member for 
allowing me to testify today on the impacts of the 
Environmental Protection Agency and the U.S. Corps of Engineers 
Interpretive Rule on the normal farming and ranching exemption 
under section 404 of the Clean Water Act.
    I am extremely concerned about the devastating impacts this 
Interpretive Rule could have on conservation practices being 
implemented on the ground, especially if you couple that with 
the increased liability from the expansion of the waters of the 
United States definition that is also currently taking place.
    As a farmer, my willingness to implement voluntary 
conservation practices has been greatly diminished, despite my 
desire to improve and protect the waters on my farm. I am not 
alone in my thinking, which means that if this Interpretive 
Rule remains in place, farmers and ranchers across the country 
will slow their adoption of conservation practices. Therefore, 
NCBA is requesting the agencies withdraw the Interpretive Rule 
and begin a dialogue with farmers and ranchers in order to 
provide actual clarity that will encourage conservation 
implementation.
    As you can see on the screen, on my operation we run 60 
cows and have 3,500 acres of corn, soybeans, wheat, and rye. 
Also, we operate a soybean extrusion plant in which we process 
in excess of 1.3 million bushels of beans into high-protein 
soymeal and soy oil. I have ephemeral streams running through 
my pastures and fields, as well as ponds and ditches. Many of 
these features would become Federal water under the proposal 
with most not falling into any of the vague and unclear 
exclusions that EPA and the Corps have included in the proposed 
definition. EPA, the Corps and NRCS would have me believe that 
despite the expanded definition all the activities that take 
place on my farm are exempted. Unfortunately, not all ag 
activities are exempted under the Clean Water Act, and this 
Interpretive Rule would expand the number of farming activities 
that will need permits.
    The Interpretive Rule has narrowed the scope of the normal 
farming and ranching exemption under section 404 of the Clean 
Water Act. Since the 1930s, Congress has encouraged 
conservation activities, making them integral or normal parts 
of farming operations long before passage of the Clean Water 
Act. We believe they have always been included under the 
exemption.
    Additionally, I am confused about the agencies' intent. If 
the Corps and EPA intended to clarify that the exemption covers 
conservation activities, why didn't they just say conservation 
activities are exempted as normal farming and ranching 
activities? They have made these voluntary standards mandatory 
because if you tell a farmer that he has to either comply with 
an NRCS standard or face the permitting requirements or 
violations of the Clean Water Act and its fines of $37,500 per 
day, he hasn't been given any real choice at all. The only real 
choice is whether to do it the NRCS way or not at all. I am 
afraid that most farmers and ranchers will pick the latter.
    NRCS was created to help farmers on a voluntary basis. Many 
producers like myself have a great relationship with our local 
NRCS agent. The Interpretive Rule states the activity must also 
be implemented in conformance with NRCS technical standards. 
There is no way to get around that this requirement makes NRCS 
a Clean Water Act compliance agency. Farmers and ranchers are 
going to allow NRCS field agents on their property knowing they 
are now an extended arm of the EPA and the Corps for Clean 
Water Act enforcement.
    I do not have an NRCS-certified grazing plan for my cattle. 
I am concerned that the Interpretive Rule has unintentionally 
made grazing cattle without an approved grazing plan a 
violation of the Clean Water Act if they walk through a wetland 
on my pasture. I can't give you a better example of a normal 
farming and ranching activity than grazing cattle on a pasture, 
but apparently now that exemption doesn't consider grazing 
normal.
    Now that the Interpretive Rule is in effect and my 
conservation practices are being scrutinized by the Corps and 
NRCS, my willingness to work with them has been significantly 
diminished. I am worried local NRCS personnel are going to have 
to spend their entire time checking compliance of voluntary 
conservation activities instead of assisting farmers and 
ranchers in continuing to improve the waters around their 
properties. The model of voluntary conservation that has been 
the pinnacle of farmers' and ranchers' protection of our 
natural resources is going to be upended.
    Not only should the EPA and the Corps withdraw their 
overreaching definitions of waters of the United States but 
they should also immediately withdraw the Interpretive Rule 
because ultimately the only effect it will have is to decrease 
beneficial conservation activities.
    Thank you, and I would be happy to answer any questions 
Members of the Subcommittee have.
    [The prepared statement of Mr. Fabin follows:]

Prepared Statement of Andy Fabin, Producer, Fabin Bros. Farms, Indiana, 
 PA; on Behalf of National Cattlemen's Beef Association; Pennsylvania 
                        Cattlemen's Association

    Good morning, my name is Andy Fabin. I raise cattle and row crops 
in Indiana, Pennsylvania. I am testifying before you today as a member 
of the National Cattlemen's Beef Association and the Pennsylvania 
Cattlemen's Association. Thank you to the Chairman and Ranking Member 
for allowing me to testify today on the impacts of the Environmental 
Protection Agency and the U.S. Army Corps of Engineers' interpretive 
rule on the Normal Farming and Ranching exemption under Sec. 404 of the 
Clean Water Act.
    I am extremely concerned about the devastating impacts this 
interpretive rule could have on conservation practices being 
implemented on the ground, especially if you couple that with increased 
liability from the expansion of the ``waters of the U.S.'' definition 
that is also currently taking place. As a farmer my willingness to 
implement voluntary conservation practices has been greatly diminished, 
despite my desire to improve and protect the waters on my farm. I'm not 
alone in my thinking, which means that if this Interpretive Rule 
remains in place, farmers and ranchers across the country will slow 
their adoption of conservation practices. Because of this negative 
consequence NCBA is requesting the agencies withdraw the Interpretive 
Rule and begin a dialogue with farmers and ranchers in order to provide 
actual clarity that will encourage instead of discourage conservation 
implementation.
    On my operation we run 60 cows and have 3500 acres of corn, 
soybeans, wheat, and rye. Also, we operate a soybean extrusion plant in 
which we process in excess of 1.3 million bushels of beans into high 
protein soymeal and soy oil. I have ephemeral streams running through 
my pastures and fields, as well as ponds and ditches. It appears to me 
that many of these features would become Federal waters, with most not 
falling into any of the vague and unclear exclusions that EPA and the 
Corps have included in the proposed definition. If they ARE `waters of 
the U.S.' I will need a 404 or 402 permit to conduct many activities 
near those waters, that is unless those activities are exempted. EPA, 
the Corps and now even the Natural Resource Conservation Service would 
have me believe that despite the expanded definition all the activities 
that take place on my farm are exempted. This is, at a minimum, a 
negligent mischaracterization, and more likely, an intentionally 
deceptive tactic being used to pacify the agricultural community. Not 
all agricultural activities are exempted under the Clean Water Act, and 
this proposal would expand the number of farming activities that will 
need permits, requiring many farmers like myself to seek 402 NPDES 
permits or 404 Dredge and Fill permits.
    Specifically, the Interpretive Rule put out on the same day as the 
proposed definition has narrowed the scope of the Normal Farming and 
Ranching Exemption under Sec. 404 of the Clean Water Act. While the 
agencies claim that the Interpretive Rule has expanded the exemption to 
include a new set of 56 NRCS practices, I'm confused as to why those 56 
were not considered ``normal farming'' practices in the first place. Is 
it NRCS' position that I have been violating the Clean Water Act since 
I have not asked for a 404 permit to implement any of my conservation 
practices thus far. It can be assumed that if those 56 practices are 
only now exempted through the Interpretive Rule, then they were not 
before, making all conservation practices that touched water a 
violation of the Clean Water Act. I don't believe this was the intent 
of Congress. Since the 1930s, Congress has encouraged conservation 
activities, making them an integral, or ``normal,'' part of all farming 
operations long before passage of the Clean Water Act.
    Additionally, I am confused about the agencies' intent. If the 
Corps and EPA intended to clarify that the exemption covers 
conservation activities, why didn't they just say just? They should 
have said ``conservation practices and activities, because they are 
designed and implemented to protect the environment, are exempted as 
`normal farming and ranching' activities.'' Perhaps the agencies knew 
they were narrowing the exemption to these 56 NRCS practices in an 
effort to make those practices mandatory for farmers and ranchers. I 
believe they have made these voluntary standards mandatory because if 
you tell a farmer that he has to either comply with an NRCS standard or 
face the permitting requirements or violations of the Clean Water Act 
and its fines of $37,500 per day, he hasn't been given any real choice 
at all. He or she must implement an NRCS standard. The only real choice 
is whether to do it the NRCS way or not at all. I'm afraid that most 
farmers and ranchers will pick the latter. If that happens, what have 
we accomplished? Conservation practices will decrease and overall water 
quality will decrease.
    NRCS was created to help farmers on a voluntary basis. Many 
producers like myself have a great relationship with our local NRCS 
agent. The Interpretive Rule states that when conducting one of the 56 
chosen conservation practices, ``[t]he activities must also be 
implemented in conformance with NRCS technical standards,'' despite 
whether it is a cost-shared practice or voluntary. There is no way to 
get around that this requirement makes NRCS a Clean Water Act 
Compliance agency if this Interpretive Rule is left in place. You can 
imagine how many farmers and ranchers are going to allow NRCS field 
agents on their property knowing they are now an extended arm of the 
EPA and the Corps for Clean Water Act Enforcement. Making NRCS a Clean 
Water Act compliance agency is not the way to work with farmers and 
ranchers. And hiding mandatory compliance with NRCS standards through 
the guise of an exemption is deplorable.
    Not only do other NRCS practices now fall outside the scope of the 
``normal farming'' exemption such as nutrient management and terracing, 
so do any voluntary practices that do not meet NRCS specifications. I 
have participated in many NRCS cost-shared conservation practices, but 
I do not have an NRCS certified grazing plan for my cattle. EPA and the 
Corps, along with NRCS chose these 56 practices because they have the 
potential to discharge if they are done in a water. Prescribed Grazing 
is one of those 56 standards. This makes grazing a discharge activity, 
and for any farmer or rancher with cattle, unless you have an approved 
grazing plan your cattle that walk through a wetland on your pasture 
are now a violation of the Clean Water Act. I can't give you a better 
example of a ``normal farming and ranching'' activity than grazing 
cattle on a pasture, but, apparently now that exemption doesn't 
consider grazing ``normal,'' and I will need a Sec. 404 permit to graze 
my cattle because inevitably in Pennsylvania, they will wonder through 
a wetland or ephemeral stream, which is now a ``water of the U.S.'' We 
believe that grazing cattle was already a ``normal ranching'' activity, 
and EPA and the Corps' Interpretive Rule has not given farmers and 
ranchers anything they didn't have before, but in fact, has taken that 
exemption away from many of us.
    Now that the Interpretive Rule is in effect, and my conservation 
practices are being scrutinized by the Corps and NRCS, my willingness 
to work with them has been significantly diminished. I'm worried local 
NRCS personnel are going to have to spend their entire time checking 
compliance of voluntary conservation activities instead of assisting 
farmers and ranchers in continuing to improve the waters around their 
properties. The model of voluntary conservation that has been the 
pinnacle of farmers and ranchers protection of our natural resources is 
going to be upended.
    Not only should the EPA and the Corps withdraw their overreaching 
definition of ``waters of the U.S.,'' but they should also immediately 
withdraw the Interpretive Rule because ultimately the only affect it 
will have is to decrease beneficial conservation activities. Thank you 
and I would happy to answer any questions Members of the Subcommittee 
may have.
                               Attachment












    The Chairman. Thank you, Mr. Fabin.
    I now recognize Mr. Bowling for 5 minutes.

STATEMENT OF CHIP BOWLING, FIRST VICE PRESIDENT, NATIONAL CORN 
                GROWERS ASSOCIATION, NEWBURG, MD

    Mr. Bowling. Thank you. Chairman Thompson, Ranking Member 
Walz, and Members of the House Agriculture Subcommittee on 
Conservation, Energy, and Forestry, on behalf of National Corn 
Growers Association, I appreciate the opportunity to share with 
you our views on the EPA's Interpretive Rule regarding 
agriculture exemptions to the Clean Water Act.
    My name is Chip Bowling. I am a third-generation farmer in 
Newburg, Maryland, about 45 miles due south of here. I raise 
corn, soybeans, wheat and grain sorghum on about 1,700 acres, 
and I currently serve as First Vice President of the National 
Corn Growers Association.
    The Interpretive Rule recently issued by the EPA and the 
Army Corps of Engineers specifies what farmers must do to 
qualify for Clean Water Act's normal farming exceptions from 
dredge-and-fill permitting. While the policy may have been 
intended to be relatively limited in effect and to be of 
assistance to farmers by making the exception process more 
efficient, in practice, something very different will happen. 
Even if applied in the most practical and flexible manner 
possible, the fact remains that we are dealing with the Clean 
Water Act, a law that desperately needs clarification that can 
only be done by amendments to the statute by Congress.
    In the case of the Interpretive Rule, we see the potential 
that farmers engaged in normal farming activities will face far 
greater constraints than they had before to qualify those 
activities for the Clean Water Act exemptions. Producers will 
also face a far greater Federal regulatory liability, either 
through the policy's implementation by the agencies in the 
field or from citizen enforcement suits against farmers. The 
Interpretive Rule establishes how the exemptions from section 
404 permitting will apply to certain agricultural practices 
carried out under NRCS conservation practice standards. To 
date, some 56 practices have been identified for this purpose.
    NCGA is concerned that the rule will in effect require 
producers to follow NRCS conservation practice standards even 
though many of the covered activities are a long-used normal 
farming practice. The current list of covered practices 
includes many routine farming activities such as brush 
management, weed control, fencing and grass waterways. These 
practices have always been and will continue to be regularly 
carried out on farms for purposes unrelated to benefiting 
waters of the United States simply because building a fence, 
managing brush or weeds and trimming trees are required to 
manage and operate a farm.
    The question is, will the consequence of the rule be 
through its interpretation in the field or as a result of legal 
actions that farmers must closely follow the relevant NRCS 
standard any time they are engaged in one of these activities. 
If so, this is major cause for concern. Not only is this 
permit-like requirement for what should be an exemption 
activity, the everyday use of these standards is simply 
impractical.
    For example, the standards for brush management is four 
pages long and requires a farmer to develop a very specific 
plan that is ecologically sound and defensible. I am not a big 
farmer. I am the entire compliance department of Bowling Farms. 
I find it hard to conceive how I could possibly have a written 
or recorded plan for each of the roughly 150 fields that I farm 
in my operation.
    If the activities being carried out as part of an NRCS 
conservation program where Federal funds are being utilized to 
help a farmer achieve a specific conservation purpose, meeting 
such a standard can be sensible and good policy, but NCGA 
believes that requiring farmers to meet such standards as part 
of an everyday farming operation is unreasonable and bad 
policy.
    In reviewing the covered practices, we find several that 
create this same kind of impossible compliance situation. Grass 
waterways are a good example. Most landowners and farmers had 
them on their farms. I have them on mine. And most were 
developed and installed without any assistance from NRCS. The 
NRCS standard in this instance is three pages long with very 
specific design criteria and engineering standards. It requires 
a detailed written plan and has limitation on how the waterway 
can be used. Portions of this standard are good practice and 
frankly common sense. However, if a farmer must now develop a 
plan for all these and meet NRCS requirements or face possible 
litigation under the Clean Water Act, the expense and time and 
money will be enormous.
    The two examples that I have outlined are the type of 
concerns we believe to be serious and important enough to 
require this Interpretive Rule be withdrawn. In withdrawing the 
rule, it is imperative that it be made absolutely clear that 
this policy was meant to address only those circumstances where 
a practice was being adopted for conservation purposes to 
achieve a specific water quality goal. That notice of 
withdrawal must also specify such normal farming practices when 
carrying out as a part of the ongoing operation will qualify 
for section 404 for exception.
    Once again, we thank you for the opportunity to provide you 
this testimony and your decision to hold this hearing so that 
these important policy matters can be thoroughly reviewed and 
discussed. Corn growers will continue their efforts to conserve 
soil, water and nutrient resources and protect water quality. 
We look forward to working with you and the Administration and 
support your good work. Thank you.
    [The prepared of Mr. Bowling follows:]

Prepared Statement of Chip Bowling, First Vice President, National Corn 
                    Growers Association, Newburg, MD

    Chairman Thompson, Ranking Member Walz, and Members of the House 
Agriculture Subcommittee on Conservation, Forestry and Energy, on 
behalf the National Corn Growers Association (NCGA), I appreciate the 
opportunity to share with you our views on the U.S. Environmental 
Protection Agency's Interpretive Rule regarding the applicability of 
Clean Water Act agricultural exemptions. My name is Chip Bowling. I am 
the third generation on our family farm in Newburg, Maryland about 45 
miles south of Washington, D.C. where we raise corn, soybeans, wheat 
and grain sorghum on 1700 acres. I currently serve as the First Vice 
President for NCGA.
    The National Corn Growers Association represents more than 37,000 
corn farmers from 48 states. NCGA also represents more than 300,000 
corn growers who contribute to check off programs and 27 affiliated 
state corn organizations across the nation for the purpose of creating 
new opportunities and markets for corn growers.
    The Interpretive Rule recently issued by the U.S. Environmental 
Protection Agency and the U.S. Army Corps of Engineers (``Agencies'') 
specifies what farmers must do to qualify for the Clean Water Act's 
normal farming exemptions from dredge and fill (section 404) permitting 
under certain wide ranging circumstances. While the policy may have 
been intended to be relatively limited in effect and to be of 
assistance to farmers by making the exemption's process more efficient, 
in practice something very different will happen. Even if implemented 
in the most practical and flexible manner possible, the fact remains 
that we are dealing with the Clean Water Act and its citizen 
enforcement provisions that encourage legal actions against 
individuals. Tens of thousands of dollars a day in penalties are 
possible under the Clean Water Act, hundreds of thousands of dollars or 
even far more in total. These citizen suits commonly hinge on 
technical, paper violations of the Clean Water Act, and persons seeking 
to stop a business activity can use technical and even imaginary 
violations as pretexts for lawsuits that can cripple a business. We 
have seen this very recently with one of my Maryland neighbors, a 
broiler farm. Fortunately, in this specific case the courts ruled in 
favor of the farmer, but at tremendous expense to the defendant which 
nearly resulted in bankruptcy. Legal liabilities such as these are 
always possible when dealing with the mandatory provisions of the Clean 
Water Act. In the case of the Interpretive Rule we see large potential 
for this same type of risk. This policy creates the real possibility 
that farmers engaged in numerous otherwise normal farming activities 
will face far greater constraints than before to qualify those 
activities for the section 404 exemptions. Producers will also face far 
greater Federal regulatory liabilities, either through the policy's 
errant implementation by the Agencies in the field, or as the result of 
Clean Water Act citizen enforcement suits against farmers. For these 
reasons as well as others that are explained in this testimony we 
appreciate that you have called for this hearing and for allowing us 
the opportunity to provide you with our views and suggested actions 
that the Agencies could take to rectify these problems.

Corn Growers' Conservation Accomplishments
    Corn growers are proud of their soil, water and nutrient 
conservation efforts and the substantial benefits of that work. Between 
1980 and 2011 soil erosion was reduced by 67 percent per bushel of corn 
produced and by 43 percent per acre of corn planted.\1\ Excess sediment 
lost to waterways from farmland is one of the nation's top water 
quality concerns, and corn producers have reduced these losses by 147 
tons per year in 2011 relative to 1980. Phosphorous loss from farm land 
often is directly related to sediment losses, and corn growers' erosion 
reduction accomplishments translate directly into less phosphorus in 
runoff reaching surface waters.
---------------------------------------------------------------------------
    \1\ Field to Market (2012 V2). Environmental and Socioeconomic 
Indicators for Measuring Outcomes of On-Farm Agricultural Production in 
the United States: Second Report, (Version 2), December 2012. Available 
at: www.fieldtomarket.org. See pages 41-50 for the results for corn.
---------------------------------------------------------------------------
    Corn yields per acre over this period have gone up by more than 60 
percent, about 60 bushels of corn per acre. Yet at the same time the 
rates at which the primary corn nutrients (nitrogen, phosphorous, and 
potassium) have been applied per acre have declined. U.S. corn farmers 
produced 6.64 billion bushels of corn in 1980 and used 3.2 pounds of 
primary nutrients per bushel. By 2010 we produced 12.45 billion bushels 
of corn, but used only 1.6 pounds of nutrients per bushel. This equates 
to an 87 percent increase in nutrient use efficiency and translates 
directly into far greater quantity of nutrients being removed from the 
land in the form of corn grain than was the case in 1980. The net 
effect of this is fewer nutrients in the soil profile that might move 
into surface water.\2\
---------------------------------------------------------------------------
    \2\ See The Fertilizer Institute, U.S. Fertilizer Consumption Table 
and U.S. Consumption of Primary Plant Nutrients. Derived from USDA NASS 
data (2011). Available at: http://www.tfi.org/statistics/fertilizer-
use.
---------------------------------------------------------------------------
    These data clearly show the practical, extensive benefits of corn 
growers' commitment to practicing sound soil, water and nutrient 
conservation on their farms. Farmers recognize that in important ways 
their partnerships with Federal and state agencies like USDA's Natural 
Resources Conservation Service (NRCS) and the Farm Service Agency, as 
well as their local soil and water conservation districts, has helped 
make these accomplishments possible. But without question it is the 
farmers themselves that are the single most important factor that makes 
these good things happen. Farmers, working as innovative and diligent 
business people, are the foundation for agricultures' conservation 
accomplishments on private land.
    These gains are possible because of farmers' overall success. This 
necessarily means carrying out a host of normal farm and land 
management activities that are not in and of themselves conservation 
practices. Conservation on farms is simply not possible without farmers 
having the flexibility and latitude to carry out all of these other 
critical farming practices without unnecessary impediments. This is the 
perspective that we bring to this Interpretive Rule. A successful 
farmer must have the latitude to carry out all of their normal farming 
practices alongside and in coordination with, but not always directly 
related to, their strong conservation activities.

Farming in the Chesapeake Bay
    As a farmer in Maryland, I know what it means to be regulated. 
There are very few actions that I take as a farmer where I do no first 
consider how they relate to my state's regulatory requirements. As I 
work to maintain a profitable and productive farming operation, I view 
my farm as a system that must incorporate mandatory measures dealing 
with erosion control, buffer establishment and maintenance, and 
nutrient management. These requirements are simply realities for 
farmers in Maryland. We hope, given the level of effort and the cost 
they entail, that these practices are benefitting water quality in the 
Chesapeake Bay. Recent science has made it clear that there can be 
decades' long lag times between what we do on the land and nutrients 
entering the Bay. Those lags make it difficult to determine if water 
quality benefits are occurring; but what we do know is that regulatory 
requirements, implemented inflexibly and without due consideration to 
farming practicalities, add undue cost and burden and will lead to some 
farmers just leaving the business.

Waters of the U.S. Rulemaking
    Our evaluation of the Interpretive Rule is taking place against a 
backdrop of great policy uncertainty. The proposed rule on what are CWA 
Waters of the U.S. (``WOTUS'') makes it extremely challenging for us to 
determine with precision how the Interpretive Rule will apply to us on 
the ground. Even when the WOTUS rulemaking is done, we will still face 
great uncertainty as in innumerable instances a formal determination 
from the Agencies will be necessary for us to know the drainage 
features, wet areas or other characteristic on our farms are 
jurisdictional waters to which this Interpretive Rule applies. We 
believe that the scope of the WOTUS rule will be quite broad, given its 
classification of all ephemeral streams, many ditches, and wet areas in 
the floodplain, as jurisdictional and possibly even isolated waters 
that lie further upland. We offer you these views with examples from my 
farm, applying our best judgment as to what might be WOTUS on the land 
I farm.

The Interpretive Rule
    The Interpretive Rule establishes how the exemptions from section 
404 permitting will apply to certain agricultural practices carried out 
under NRCS conservation practice standards. Specific agricultural 
practices, identified by the EPA, the Army, and USDA-NRCS, that could 
include the discharge of dredged or fill material in a WOTUS are deemed 
to be exempt ``normal farming'' activities if the activities are part 
of an ``established (i.e., ongoing) farming, silviculture, or ranching 
operation'' and implemented in conformance with NRCS technical 
standards. The Agencies and USDA have entered into a Memorandum of 
Agreement (MOA) to develop and implement a process for identifying, 
reviewing and updating NRCS agricultural conservation practices and 
activities that could qualify for the exemption. To date some 56 
practices have been identified for this purpose.
    NCGA is concerned that the Rule will, in effect, require producers 
to follow USDA-NRCS conservation practice standards when they carry out 
certain activities even though many of the covered activities are long-
used, normal farming practices commonly conducted for reasons unrelated 
to conservation and water quality goals. The current list of covered 
practices includes the following activities:

   Brush Management

   Herbaceous Weed control

   Prescribed Burning

   Stream Crossing

   Windbreak/Shelterbelt

   Fencing

   Fuel Break

   Field Border

   Firebreak

   Grassed Waterway

   Hedgerow Planting

   Hillside Ditch

   Land Clearing

   Mulching

   Tree Site Preparation

   Forage Management

   Forage Planting

   Prescribed Grazing

   Grazing Land Treatment

   Range Planting

   Tree/Shrub Establishment

   Windbreak/Shelterbelt Renovation

   Tree Pruning

   Forest Stand Improvement

    These practices have always been, and will need to continue to be, 
regularly carried out on farms and ranches for purposes that are 
unrelated to ``benefitting'' WOTUS. Not that they are being carried out 
to the detriment of a WOTUS, but simply because building a fence, or 
managing brush or weeds, planting or trimming trees, planting and 
managing forage and all of these other farming activities are just what 
are required to manage and operate a farm. The question is, will the 
practical consequence of the Rule be, either through its interpretation 
in the field or as a result of legal actions, that farmers must follow 
closely the applicable NRCS technical standard anytime they are engaged 
in one of these activities?
    If so, this is major cause for concern. Not only is this 
essentially a permit-like requirement for what should be an exempt 
activity, the everyday use of these standards is simply impractical. 
NRCS conservation practice standards for each of these practices are 
highly detailed, rely heavily on extensive planning involving highly 
specific processes, and they often cross reference each other. Not only 
is this unlawful policy relative to the stated purpose of exempting 
from permitting these normal activities, the possibilities for simple 
paper, technical violations are immense and lead directly to legal 
liabilities.
    For example, the standard for ``brush management'' (# 314) is four 
pages long and requires the practitioner, among other things, to 
``(u)se applicable Ecological Site Description (ESD) State and 
Transition models, to develop specifications that are ecologically 
sound and defensible. Treatments must be congruent with dynamics of the 
ecological site(s) and keyed to state and plant community phases that 
have the potential and capability to support the desired plant 
community. If an ESD is not available, base specifications on the best 
approximation of the desired plant community composition, structure, 
and function.'' Furthermore, this standard calls for plans and 
specifications to be clearly spelled out and recorded for each field 
being treated. The plans must contain at a minimum ``Clearly stated 
goals and objec-
tives . . . The pre-treatment cover or density of the target plant(s) 
and the planned post-treatment cover or density and desired efficacy . 
. . Maps, drawings, and/or narratives detailing or identifying areas to 
be treated, pattern of treatment (if applicable), and areas that will 
not be disturbed . . . A monitoring plan that identifies what should be 
measured (including timing and frequency) and that documents the 
changes in the plant community (compare with objectives) will be 
implemented.'' \3\ Brush management on my farm is a normal practice 
that I carry out all year long. We scout our fields at least four to 
six times a year around field edges and hedgerows. I find it hard to 
conceive of what it would entail for me to have a written or recorded 
plan for each of the approximately 150 fields I have under cultivation.
---------------------------------------------------------------------------
    \3\ See pages 1 and 2 at ``USDA NRCS CONSERVATION PRACTICE 
STANDARD, BRUSH MANAGEMENT, CODE 314,'' September 2009. For links to 
all of these standards see http://www.nrcs.usda.gov/wps/portal/nrcs/
detailfull/null/?cid=nrcs143_026849.
---------------------------------------------------------------------------
    If these activities are being carried out as part of a USDA NRCS 
conservation program where Federal funds and assistance were being 
utilized to help the farmer achieve a specific conservation purpose in 
the field in question, meeting such a standard is sensible and good 
policy. NRCS would be committed to working with the farmer to these 
ends, and NRCS field staff would have the usual and customary 
flexibility to support the farmer through this process without worry of 
third party suits seeking to interrupt that work, often for reasons 
that are at best indirectly related to the natural resource issues at 
hand. But NCGA believes that requiring farmers to meet such standards 
as part of an everyday, farming operation when carrying out normal 
farming activity is unreasonable, bad policy, and unlawful.
    In reviewing the other covered practices I find several that create 
this same kind of impossible compliance situation, or very well could 
do so. Grass waterways are a good example. Most landowners and farmers 
have grass waterways on their farms, and most of these were developed 
and installed without any assistance from NRCS. The NRCS standard in 
this instance is three pages long, with very specific design criteria 
and engineering standards, planted species requirements, all to be 
carried out under a detailed written plan, with limitations on how the 
waterway can be used and with detailed operations and maintenance 
requirements. Portions of this standard are good practice and frankly, 
common sense. However, if I now have to have a plan for all of these 
and meet the detailed requirements, or face possible litigation under 
the CWA, the expense in time and money will be enormous and 
prohibitive.
    The same is true for the herbaceous weed control standard. This 
section contains a great deal of helpful, practical guidance, but it 
also contains a requirement that a farmer prepare a plan for each 
field. On a farm such as mine that consists of over 150 fields, this 
requirement becomes incredibly burdensome. Perhaps not all of these 
fields are WOTUS, but almost all of them have surface drainage systems 
with a bed, bank and some kind of channel. Other conservation practice 
standards have similar problems. In the case of obstruction removal, 
something as simple as removing sticks or vegetation from a drainage 
feature could easily become a long and detailed process. Under this new 
system, what would otherwise be a 10 minute job would require hours of 
paperwork.
    The Rule language states it is being applied in those instances 
where the conservation practice is being carried out ``for the purposes 
of benefitting'' WOTUS. Presumably this means that farmers carrying out 
such activities not for the purpose of benefitting a WOTUS but simply 
as part of their normal farming operation need not meet the NRCS 
technical standard to quality for the exemption. But the referenced MOU 
that the Agencies and USDA have entered into in accordance with this 
Rule gives the clear, stated indication that the Agencies expect 
farmers to meet these standards anytime they are carrying out these 
activities in a WOTUS.
    For example, the MOU states that ``(D)ischarges in waters of the 
U.S. are exempt only when they are conducted in accordance with NRCS 
practice standards'' and that (W)here NRCS is not providing technical 
assistance, the landowner has the responsibility to ensure that 
implementation of the conservation practice is in accordance with the 
applicable NRCS conservation practice standard.'' Furthermore, the MOU 
states that ``(E)ven where NRCS is not providing technical assistance, 
the agency plays an important role in helping to respond to issues that 
may arise regarding project specific conformance with conservation 
practice standards.'' \4\ The implication is clear; farmers carrying 
out these activities in WOTUS must conform to the NRCS practice 
standard or be subject to CWA enforcement.
---------------------------------------------------------------------------
    \4\ See pages 3 and 4 of ``Memorandum of Understanding Among the 
U.S. Department of Agriculture, the U.S. Environmental Protection 
Agency, and the U.S. Department of the Army, Concerning Implementation 
of the 404(f)(1)(A) Exemption for Certain Agricultural Conservation 
Practice Standards.''
---------------------------------------------------------------------------
    In innumerable instances, when farmers are carrying out normal 
farming activities like brush management they are not doing it for 
conservation purposes. They will not be working with NRCS on a 
conservation practice to benefit a WOTUS, nor will they be doing this 
on their own as a conservation practice. It is simply a normal farming 
activity. In those instances, farmers must not be required to meet the 
NRCS conservation practice standard or, in reasonably not doing so, be 
subject to CWA 404 permitting or enforcement. To require adherence to 
the conservation practice standard in such instances is well outside 
anything contemplated by Congress when the section 404(f) exemption was 
created.

Conclusion
    In summary, the reasons for our serious concerns are as follows:

    1. The Rule encompasses a host of practices with a long history of 
        being an ordinary part of a normal, ongoing farming operation 
        and that are sensible and absolutely lawful for farmers to use 
        for reasons not related to conservation and water quality 
        goals;

    2. The Rule will result in producers possibly being subject to CWA 
        enforcement anytime they do not follow NRCS standards when they 
        carry out in a WOTUS these specific practices as long-used, 
        normal farming activities commonly conducted for reasons 
        unrelated to conservation and water quality goals;

    3. The Rule creates the logical policy presumption that any other 
        normal farming activity must be conducted in conformance to an 
        NRCS practice standard, if an applicable one exists, when 
        carried out in a WOTUS;

    4. In effect, the Rule will mean that producers, in order to be 
        certain they are not operating in violation of the CWA and 
        liable for the resulting and considerable penalties, must 
        conduct these practices under some form of NRCS supervision or 
        accountability, and with a complete and accurate documentary 
        record that could withstand a serious legal challenge; and

    5. In light of the above, it will cause considerable friction 
        between farmers and USDA-NRCS, given the new mandatory 
        regulatory role USDA-NRCS would have in overseeing farmer 
        practices, and the fact that USDA-NRCS conservation practice 
        standards were devised for use in a voluntary, farmer-driven 
        context and are ill-suited for use as permit terms and 
        conditions.

    We believe that these concerns are serious and important enough to 
require that this Interpretive Rule be withdrawn. There may be some 
soil and water conservation practices which are unique enough and 
intended solely for conservation benefits for which this policy might 
be suited. Should this be possible, we strongly urge the Agencies only 
to pursue that policy through normal Administrative Procedures Act 
processes involving formal notice and comment so as to afford farmers 
the opportunity to protect their interests.
    In withdrawing the rule, it is imperative that it be made 
absolutely clear that this policy, in its original form, was meant to 
address only those circumstances where a practice was being adopted for 
conservation purposes to achieve specific water quality objectives. 
That notice of withdrawal must also specify that such normal farming 
activities, when carried out as part of an ongoing operation, will 
qualify for the section 404(f) exemption.
    Once again, we thank you for the opportunity to provide you with 
this testimony and for your decision to hold this hearing so that these 
important policy matters can be thoroughly reviewed and discussed. Corn 
growers will continue their efforts to conserve soil, water and 
nutrient resources and protect water quality, and we look forward to 
working with you and the Administration to support that good work.

    The Chairman. Thank you, Mr. Bowling, for your testimony.
    Now it is my pleasure to ask Mr. Kovarovics for his 
testimony for 5 minutes.

STATEMENT OF SCOTT KOVAROVICS, EXECUTIVE DIRECTOR, IZAAK WALTON 
           LEAGUE OF AMERICA, INC., GAITHERSBURG, MD

    Mr. Kovarovics. Thank you very much, and great job on the 
name. It is a huge frustration for my kids, and I have been 
telling them, ``Get used to it.''
    So I appreciate, Chairman Thompson, Ranking Member Walz, 
and Members of the Subcommittee, the opportunity to be here 
today to testify concerning the Interpretive Rule. I am the 
Executive Director of the Izaak Walton League of America. We 
have about 44,000 members across the country and 250 community-
based chapters. These folks are working on the ground to 
conserve and restore natural resources and enjoy hunting, 
angling, recreational and shooting sports, just about any type 
of outdoor activity you can imagine, and I am here to share 
their perspective as well as the perspective of a broader 
cross-section of the community of Americans who enjoy hunting, 
angling and outdoor recreation.
    I believe it goes without saying that America's hunters, 
anglers and farmers agree that healthy natural resources are 
essential to our traditions, our way of life and our economy, 
and hunters and anglers know that habitat on private land is 
essential to the health of wildlife all across the country. 
Moreover, hunting overwhelmingly occurs on private lands, and 
78 percent of the days spent afield take place on private 
lands. Because we share common goals, hunters and anglers are 
partnering with farmers nationwide. We are working together on 
restoration projects on the ground and advocating for farm bill 
programs and funding that directly support the conservation of 
natural resources on private lands.
    Ensuring the nation's streams, wetlands and other waters 
are healthy is vitally important to the tens of millions of 
Americans who hunt and fish, for our communities and for the 
outdoor recreation economy. Wetlands and streams provide vital 
habitat for fish, ducks and other wildlife. For example, the 
Prairie Pothole Wetlands or the Northern Plains in southern 
Canada support 50 percent of the North American duck population 
an average year and as much as 70 percent of that population 
when water and grass is abundant.
    The ducks who hatch and grow in these wetlands are 
harvested all across America every fall. Headwater and other 
small streams provide vital spawning habitat for trout, salmon 
and other fish and are essential to these fish throughout their 
lifecycles.
    However, following the Supreme Court decisions in SWANCC 
and Rapanos and subsequent agency guidance, these vital 
resources are increasingly at risk today. According to the EPA, 
60 percent of the streams in the lower 48 states, streams that 
flow to drinking water supplies of 117 million Americans are at 
increased risk of pollution. Wetlands are not only at greater 
risk; the nation is losing natural wetlands at a growing rate. 
In the most current Status and Trends of Wetlands report from 
the U.S. Fish and Wildlife Service, the Service concludes 
wetlands loss increased by 140 percent between 2004 and 2009 
period when compared to the previous assessment period of 1998 
to 2004. This is the first documented acceleration of wetland 
loss since the Clean Water Act was passed 40 years ago.
    Each year, 47 million Americans head into the field to hunt 
or fish. These are not simply traditions or hobbies. They are 
fundamental components of our nation's economy. The money that 
sportsmen spend in pursuit of their passion supports everything 
from major manufacturing industries to small businesses in 
communities across the country. These expenditures directly and 
indirectly support more than 1.5 million jobs and ripple 
through the economy to the tune of $200 billion per year.
    Since 1977, the Clean Water Act has included an exemption 
from the section 404 permit process for normal farming, 
silviculture and rancher activities. As has been discussed 
today, the purpose and intent of the Interpretive Rule is to 
provide more clarity and certainty to farmers and ranchers and 
others about specific activities that are covered by the 
exemption for normal farming activities, and the Corps and EPA 
worked with USDA, as we have heard, to develop this rule and 
identify the specific conservation practices which meet this 
definition and are therefore exempt from the 404 process.
    I think it is also important to note, as Mr. Bonnie did, 
that this rule is basically self-implemented. If the standards 
are followed, folks don't need to get advance determination 
from the NRCS about whether or not a water is water of the 
United States or to have pre-approval from the Corps or the EPA 
for the activity.
    In addition to issuing the Interpretive Rule, as folks 
know, the Corps and EPA have taken steps in the separately 
proposed waters of the United States rule to more specifically 
define the waters that are and are not included in the 
regulatory definition. This is the first time that the agencies 
have specifically identified types of waters that are excluded 
from the regulatory definition, and the waters that are on that 
list that are excluded include prior converted cropland, 
groundwater including groundwater draining through subsurface 
drainage systems, gullies and rills and non-wetland swales. In 
issuing the Interpretive Rule, this section of the proposed 
waters of the United States rule, the Corps and EPA have taken 
additional steps to provide clarity and certainty to farmers 
and ranchers nationwide.
    Over the past few years, stakeholders from across the 
spectrum including sportsmen and agriculture groups as well as 
Supreme Court Justices have called on the Corps and EPA to 
conduct a formal rulemaking to clarify the specific waters 
covered by the Clean Water Act. Issuance of the Interpretive 
Rule complements that larger process, and last week the Corps 
and EPA announced they are extending the comment period, and 
the comment period on the separate rulemaking has now been 
extended to be 6 months long.
    In closing, the Interpretive Rule provides more clarity and 
specificity about a wide range of normal farming activities 
that are exempt from the Clean Water Act. Conserving and 
protecting streams and wetlands and other waters is vitally 
important to Americans who hunt and fish and enjoy a wide array 
of outdoor recreation, and these activities are more than 
traditions or hobbies. They drive the outdoor recreation 
economy in America, which totals hundreds of billions of 
dollars and supports millions of jobs.
    Again, I appreciate the opportunity to testify today and I 
am happy to answer any questions. Thank you.
    [The prepared statement of Mr. Kovarovics follows:]

   Prepared Statement of Scott Kovarovics, Executive Director, Izaak 
            Walton League of America, Inc., Gaithersburg, MD
Interpretative Rule Regarding the Exemption from the Dredge and Fill 
        Permit Process of the Clean Water Act for Normal Farming, 
        Silviculture and Ranching Activities

    Chairman Thompson, Ranking Member Walz, and Members of the 
Subcommittee, I greatly appreciate the opportunity to testify today 
concerning the Interpretive Rule issued by the Army Corps of Engineers 
and Environmental Protection Agency (EPA), in close cooperation with 
U.S. Department of Agriculture (USDA), concerning the exemption from 
the dredge and fill permit process of the Clean Water Act for normal 
farming, silviculture and ranching activities.
    I serve as Executive Director of the Izaak Walton League of 
America. I am honored to be here today to share not only the 
perspective of the League but also the perspective of the much broader 
community of Americans who enjoy hunting, angling and outdoor 
recreation. The Izaak Walton League was founded more than 90 years ago 
by anglers, hunters and others who were concerned about the negative 
impacts of water pollution and unlimited development on outdoor 
recreation--especially fishing--and the health of fish, wildlife and 
other natural resources. The founders of our organization understood 
that clean water and healthy wetlands are essential to robust 
populations of fish, ducks and other wildlife and, in turn, to 
enjoyable and successful days in the field.
    Today, the League's more than 44,000 members are leading efforts 
locally to conserve and restore habitat and monitor and improve water 
quality. Our members and staff actively support farm bill and other 
government programs that conserve soil, wetlands and other natural 
resources on farms and ranches nationwide. These members also enjoy 
hunting, angling, recreational shooting sports, boating and myriad 
other outdoor recreation activities. And like League members before 
them, they understand that healthy natural resources, including water 
and wetlands, provide the foundation for the outdoor traditions they 
and tens of millions of other Americans enjoy every year.
    I believe it goes without saying that American hunters, anglers, 
farmers and ranchers agree that healthy natural resources are essential 
to our way of life, our traditions and our economy. Hunters and anglers 
know that habitat on private land--especially land used in some form 
for agriculture--sustains wildlife nationwide. Moreover, hunting 
overwhelmingly occurs on private land. According to the latest National 
Survey of Fishing, Hunting and Wildlife-Associated Recreation, 78 
percent of all days spent hunting occurred on private land. Because we 
share common goals, American hunters and anglers are partnering with 
farmers nationwide. We're working together on everything from habitat 
restoration projects large and small to advocating for farm bill 
programs and funding that directly supports natural resource 
conservation on private lands. At the most fundamental level, sportsmen 
want our partners in agriculture to succeed.

Healthy Streams and Wetlands Vital to Sportsmen, Communities and the 
        Outdoor Recreation Economy
    Ensuring the nation's streams, wetlands and other waters are 
healthy is vitally important to the tens of millions of Americans who 
hunt and fish annually, for communities nationwide and for the outdoor 
recreation economy.
    Wetlands and streams provide vital habitat for fish, ducks and 
other wildlife. For example, the prairie potholes wetlands throughout 
the northern plains and southern Canada support 50 percent of the North 
American duck population in an average year and as much as 70 percent 
when water and prairie grasses are abundant. A wide array of duck 
species depend on these wetlands for breeding, nesting and rearing 
young. Ducks that hatch and grow in these wetlands are harvested 
throughout the United States every fall. Headwater and other small 
streams are vital to cold water fish. These waters provide essential 
spawning habitat for trout, salmon and other fish and are then 
essential to supporting these fish throughout their lifecycles.
    However, following two confusing U.S. Supreme Court decisions 
(SWANCC in 2001 and Rapanos in 2006) and subsequent agency guidance, 
these vital resources are increasingly at risk of being polluted or 
drained and filled. According to EPA, 60 percent of stream miles in the 
United States, which provide drinking water for more than 117 million 
Americans, are at increased risk of pollution. Wetlands are not only at 
greater risk, the nation is losing natural wetlands at a growing rate. 
In the most current Status and Trends of Wetlands report, the U.S. Fish 
and Wildlife Service concludes the rate of wetlands loss increased by 
140 percent during the 2004-2009 period--the years immediately 
following the Supreme Court decisions--compared to the previous 
assessment period (1998-2004). This is the first documented 
acceleration of wetland loss since the Clean Water Act was enacted more 
than 40 years ago.
    Each year, 47 million Americans head into the field to hunt or 
fish. These are not simply traditions or hobbies--they are fundamental 
components of our nation's economy. The money sportsmen spend in 
pursuit of their passion supports everything from major manufacturing 
industries to small businesses in communities across the country. The 
economic benefits of hunting and angling are especially pronounced in 
rural areas, where money brought in during the hunting season can be 
enough to keep small businesses operational for much of the year. These 
expenditures directly and indirectly support more than 1.5 million jobs 
in every corner of the country and ripple through the economy to the 
tune of $200 billion per year. Many other forms of outdoor recreation 
also depend on clean water and a healthy environment. According to the 
Outdoor Industry Association, boating, including canoeing and kayaking, 
had a total economic impact of $206 billion in 2012, supporting 1.5 
million jobs.
    The story of these economic benefits plays out in local communities 
around the nation. For example, each year more than 125,000 anglers 
visit the Driftless Area of Minnesota, Wisconsin, Illinois and Iowa. 
Some of the Driftless Area's best streams flow through the district 
represented by Ranking Member Walz. Across the Driftless Area, anglers 
spend $647 million annually, which goes directly into the local 
economy. This spending also produces a ``ripple effect'' of $465 
million in indirect and induced benefits as those dollars continue to 
circulate through the economy. The direct spending plus that ripple 
effect exceeds $1.1 billion per year. Since 2007, more than 75 miles of 
stream in this region have been restored, and these restoration 
projects are extremely effective, increasing fish populations ten-fold, 
e.g., from 350 fish per mile to 3,500 per mile. On one stream, fishing-
related expenditures were less than $200,000 per year prior to 
restoration and grew to $1 million per year after restoration.
    In addition to providing critical habitat for fish and wildlife and 
directly supporting hunting and angling, wetlands also provide a host 
of other benefits to people and communities across the country. Natural 
wetlands are arguably the most cost-effective protection against 
flooding for communities large and small. According to the National 
Weather Service, the 30 year average for flood damage is $8.2 billion 
annually. Conserving wetlands is an alternative to building higher 
levees and concrete storm walls and armoring every stream bank with 
rip-rap.
    Wetlands provide essential benefits to rural communities and 
agriculture. Wetlands help recharge ground water supplies. The National 
Ground Water Association (NGWA) estimates that 44 percent of U.S. 
population depends on groundwater for drinking water, either from a 
public source or a private well. As every Member of this Subcommittee 
understands, groundwater is vitally important for irrigation. According 
to NGWA, irrigation accounts for the greatest usage of groundwater--
more than 50 billion gallons daily. For example, NGWA reports that more 
than 90 percent of the water pumped from the Ogallala aquifer--the 
nation's largest, stretching from South Dakota to Texas--is used for 
agricultural irrigation. By capturing, storing and slowly releasing 
water, wetlands replenish vital groundwater supplies on which the 
American people, agriculture and our economy depend every day.

Interpretive Rule Provides More Clarity about Agricultural Exemptions 
        in the Clean Water Act
    Since 1977, the Clean Water Act has included an exemption from the 
section 404 dredge and fill permit process for normal farming, 
silviculture and ranching activities. Under this provision (section 
404(f)(1)(A)), the discharge of dredge or fill material ``from normal 
farming, silviculture, and ranching activities such as plowing, 
seeding, cultivating, minor drainage, harvesting for the production of 
food, fiber, and forest products, or upland soil and water conservation 
practices'' is exempt from permitting. Separate provisions exempt 
``construction or maintenance of farm or stock ponds or irrigation 
ditches, or the maintenance of drainage ditches'' (section 
404(f)(1)(C)) and ``construction or maintenance of farm roads or forest 
roads . . .'' (section 404(f)(1)(E)). These exemptions do not apply to 
activities that would bring waters of the United States into uses for 
which they had not previously been used or where the flow or 
circulation of such waters would be reduced.
    These statutory exemptions can only be modified by Congress--
Federal agencies cannot alter them and are bound by law to follow them. 
In issuing the Interpretive Rule, the Corps and EPA make clear that the 
farming, silviculture and ranching exemptions remain in full force and 
effect. The agencies state, ``It is important to emphasize that this 
interpretive rule identifies additional activities considered exempt 
from permitting under section 404(f)(1)(A), but does not affect, in any 
manner, the scope of agriculture, silviculture, and ranching activities 
currently exempt from permitting under section 404(f)(1)(A) including, 
for example, plowing, seeding, cultivation, minor drainage, etc.''
    The purpose of the Interpretive Rule is to provide more clarity and 
certainty to farmers, ranchers and others about specific activities 
that are covered by the exemption for ``normal farming activities'' in 
section 404(f)(1)(A). The Corps and EPA worked directly with USDA to 
develop this rule, which identifies 56 specific agricultural 
conservation practices that meet this definition and are therefore 
exempt from the 404 permit process. Furthermore, the Interpretive Rule 
states, ``So long as these activities are implemented in conformance 
with NRCS technical standards, there is no need for a determination of 
whether the discharges associated with these activities are in `waters 
of the United States' nor is site-specific, pre-approval from either 
the Corps or the EPA necessary before implementing these specified 
agricultural conservation practices.'' When implementing one of these 
practices as part of an established farming or ranching operation, 
agricultural producers can move forward with more clarity and 
certainty.
    In addition, USDA, the Corps and EPA have signed a separate 
memorandum of understanding (MOU) that includes a ``process for 
identifying, reviewing and updating NRCS agricultural conservation 
practices and activities that may include discharges in waters of the 
United States that would qualify under the exemption established by 
section 404(f)(1)(A).'' Under this process, the three agencies agree to 
review the practices at least annually and can identify additional 
practices that would be covered by the exemption. It is also possible 
that activities on the initial list could be removed if the agencies 
conclude they are having a negative, rather than beneficial, impact on 
water quality.

Additional Specific Waters Excluded From the Definition of ``Waters of 
        the United States''
    In addition to issuing the Interpretive Rule, the Corps and EPA 
have taken steps in the separately proposed ``waters of the United 
States'' rule to more specifically define the waters that are and are 
not included in the regulatory definition. This is the first time the 
agencies have identified specific types of waters that are excluded 
from that definition. This action will provide additional clarity for 
stakeholders across the spectrum, including farmers and ranchers.
    Section (b) of the proposed regulatory definition of ``waters of 
the United States'' identifies 11 specific waters or features that are 
``not `waters of the United States.' '' The waters or features most 
pertinent to agriculture include:

   Prior converted cropland

   Ditches that are excavated wholly in uplands, drain only 
        uplands, and have less than perennial flow

   Artificially irrigated areas that would revert to upland if 
        irrigation ceased

   Artificial lakes or ponds created by excavating and/or 
        diking dry land and used exclusively for such purposes as stock 
        watering, irrigation, settling basins, or rice growing

   Groundwater, including groundwater drained through 
        subsurface drainage systems

   Gullies and rills and non-wetland swales

    In issuing the Interpretive Rule and this section of the proposed 
``waters of the United States'' rule, the Corps and EPA have taken 
additional steps to provide clarity and certainty for farmers and 
ranchers nationwide.
Public Process Provides Opportunity for Broad-based Participation and 
        Input
    Over the past few years, stakeholders from across the spectrum--
including sportsmen and agricultural groups--as well as Supreme Court 
justices have called on the Corps and EPA to conduct a formal 
rulemaking to clarify the specific waters covered by the Clean Water 
Act. Issuance of the Interpretive Rule is part of that process. Last 
week, the Corps and EPA announced they are extending the comment period 
on this rule for 30 days through July 7. This extension will give 
interested parties additional time to provide input and 
recommendations. At the same time, the agencies extended the public 
comment period on the proposed ``waters of the United States'' rule 
through October 20, 2014--providing a total of 6 months for public 
input.
    In closing, the Interpretive Rule provides more clarity and 
specificity about a wide range of activities that are covered by the 
exemption from Clean Water Act dredge and fill permitting for normal 
farming and ranching activities. This is an important step within a 
larger process designed to provide greater clarity to all stakeholders 
about the waters that are--and are not--covered by the Clean Water Act.
    Conserving and protecting streams, wetlands and other waters is 
vitally important to Americans who hunt, fish and enjoy a wide array of 
other outdoor recreation. These activities depend on clean water and 
healthy habitat, including wetlands. And these activities are more than 
traditions or hobbies--they drive the outdoor recreation economy in 
America, which totals hundreds of billions of dollars annually and 
supports millions of jobs.
    I appreciate the opportunity to testify today and would be happy to 
answer any questions.

    The Chairman. Thank you, sir. I would like to thank all the 
witnesses for your written testimony that was all well prepared 
and your oral testimony. I am going to take the liberty of 
starting with the first 5 minutes of questioning and I will 
start with Mr. Parrish.
    The American Farm Bureau Federation and the other producers 
on this panel have been very clear about their objections to 
the Interpretive Rule and concerns with the Administration's 
new waters of the United States proposal. Why do you believe 
that your position is so different from that of the National 
Farmers Union, who also represents farmers and ranchers?
    Mr. Parrish. That is an interesting question. I have asked 
President Stallman that exact question, that if he understood 
fully why the Farmers Union supported this, and his response 
was, and I concur with it, that Farmers Union made a very quick 
and snap decision. They had a statement out on this proposal 
within an hour of it being released. I don't know of any way 
they could have looked at 371 pages of clarity and determined 
that there were not problems for farmers and ranchers. I also 
don't think that they looked at the issues of EPA regulating 
things that have flow in them only during rainfall events.
    Most people--and when Congress passed the Clean Water Act, 
they looked at the issue of fish-able and swim-able. If you are 
asking people as to whether or not EPA can regulate either land 
or a feature that looks like land that may only contain water 
in it during a rainfall event, they would not believe that. At 
least we don't think that is what Congress was looking at in 
1972 because they used the term navigable. So we are not sure 
exactly why they have come to their position but we clearly 
understand there is a huge difference in what is in black and 
white in this proposal and what sometimes the agencies say 
about it.
    The Chairman. Sure, and my inclination was to trust NRCS at 
first until I started to really read through this and my 
concerns quickly arose.
    Mr. Fabin, do you think that conservation will actually 
decline if this Interpretive Rule remains in place?
    Mr. Fabin. You know, I would hope not, but I fear that it 
might. I guess we are more inclined to do the conservation 
practices because it is part of our values system as a 
producer, and we look to the NRCS for the guidance on the 
proper way to do that, and if we are going to start looking to 
them as a regulatory body, we will be less likely to invite 
them onto the property or properties for that advice. I think 
that it will have a negative impact on conservation.
    The Chairman. Yes, and I think that NRCS should look to the 
experience of other regulatory agencies who don't find a lot of 
businesses that freely invite and encourage OSHA to show up.
    Mr. Fabin. We have never invited them.
    The Chairman. Okay. Enough said.
    Mr. Bowling, under the Interpretive Rule, what incentives 
will corn growers have to enroll in USDA voluntary conservation 
programs?
    Mr. Bowling. Well, the incentive will lessen. You know, in 
my opinion, they don't become voluntary. As you noticed, I farm 
in Maryland. We also deal with a little thing called the 
Chesapeake Bay Mandate and after dealing with that, we are 
managing to do that. The only thing that I am clear of and that 
is certain to me is, I made it through yesterday with no 
violations. So almost all the practices that I do on my 27 
farms that almost 24 of those 27 are on a river or on a stream, 
the only thing that I know mine are voluntary. I do rely on 
NRCS for some guidance but I very rarely take part in some of 
the programs. I do take part in the EQIP program and the 
precision ag programs to maximize my efficiency and to make 
sure that the equipment I am using doesn't encroach where I am 
not supposed to be. So I will continue to do those things, and 
corn growers will continue to do those things around the 
country, but as far as again inviting NRCS onto our properties 
to take a look, that is going to be in jeopardy.
    The Chairman. Thank you.
    Mr. Kovarovics, thank you for your organization and what 
you do. I am a lifetime hunter and fisherman. I grew up in a 
small family sporting goods business, so--in your testimony, 
you note that several groups called on the Corps and the EPA to 
engage in formal rulemaking on the issue of what waters are 
governed by the Clean Water Act. Is the decision by the EPA, 
the Corps and NRCS to issue the Interpretive Rule without a 
comment period consistent with this process or a concern to 
your organization?
    Mr. Kovarovics. Well, the Interpretive Rule is guidance, as 
I understand it. In some cases, guidance is issued without 
public comment. In other cases it is. Sometimes it is after the 
fact. I think you heard from Mr. Bonnie today in terms of 
learning from this overall process, there is a public process 
underway now, which provides that opportunity to participate 
and I encourage everyone to participate in that.
    The Chairman. Well, this will be a very public process from 
this point forward as the sense of the intensity I hear from 
the members of this panel. So thank you.
    I recognize the Ranking Member for 5 minutes.
    Mr. Walz. Thank you, Chairman. Thank you all for your 
testimony. It has been very, very helpful, and segueing from 
the Chairman that the teacher in me knows that this is an 
important piece of this. We are going to have to, and we know 
that the folks who feed and clothe this world power the world, 
about 1\1/2\ percent of this country. We heard there are 47 
million hunters. We need to keep in mind, that leaves about 250 
million Americans who we have to educate about this process, 
who we have to bring in this so that those snap judgments 
aren't made, and I encourage all of you and that we encourage 
USDA is, this is going to have to be a collaborative, 
transparent matter to get to our common goals, which is clean 
water, sustainable agriculture and the ability for people to 
make a living as well as enjoy those legacy outdoor activities 
and fuel the economy through those. We don't have to make the 
false choices. We don't have to pick one over the other. We 
don't have to get into that. But we do have to make clear what 
those goals are. We do need to make clear as to this 
rulemaking. The biggest mistake here was, it does not feel to 
me that there was enough of that input. It doesn't feel like we 
got enough of that out there. So when I see the picture--and 
Mr. Parrish is right. When I see that picture you put up there 
this morning, that looks like a picture that could have been 
taken this morning in Blue Earth County on Kevin Paap's farm as 
they are sending me pictures. That is exactly what it looks 
like, and I think that is a concern.
    And I also know that there is not that space between us, 
and Mr. Kovarovics, you bring this up about how do you--and I 
would ask each of you, first and foremost, is the NRCS the 
repository of all best practices on conservation? Are they? How 
would you respond to that?
    Mr. Parrish. I would say, let me give you a practice that 
in California is against the law. Farmers in California cannot 
deep plow, and what I am talking about, deep plowing, I am 
talking about a 6 deep subsoil. Farmers in your neck of the 
woods can. Farmers in the Mississippi Delta can. That is the 
only agricultural practice that I know of where you can pull a 
plow that EPA says that is not a normal farming practice. So I 
would argue that there is not anything consistent there and 
they are not the only repository because the university system 
are always updating what farmers can do on the land, and I 
would also say that whether it be the Extension Service or 
university systems, our systems evolve over time, and if you 
lock people in to certain practices, it is a real problem.
    Mr. Walz. That is my point. Is there a fear of that 
happening, that instead of going to the extension of the 
University of Minnesota or the University of Iowa to get that 
information, now you are locked into that?
    Mr. Parrish. Here is the way I would explain it. If these 
56 practices--and I heard Mr. Bonnie say that the only way to 
be in compliance with the Clean Water Act is if you do these 56 
practices the way NRCS standards say you have to do them, and 
they are very prescriptive. They use a lot of shalls. If a 
farmer builds a fence that does not comply with NRCS standards, 
the cloud then is that he has violated the Clean Water Act. The 
Clean Water Act is not flexible. It is very rigorous, and you 
know what? NRCS may not come and check his property or the 
Corps of Engineers or EPA may not come, but citizen suits, 
citizen activists can come out and challenge that, and if the 
neighbor doesn't like where he put that fence or exactly how he 
built it, they are going to go out there and then start 
measuring to make sure that the post that he built that fence 
with is 57" apart.
    Mr. Walz. Could I ask Mr. Kovarovics, do you agree? I don't 
want to put you on the spot of speaking for an entire industry. 
I understand you are speaking for your members and you are 
bringing this up, but do you--and this is where we have to be 
collaborative. Do you see the concern that Mr. Parrish and 
those landowners are speaking about on that, of where their 
concern is of how that could be interpreted?
    Mr. Kovarovics. Yes.
    Mr. Walz. And how do we alleviate that? Because you have 
worked closely with landowners before, your organization has. 
Can't we do that again in this setting?
    Mr. Kovarovics. I think so, and I look at the projects that 
we are doing across the country, not only our organization but 
so many in the sportsmen community working with landowners on 
the ground, putting conservation on the ground. You know, if 
standards exist, we are going to be helping to meet those 
standards. I mean, you want these projects to be successful in 
their outcomes, right? And I have installed fence. I didn't 
know there was a standard for doing that necessarily. I do 
think it is important to understand here that this applies when 
these activities discharge material into water of the United 
States. I mean, this isn't putting the fence through the woods 
type thing. When it comes to putting these standards in place, 
our organization, Trout Unlimited and others that are working 
with landowners on the ground, we want to make sure that we are 
doing it right and help to do that.
    Mr. Walz. Yes, sir?
    Mr. Parrish. Just to clarify, do you know what EPA and the 
Corps are claiming is a discharge when you build a fence? Have 
you ever built a fence with----
    Mr. Walz. I have built many miles of it.
    Mr. Parrish. But that is the discharge that they say they 
can regulate.
    Mr. Walz. Now, that is very difficult for me to explain to 
my producers in any way possible, and you are not making that 
case. Again, we have to stick together on this, those that care 
deeply about that, and have us all at the table.
    My time is up. We will come back again, maybe for a few 
more questions, but I am of the belief that we can get this 
right but there are 250 million people that aren't engaged in 
this the way you are. We have to educate them.
    The Chairman. I thank the gentleman. Now I will recognize 
the gentleman from Ohio for 5 minutes.
    Mr. Gibbs. Thank you, Mr. Chairman.
    I guess just to reiterate what you just built on, Mr. Walz 
to Mr. Parrish, we heard about from Mr. Bonnie on the first 
panel, it is voluntary, it is voluntary. Well, it seems to me 
that this interpretative rule isn't very clarifying because it 
requires producers to be in compliance with the NRCS standards, 
and if they are not, they are not in compliance and they have 
had this blanket exemption--agriculture has--for normal farming 
operations, and anything under normal, it is not--they are not 
in compliance. You concur with that, right, Mr. Parrish?
    Mr. Parrish. I do. The follow-up questions to Mr. Bonnie 
should have been then, are they in violation of the Clean Water 
Act.
    Mr. Gibbs. Yes, I was hoping we were going to have time for 
a second round of questions. That needed to be asked, and he 
probably would say well, I don't think so, because that is the 
answer we received last week from the EPA.
    So the follow-up on that, if a farmer deviates from the 
standards, they would not benefit from the exemption under the 
rule, correct?
    Mr. Parrish. That is correct.
    Mr. Gibbs. So then the next question is, who is the--what 
agency would be the enforcement mechanism to make farmers 
comply or fine farmers or if they not--because the exemption is 
not going to work now.
    Mr. Parrish. Well, two things. First, USDA has agreed to in 
their MOU, and I read where it specifically got quoted where 
they are going to be at least brought in as part of the 
arbiter. I disagree with Mr. Bonnie on his characterization of 
that. Second, the Clean Water Act is not self-policing. The 
Clean Water Act brings with it citizen suit violations, and 
believe me, any citizen activist group that disagrees with what 
you are doing or they take exception to the way you are doing 
this practice can bring you into court and force you, force you 
to dot every ``i'' and cross every ``t'' as to whether or not 
you comply with NRCS standards.
    Mr. Gibbs. Everyone needs to remember what is creating this 
is the underlying proposed rule to extend the jurisdiction of 
the EPA on the waters of the United States and that opens up 
the Clean Water Act to farmers, landowners, homeowners, 
everybody to citizen lawsuits and permitting if you don't fall 
under these specific exemptions, which I really think USDA and 
NRCS has been rolled here by the EPA.
    So Mr. Chairman, I am glad you had this hearing because 
this is really enlightening to everybody that we are putting at 
risk our conservation efforts because, as Mr. Fabin stated, you 
are probably not going to do things because you are fearful 
that the EPA is going to come in.
    I guess another question for Mr. Parrish. Since the 
underlying rule is the one that we know about, the interpretive 
is kind of a result of that, would the EPA have authority to 
come in and make determinations?
    Mr. Parrish. It sounds like they will every year when these 
look at these practices. I am very concerned that these 
practices if they are not followed to the letter--and again, I 
quoted to you the number of practices that are done and I would 
just, for people that build things like terraces or grass 
waterways, they do it because they want to. They do it to 
protect their land, to improve their land. This puts such a 
cloud over that that I think it is really going to diminish the 
ability of farmers to do that on their own.
    Mr. Gibbs. I do want to follow up an issue that Mr. Bonnie 
raised, and he might have misstated when he talked about 
discharges under that, because there was a court case on spray 
drift, because I believe the court case--that is why my bill is 
so important, H.R. 935, because essentially the courts ruled 
that the sprayer is now point source, and when you expand the 
jurisdiction of waters of the United States, it would require 
farmers, even though they are applying that pesticide under EPA 
label, they might have to get a section 402 permit.
    Mr. Parrish. Okay. I really want to--this is an important 
distinction, and I want to clarify that. Spray drift is 
different than an actual direct discharge, okay? So that is two 
different things. And in the picture that I showed of that 
cornfield, if the farmer drives his sprayer across that area 
when the water is not there or running off during a rainfall 
event, that is a direct discharge, and therefore he would need 
a section 402 permit. Now, if the farmer stayed out of that 
area and didn't farm it anymore and he normally does, and I 
would argue that that is an area that only has water in it when 
it is extensive rain, if he is completely out of that area and 
there is drift, drift is treated differently than a direct 
discharge, and a direct discharge is regulated. Drift is 
illegal under all conditions. So it is illegal under FIFRA.
    Now, we can have a sidebar on that, but there is a 
distinction. Direct discharges are regulated, and this is going 
to put those direct discharges right into the middle of a 
farmer's field. EPA didn't develop because--the reason this 
expands jurisdiction, EPA didn't develop a general permit for 
agricultural uses. This expands waters of the United States so 
much that now they are going to have to do a permit because 
they are going to regulate those kinds of areas I showed in 
that picture.
    Mr. Gibbs. So in those instances, the farmers would have to 
get section 402 permits for those instances, and I don't know, 
delays and what the issue would be there.
    Mr. Parrish. That is correct.
    Mr. Gibbs. Okay.
    Mr. Parrish. It is huge.
    Mr. Gibbs. Thank you. Thank you, Mr. Chairman.
    The Chairman. Thank you. I now recognize the Ranking Member 
for another question.
    Mr. Walz. I thank the Chairman. We have great witnesses 
here, and this is an important topic we need to hear about.
    Again, I would make the case on this is that we should show 
great concern that our producers are showing this level of 
concern because in working on these issues over the years, we 
have had great collaborative efforts and there is that attempt 
to get their rights. So this expression of frustration, concern 
and uncertainty is real. We are hearing it across the country 
and also I am hearing from our sportsmen who know we need to 
clean our rivers, we need to make sure we get this opportunity.
    With that being said, I just had a couple questions for me 
and for others listening who might not know this. Prior to the 
Interpretive Rule, how did you, the producers, know what 
practices qualified as normal activities? How did you know 
that?
    Mr. Bowling. Well, for me, I do have regular contact with 
my soil conservation service and NRCS and my FSA office. The 
most important ways that I learn is from other farmers that are 
older than me, my father. My grandfather before him taught me 
the right and wrong ways to do things. I didn't need to be 
regulated to be told that, and it has been passed down through 
generations.
    And I would like to add that not only am I a farmer because 
that is my occupation but I hunt because I enjoy it. Our farm 
is on the river. I boat and I fish because it is time off and I 
spend that with my family. So there isn't a person in this room 
that doesn't appreciate the normal practice of farming the way 
I do and then to enjoy the pristine beauty where my family farm 
is and where I hope is there for generations to come. So there 
is nothing that I am going to do that is going to jeopardize 
that in any way.
    Mr. Walz. Mr. Bowling, do you think there is anything in 
this Interpretive Rule that makes our waters cleaner?
    Mr. Bowling. I don't specifically know. I mean, I have read 
through this rule. I just don't see it.
    Mr. Fabin. I would have to echo what Mr. Bowling said. My 
grandfather bought the farm that we are on sometime in the mid 
to late 1940s and we have been implementing these conservation 
practices ever since then. So it has been just a rule that that 
is how I farm. I really didn't look to the NRCS for their 
regulations. Now, we certainly do go to them for some guidance 
but it is a way of life for us. It is how we do things.
    Mr. Walz. Could you describe, Mr. Fabin--I don't want to 
put words in your mouth if it is frustrating or insulting, 
whatever, these things that your family has done for so long 
now all of a sudden to be told that well, it is okay what you 
think, someone else, though, will make that determination?
    Mr. Fabin. Yes, it is a little suspicious that we have been 
given the responsibility for so many years and thought that we 
were doing it correctly and now they are coming in and sort of 
implying that we are not.
    Mr. Walz. We are all open to new techniques. I have seen 
our folks work hand in hand with NRCS and we have heard great 
success stories. There are folks out there that are experts in 
this and know stream aquatics and things.
    Mr. Parrish. May I clarify as to what the Clean Water Act 
says about normal farming?
    Mr. Walz. Yes.
    Mr. Parrish. EPA has two instances that they can recapture 
a normal farming practice, and that is, if you impair the reach 
or the flow of water. Those are the only two things that would 
stop a farming practice from being considered normal. You would 
have to impair the reach or the flow of the water. So unless 
you are working directly in a stream, most farming practices 
don't impair the reach and flow of water.
    Mr. Walz. And you believe, Mr. Parrish, this new one says 
``Oh, yes, now that runoff you saw from the rain is now 
there''?
    Mr. Parrish. Grazing, pruning a tree, I don't find any of 
those practices that would constitute a discharge. I don't find 
any way that it is impairing the reach or the flow of water. It 
adds confusion.
    Mr. Walz. From a sportsman's perspective, Mr. Kovarovics, 
how do we reach this compromise? How do we get there? How do we 
understand? We understand watersheds are big. We understand the 
interconnectedness of things and all of that. How would you and 
how do groups like Izaak Walton League, how do we talk to these 
producers about, again, collaboratively reaching that common 
ground on this new interpretation?
    Mr. Kovarovics. Well, it is probably building on a dialogue 
and the work that is already going on out there. I mean, there 
are these partnerships broadly across the country. So many 
groups are working with individual farmers, private landowners, 
on many of these projects. If this was an issue for a future 
project that is taking place in the water of the United States, 
then there would be that opportunity to work there. I mean, the 
bottom line for organizations like ours as we are partnering 
with private landowners on so many issues, and we want 
conservation to be successful and we are working hard to 
achieve that outcome.
    Mr. Walz. I am just wondering if in the process now is not 
too poisoned or whatever you might say to go forward, do we 
need to come at this a different way because if there are 
suspicions and if we are breaking down, then I agree with you 
on this. Long-held partnerships that are going to be strained 
by this that you are hearing from some of these producers, do 
we need to take a step back, approach this in a different way 
to get there. Any thoughts on that?
    Mr. Bowling. I am sorry, I would like to add that groups 
like Izaak Walton League or Ducks Unlimited or whoever, in my 
opinion, they should reach out to us as we should reach out to 
them, come out and visit my farm. I welcome that. I want you to 
see what I am doing voluntarily. I want you to see how it is 
working for me on a positive way for fish, for migratory birds, 
for deer, turkey. It doesn't matter what it is on my farm. We 
plant food plots. We build migratory-bird ponds. We have areas 
for other things to graze on.
    Mr. Walz. And they do that, I guess I see the Federal 
agencies could be the convener of those conversations. I would 
like to see you two guys working together, which I know you do, 
to get these answers right. What concerns me is, is when they 
tell us neither one of you are invited ahead of time to do 
that, and those are--if they can be the convener of the 
conversation, then you two can sit.
    Mr. Fabin, I am over my time, but if you would answer, I am 
interested if you had something to add.
    Mr. Fabin. Yes, I did. I guess the NCBA has been questioned 
precisely zero times from the USDA, so that is an easy answer, 
but I guess maybe a solution to your question is a new 
Interpretive Rule that says all conservation activities are 
part of normal farming. That might be one solution.
    Mr. Walz. Fair enough.
    Mr. Bowling. I would like to add, Mr. Thompson, you asked 
Mr. Bonnie to stay here and listen to our testimony, and he is 
not here, and we are here talking to you now. You have two 
producers here that have taken the time to come in. We are not 
getting paid for this. We are doing it because it is the right 
thing to do. I firmly believe what I am doing is the right 
thing and I would have loved for him to have stayed and heard 
what we had to say. I think he may have probably picked 
something up.
    The Chairman. Mr. Bowling, I agree. That is why I made that 
request, and unfortunately, I think that just reflects the 
attitude of this entire issue that we are dealing with.
    I do have just--these are quick questions that actually are 
better suited for Mr. Bonnie but just very quickly get your 
response to these three questions. Have our voluntary 
conservation programs failed? What are your opinions on that? 
Yes or no?
    Mr. Bowling. No.
    Mr. Fabin. Not at all.
    Mr. Parrish. I would say no. I would say they have given us 
the opportunity for these guys to achieve more than you would 
if you just give them a permit to farm.
    Mr. Kovarovics. I would unequivocally say no.
    The Chairman. Mr. Parrish, you used the saying--we use it 
up north too--if it is not broken, don't fix it. I spent Monday 
morning on the Chesapeake Bay--quite a ways outside the 5th 
District of Pennsylvania but we are in the Chesapeake Bay 
Watershed--with Colonel from the Corps of Engineers, and we 
have remarkable progress, largely the result of the voluntary 
efforts of our agricultural community.
    The second question is, for those of you who have 
experience working with the professionals at NRCS--and I 
appreciate what they do. They are boots on the ground. But, we 
are talking about significant increase in compliance work. 
Whether they want to pretend they are not going to be an 
enforcement agency, the compliance load, based on your 
experience and interactions with NRCS, are they going to be 
able to handle this influx, dramatic increase in compliance 
work, and quite frankly, what happens if we don't get the 
paperwork processed? I guess we don't feed our citizens.
    Mr. Bowling. Yes, those guys are swamped right now doing 
what they are doing. You know, most of them are local people 
who live in the area that work for these agencies. Some of them 
are friends of mine. Some of them have become friends of mine 
because of the relationship that I have had as a farmer going 
in there to make sure that I am in compliance. Every farm that 
I farm has a conservation plan. Every farm that I farm has a 
nutrient management plan. That work is done in those offices. 
They need more help now. I don't see how they can manage to do 
any more than they are doing. And my experience is that they 
get it done but they rush through it just to get it done so it 
doesn't hold me up from farming. If I don't have a nutrient 
management plan, I don't have a conservation plan, I can't 
farm. I can't buy fertilizer if I don't have a nutrient 
management plan. So it has to be done. We have to be on our 
regimented cycle of getting all these plans done. They do a 
great job of doing it right now but I just don't see how the 
workload can be achieved by the people that they have now.
    Mr. Fabin. As a quick example, coming up on 2 weeks ago 
when I was doing some research for this testimony, I contacted 
our local NRCS agent and asked him for a list of some of the 
activities that our operation has done, and I have yet to see 
that list, so a simple task like that, which should only take 
him 5 to 10 minutes, he has not been able to accomplish yet. So 
some of--putting more projects on his plate, it is not going to 
get us anywhere.
    The Chairman. I am going to close my 5 minutes with just 
kind of revisiting, Mr. Bowling, replowed ground here, and I 
quote you from your testimony because it brings up an aspect of 
this, a threat of this that has been mentioned, but it deserves 
to be elevated as much as we possibly can. You talked about 
citizen suits, I have seen this on our National Forests how 
really citizen suits just interfere with the ability to 
properly manage land, period. It has completely contrary 
outcome from what the citizen activist organizations claim that 
they have. We wind up with unhealthy forests and we are going 
to wind up with more unhealthy watersheds, and as you talked 
about with your neighbor, ``We have seen this very recently 
with one of my Maryland neighbors, a broiler farm. Fortunately 
this specific case the courts ruled in favor of the farmer,'' 
and a lot of groups will say well, you always have recourse, 
you can defend yourself in the judicial system. But the 
question is at what cost. And you have noted in your testimony 
at tremendous expense to the defendant, which nearly resulted 
in bankruptcy. I don't know if this is the preferred outcome of 
this Interpretive Rule or the waters of the United States but 
it appears to me that this is a realistic outcome that we can 
expect unless we can turn this back.
    Mr. Bowling. You are exactly right. I mean, I know the case 
you are talking about. I don't know the farmer himself but I 
did donate to his cause because I would hope that if that were 
me, and thank God it hasn't been yet, that others would help 
me. The suit brought against him was basically they felt he had 
dumped chicken litter in an unauthorized spot and it wasn't 
even chicken litter, it was municipal waste that was permitted 
to go on that farm. So again, he had to defend himself on 
something that he was doing exactly by the book. He was doing 
nothing wrong, and it damn near bankrupted him, and I can tell 
you that the damage that it did to him and his family was way 
worse than the bankruptcy. He is now scared to make a move on 
anything. Again, I hope that doesn't happen to any of my other 
counterparts but it is a very real scenario that happened.
    I see with this implementation here, I worry about that 
myself. I farm a lot around a lot of multimillion-dollar 
houses. People come out and watch what I do when I am on the 
farm next to them. They pay attention to everything that is 
spray, how I plant, when I plow, when it rains, how soon I am 
back in there. Every aspect of what I do is looked at.
    The public likes farmers. They don't particularly like the 
way we farm. They don't like us to do those things. I invite 
all those neighbors onto my farm. I explain to them what I am 
spraying when I am spraying. I assure them that I would use 
nothing on my land that is going to hurt me, let alone them. So 
once I do that, it seems to go away, but the day is coming when 
I am not going to be able to explain my situation. I am going 
to have to prove it in a court of law, and I am not looking 
forward to that.
    The Chairman. Having spent time during this hearing looking 
through the fencing NRCS requirements, I have bad news. You can 
be sued by your neighbors if you have an ugly fence because 
aesthetics are a part of the standards. Now, I don't know how 
you measure that.
    With that said, I want to thank the panel. Any closing 
comments?
    Thank you so much to everyone for your testimony. I think 
this has been very helpful as we continue in the process of 
dealing with this issue.
    Under the rules of the Committee, the record of today's 
hearing will remain open for 10 calendar days to receive 
additional material and supplemental written responses from the 
witnesses to any questions posed by a Member.
    The Subcommittee on Conservation, Energy, and Forestry 
hearing is now adjourned.
    [Whereupon, at 12:23 p.m., the Subcommittee was adjourned.]
    [Material submitted for inclusion in the record follows:]
 Submitted Letter by Hon. Glenn Thompson, a Representative in Congress 
                           from Pennsylvania
June 18, 2014

  Hon. Thomas ``Tom'' J. Vilsack,
  Secretary,
  U.S. Department of Agriculture,
  Washington D.C.

RE: Clean Water Act Jurisdiction and NRCS Technical Standards [EPA-HQ-
            OW-2013-0820; 9908-97-OW; EPA-HQ-OW-2011-0880; FRL-9901-47-
            OW]

    Dear Secretary Vilsack,

    The undersigned Iowa agricultural organizations are writing today 
to express our concern with recent actions taken by the U.S. Department 
of Agriculture in collaboration with the Environmental Protection 
Agency (EPA) and the Army Corps of Engineers (Corps) with regard to the 
NRCS technical standards and the expansion of Federal jurisdiction 
under the Clean Water Act (CWA). Because we believe that these actions 
will impede soil and water conservation progress as the NRCS technical 
standards become regulatory tools for the EPA and the Corps, the 
Interpretative Rule should be withdrawn.
    The State of Iowa and our organizations are committed to continued 
progress on soil and water quality improvements. The Iowa Nutrient 
Reduction Strategy details the scope of the effort necessary to achieve 
our goals, and its science report is clear that additional management 
of nutrient application will not provide the desired outcomes without 
implementing edge of field practices and other conservation 
infrastructure. The scope of the effort necessarily dictates that many 
practices will need to be installed with exclusively private funds as 
there isn't enough cost-share or available technical assistance to 
achieve these goals.
    Farmers are solutions-oriented and are rising to the challenge. 
According to a recent survey of Iowa land improvement contractors, 
farmers are investing their own resources into conservation practices 
without state or Federal financial assistance at a high rate. For 
example, at least 67% of grassed waterways and 50% of terraces are 
installed exclusively with personal funds. The survey confirms what has 
long been known: farmers are committed to conservation and are willing 
to invest their own resources.
    NRCS technical standards, technical assistance and cost-share are 
voluntary programs. Although farmers may not agree with every 
requirement in the technical standards, they understand that following 
the standards is the choice they make when signing up for cost-share. 
Farmers have long had to consider whether the additional requirements 
and expense involved with cost-share programs pencil out when compared 
to self-financing. Farmers that chose to self-finance have the 
flexibility to accelerate the implementation of practices, design 
practices according to the needs of the particular location, and avoid 
the additional paperwork burden. Turning the technical standards into 
de facto regulations for Clean Water Act compliance is contrary to the 
purpose of these voluntary programs.
    The Interpretative Rule requires farmers to follow NRCS technical 
standards in order to qualify for the ``normal farming practices'' 
exemption to CWA  404 jurisdiction. Without the exemption, farmers are 
required to obtain a  404 permit when conducting activities in 
``waters of the U.S.'' According to the economic analysis on the 
proposed WOTUS rule, obtaining this permit will cost months of delay 
and tens of thousands in additional costs, in many cases far surpassing 
the cost of installing the conservation practice. Observing the 
experiences of the state and Iowa's drainage districts in recent 
projects going through the  404 permitting process, individual farmers 
will be unable to navigate or pay for participation in the current 
permitting system without assistance.
    We are also concerned that the list of practices identified in the 
Memorandum of Understanding is not a comprehensive list of conservation 
practices. Practices such as grade stabilization structures, terraces, 
created wetlands, ponds, sediment basins, cover crops, riparian forest 
buffers, residue and tillage management, contour farming, drainage 
water management, bioreactors, nutrient management and many other 
conservation practices are also ``normal farming practices.'' The 
Interpretative Rule states that it does not affect the scope of the 
exemption; however, it proceeds to identify that the agencies have 
determined that only specific, named conservation practices meet the 
new qualification requirements for the exemption. The rule is not 
formulated to create a safe haven for those who install conservation 
practices. It creates uncertainty, trepidation and additional expense 
for those that want to self-finance their conservation practices.
    The Agencies do not have the technical support capacity to 
implement this rule for the approximately 30 million acres of farmland 
in the state of Iowa. NRCS technical staff assigned to Iowa has been 
cut about 20% over the past 5 years. NRCS staff has not been willing to 
review or verify practices which did not receive Federal technical or 
financial assistance to determine whether it meets NRCS standards. NRCS 
does not conduct field visits for practice verification for farmers not 
receiving Federal assistance. This leaves large numbers of farmers who 
want to install more conservation with no options for verifying 
compliance with NRCS standards. The only option remaining to create 
certainty of compliance is to seek a jurisdictional determination from 
the Corps, which is also severely understaffed to handle the numbers of 
determinations that will be required to continue the current pace of 
conservation implementation in Iowa. Farmers want to do the right 
thing, but the new interpretation creates uncertainty, and additional 
expense to minimize the uncertainty. Additional costs and uncertainties 
will result in fewer conservation practices on the ground, which is 
inconsistent with Clean Water Act goals.
    Many questions about the interpretative rule that have remained 
unanswered. How is a farmer to know whether his land is a ``navigable 
water'' without requesting a jurisdictional determination every 5 
years? Will EPA recognize NRCS's prior converted cropland 
determinations? Which NRCS technical standards are to be followed: the 
Federal technical standards or the state NRCS adopted technical 
standards? What happens when NRCS technical assistance does not result 
in the technical standards being followed? Grassed waterways and 
surface drainage pathways in fields have a ``bed and bank'' and an 
``ordinary high water mark'' until the ground is tilled and reshaped. 
Will  402 permits be required to apply crop protection products to 
this land? Will  404 permits be required when the ground is tilled? 
Can an installed conservation practice become a ``water of the U.S.'' 
subject to future  402 permitting requirements? Will the technical 
standards become more prescriptive, not allowing for site-specific 
flexibility as EPA gains influence over their content? We have more 
questions than there are answers about the Interpretative Rule, 
Memorandum of Understanding and proposed ``Navigable Waters'' rule.
    We are very concerned about the impact of this rule on future 
conservation progress and the ability of farmers to produce food, feed, 
fuel and fiber. Rather than eliminating uncertainty, the agencies' 
actions will create great hardships on farmers who want to produce food 
and conserve the land and water while doing it. We encourage you to 
engage with the Administration and request withdrawal of the 
Interpretative Rule and Memorandum of Understanding before it endangers 
the good progress that has been made. We are happy to meet with you to 
discuss our concerns at your convenience.
            Sincerely,




Agribusiness Association of Iowa,    Iowa Institute for Cooperatives,
Des Moines, IA;                      Ames, IA;
Iowa Cattlemen's Association.        Iowa Pork Producers Association.
Ames, IA;                            Clive, IA;
Iowa Corn Growers Association.       Iowa Poultry Association.
Johnston, IA;                        Urbandale, IA;
Iowa Drainage District Association,  Iowa Soybean Association,
West Des Moines, IA;                 Ankeny, IA;
Iowa Farm Bureau Federation,         Iowa Turkey Federation,
West Des Moines, IA;                 Ames, IA.


   Submitted Information by Hon. Glenn Thompson, a Representative in 
                       Congress from Pennsylvania


































                                                  Submitted Information by Hon. Collin C. Peterson, a Representative in Congress from Minnesota







                                                                 Conservation Practices
                                                                   Alphabetical Index
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Standard           Info. Sheet/                  Job Sheet/       National       Network
   Conservation Practice Name (Units) (Code) (Date   --------------------------    Practice         CPPE       Implement.     Statement of     Effects
                       Issued)                            PDF          Word        Overview                     Require.      Work Template    Diagram
--------------------------------------------------------------------------------------------------------------------------------------------------------
Practices Included in the MOU are 8Highlighted.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Access Control (Ac.) (472) (9/10)                             PDF          DOC             PDF          PDF             DOC             DOC          PDF
Access Road (Ft.) (560) (7/10)                                PDF          DOC             PDF          PDF                             DOC          PDF
Agrichemical Handling Facility (No.) (309) (2/08)             PDF          DOC             PDF          PDF                             DOC          PDF
Air Filtration and Scrubbing (No.) (371) (4/10)               PDF          DOC             PDF          PDF                             DOC          PDF
Alley Cropping (Ac.) (311) (5/11)                             PDF          DOC             PDF          PDF             DOC             DOC          PDF
Amendments for Treatment of Agricultural Waste (AU)           PDF          DOC             PDF          PDF                             DOC          PDF
 (591) (4/13)
Anaerobic Digester (No.) (366) (9/09)                         PDF          DOC             PDF          PDF                             DOC          PDF
Animal Mortality Facility (No.) (316) (9/10)                  PDF          DOC             PDF          PDF                             DOC          PDF
8Animal Trails and Walkways (Ft.) (575) (4/10)0               PDF          DOC             PDF          PDF                             DOC          PDF
Anionic Polyacrylamide (PAM) Application (Ac.) (450)          PDF          DOC             PDF          PDF                             DOC          PDF
 (5/11)
Aquaculture Ponds (Ac.) (397) (1/10)                          PDF          DOC             PDF          PDF                             DOC          PDF
8Aquatic Organism Passage (Mi.) (396) (4/11)0                 PDF          DOC             PDF          PDF                             DOC          PDF
Bedding (Ac.) (310) (7/10)                                    PDF          DOC             PDF          PDF                             DOC          PDF
8Bivalve Aquaculture Gear and Biofouling Control              PDF          DOC             PDF          PDF                             DOC          PDF
 (Ac.) (400) (4/11)0
Building Envelope Improvement (672)(4/13)                     PDF          DOC                          PDF                             DOC          PDF
8Brush Management (Ac.) (314) (9/09)0                         PDF          DOC             PDF          PDF                             DOC          PDF
Channel Bed Stabilization (Ft.) (584) (9/10)                  PDF          DOC             PDF          PDF                             DOC          PDF
8Clearing and Snagging (Ft.) (326) (7/10)0                    PDF          DOC             PDF          PDF                             DOC          PDF
Combustion System Improvement (No.) (372) (4/10)              PDF          DOC             PDF          PDF                             DOC          PDF
Composting Facility (No.) (317) (9/10)                        PDF          DOC             PDF          PDF                             DOC          PDF
8Conservation Cover (Ac.) (327) (9/10)0                       PDF          DOC             PDF          PDF             PDF             DOC          PDF
Conservation Crop Rotation (Ac.) (328) (5/11)                 PDF          DOC             PDF          PDF             PDF             DOC          PDF
Constructed Wetland (Ac.) (656) (7/10)                        PDF          DOC             PDF          PDF                             DOC          PDF
Contour Buffer Strips (Ac.) (332) (4/10)                      PDF          DOC             PDF          PDF             PDF             DOC          PDF
Contour Farming (Ac.) (330) (12/13)                           PDF          DOC             PDF          PDF             PDF             DOC          PDF
Contour Orchard and Other Perennial Crops (Ac.)               PDF          DOC             PDF          PDF             PDF             DOC          PDF
 (331) (1/10)
Cover Crop (Ac.) (340) (5/11)                                 PDF          DOC             PDF          PDF             PDF             DOC          PDF
8Critical Area Planting (Ac.) (342) (12/13)0                  PDF          DOC             PDF          PDF             PDF             DOC          PDF
Cross Wind Ridges (Ac.) (588) (12/13)                         PDF          DOC             PDF          PDF             PDF             DOC          PDF
Cross Wind Trap Strips (Ac.) (589c) (4/11)                    PDF          DOC             PDF          PDF             PDF             DOC          PDF
Dam (No. and Ac-Ft) (402) (5/11)                              PDF          DOC             PDF          PDF                             DOC          PDF
Dam, Diversion (No.) (348) (5/11)                             PDF          DOC             PDF          PDF                             DOC          PDF
Deep Tillage (Ac.) (324) (12/13)                              PDF          DOC             PDF          PDF             PDF             DOC          PDF
Dike (Ft.) (356) (11/02)                                      PDF          DOC             PDF          PDF                             DOC          PDF
Diversion (Ft.) (362) (4/10)                                  PDF          DOC             PDF          PDF                             DOC          PDF
Drainage Water Management (Ac.) (554) (9/08)                  PDF          DOC             PDF          PDF                             DOC          PDF
Dry Hydrant (No.) (432) (9/11)                                PDF          DOC             PDF          PDF                             DOC
Dust Control from Animal Activity on Open Lot                 PDF          DOC             PDF          PDF                             DOC          PDF
 Surfaces (Ac.) (375) (9/10)
Dust Control on Unpaved Roads and Surfaces (Sq. Ft.)          PDF          DOC             PDF          PDF                             DOC          PDF
 (373) (4/10)
8Early Successional Habitat Development/Management            PDF          DOC             PDF          PDF                             DOC          PDF
 (Ac.) (647) (9/10)0
Farmstead Energy Improvement (No.) (374) (5/11)               PDF          DOC             PDF          PDF                             DOC          PDF
Feed Management (No. of Systems and AUs Affected)             PDF          DOC             PDF          PDF                             DOC          PDF
 (592) (9/11)
8Fence (Ft.) (382) (4/13)0                                    PDF          DOC             PDF          PDF                             DOC          PDF
8Field Border (Ac.) (386) (12/13)0                            PDF          DOC             PDF          PDF             PDF             DOC          PDF
8Filter Strip (Ac.) (393) (12/13)0                            PDF          DOC             PDF          PDF             PDF             DOC          PDF
8Firebreak (Ft.) (394) (9/10)0                                PDF          DOC             PDF          PDF                             DOC          PDF
8Fish Raceway or Tank (Ft. and Ft3) (398) (9/09)0             PDF          DOC             PDF          PDF                             DOC          PDF
8Fishpond Management (Ac.) (399) (9/11)0                      PDF          DOC             PDF          PDF                             DOC          PDF
8Forage and Biomass Planting (Ac.) (512) (1/10)0              PDF          DOC             PDF          PDF                             DOC          PDF
8Forage Harvest Management (Ac.) (511) (4/10)0                PDF          DOC             PDF          PDF                             DOC          PDF
8Forest Stand Improvement (Ac.) (666) (5/11)0                 PDF          DOC             PDF          PDF                             DOC          PDF
8Forest Trails and Landings (Ac.) (655) (9/11)0               PDF          DOC             PDF          PDF                             DOC          PDF
8Fuel Break (Ac.) (383) (4/05)0                               PDF          DOC             PDF          PDF                             DOC          PDF
Grade Stabilization Structure (No.) (410) (10/85)             PDF          DOC             PDF          PDF                             DOC          PDF
8Grassed Waterway (Ac.) (412) (4/10)0                         PDF          DOC             PDF          PDF             DOC             DOC          PDF
8Grazing Land Mechanical Treatment (Ac.) (548) (9/            PDF          DOC             PDF          PDF                             DOC          PDF
 10)0
Heavy Use Area Protection (Ac.) (561) (1/10)                  PDF          DOC             PDF          PDF                             DOC          PDF
8Hedgerow Planting (Ft.) (422) (9/10)0                        PDF          DOC             PDF          PDF                             DOC          PDF
8Herbaceous Weed Control (315) (Ac.) (4/10)0                  PDF          DOC             PDF          PDF                             DOC          PDF
Herbaceous Wind Barriers (Ft.) (603) (1/10)                   PDF          DOC             PDF          PDF             PDF             DOC          PDF
8Hillside Ditch (Ft.) (423) (5/08)0                           PDF          DOC             PDF          PDF                             DOC          PDF
Integrated Pest Management (IPM) (Ac.) (595) (1/10)           PDF          DOC             PDF          PDF                             DOC          PDF
8Irrigation Canal or Lateral (Ft.) (320) (9/10)0              PDF          DOC             PDF          PDF                             DOC          PDF
Irrigation Ditch Lining (Ft.) (428) (5/11)                    PDF          DOC             PDF          PDF                             DOC          PDF
8Irrigation Field Ditch (Ft.) (388) (4/11)0                   PDF          DOC             PDF          PDF                             DOC          PDF
Irrigation Land Leveling (Ac.) (464) (9/10)                   PDF          DOC             PDF          PDF                             DOC          PDF
Irrigation Pipeline (Ft.) (430) (5/11)                        PDF          DOC             PDF          PDF                             DOC          PDF
Irrigation Reservoir (Ac-Ft) (436) (5/11)                     PDF          DOC             PDF          PDF                             DOC          PDF
Irrigation System, Microirrigation (Ac.) (441) (5/            PDF          DOC             PDF          PDF                             DOC          PDF
 11)
Irrigation System, Surface and Subsurface (Ac.)               PDF          DOC             PDF          PDF                             DOC          PDF
 (443) (5/11)
Irrigation System, Tailwater Recovery (No.) (447) (5/         PDF          DOC             PDF          PDF                             DOC          PDF
 11)
Irrigation Water Management (Ac.) (449) (5/11)                PDF          DOC             PDF          PDF                             DOC          PDF
Karst Sinkhole Treatment (No.) (527) (9/10)                   PDF          DOC             PDF          PDF                             DOC          PDF
8Land Clearing (Ac.) (460) (9/11)0                            PDF          DOC             PDF          PDF                             DOC          PDF
Land Reclamation, Currently Mined Land (Ac.) (544)            PDF          DOC             PDF          PDF                             DOC
 (8/06)
8Land Reclamation, Abandoned Mined Land (Ac.) (543)           PDF          DOC             PDF          PDF                             DOC          PDF
 (8/06)0
8Land Reclamation, Landslide Treatment (No. and Ac)           PDF          DOC             PDF          PDF                             DOC          PDF
 (453) (2/05)0
8Land Reclamation, Toxic Discharge Control (No.)              PDF          DOC             PDF          PDF                             DOC
 (455) (4/05)0
Land Smoothing (Ac.) (466) (12/13)                            PDF          DOC             PDF          PDF                             DOC          PDF
Lined Waterway or Outlet (Ft.) (468) (9/10)                   PDF          DOC             PDF          PDF                             DOC          PDF
Lighting System Improvement (670) (4/13)                      PDF          DOC                          PDF                             DOC          PDF
Livestock Pipeline (Ft.) (516) (9/11)                         PDF          DOC             PDF          PDF                             DOC          PDF
Livestock Shelter Structure (no) (576) (12/13)                PDF          DOC                                                          DOC          PDF
Mine Shaft and Adit Closing (No.) (457) (2/05)                PDF          DOC             PDF          PDF                             DOC          PDF
Mole Drain (Ft.) (482) (3/03)                                 PDF          DOC             PDF          PDF                             DOC          PDF
8Monitoring Well (No.) (353) (9/10)0                          PDF          DOC             PDF          PDF                             DOC          PDF
8Mulching (Ac.) (484) (5/11)0                                 PDF          DOC             PDF          PDF             PDF             DOC          PDF
Multi-Story Cropping (Ac.) (379) (7/10)                       PDF          DOC             PDF          PDF                             DOC          PDF
Nutrient Management (Ac.) (590) (1/12)                        PDF          DOC             PDF          PDF             PDF             DOC          PDF
8Obstruction Removal (Ac.) (500) (1/10)0                      PDF          DOC             PDF          PDF                             DOC          PDF
Open Channel (Ft.) (582) (10/87)                              PDF          DOC             PDF          PDF                             DOC          PDF
Pond (No.) (378) (5/11)                                       PDF          DOC             PDF          PDF                             DOC          PDF
Pond Sealing or Lining, Bentonite Treatment (No.)             PDF          DOC             PDF          PDF                             DOC          PDF
 (521c) (9/10)
Pond Sealing or Lining, Compacted Clay Treatment              PDF          DOC             PDF          PDF                             DOC          PDF
 (No.) (521d) (9/10)
Pond Sealing or Lining, Flexible Membrane (No.)               PDF          DOC             PDF          PDF                             DOC          PDF
 (521a) (9/11)
Pond Sealing or Lining, Soil Dispersant Treatment             PDF          DOC             PDF          PDF                             DOC          PDF
 (No.) (521b) (9/10)
Precision Land Forming (Ac.) (462) (7/02)                     PDF          DOC             PDF          PDF                             DOC          PDF
8Prescribed Burning (Ac.) (338) (9/10)0                       PDF          DOC             PDF          PDF                             DOC          PDF
8Prescribed Grazing (Ac.) (528) (9/10)0                       PDF          DOC             PDF          PDF                             DOC          PDF
8Pumping Plant (No.) (533) (5/11)0                            PDF          DOC             PDF          PDF                             DOC          PDF
8Range Planting (Ac.) (550) (4/10)0                           PDF          DOC             PDF          PDF                             DOC          PDF
Recreation Area Improvement (Ac.) (562) (10/77)               PDF          DOC             PDF          PDF                             DOC          PDF
Recreation Land Grading and Shaping (Ac.) (566) (4/           PDF          DOC             PDF          PDF                             DOC          PDF
 13)
Residue and Tillage Management, Reduced Tillage               PDF          DOC             PDF          PDF             PDF             DOC          PDF
 (Ac.) (345) (12/13)
Residue and Tillage Management, No-Till (Ac.) (329)           PDF          DOC             PDF          PDF             PDF             DOC          PDF
 (12/13)
8Restoration and Management of Rare and Declining             PDF          DOC             PDF          PDF                             DOC          PDF
 Habitats (Ac.) (643) (9/10)0
8Riparian Forest Buffer (Ac.) (391) (7/10)0                   PDF          DOC             PDF          PDF             DOC             DOC          PDF
8Riparian Herbaceous Cover (Ac.) (390) (9/10)0                PDF          DOC             PDF          PDF                             DOC          PDF
8Road/Trail/Landing Closure and Treatment (Ft.)               PDF          DOC             PDF          PDF                             DOC          PDF
 (654) (11/08)0
Rock Barrier (Ft.) (555) (9/10)                               PDF          DOC             PDF          PDF                             DOC          PDF
Roof Runoff Structure (No.) (558) (9/09)                      PDF          DOC             PDF          PDF                             DOC          PDF
Roofs and Covers (No.) (367) (9/10)                           PDF          DOC             PDF          PDF                             DOC          PDF
Row Arrangement (Ac.) (557) (4/13)                            PDF          DOC             PDF          PDF                             DOC          PDF
Salinity and Sodic Soil Management (Ac.) (610) (9/            PDF          DOC             PDF          PDF                             DOC          PDF
 10)
Seasonal Tunnel System for Crops (Sq.Ft.) (798) (2/                                                     PDF
 14)
Sediment Basin (No.) (350) (1/10)                             PDF          DOC             PDF          PDF                             DOC          PDF
8Shallow Water Development and Management (Ac.)               PDF          DOC             PDF          PDF                             DOC          PDF
 (646)(9/10)0
Silvopasture Establishment (Ac.) (381) (5/11)                 PDF          DOC             PDF          DOC                             DOC          PDF
Spoil Spreading (Ac.) (572) (1/10)                            PDF          DOC             PDF          PDF                             DOC          PDF
Spring Development (No.) (574) (12/13)                        PDF          DOC             PDF          PDF                             DOC          PDF
Sprinkler System (Ac.) (442) (4/13)                           PDF          DOC             PDF          PDF                             DOC          PDF
Stormwater Runoff Control (No. and Ac.) (570) (9/10)          PDF          DOC             PDF          PDF                             DOC          PDF
Streambank and Shoreline Protection (Ft.) (580) (9/           PDF          DOC             PDF          PDF                             DOC          PDF
 10)
8Stream Crossing (No.) (578) (9/11)0                          PDF          DOC             PDF          PDF                             DOC          PDF
8Stream Habitat Improvement and Management (Ac.)              PDF          DOC             PDF          PDF                             DOC          PDF
 (395) (9/10)0
Stripcropping (Ac.) (585) (12/13)                             PDF          DOC             PDF          PDF             PDF             DOC          PDF
8Structure for Water Control (No.) (587) (4/10)0              PDF          DOC             PDF          PDF                             DOC          PDF
Subsurface Drain (Ft.) (606) (9/11)                           PDF          DOC             PDF          PDF                             DOC          PDF
Surface Drain, Field Ditch (Ft.) (607) (9/09)                 PDF          DOC             PDF          PDF                             DOC          PDF
Surface Drain, Main or Lateral (Ft.) (608) (9/09)             PDF          DOC             PDF          PDF                             DOC          PDF
Surface Roughening (Ac.) (609) (9/09)                         PDF          DOC             PDF          PDF             PDF             DOC          PDF
8Trails and Walkways (Ft.) (568) (1/10)0                      PDF          DOC             PDF          PDF                             DOC          PDF
Terrace (Ft.) (600) (4/10)                                    PDF          DOC             PDF          PDF                             DOC          PDF
8Tree/Shrub Establishment (Ac.) (612) (5/11)0                 PDF          DOC             PDF          PDF                             DOC          PDF
8Tree/Shrub Pruning (Ac.) (660) (1/06)0                       PDF          DOC             PDF          PDF                             DOC          PDF
8Tree/Shrub Site Preparation (Ac.) (490) (1/06)0              PDF          DOC             PDF          PDF                             DOC          PDF
Underground Outlet (Ft.) (620) (12/13)                        PDF          DOC             PDF          PDF             DOC             DOC          PDF
Upland Wildlife Habitat Management (Ac.) (645) (9/            PDF          DOC             PDF          PDF                             DOC          PDF
 10)
Vegetated Treatment Area (Ac.) (635) (5/08)                   PDF          DOC             PDF          PDF                             DOC          PDF
8Vegetative Barrier (Ft.) (601) (1/10)0                       PDF          DOC             PDF          PDF             PDF             DOC          PDF
Vertical Drain (No.) (630) (9/10)                             PDF          DOC             PDF          PDF                             DOC          PDF
Waste Facility Closure (No.) (360) (5/11)                     PDF                          PDF          PDF                                          PDF
Waste Recycling (Ac.) (633) (5/11)                            PDF                          PDF          PDF                                          PDF
Waste Separation Facility (No.) (632) (4/13)                  PDF          DOC             PDF          PDF                             DOC          PDF
Waste Storage Facility (No.) (313) (10/03)                    PDF          DOC             PDF          PDF                             DOC          PDF
Waste Transfer (No.) (634) (11/08)                            PDF          DOC             PDF          PDF             DOC             DOC          PDF
Waste Treatment (No.) (629) (4/13)                            PDF          DOC             PDF          PDF                             DOC          PDF
Waste Treatment Lagoon (No.) (359) (10/03)                    PDF          DOC             PDF          PDF                             DOC          PDF
Water and Sediment Control Basin (No.) (638) (9/08)           PDF          DOC             PDF          PDF             DOC             DOC          PDF
Water Harvesting Catchment (No.) (636) (9/10)                 PDF          DOC             PDF          PDF                             DOC          PDF
Waterspreading (Ac.) (640) (4/13)                             PDF          DOC             PDF          PDF                             DOC          PDF
Water Well (No.) (642) (9/10)                                 PDF          DOC             PDF          PDF                             DOC          PDF
Water Well Decommissioning (No.) (351) (9/10)                 PDF          DOC             PDF          PDF                             DOC          PDF
Watering Facility (No.) (614) (9/10)                          PDF          DOC             PDF          PDF                             DOC          PDF
Well Water Testing (No.) (355) (9/10)                         PDF          DOC             PDF          PDF                             DOC
Wetland Creation (Ac.)(658) (9/10)                            PDF          DOC             PDF          PDF                             DOC          PDF
8Wetland Enhancement (Ac.) (659) (9/10)0                      PDF          DOC             PDF          PDF                             DOC          PDF
8Wetland Restoration (Ac.) (657) (9/10)0                      PDF          DOC             PDF          PDF                             DOC          PDF
8Wetland Wildlife Habitat Management (Ac.) (644) (9/          PDF          DOC             PDF          PDF                             DOC          PDF
 10)0
8Windbreak/Shelterbelt Establishment (Ft.) (380) (5/          PDF          DOC             PDF          PDF             DOC             DOC          PDF
 11)0
8Windbreak/Shelterbelt Renovation (Ft.) (650) (7/             PDF          DOC             PDF          PDF                             DOC          PDF
 10)0
Woody Residue Treatment (Ac.) (384) (5/11)                    PDF          DOC             PDF          PDF                             DOC          PDF
--------------------------------------------------------------------------------------------------------------------------------------------------------
Editor's note: for the listing including the hyperlinks for the documents go to http://www.nrcs.usda.gov/wps/portal/nrcs/detailfull/null/
  ?cid=nrcs143_026849.

Submitted Letter by Hon. Timothy J. Walz, a Representative in Congress 
                             from Minnesota
July 24, 2014

  Nancy K. Stoner,
  USEPA Headquarters,
  Washington, D.C.;

  Jo-Ellen Darcy,
  Assistant Secretary of the Army,
  Department of the Army, Civil Works
  Washington, D.C.

    Dear Ms. Stoner and Ms. Darcy:

    On April 21, 2014 the U.S. Environmental Protection Agency (EPA) 
and the U.S. Army Corps of Engineers (USACE) jointly issued an 
``interpretive rule'' identifying 56 Conservation practices which are 
now exempt under 404(f)(1) of the Clean Water Act. Since introduction 
this interpretive rule (IR) has been the subject of much scrutiny. The 
comment period recently ended with 200+ submissions from various 
agriculture and environmental stakeholder groups. This IR was also the 
subject of a hearing in the House Agriculture Subcommittee on 
Conservation, Energy, and Forestry. I serve as Ranking Member on this 
Subcommittee. Having read the comments submitted and as a result of the 
conclusions drawn from this hearing, I respectfully request that you 
withdraw the interpretive rule. Furthermore, I hope that you will also 
take this opportunity to both reevaluate the process for producing and 
finalizing similar future efforts and reconsider the substance of this 
underlying proposal.
    First and foremost, I am concerned with the process by which this 
interpretive rule was effectively finalized. At the Subcommittee 
hearing held on June 19, 2014 we concluded that the agencies involved 
neglected to engage agriculture and conservation stakeholders in any 
substantive way prior to publication. Had the IR been an internal 
document of little substantive consequence this failure to engage 
impacted stakeholders would have been relatively immaterial. This is 
not the case. To the contrary, I am of the opinion that the IR has 
regulatory effect and therefore should have been subject to the 
customary notice and comment period prior to finalizing.
    Beyond the question of process, I am also concerned by the 
substance of the proposal. As mentioned above, I believe this IR has 
regulatory effect and that this effect may serve to dis-incentivize the 
very practices we are hoping to promote. Regulatory effect occurs when 
an individual is coerced by government to perform a specific activity. 
This coercion is present in the IR. Take for instance conservation 
practice #382; Fences. Prior to the IR this practice was performed by 
farmers safe in the knowledge that it was exempt from 404 permitting as 
a practice incident to ``normal farming.'' Adding #382 to the list of 
exemptions is problematic because these exemptions now require that the 
practice be performed in accordance with NRCS technical standards. The 
same result which before would have required a certain set of actions 
now requires a different standard. This is the very definition of 
coercion. A simple solution to this concern would be to remove 
practices from the list that are already exempt as ``normal farming''. 
Such practices include but are not limited to; #382--Fences, #460--Land 
Clearing, #512--Forage and Biomass Planting, and #528--Prescribed 
Grazing.
    Let me be clear, I am not opposed to these standards, having 
advocated for them in the past, however I am concerned that imposing 
them as a qualification for exemption has the potential to lead to 
significant disincentives for conservation practices especially on 
activities which were clearly exempt before. In the very least this 
consequence deserves to be debated and various stakeholders engaged 
prior to a rule such as this going into effect.
    For these reasons I respectfully request that you withdraw the 
rule. Furthermore I hope that future efforts in this space follow the 
prescribed process of notice and comment prior to finalization and I 
look forward to actively participating in this process.
            Respectfully,

            
            
Hon. Timothy J. Walz,
Member of Congress.
                                 ______
                                 
Submitted Letter by Steve Moyer, Vice President of Government Affairs, 
                            Trout Unlimited
July 1, 2014

  Hon. Glenn Thompson,
  Chairman,
  Subcommittee on Conservation, Energy, and Forestry,
  House Committee on Agriculture,
  Washington, D.C.;

  Hon. Timothy J. Walz,
  Ranking Minority Member,
  Subcommittee on Conservation, Energy, and Forestry,
  House Committee on Agriculture,
  Washington, D.C.

    Dear Chairman Thompson and Ranking Member Walz:

    On behalf of Trout Unlimited's (TU) 153,000 members nationwide, I 
am writing to provide testimony for your June 17, 2014, hearing titled: 
A Review of the Interpretive Rule Regarding the Applicability of Clean 
Water Act Agricultural Exemptions. I ask that you please include our 
letter in the hearing record.
    TU strongly supports the proposed rule because it will clarify and 
strengthen the very foundation of the Clean Water Act's protections for 
important fish and wildlife habitat. Based on our experience working in 
the field with the Clean Water Act, and the detailed analysis completed 
by the U.S. Army Corps of Engineers, EPA, and OMB for the proposal, we 
believe that the new rule is worthy of your engagement and support. It 
will provide landowners, conservationists, and businesses with 
substantial improvements in how the law is implemented. In that light, 
we urge the Subcommittee to engage the agencies' proposal with an eye 
towards making suggestions that will improve the rule, and urge support 
for its finalization.
    The Clean Water Act is very valuable to TU. Our mission is to 
conserve, protect and restore North America's trout and salmon 
fisheries and their watersheds. Our volunteers and staff work with 
industry, farmers, and local, state and federal agencies around the 
nation to achieve this mission. On average, each TU volunteer chapter 
annually donates more than 1,000 hours of volunteer time to stream and 
river restoration and youth education. The Act, and its splendid goal 
to ``restore and maintain the chemical, physical, and biological 
integrity of the Nation's waters'' serves as the foundation to all of 
this work. Whether TU is working with farmers to restore small 
headwater streams in West Virginia, removing acidic pollution caused by 
abandoned mines in Pennsylvania, or protecting the world famous salmon-
producing, 14,000-jobs-sustaining watershed of Bristol Bay, Alaska, we 
rely on the Clean Water Act to safeguard our water quality 
improvements.
    Conservation of our nation's water resources is not only critically 
important to TU, but also to the success of the agriculture industry. 
Partnering with farmers and ranchers is an integral part of the work 
that we do. In the Midwest Driftless Area (southwest Wisconsin, 
southeast Minnesota, northeast Iowa, and northwest Illinois), TU's work 
with dairy farmers has restored watersheds and tripled trout 
populations in some streams, creating excellent fishing opportunities 
for sportsmen throughout the upper Midwestern states. In West Virginia, 
working with dairy farmers and beef ranchers, TU has installed over one 
million feet of stream-side fencing to reduce the impacts of cattle on 
streams, while adding upslope water sources to allow cattle access to 
water. Additionally, TU has worked extensively with ranchers and 
landowners in many parts of the western United States to upgrade 
irrigation infrastructure to improve agriculture production while 
keeping more water in streams to aid watershed health. Much of this 
good work was funded by farm bill conservation dollars flowing to our 
agriculture partners.
    In our view, the protections for watersheds provided by the Clean 
Water Act, and the restoration programs provided by the farm bill, fit 
beautifully together. The two laws work together well in many places 
around the nation.
    Unfortunately, the nation's clean water safety net is broken, and 
if you appreciate clean water and the Clean Water Act, then you will 
appreciate the agencies' efforts to resolve the law's most fundamental 
question: which waters are--and are not--covered by the Clean Water 
Act. Over the last 15 years, agency guidance following a series of 
Supreme Court decisions have weakened and confused these protections. 
The agencies' proposal takes important steps to clarify and restore 
protections to intermittent and ephemeral streams that may only flow 
part of the year. These intermittent and ephemeral streams provide 
habitat for spawning and juvenile trout, salmon, and other species, and 
protecting these streams means protecting the water quality of larger 
rivers downstream. Thus, sportsmen strongly support the reasonable 
efforts embodied in the proposal from the agencies to clarify and 
restore the protection of the Clean Water Act to these bodies of water 
where we spend much of our time hunting and fishing.
    I hope that the Subcommittee recognizes the fact that, because of 
the uncertainties caused by the Supreme Court cases, a rulemaking was 
sought by many business interests, as well as by Supreme Court Justice 
Roberts who presided over the Rapanos case.
    I also urge the Subcommittee to recognize that the proposal works 
to clarify what waters are not jurisdictional. The proposed rule and 
preamble reiterates all existing exemptions from Clean Water Act 
jurisdiction, including many farming, ranching, and forestry 
activities. These exemptions include activities associated with 
irrigation and drainage ditches, as well as sediment basins on 
construction sites. Moreover, for the first time, the proposed rule 
codifies specific exempted waters, including many upland drainage 
ditches, artificial lakes and stock watering ponds, and water filled 
areas created by construction activity. As highlighted above, TU works 
with farmers, ranchers, and other landowners across the nation to 
protect and restore trout and salmon habitat. We have a keen interest 
in ensuring that the proposal works well for landowners on the ground.
    Furthermore, the Interpretive Rule aims to provide more, not less, 
certainty than before. The Rule recognizes the great conservation 
strides the agriculture community has made since the 1970s, when the 
Clean Water Act first came into effect, especially those improvements 
made via the farm bill conservation programs. The intent of the 
Interpretive Rule is to clarify that certain conservation practices in 
waters of the United States following NRCS standards are also exempt 
from section 404 permitting requirements in addition to the other 
exemptions provided by the law. We understand that some in the 
agriculture community are concerned about the Interpretive Rule. We 
urge them to work with the NRCS and resolve their differences.
    We also urge the Subcommittee members to remember the great, and 
direct, benefit that clean water and healthy watersheds provide to 
their districts and states. Pennsylvanians, for example, depend on 
thousands of miles of rivers and streams for clean and abundant 
drinking water, diverse and abundant fish and wildlife habitat, and 
local fishing, hunting, bird-watching, and boating recreation that 
support a strong outdoor recreation economy. According to the Fish and 
Wildlife Service, more than 1.1 million people fished and 775,000 
people hunted in Pennsylvania in 2011. Together, they directly spent 
more than $1.4 billion on gear and trip expenditures alone. In 
Minnesota, more than 1.6 million people fished and 477,000 people 
hunted in 2011, and they spent more than $3.1 billion on their trips 
and equipment. These hunting and fishing economies depend on healthy 
habitat and clean water. They depend on the Clean Water Act.
    Last, the Clean Water Act Interpretive Rule and the farm bill, 
passed earlier this year under the able leadership of you and your 
Subcommittee, go hand in hand, creating opportunities for producers and 
conservationists to work together in watershed management. While the 
farm bill provides the funding and projects for producers to update 
aging infrastructure and more effectively manage their land, the 
Interpretive Rule provides clarity and allows producers to continue 
with these practices with predictability. The farm bill has spurred 
aquatic habitat restoration on agricultural land. The Clean Water Act 
offers protections which ensure that those conservation gains are not 
undermined by pollution and habitat degradation in other parts of the 
watershed. This partnership between agriculture and conservation is an 
essential piece of protecting our nation's water resources and the fish 
and wildlife that rely on it.
    Your Subcommittee helped to give birth to the new farm bill earlier 
this year. In 1972, Congress gave birth to the Clean Water Act. These 
laws do, and should even more so over time, work together. But the 
Clean Water Act has come to a major crossroads. The agencies which the 
Congress authorized to implement the Clean Water Act, spurred by the 
Supreme Court itself and a wide range of stakeholders, have put forth a 
proposal that will help strengthen the very foundation of the law for 
years to come. As you scrutinize the proposal, we urge you to strongly 
consider the views of sportsmen and women in Pennsylvania, Minnesota, 
and others around the nation, and support the reasonable and science-
based efforts of the Corps and EPA to clarify and restore the Act's 
jurisdictional coverage.
            Thank you for considering our views,
            
            
Steve Moyer,
Vice President of Government Affairs,
Trout Unlimited.
                                 ______
                                 
 Submitted Statement by Paul Wenger, President, California Farm Bureau 
                               Federation
June 27, 2014

  House Agriculture Committee,
  Subcommittee on Conservation, Energy and Forestry.

Re: Comments on the Interpretative Rule regarding applicability of 
            Clean Water Act agricultural exemptions

    Dear Chairman Glen Thompson:

    The California Farm Bureau Federation (CFBF) has significant 
concerns regarding the Environmental Protection Agency's (EPA) and U.S. 
Army Corps of Engineers (Corps) Interpretive Rule and Proposed Rule 
pertaining to the Clean Water Act (CWA). We believe these proposals 
will leave farmers vulnerable to excessive civil litigation and make 
recognized good farming practices burdensome. We urge the Committee to 
consider the cumulative impact of the Interpretative Rule and Proposed 
Rule especially considering the Interpretative Rule has already taken 
effect.
    CFBF is California's largest farm organization, representing nearly 
78,000 members throughout the state, many of whom will potentially be 
impacted by the agencies action. CFBF strives to protect and improve 
the ability of farmers and ranchers engaged in production agriculture 
to provide a reliable supply of food and fiber through responsible 
stewardship of California's natural resources.
    EPA's application of the Interpretative Rule without formal rule 
making seems disingenuous and lacks transparency. We have significant 
concerns with the Interpretive Rule, which took immediate effect on 
April 21, 2014 and fundamentally limits recognized good farming 
practices, which have been afforded ``normal'' farming exemptions under 
CWA Section 404(f)(1)(A). In 1977, Congress amended the CWA to exempt 
``normal'' farming, ranching, and silviculture activities from Section 
404 ``dredge and fill'' permit requirements. (33 U.S.C.  1344(f)(1).) 
For nearly 4 decades, normal agricultural activities on established 
operations have been exempt from CWA Section 404 permit requirements. 
Under the Interpretive Rule, however, these longstanding normal 
agricultural activities have been extensively narrowed. In order to be 
exempt from section 404 when undertaking a normal farming activity, a 
farmer must now satisfy federally mandated Natural Resource 
Conservation Service (NRCS) practice standards, of which only 56 such 
standards are included. Failure to comply with the NRCS standard 
results in a violation of the CWA, subjecting the farmer to hefty 
penalties. As a result, the Interpretive Rule does not provide 
``guidance'' on normal farming activities deemed exempt under the CWA, 
nor does it provide clarity on existing exemptions. Rather, it is a 
``legislative'' rule that imposes new, legally binding obligations on 
farmers and ranchers.
    The Interpretative Rule and Proposed Rule, applied together, 
provide a considerable amount of uncertainty for farmers and ranchers 
by requiring compliance with NRCS programs and is thus not a true 
exemption. Requiring compliance with NRCS standards can include 
consultation and surveying for endangered species with federal or state 
fish and wildlife services, which can stall the simple construction of 
a fence or changing crops. The impact to species must be considered but 
it is not practical when applied to normal, routine farming decisions. 
This is unreasonable for any farmer who may need to build a fence, 
construct a pond, plant trees, or dig a ditch in order to operate their 
farm. Existing state and Federal laws already protect both species and 
water bodies.
    Current regulations cover only wetlands adjacent to waters of the 
U.S. The Proposed Rule would expand the coverage to include not only 
wetlands, but all waters adjacent to traditional navigable waters and 
it would expand the scope of adjacency by including a broad definition 
of ``neighboring'' waters. Neighboring would be defined to include 
``riparian areas'' and ``floodplains.'' Although these are not 
unfamiliar terms to farmers, they will be left for interpretation by 
the courts and regulators since the CWA does not define them.
    A farmer must also consider ``other waters'' that have, either 
alone or in the aggregate with other ``similarly situated'' features, a 
significant nexus to the more traditional navigable waters mentioned 
above.
    The Proposed Rule categorically regulates as ``tributaries'' all 
ditches that could carry any amount of water which eventually flows 
(over any distance and through any number of other ditches) to a 
navigable water. Ditches are commonplace features prevalent across 
farmland (and the rest of the nation's landscape) and may be regulated 
by the state. The ditch could now be subject to a 404 permit. The Corps 
may not have the resources to take action but farmers are certain to be 
caught in third party civil litigation that can be costly, even if you 
are found complying with the law.
    Multiple factors go into determining how to keep the farm for the 
next generation. Crop prices, changing consumer demand and available 
markets, soil types, natural habitat, endangered species, capital 
investments and water availability are just some of the facts farmer 
must consider when deciding what crops to plant. The ``normal farming'' 
exemption only applies to farming and ranching activities that have 
been ``ongoing'' since 1977. In recent years, farmers of all sizes have 
recognized the growing demand for wine grapes, olives and tree nuts, 
which can be grown successfully throughout California and are 
transitioning to these crops. Any additional layer of permitting or 
indeterminate delays before planting will negatively effect both 
beginning farmers as well as those currently farming, from 
transitioning their farms to growing crops that consumers are demanding 
for generations to come.
    These rules should be practically applied and clearly understood. 
Applying both the Interpretative Rule and Proposed Rule on the farm as 
currently written will eliminate many of the longstanding exemptions 
for on-farm practices. Unfortunately, the on-the-ground application of 
the rules will end up in the courts, as well intended farmers must 
defend themselves against civil suits brought by special interest 
groups with far more legal and financial resources. For a small farmer 
it can cost hundreds of thousands of dollars to protect oneself against 
litigation, even when they are ultimately found not in violation of the 
law, and have no way to recoup the cost from a frivolous lawsuit This 
will leave farmers vulnerable and in limbo as they try to comply with 
the law while growing a perishable crop.
    The general public may assume that EPA is simply clarifying its 
regulation over streams, ditches, wetlands and flood zones that have 
flowing water and need to be protected. However, the Proposed Rule 
would regulate land without historical consideration of potential water 
flows. The Rules are being used to regulate land as if it were 
``navigable water''. Following the Supreme Court's ruling in SWANCC, 
agency guidance has asserted jurisdiction over "non-navigable 
tributaries" only after a case-by-case analysis of whether a particular 
feature has a "significant nexus" to true navigable waters. Key to that 
analysis is the volume, duration and frequency of flow, as well as 
proximity to downstream navigable waters. Under the Proposed Rule, the 
volume, duration and frequency of flow-as well as distance to navigable 
waters-are deemed irrelevant. See 79 Fed. Reg. at 22206 (``tributaries 
that are small, flow infrequently, or are a substantial distance from 
the nearest [navigable water] are essential components of the tributary 
network . . .''). All such ditches and ephemeral drains will be 
categorically deemed to be ``navigable waters'' if they carry any flow 
that ever reaches navigable waters.
    Existing state and Federal laws are achieving the goal of 
protecting water bodies. In light of these impacts, Farm Bureau 
respectfully requests that the Committee urge the Agencies to withdraw 
the Interpretive Rule and the EPA and Corps' Proposed Waters of the 
U.S. Rule.
            Sincerely,

            
            
Paul Wenger,
President.

Cc: Honorable Gloria Negrete McLeod.

                                  
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