[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]





  HEARING TO REVIEW THE DEFINITION OF THE WATERS OF THE UNITED STATES
             PROPOSED RULE AND THE IMPACT ON RURAL AMERICA

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


                                HEARING

                               BEFORE THE

               SUBCOMMITTEE ON CONSERVATION AND FORESTRY

                                 OF THE

                        COMMITTEE ON AGRICULTURE
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED FOURTEENTH CONGRESS

                             FIRST SESSION

                               __________

                             MARCH 17, 2015

                               __________

                            Serial No. 114-4


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

                                 _________

                       U.S. GOVERNMENT PUBLISHING OFFICE 

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                        COMMITTEE ON AGRICULTURE

                  K. MICHAEL CONAWAY, Texas, Chairman

RANDY NEUGEBAUER, Texas,             COLLIN C. PETERSON, Minnesota, 
    Vice Chairman                    Ranking Minority Member
BOB GOODLATTE, Virginia              DAVID SCOTT, Georgia
FRANK D. LUCAS, Oklahoma             JIM COSTA, California
STEVE KING, Iowa                     TIMOTHY J. WALZ, Minnesota
MIKE ROGERS, Alabama                 MARCIA L. FUDGE, Ohio
GLENN THOMPSON, Pennsylvania         JAMES P. McGOVERN, Massachusetts
BOB GIBBS, Ohio                      SUZAN K. DelBENE, Washington
AUSTIN SCOTT, Georgia                FILEMON VELA, Texas
ERIC A. ``RICK'' CRAWFORD, Arkansas  MICHELLE LUJAN GRISHAM, New Mexico
SCOTT DesJARLAIS, Tennessee          ANN M. KUSTER, New Hampshire
CHRISTOPHER P. GIBSON, New York      RICHARD M. NOLAN, Minnesota
VICKY HARTZLER, Missouri             CHERI BUSTOS, Illinois
DAN BENISHEK, Michigan               SEAN PATRICK MALONEY, New York
JEFF DENHAM, California              ANN KIRKPATRICK, Arizona
DOUG LaMALFA, California             PETE AGUILAR, California
RODNEY DAVIS, Illinois               STACEY E. PLASKETT, Virgin Islands
TED S. YOHO, Florida                 ALMA S. ADAMS, North Carolina
JACKIE WALORSKI, Indiana             GWEN GRAHAM, Florida
RICK W. ALLEN, Georgia               BRAD ASHFORD, Nebraska
MIKE BOST, Illinois
DAVID ROUZER, North Carolina
RALPH LEE ABRAHAM, Louisiana
TOM EMMER, Minnesota
JOHN R. MOOLENAAR, Michigan
DAN NEWHOUSE, Washington

                                 ______

                    Scott C. Graves, Staff Director

                Robert L. Larew, Minority Staff Director

                                 ______

               Subcommittee on Conservation and Forestry

                 GLENN THOMPSON, Pennsylvania, Chairman

FRANK D. LUCAS, Oklahoma             MICHELLE LUJAN GRISHAM, New 
STEVE KING, Iowa                     Mexico, Ranking Minority Member
SCOTT DesJARLAIS, Tennessee          ANN M. KUSTER, New Hampshire
CHRISTOPHER P. GIBSON, New York      RICHARD M. NOLAN, Minnesota
DAN BENISHEK, Michigan               SUZAN K. DelBENE, Washington
RICK W. ALLEN, Georgia               ANN KIRKPATRICK, Arizona
MIKE BOST, Illinois

                                  (ii)
                                  
                                  
                             C O N T E N T S

                              ----------                              
                                                                   Page
Conaway, Hon. K. Michael, a Representative in Congress from 
  Texas, opening statement.......................................     5
Lujan Grisham, Hon. Michelle, a Representative in Congress from 
  New Mexico, opening statement..................................     4
    Submitted letter on behalf of Steve Moyer, Vice President of 
      Government Affairs, Trout Unlimited........................   111
    Submitted statement on behalf of Joe Logan, President, Ohio 
      Farmers Union..............................................   113
    Submitted comment letters on behalf of:
        Andersen, Lynne, NAIOP New Mexico Chapter President, 
          NAIOP, Commercial Real Estate Development Association..   119
        Witte, Hon. Jeff M., Director/Secretary, New Mexico 
          Department of Agriculture..............................   121
Thompson, Hon. Glenn, a Representative in Congress from 
  Pennsylvania, opening statement................................     1
    Prepared statement...........................................     3
    Submitted comment letters on behalf of:
        Grieg, George D., Secretary, Pennsylvania Department of 
          Environmental Protection...............................   107
        Heffner, Kelly J., Deputy Secretary, Pennsylvania 
          Department of Environmental Protection.................   103

                               Witnesses

Witte, Hon. Jeff M., Director/Secretary, New Mexico Department of 
  Agriculture, Las Cruces, NM; on behalf of National Association 
  of State Departments of Agriculture............................     6
    Prepared statement...........................................     8
Smeltz, Hon. Robert ``Pete'', Commissioner, Clinton County, 
  Pennsylvania, McElhattan, PA; on behalf of National Association 
  of Counties....................................................    12
    Prepared statement...........................................    13
Fox, Joseph S., State Forester, Arkansas Forestry Commission, 
  Little Rock, AR; on behalf of National Association of State 
  Foresters......................................................    50
    Prepared statement...........................................    51
Mettler, Martha Clark, Deputy Assistant Commissioner, Office of 
  Water Quality, Indiana Department of Environmental Management, 
  Indianapolis, IN; on behalf of Association of Clean Water 
  Administrators.................................................    52
    Prepared statement...........................................    54
Steen, J.D., Ellen, General Counsel and Secretary, American Farm 
  Bureau Federation, Washington, D.C.............................    68
    Prepared statement...........................................    69
Gledhill, Jonathan, President, Policy Navigation Group, 
  Annandale, VA; on behalf of Waters Advocacy Coalition..........    73
    Prepared statement...........................................    75
Biggica, Russell J., Director of Government, Legislative and 
  Economic Development, Pennsylvania Rural Electric Association, 
  Harrisburg, PA.................................................    78
    Prepared statement...........................................    79
Taylor, Sledge, cotton, corn, soybean, wheat, sorghum, and peanut 
  producer, Como, MS.............................................    82
    Prepared statement...........................................    84
Foglesong, Steve, livestock producer, Astoria, IL................    87
    Prepared statement...........................................    89

                           Submitted Material

Prestage, Dr. Ron, President, National Pork Producers Council, 
  submitted letter...............................................   143
National Association of REALTORS', submitted statement   163

 
  HEARING TO REVIEW THE DEFINITION OF THE WATERS OF THE UNITED STATES


             PROPOSED RULE AND THE IMPACT ON RURAL AMERICA

                              ----------                              


                        TUESDAY, MARCH 17, 2015

                  House of Representatives,
                 Subcommittee on Conservation and Forestry,
                                  Committee on Agriculture,
                                                   Washington, D.C.
    The Subcommittee met, pursuant to call, at 2:17 p.m., in 
Room 1300 of the Longworth House Office Building, Hon. Glenn 
Thompson [Chairman of the Subcommittee] presiding.
    Members present: Representatives Thompson, Lucas, 
DesJarlais, Gibson, Benishek, Bost, Goodlatte, Conaway (ex 
officio), Gibbs, Lujan Grisham, Nolan, DelBene, and 
Kirkpatrick.
    Staff present: Carly Reedholm, Jessica Carter, John 
Goldberg, Josh Maxwell, Matt Schertz, Patricia Straughn, Skylar 
Sowder, John Konya, Anne Simmons, Evan Jurkovich, and Nicole 
Scott.

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

    The Chairman. Good afternoon. This hearing of the 
Subcommittee on Conservation and Forestry to review the 
definition of the waters of the United States proposed rule and 
the impact on rural America, will come to order.
    Let me begin with my opening statement--well, first of all, 
I want to welcome everybody. I appreciate all the Members being 
here. I appreciate your patience, we are a little bit behind 
with Floor business, but we are here now and ready to get to 
work. Thank you to all the witnesses for being here. I want to 
welcome you to today's hearing to review the definition of the 
waters of the United States proposed rule and its impact on 
rural America.
    The Clean Water Act created a historic partnership between 
the Federal Government and the states to protect our nation's 
navigable waterways. However, since the law's inception, the 
EPA and the Army Corps of Engineers have on many occasions 
ignored the original intent of Congress and have instead 
promoted the concept of statutory ambiguity as a justification 
for slowly and continually extending their jurisdictional 
reach.
    As a result, the Supreme Court has ruled that the EPA has 
unlawfully expanded its authority, compelling the high court to 
recommend that the government's authority must be more clearly 
defined. The Obama Administration has taken it upon itself to 
redefine their authority over jurisdictional waters, also known 
as navigable waters. When Congress rejected legislation that 
would expand the Federal scope and jurisdiction over regulated 
waterways, the EPA attempted to circumvent Congress and achieve 
overreaching legislative goals through agency guidance. When 
Congressional and public outcry called for a formal rulemaking 
process, the Obama Administration developed a proposal to 
expand their jurisdiction, ignoring input from the states and 
stakeholders.
    Over the past year, the Obama Administration has contended 
that the proposed rule defining the waters of the United States 
would make no substantial changes to traditional jurisdictional 
waters, and has continually assured the agriculture sector 
that, not only will current exemptions stay the same, but that 
the rule only serves to provide more clarity.
    If clarity, certainty, and better establishing reasonable 
jurisdictional limits was the intent of the rule, this proposal 
completely misses the mark. We continually hear testimony that 
the proposal will allow the EPA the ability to regulate 
essentially any body of water, such as a farm pond or even a 
ditch, even if that farm pond or ditch is dry during much of 
the year.
    Today we will hear a broad range of concerns from across 
rural America including the legal complications that 
agricultural producers and foresters are certain to face, the 
costs to states and counties to comply with this unwarranted 
expansion of jurisdiction, and obstacles to building rural 
infrastructure.
    Now, while the Committee does not have jurisdiction over 
the Clean Water Act, this proposal drafted under the authority 
of that Act will have dire and significant consequences for 
rural America. It is therefore this Committee's responsibility 
to review the proposal and highlight the potential negative 
consequences if the rule is finalized in its current form.
    Now, where the Committee does have jurisdiction, we will 
continue to engage. One example is the negative consequence 
this proposal will have regarding registered pesticide 
applications. As we have heard, an uninformed court decision in 
2009 subjected registered pesticide applications in or near 
waters of the United States to a duplicative permitting 
requirement under section 402 of the Clean Water Act.
    As the Administration presses forward with their 
unprecedented expansion of jurisdictional waters, the 
implications for farmers, water resource boards and mosquito 
control districts will be severe. This Committee and this House 
have made numerous attempts to address this problem and we will 
once again markup that legislation 2 days from now.
    Rural America's voice cannot be ignored. As such, the 
Committee would urge EPA Administrator McCarthy, Assistant 
Secretary Darcy of the Army Corps of Engineers, and USDA 
Secretary Vilsack to pay close attention to today's hearings so 
they can take note of, firsthand, the concern their actions 
have created in the countryside. The Committee may call on them 
in the future to address specific issues and concerns raised in 
today's hearings.
    Now, let me be clear. There is a need for more certainty 
and clarity of the reach of the Clean Water Act. However, this 
rule will provide neither. After today's hearing, I hope the 
Administration will take action by pulling the proposed rule, 
and start over by working with the states and taking into 
consideration the concerns that they have heard from 
stakeholders. Or, if the EPA and Corps proceed and push this 
rule through, I call on the Administration to re-propose the 
rule for a new round of public comment. This will allow the 
states and the stakeholders a chance to see the significant 
changes EPA and the Corps claim they have made since the first 
comment period closed.
    Now, I thank the witnesses for taking their time to be here 
today, which will be spread over two panels of testimony. I 
look forward to hearing from everyone here today.
    [The prepared statement of Mr. Thompson follows:]

Prepared Statement of Hon. Glenn Thompson, a Representative in Congress 
                           from Pennsylvania
    Good morning, and welcome to today's hearing to review the 
definition of the ``waters of the United States'' proposed rule and its 
impact on rural America.
    The Clean Water Act created a historic partnership between the 
Federal Government and the states to protect our nation's navigable 
waterways. However, since the law's inception, the EPA and the Army 
Corps of Engineers have on many occasions ignored the original intent 
of Congress and have instead promoted the concept of statutory 
ambiguity as a justification for slowly and continually extending their 
jurisdictional reach.
    As a result, the Supreme Court has ruled that the EPA has 
unlawfully expanded its authority, compelling the high court to 
recommend that the government's authority must be more clearly defined.
    The Obama Administration has taken it upon itself to redefine their 
authority over jurisdictional waters, also known as ``navigable 
waters''. When Congress rejected legislation that would expand the 
Federal scope and jurisdiction over regulated waterways, the EPA 
attempted to circumvent Congress and achieve overreaching legislative 
goals through agency guidance.
    When Congressional and public outcry called for a formal rule-
making process, the Obama Administration developed a proposal to expand 
their jurisdiction, ignoring input from the states and stakeholders.
    Over the past year, the Obama Administration has contended that the 
proposed rule defining the ``waters of the United States'' will make no 
substantial changes to traditional jurisdictional waters and has 
continually assured the agriculture sector that, not only will current 
exemptions stay the same, but that the rule only serves to provide more 
clarity.
    If clarity, certainty, and better establishing reasonable 
jurisdictional limits was the intent of the rule, this proposal 
completely misses the mark.
    We continually hear testimony that the proposal will allow the EPA 
the ability to regulate essentially any body of water, such as a farm 
pond or even a ditch--even if that farm pond or ditch is dry during 
much of the year.
    Today we will hear a broad range of concerns from across rural 
America including: (1) the legal complications that agricultural 
producers and foresters are certain to face; (2) the costs to states 
and counties to comply with this unwarranted expansion of jurisdiction; 
(3) and obstacles to building rural infrastructure.
    While the Committee does not have jurisdiction over the Clean Water 
Act, this proposal drafted under the authority of that Act will have 
dire and significant consequences for rural America. It is therefore 
this Committee's responsibility to review the proposal and highlight 
the potential negative consequences if the rule is finalized in its 
current form.
    Where the Committee does have jurisdiction, we will continue to 
engage. One example is the negative consequence this proposal will have 
regarding registered pesticide applications. As we have heard, an 
uninformed court decision in 2009 subjected registered pesticide 
applications in or near waters of the United States to a duplicative 
permitting requirement under section 402 of the Clean Water Act.
    As the Administration presses forward with their unprecedented 
expansion of jurisdictional waters, the implications for farmers, water 
resource boards and mosquito control districts will be severe. This 
Committee and this House have made numerous attempts to address this 
problem and we will once again markup that legislation 2 days from now.
    Rural America's voice cannot be ignored. As such, the Committee 
would urge EPA Administrator McCarthy, Assistant Secretary Darcy of the 
Army Corps of Engineers, and USDA Secretary Vilsack to pay close 
attention to today's hearing so they can take note of, first hand, the 
concern their actions have created in the countryside. The Committee 
may call on them in the future to address specific issues and concerns 
raised in today's hearing.
    Let me be clear--there is a need for more certainty and clarity of 
the reach of the Clean Water Act. However, this rule will provide 
neither. After today's hearing, I hope the Administration will take 
action by pulling the proposed rule, and start over by working with the 
states and taking into consideration the concerns they have heard from 
stakeholders. Or, if the EPA and Corps proceed and push this rule 
through, I call on the Administration to re-propose the rule for a new 
round of public comment. This will allow the states and stakeholders a 
chance to see the significant changes EPA and the Corps claim they have 
made since the first comment period closed.
    I thank the witnesses for taking time to be here today, which will 
be spread over two panels of testimony. I look forward to hearing from 
everyone here today--and yield to the Ranking Member Rep. Lujan 
Grisham.

    The Chairman. I am pleased to yield to the Ranking Member 
of the Subcommittee, Representative Lujan Grisham, for her 
opening statement.

      OPENING STATEMENT OF HON. MICHELLE LUJAN GRISHAM, A 
           REPRESENTATIVE IN CONGRESS FROM NEW MEXICO

    Ms. Lujan Grisham. Thank you, Mr. Chairman. And as you can 
see clearly, my legs aren't nearly as long as the Chairman's, 
so it took me longer to get to the Committee from voting, so I 
apologize.
    The Chairman. We will take shorter steps.
    Mr. Lujan Grisham. That seems like a great compromise. I 
appreciate that. And I am really excited, Mr. Chairman, about 
having this first hearing in this Subcommittee of the 
Agriculture Committee, and I am really honored to be the 
Ranking Member. I appreciate your leadership in holding this 
hearing, and I am very grateful to have the panel here. 
Particularly, I am going to give a shout out to a fellow New 
Mexican, Jeff Witte, who is the Secretary of our Department of 
Agriculture. He and I have worked in state government since the 
mid-1990s, I think. Actually, I think I was there before you, 
so I am your elder. I am really honored that he is here. He is 
someone who has great respect in New Mexico. I know the other 
panelists in their own rights are going to give us great 
testimony, but I want to thank you for your expertise, Jeff, 
and I want to thank you for making the trip. I appreciate the 
work that you are doing on behalf of our agricultural community 
and all New Mexicans. So thank you very much.
    In today's hearing, we are going to discuss the pending 
rule to define waters of the United States. Now, as a 
Representative from a state that is currently in a historic 
drought, projected to become a mega drought over the next 
couple of decades, I understand more than ever the importance 
of protecting this scarce resource. It is essential for 
farmers, ranchers, municipalities, consumers, fish and 
wildlife. Policymakers have an obligation to work together to 
ensure that communities have access to safe drinking water, 
agricultural producers have adequate water resources, and local 
economies are not adversely affected by vague and unclear 
policies and regulations.
    EPA has stated that the rule is supposed to provide greater 
clarity on what types of waters are covered under the Clean 
Water Act, including intermittent and ephemeral rivers. I 
appreciate the importance of protecting these types of 
tributaries. Ninety-five percent of New Mexico's linear streams 
are actually considered intermittent, and over 280,000 people 
in New Mexico receive drinking water from public drinking water 
systems that, at least in part, rely on these types of streams 
and rivers. Although, I too agree with the EPA's intent, as 
stated by the Chairman that they have an obligation, I have an 
expectation that they fulfill that obligation to protect clean 
water. A one-size-fits-all approach can often lead to 
unintended consequences.
    Today's hearing will give us the opportunity to identify 
those unintended consequences and look for areas for 
improvement and common ground how we can move forward. I have 
heard concerns from many stakeholders about how the pending 
rule could impact their way of living, their ability to 
regulate and protect clean water, and their efforts to spur 
economic development. These stakeholders agree that the rule 
must provide more clarity regarding definitions and 
jurisdictional issues.
    I hope our witnesses will be able to provide some specific 
examples of their concerns, and better yet, constructive 
suggestions for areas of improvement.
    In closing, I again want to welcome today's witnesses, 
including Secretary Witte, and I look forward to everyone's 
testimony.
    Again, thank you, Mr. Chairman, for the opportunity, and I 
yield back.
    The Chairman. I thank the gentlelady.
    I now recognize the full Agriculture Committee Chairman, 
Chairman Conaway, for an opening statement.

OPENING STATEMENT OF HON. K. MICHAEL CONAWAY, A REPRESENTATIVE 
                     IN CONGRESS FROM TEXAS

    Mr. Conaway. Thank you, Mr. Chairman, and I ask unanimous 
consent to submit my opening statement for the record. But I 
would like to brag on you and the Ranking Member. I have great 
confidence in you both. This is a terrific topic, a timely 
topic for you to have your very first Subcommittee hearing 
under the 114th Congress, and you are going to be off to a 
great start. You have a good panel of witnesses here today, and 
I want to thank all of you for the trek that you made to come 
to D.C. to share with us your wisdom about these issues. And so 
I am looking forward to, G.T., your leadership and, Michelle, 
your assistance on this and other issues that fall under the 
Conservation and Forestry Subcommittee. And the Members on both 
sides of the aisle are here because you want to be on this 
Subcommittee, and that it should be heartening to those who are 
affected by the jurisdiction of the Subcommittee. So thank you 
all for the great work you are about to do.
    And with that, I will yield back.
    The Chairman. Thank you, Mr. Chairman.
    The chair would request that other Members submit their 
opening statements for the record so that the witnesses may 
begin their testimony, and to ensure that there is ample time 
for questions. The chair would also like to remind Members that 
they will be recognized for questioning in 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. I 
certainly appreciate the Members' understanding.
    Witnesses are reminded to limit their oral presentations to 
5 minutes. All written statements will be included in the 
record. And I just call your attention to the light system we 
have. You will have 5 minutes when it is green, you have 1 
minute remaining, when it is yellow, and when we get to the 
red, I would just ask you to finish whatever line of thought 
that you are currently on. We have two panels today full of 
great witnesses, and I assure you that the written testimony 
has been distributed ahead of time. We really appreciate the 
effort that went into--I thought your written testimony was 
well done and very thorough. And we are expecting a vote series 
later this afternoon, so we are going to try to stay on-track 
with the 5 minutes.
    So I would like to welcome our witnesses to the table. As 
the Ranking Member has already noted, we are pleased to have 
the Honorable Jeff M. Witte, Director/Secretary, New Mexico 
Department of Agriculture, on behalf of the National 
Association of Departments of Agriculture, from Las Cruces, New 
Mexico. We have the Honorable Robert ``Pete'' Smeltz, Clinton 
County Commissioner, on behalf of the National Association of 
Counties, McElhattan, Pennsylvania. We have Mr. Joseph S. Fox, 
State Forester, Arkansas Forestry Commission, on behalf of the 
National Association of State Foresters, Little Rock, Arkansas. 
And Ms. Martha Clark Mettler, Deputy Assistant Commissioner of 
the Office of Water Quality, Indiana Department of 
Environmental Management, on behalf of the Association of Clean 
Water Administrators, from Indianapolis, Indiana.
    With that, Secretary Witte, please begin when you are 
ready.

STATEMENT OF HON. JEFF M. WITTE, DIRECTOR/SECRETARY, NEW MEXICO 
    DEPARTMENT OF AGRICULTURE, LAS CRUCES, NM; ON BEHALF OF 
                 NATIONAL ASSOCIATION OF STATE
                   DEPARTMENTS OF AGRICULTURE

    Mr. Witte. Thank you, Chairman Thompson, Ranking Member 
Lujan Grisham, thank you for those kind opening remarks, and 
Members of the Subcommittee. Thank you for inviting me to join 
you this afternoon. It is truly an honor to be here.
    My name is Jeff Witte, and I am here to represent the 
National Association of State Departments of Agriculture. I sit 
before you today to express my concerns with the significant 
negative impacts of the proposed Waters of the U.S. rule on 
farmers, ranchers, and people in other agricultural industries.
    The stated intent of the proposed rule was to increase 
clarity and consistency, but in fact, it has done the opposite; 
creating confusion and uncertainty for agricultural producers, 
rural communities, and state governments.
    New Mexico is an arid state with diverse landscapes, and 
overall, we get much less precipitation than other states. This 
means irrigated farms are reliant upon ditches fed by spring 
runoff which only flow ephemerally. The proposed definition of 
ditches has been a point of confusion since the rule's 
publication. It is unclear if many ditches that feed into the 
rivers will be considered tributaries under section (s)(5), or 
will be excluded as ditches under section (t)(3) or (t)(4).
    Ranchers are also dependent on catching rainwater for 
livestock and to control erosion, which may now be regulated 
under this rule. In the Southwest, we are especially concerned 
about jurisdiction over erosional features, such as arroyos. It 
is unclear from the rule if arroyos will be jurisdictional as 
small tributaries under section (s)(5) or excluded because of 
their status as an erosional feature as gullies are in section 
(t)(5)(vii).
    This proposed rule leaves other important terms undefined. 
One such term, prior converted cropland, causes concern in the 
agricultural community. Across the nation, agricultural 
producers and regulators have expressed that they are unclear 
how the term prior converted cropland will be applied under the 
Clean Water Act. The rule exempts prior converted cropland from 
jurisdiction, but fails to define the term and fails to adopt 
any other agencies' existing definition.
    The changes in the Clean Water Act are not just an issue in 
the arid West; Florida Commission Adam Putnam recently 
testified about the rule before the Joint Committee. He was 
worried that the proposal would assert jurisdiction over 
isolated wetlands located miles away from navigable waters. 
Another example is in Iowa where they have to drain their 
fields using a tile drainage system. The century-old system 
will have to be updated in the coming decades. My colleagues in 
Iowa estimate that the wetland mitigation associated with this 
upgrade would cost $1.8 billion without the rule, and under the 
proposed rule they estimate the expenditures could 
theoretically balloon to more than $57 billion over a 30 to 50 
year period.
    My team has worked with our state environmental permitting 
agency, the soil and water conservation districts, and others. 
We have concluded that this rulemaking represents a Federal 
overreach into state affairs; specifically, states' authority 
to manage water. States have been provided with the authority 
to manage water quality under the Clean Water Act. The New 
Mexico Environment Department stated in their comments that 
they are most significantly concerned that the proposed rule's 
definition of tributary will constitutionally increase Federal 
authority over the traditionally-held intrastate intermittent 
and ephemeral waters. These concerns, which have not yet been 
addressed, make managing water quality at the state level 
burdensome. In addition, the industries that support our 
nation's food system and public health would be affected by 
this rule. Pesticide labels, which carry important information 
about application and use, will change due to the expanded 
jurisdictional areas where they are prohibited. Pesticides are 
not used only for crops, they are also used in multiple other 
ways such as vector control to mitigate infectious diseases, 
and algae control to reduce harmful toxins in drinking water. 
Therefore, the expanded jurisdiction this rule calls for could 
negatively impact public health by reducing a regulator's 
ability to use these tools effectively.
    Conservation efforts could also be affected by the changes 
resulting from the uncertainty in the rule. For example, in 
2005, the BLM began the Restore New Mexico Initiative. This 
program brings together Federal, state and local soil and water 
conservation districts and private partners, including farmers 
and ranchers, to restore landscapes across the state. These 
partners have restored more than 3 million acres by thinning 
overgrown forest, restoring native grasses, removing nonnative 
plants, and reclaiming abandoned oilfields. Over the past 10 
years, at least $100 million, 40 percent from private partners, 
has been used for on-the-ground conservation programs. We have 
identified another 4 million acres in the state for restoration 
work. This rule puts that work in jeopardy. Increases in time 
and money required for permitting would divert resources away 
from conservation projects.
    The average age of an agricultural producer in the U.S. is 
58. Unclear regulations and burdens could dampen innovation and 
prevent younger generations from joining the family farm 
business. Without the opportunity for these young 
agriculturists to succeed, our reliable and superior food 
supply could be undermined.
    EPA has stated that we can expect extensive revisions in 
the final rule. While we hope for extensive revisions, we are 
concerned that those revisions may not catch all of the issues 
that have caused individuals, organizations, local and state 
governments to submit over one million comments on this rule. 
In addition, EPA and the Army Corps have not posted all the 
comments or responded to them, yet, agencies have indicated 
their intent to finalize the rule in the near future.
    My request to the Committee is that you support and 
encourage the complete withdrawal of this rule. Late this year 
in the Cromnibus of 2014--late last year in the Cromnibus of 
2014, Congress----
    The Chairman. Mr. Secretary, if you could go ahead and----
    Mr. Witte. I will wrap it up, sorry.
    The Chairman. Thank you.
    Mr. Witte. So I appreciate the opportunity to be before the 
Committee today, and I will be happy to answer any questions.
    [The prepared statement of Mr. Witte follows:]

   Prepared Statement of Hon. Jeff M. Witte, Director/Secretary, New 
Mexico Department of Agriculture, Las Cruces, NM; on Behalf of National
            Association of State Departments of Agriculture
Introduction
    Chairman Thompson, Ranking Member Lujan Grisham, and Members of the 
Subcommittee, good morning and thank you for inviting me to join you 
this morning. My name is Jeff Witte, and I am here to represent the 
National Association of State Departments of Agriculture--NASDA. 
Everyone agrees that clean water is an important part of our nation's 
health. I know this because I grew up on a beef cattle ranch in my 
native state of New Mexico. I proudly serve as my state's Secretary of 
Agriculture, President of the Western Association of State Departments 
of Agriculture, and Chairman of NASDA's Natural Resources, Pesticide 
Management, and Environment Committee.
    In my various roles, I promote agriculture and protect consumers 
and producers through a host of regulatory programs--including 
regulatory programs to ensure the protection of my state's natural 
resources. I sit before you today to express my concerns with the 
significant negative impacts of the proposed Waters of the United 
States (WOTUS) Rule on farmers, ranchers, and people in other 
agricultural industries.
    The stated intent of the proposed rule was to increase clarity and 
consistency. In fact, it has done the opposite: creating confusion and 
uncertainty for agricultural producers, rural communities, and state 
governments. The impacts of the rule are so potentially harmful, it 
should be withdrawn. We request that Federal water regulators take a 
more collaborative approach in working with state and local 
stakeholders to draft a rule that works for everyone.
Impacts in New Mexico and Across the Country
    In New Mexico, agriculture contributes approximately $4 billion to 
the economy every year \1\ and is the backbone of rural communities. 
New Mexico products our country treasures--such as cheese, pecans, and 
chili peppers--and the hardworking families that bring them to us, 
would be directly impacted by the proposed rule.
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    \1\ National Agricultural Statistics Service. (2012). 2012 Census 
of Agriculture--2012 Census Volume 1, Chapter 1: State Level Data: New 
Mexico. Retrieved from USDA: http://agcensus.usda.gov/Publications/
2012/Full_Report/Volume_1,_Chapter_1_State_Level/New_Mexico/.
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    New Mexico is an arid state with diverse landscapes; and, overall, 
we get much less precipitation than other states. This means irrigated 
farms are reliant upon ditches fed by spring runoff, which only flow 
ephemerally. The proposed definition of ditches have been a point of 
confusion since the publication of the proposed rule. It is unclear if 
the many ditches that feed from rivers will be considered 
``tributaries'' under section (s)(5) or will be excluded as ``ditches'' 
under section (t)(3) or (t)(4).
    Similarly, ranchers are often dependent on catching rainwater for 
livestock and to control erosion, which may be regulated under this 
rule. Of special concern in the Southwest is the potential inclusion of 
ephemeral erosional features such as arroyos, which are similar to 
gullies. Again, it is unclear from the rule if arroyos will be 
jurisdictional as small ``tributaries'' under section (s)(5) or 
excluded because of their status as an ``erosional feature'' as gullies 
are in section (t)(vii).
    Waters that have traditionally been available for agriculture 
without the need for permits will now be subject to permitting under 
the proposed rule--adding time and costs to the production of food on 
the 2.1 million farms throughout our country. The time sensitive nature 
of agricultural production may be at risk due to addition scrutiny and 
potential legal challenges associated with determining jurisdictional 
waters.
    Among the many terms that are left undefined in the proposed rule, 
``prior converted croplands'' is of specific concern to the 
agricultural community. This is not just an issue in arid states; 
across the nation agricultural producers and regulators have expressed 
concern for how the Clean Water Act (CWA) will apply this term. 
Although, the Environmental Protection Agency (EPA) does not define 
``prior converted croplands,'' other agencies such as the Natural 
Resources Conservation Service only afford this status to wetlands that 
were cropped before 1985. This barrier could have profound impacts on 
rural economies in addition to the nation's ability to provide enough 
food for a growing population.
    Farmers and ranchers throughout the country--including those in 
wetter states--have also expressed concern with the rule. For instance, 
Florida Commissioner Adam Putnam recently testified on the consequences 
that this proposal would have for lands located near isolated wetlands 
with the expansion of Federal jurisdiction.
    Another example is in Iowa. My colleagues have estimated that 
wetland mitigation costs associated with upgrading that state's 
century-old tile drainage system could increase under the proposed rule 
from $1.8 billion to more than $57 billion in coming decades.\2\
---------------------------------------------------------------------------
    \2\ Personal Communication between NASDA staff and staff of 
Division of Soil Conservation, Iowa Department of Agriculture and Land 
Stewardship.
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    Further, we have significant concerns that farmers and ranchers 
will face uncertain permitting requirements and legal liabilities under 
section 402 of the CWA, which requires National Pollutant Discharge 
Elimination System permits for point source discharges near a 
jurisdictional water.
Jurisdictional Issues
    My team has worked with our own environmental permitting agency, 
Soil and Water Conservation Districts, and other stakeholders. We have 
concluded this rulemaking represents a Federal overreach into state 
affairs, specifically states' authority to manage and allocate water.
    States have been provided with the authority to manage water 
quality under the CWA. The New Mexico Environment Department 
specifically stated in their comments that they are ``most 
significantly concerned that the proposed rule's definition of 
`tributary' will unconstitutionally increase Federal authority over 
traditionally held intrastate intermittent and ephemeral waters . . .'' 
\3\ These concerns, which have yet to be addressed, make managing water 
quality and conservation practices at the state level burdensome.
---------------------------------------------------------------------------
    \3\ New Mexico Environment Department. (2014, November 14). New 
Mexico Environment Department's Comments Regarding Proposed Regulatory 
Changes to the Definition of ``Waters of the United States'' Under the 
Clean Water Act.
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    Since the proposed rule was published in April 2014, EPA and the 
Army Corps have not been consistent. The agencies have variously said 
that jurisdiction will increase,\4\-\5\ decrease,\6\ and 
will not change.\7\ There is a significant lack of clarity in the 
proposed definitions. Furthermore, interpretation of the rule would be 
left to the discretion of the district offices of the Army Corps across 
the nation, which adds ambiguity and inconsistency to the process. The 
``other waters'' category in section (s)(7) leaves many waters in 
question to the discretion of individuals--creating an unreliable and 
uncertain business environment.
---------------------------------------------------------------------------
    \4\ U.S. Environmental Protection Agency and U.S. Army Corps of 
Engineers. ``Economic Analysis of Proposed Revised Definition of Waters 
of the U.S.,'' March 2014. http://www2.epa.gov/sites/production/files/
2014-03/documents/wus_proposed_rule_economic_analysis.pdf.
    \5\ The Brattle Group. ``Review of 2014 EPA Economic Analysis of 
Proposed Revised Definition of Waters of the U.S.'' May 15, 2014. 
Available at: http://www.brattle.com/news-and-knowledge/publications/
archive/2014.
    \6\ Stoner, Nancy. ``Setting the Record Straight on Waters of the 
U.S.'' EPA Connect, July 7, 2014. http://blog.epa.gov/epaconnect/
author/nancystoner/.
    \7\ U.S. Environmental Protection Agency. ``Clean Water Act 
Exclusions and Exemptions Continue for Agriculture,'' http://
www2.epa.gov/sites/production/files/2014-03/documents/
cwa_ag_exclusions_exemptions.pdf.
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    These issues create both regulatory uncertainty and untold economic 
consequences for farmers and ranchers. Farmers and ranchers who have 
historically utilized waters that were not jurisdictional will have to 
commit valuable time and resources in learning the permitting process 
and pursuing a permit if needed, causing delays in production.
    Additionally, the industries that support our nation's food 
system--and public health--would be affected by this rule. Pesticide 
labeling, which informs users and regulators of where pesticides are 
allowed and appropriate, will change due to expanded jurisdictional 
areas in which they are prohibited. For example, a pesticide that is 
labeled inappropriate for use near water may no longer be allowed for 
use on arroyos or dry ditches to control noxious weeds and invasive 
species. Pesticides are not only used for crops but are also used for 
vector control to reduce infectious diseases and algae control to 
reduce harmful toxins in drinking water downstream. The expanded 
jurisdiction this rule calls for could negatively impact public health.
Effect on Business
    The Small Business Administration (SBA) has expressed concern that 
EPA and Army Corps inappropriately used a nearly thirty year old 
baseline to certify small business impacts. Further, the SBA said the 
rule does indeed impose costs directly on small businesses.\8\ The 
bottom line is the rule would have significant economic consequences on 
small businesses including farmers and ranchers because they would have 
to pay for permits when they have not been required to in the past.
---------------------------------------------------------------------------
    \8\ The Office of Advocacy. (2014, October 21). Definition of 
``Waters of the United States'' Under the Clean Water Act. Retrieved 
from U.S. Small Business Administration: https://www.sba.gov/advocacy/
1012014-definition-waters-united-states-under-clean-water-act.
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Restoration Initiatives
    The changes and uncertainty resulting from this rule not only 
affect agriculture but can also hamper environmental restoration 
conducted by several Federal agencies and soil and water conservation 
districts in my state.
    In 2005 the Bureau of Land Management began the Restore New Mexico 
initiative. This program brings together Federal, state, and private 
partners--including farmers and ranchers--to restore landscapes across 
the state. So far, these partners have successfully restored more than 
3 million acres by thinning overgrown forests, restoring native 
grasses, removing thirsty nonnative species, reclaiming abandoned oil 
fields, and more.\9\ Over the last 10 years, at least $100 million--40 
percent from farmers and ranchers--has been used for on-the-ground 
conservation programs.\10\
---------------------------------------------------------------------------
    \9\ BLM. (2014, October 7). Accomplishments: Restore New Mexico. 
Retrieved from U.S. Department of the Interior: http://www.blm.gov/nm/
st/en/prog/restore_new_mexico/restore_new_mexico.html.
    \10\ Mr. Ken Leiting, New Mexico Association of Conservation 
Districts.
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    There are still 4 million acres identified for restoration and 
conservation. This rule puts that work in jeopardy due to increases in 
time and money required for permitting, which would otherwise be spent 
on important conservation projects and on maintaining the important 
work that has already been completed.
    Watershed restoration and conservation projects also address 
wildfire concerns. The rule could impede land management agencies from 
conducting timely restoration projects. Preventative watershed 
conservation projects are much less costly than the mitigation and 
rehabilitation activities that must occur after catastrophic fires--
which are becoming more common in western states. It is our hope that 
these imperative, preventative measures do not face increased costs or 
delays from permitting now that jurisdictional waters would increase.
    Over $19 million was spent on fighting the Little Bear fire in 
southern New Mexico in 2012.\11\ This does not include the restoration 
work that continues in this region. We are concerned that fire 
suppression and rehabilitation activities may be delayed or impeded by 
additional permitting requirements. It is unclear where the funds to 
complete permitting will come from--from the private entities that are 
severely affected or from the state and Federal agencies that are 
working so hard to suppress fires and restore these landscapes.
---------------------------------------------------------------------------
    \11\ Kalvelage, Jim. (July 26, 2012). ``Cost of Little Bear Fire 
suppression tops $19 million.'' Ruidoso News. http://
www.ruidosonews.com/ci_21163264/cost-little-bear-fire-suppression-tops-
19-million.
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Conclusion
    Our nation's food security rests on the shoulders of our farmers 
and ranchers. The confusion and uncertainty from this proposed rule may 
adversely affect them. The rule would cause negative consequences 
without any clear benefit beyond existing CWA regulations.
    Farming and ranching is already a risky business, and adding this 
level of uncertainty would make many young farmers and ranchers think 
twice about entering the profession. Since the average age of 
agricultural producers in the United States is 58 years old,\12\ 
implementing unclear regulations may prevent future innovation in the 
agricultural economy. Without the opportunity for these young 
agriculturalists to succeed, our reliable and superior food supply 
could be undermined.
---------------------------------------------------------------------------
    \12\ U.S. Department of Agriculture. ``2012 Census of 
Agriculture.'' http://www.agcensus.usda.gov/Publications/2012/
Full_Report/Volume_1,_Chapter_1_US/.
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    EPA has stated that we can expect extensive revisions in the final 
rule. We do hope for extensive revisions, but we are concerned that the 
revisions may not catch all issues that have caused individuals, 
organizations, and local and state governments to submit over one 
million comments on this rule. In addition, the EPA and the Army Corps 
have not posted all public comments or responded to them, yet the 
agencies have indicated they intend to send the rule to be finalized to 
the Office of Management and Budget in the very near future. Given the 
magnitude of comments received and the clear requirement to respond 
prior to finalization, the agencies are neglecting their duty to 
provide good faith effort to address public concerns.
    If finalized in its current form, the Federal agencies may not have 
the resources to implement the rule. Monitoring and assessing water 
quality on newly jurisdictional water bodies in a very large state such 
as New Mexico would necessarily require additional resources and, 
therefore, cannot possibly come without new costs--potentially creating 
an unfunded mandate to states.
    My request of the Committee is that you support and encourage the 
complete withdrawal of this rule. Late last year in the ``Consolidated 
and Further Continuing Appropriations Act of 2015,'' Congress directed 
the agencies to withdraw the flawed Agricultural Interpretive Rule. Our 
hope is that the same can be done for the proposed rule itself. State 
and local governments have expressed dissatisfaction with the very low 
level of collaboration in this process. We request more robust 
involvement opportunities to help revise this rule to benefit all 
interested parties.
    I appreciate the opportunity to testify before you today, and I 
welcome any questions you may have.

    The Chairman. I look forward to that exchange, and to give 
you a chance to address some of those last points.
    Commissioner Smeltz, once again, it is good to have 
somebody from home here. Welcome, and go ahead and proceed with 
your 5 minutes of testimony please.

           STATEMENT OF HON. ROBERT ``PETE'' SMELTZ,
COMMISSIONER, CLINTON COUNTY, PENNSYLVANIA, McELHATTAN, PA; ON 
           BEHALF OF NATIONAL ASSOCIATION OF COUNTIES

    Mr. Smeltz. Yes, it is good to be here, and thank you 
Chairman Thompson, and, Ranking Member Grisham, and Members of 
the Subcommittee.
    The Chairman. Commissioner, you just want to just suspend 
for a second, we will see about plan B. Go ahead, sir. You can 
go ahead and start from the beginning.
    Mr. Smeltz. Okay. How is that? Okay, very good.
    Again, thank you. Thank you, Chairman Thompson, and Ranking 
Member Grisham, for the opportunity to testify today before 
you, and Members of the Subcommittee as well, for the 
opportunity to testify on how the proposed Waters of the U.S. 
rule could impact rural America.
    My name is Pete Smeltz. I am an elected County Commissioner 
from Clinton County, Pennsylvania, and today I am representing 
the National Association of Counties.
    As a County Commissioner, I interact with constituents and 
local businesses every day. Prior to my election as a County 
Commissioner, I spent 35 years with the Pennsylvania Department 
of Transportation, managing over 300 road miles and their 
drainage systems. Clinton County, Pennsylvania, is considered 
rural, with a population of just under 40,000 residents. The 
vast majority of our county is made up of forest and some 
farmland. Our state and local governments have a long history 
of protecting our water resources. Across Pennsylvania, I have 
heard concerns about how we could be affected by the proposed 
rule, and these concerns have been echoed by counties of all 
sizes across the country.
    NACo has worked closely with technical experts, including 
county engineers, legal staff, public works directors, and 
stormwater managers, and ultimately called for the proposed 
rule to be withdrawn until further analysis and consultation 
with local officials is completed. This decision was not taken 
lightly, and we worked very hard to both ensure public safety, 
while protecting water quality.
    Counties in Pennsylvania and across the country accomplish 
these goals by working with conservation districts, zoning, 
passing ordinances, and regulating stormwater runoff and 
illegal discharges. I am here today to share with you the four 
main reasons we decided to call for the withdrawal of the 
proposed rule.
    First, this issue is so important because counties build, 
own and maintain a significant portion of public safety 
infrastructure, and the proposed rule would have direct and 
extensive implications. Local governments own almost 80 percent 
of all the public road miles, and so own and maintaining 
roadside ditches, they are responsible for flood control 
channels, stormwater systems, and culverts. In Pennsylvania, 
counties own over 4,000 bridges, which require construction and 
maintenance projects. Because we own so much infrastructure, 
and are responsible for public safety, defining which waters 
and conveyances fall under Federal jurisdiction has a direct 
impact on counties.
    Second, the agencies developing the proposed rule did not 
sufficiently consult with local governments. Counties are not 
just stakeholders in this discussion; we are partners in our 
nation's intergovernmental system. By law, Federal agencies are 
required to consult with their state and local partners before 
a rule is published, and throughout its development. However, 
this process was not completed by the agencies.
    This leads to my third point. Due to this inadequate 
consultation, many terms in the proposed rule are vague and 
create uncertainty and confusion at the local level. For 
example, the proposed rule introduces new definitions of 
tributary, significant nexus, adjacency, riparian areas, and 
floodplains. Depending on how these terms are interpreted, 
additional public infrastructure could fall under Federal 
jurisdiction. The proposed rule as currently written only adds 
to the confusion and uncertainty over how this would be 
implemented consistently across all regions.
    Our fourth and final reason for calling for the withdrawal 
is that the current permitting process tied to the Waters of 
the U.S. already presents significant challenges for counties. 
The proposed rule would only complicate matters. For example, 
one Florida county applied for 18 maintenance exemptions on the 
county's network of drainage and ditches and canals. The 
permitting process became so challenging that the county had to 
hire a consultant to complete all of the technical material 
required. Three months later, as the county moved into its 
rainy season, and after $600,000 had been invested, decisions 
on 16 of the exemptions was still pending. Ditches began to 
flood, putting the public at risk, and this is just one of many 
examples.
    In conclusion, while many have attempted to paint this as a 
political issue, in the eyes of county governments, this is a 
matter of practicality and partnership. We look forward to 
working with you and the agencies to craft a clear and workable 
definition of Waters of the U.S. that achieves our shared goal. 
Our shared goal, which is to protect water quality without 
inhibiting the public safety and economic vitality of our 
communities.
    And I thank you all again for this opportunity to address 
you this afternoon.
    [The prepared statement of Mr. Smeltz follows:]

   Prepared Statement of Hon. Robert ``Pete'' Smeltz, Commissioner, 
  Clinton County, Pennsylvania, McElhattan, PA; on Behalf of National 
                        Association of Counties
    Thank you, Chairman Thompson, Ranking Member Grisham and Members of 
the Subcommittee for the opportunity to testify on the impact the 
proposed ``waters of the U.S.'' rule will have on rural America.
    My name is Robert ``Pete'' Smeltz, I am an elected County 
Commissioner from Clinton County, Pa. and today I am representing the 
Nation Association of Counties (NACo).
About NACo
    NACo is the only national organization that represents county 
governments in the United States, including Alaska's boroughs and 
Louisiana's parishes. Founded in 1935, NACo assists America's 3,069 
counties in pursuing excellence in public service to produce healthy, 
vibrant, safe and resilient counties.
About Counties
    Counties are highly diverse, not only in my Commonwealth of 
Pennsylvania, but across the nation, and vary immensely in natural 
resources, social and political systems, cultural, economic, public 
health and environmental responsibilities. Counties range in area from 
26 square miles (Arlington County, Virginia) to 87,860 square miles 
(North Slope Borough, Alaska). The population of counties varies from 
Loving County, Texas, with just under 100 residents to Los Angeles 
County, California, which is home to close to ten million people.
    Since counties are an extension of state government, many of their 
duties are mandated by the state. Although county responsibilities 
differ widely between states, most states give their counties 
significant authorities. These authorities include construction and 
maintenance of roads, bridges and other infrastructure, assessment of 
property taxes, record keeping, running elections, overseeing jails and 
court systems and county hospitals. Counties are also responsible for 
child welfare, consumer protection, economic development, employment/
training, and land use planning/zoning and water quality.
    Counties own and maintain a wide variety of public safety 
infrastructure that would be impacted by the proposed rule including 
roads and roadside ditches, stormwater municipal separate storm sewer 
systems (MS4), green infrastructure construction and maintenance 
projects, drinking water facilities and infrastructure (not designed to 
meet CWA requirements) and water reuse and infrastructure.
    On roads and roadside ditches, counties are responsible for 
building and maintaining 45 percent of public roads in 43 states 
(Delaware, North Carolina, New Hampshire, Vermont and West Virginia 
counties do not have road responsibilities). These responsibilities can 
range from intermittent maintenance, such as snow plowing, debris 
cleanup, short term paving and surface repairs to maintenance of 
traffic safety and road signage and major long-term construction 
projects.
    Many of these road systems are in very rural areas. Of the nation's 
3,069 counties, approximately 70 percent of our counties are considered 
``rural'' with populations less than 50,000 and 50 percent of these are 
counties have populations below 25,000 residents. Any additional cost 
burdens are challenging to these smaller governments, especially since 
rural counties have the most road miles and corresponding ditches. 
Since state constitutions and statutes dictate and limit the revenue 
sources counties may use, balancing increased Federal and state 
regulations with the limited financial resources available to local 
governments poses significant implementation challenges.
    Regardless of size, counties nationwide continue to be challenged 
with fiscal constraints and tight budgets. According to a 2014 County 
Economic Tracker \1\ report released by NACo in January, only 65 of the 
nation's 3,069 counties have fully recovered to pre-recession levels, 
due to their booming energy and agricultural economies. However, in 
many parts of the country, the economic recovery is still fragile. In 
addition, county governments in more than 40 states must operate under 
restrictive revenue constraints imposed by state policies, especially 
property tax assessment caps.
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    \1\ Nat'l Ass'n of Counties, County Tracker 2014: On the Path to 
Recovery, NACo Trends Analysis Paper Series, (2014).
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About Clinton County, Pennsylvania
    As a County Commissioner, I interact with constituents and 
businesses on a daily basis. Prior to my election as a county 
commissioner, I spent 35 years with the Pennsylvania State Department 
of Transportation (PENNDOT) and managed over 300 highway road miles and 
their drainage systems.
    Clinton County, Pennsylvania is considered ``rural'' with a 
population of just under 40,000 residents. The county is located in 
north central Pennsylvania and has a land mass of 8972 
miles--the northern and western parts of the county are heavily 
forested and mountainous and the southern section has an agriculture-
based economy. Approximately 70 percent of the county is forested, 20 
percent is farm valley and ten percent is developed. The average yearly 
salary for our residents is $36,000 and our primary economic drivers 
include paper product facilities, furniture production, businesses 
directly and indirectly related to the Marcellus Shale gas drilling 
industry, transportation and construction equipment sales and service, 
Lock Haven University and state governmental agencies.
    Clinton County, Pa. is fortunate to be home to an abundance of 
outdoor recreational opportunities. The county is known as the 
``Gateway to the Pennsylvania Wilds'' because it is home to thousands 
of miles of state forests, state parks, state games lands, fishing 
destinations and the west branch of the Susquehanna River. Seventy 
percent of the streams and rivers in the county are already stringently 
protected under Pennsylvania's Clean Streams Law (Pa. Act 394 of 1937) 
and other state-specific water quality statutes. The state of 
Pennsylvania and its localities have a long history of protecting local 
water resources.
    Many of the projects our state and localities are working on--and 
many other county projects across the nation--would be significantly 
affected by the changes to the definition of ``waters of the U.S.'' 
that have been proposed by the U.S. Environmental Protection Agency 
(EPA) and the U.S. Army Corps of Engineers (Corps). Therefore, we have 
urged the agencies to withdraw the proposed rule until further analysis 
of its potential impacts has been completed. In fact, many prominent 
national associations of regional and local officials have expressed 
similar concerns, including the County Commissioners Association of 
Pennsylvania, U.S. Conference of Mayors, National League of Cities, 
National Association of Regional Councils, National Association of 
County Engineers, American Public Works Association and the National 
Association of Flood and Stormwater Management Agencies.
    Today, I will discuss potential on-the-ground impacts of this 
proposed rule on my county and on counties nationwide.

  1.  The ``Waters of the U.S.'' Proposed Rule Matters to Counties--
            Clean water is essential for public health and safety, and 
            state and local governments play a significant role in 
            ensuring that local water resources are protected. This 
            issue is so important to counties because not only do we 
            build, own and maintain a significant portion of public 
            safety infrastructure, we are also mandated by law to work 
            with Federal and state governments to implement Clean Water 
            Act (CWA) programs.
  2.  The Consultation Process with State and Local Governments was 
            Flawed--Counties are not just another stakeholder group in 
            this discussion--we are a key partner in our nation's 
            intergovernmental system. Because counties work with both 
            Federal and state governments to implement Clean Water Act 
            (CWA) programs, it is important that all levels of 
            government work together to form practical and workable 
            rules and regulations that achieve the shared goals of 
            protecting clean water, ensuring the safety of our 
            communities and minimizing unnecessary delays and costs.
  3.  Counties Have Significant Concerns with the Proposed Rule; A One-
            Size-Fits-All Federal Regulation is Not the Answer--For 
            over a decade, counties have been voicing concerns on the 
            existing ``waters of the U.S.'' definition, as there has 
            been much confusion regarding this definition, even after 
            several Supreme Court cases. While we agree that there 
            needs to be a clear, workable definition of ``waters of the 
            U.S.,'' we do not believe that the new proposed definition 
            provides the certainty and clarity needed for operations at 
            the local level. After consulting extensively with county 
            technical experts--including county engineers, attorneys, 
            stormwater managers and other county authorities--on the 
            proposed rule's impact on daily operations and local 
            budgets, our key concerns include undefined and confusing 
            definitions and potential for sweeping impacts across all 
            Clean Water Act programs.
  4.  The Current Process Already Presents Significant Challenges for 
            Counties; the Proposed Rule Only Complicates Matters--Under 
            Federal law, as it pertains to the Clean Water Act, 
            counties serve as both the regulator and regulated entity 
            and are responsible for ensuring that clean water goals are 
            achieved and that our constituents are protected. However, 
            the current system already presents major challenges--
            including getting permits approved by the agencies in a 
            timely manner, juggling multiple and often duplicative 
            state and Federal requirements, and anticipating and paying 
            for associated costs. The proposed rule, as currently 
            written, only adds to the confusion and uncertainty over 
            how it would be implemented consistently across all 
            regions.
1. The ``Waters of the U.S.'' Proposed Rule Matters to Counties
    First, clean water is essential to all of our nation's counties, 
who play vital roles in protecting our citizens by preserving local 
resources and maintaining public safety. The availability of an 
adequate supply of clean water is vital to our nation and integrated 
and cooperative programs at all levels of government are necessary for 
protecting water quality.
    Counties support clean water and play a key role in protecting the 
environment. We pass zoning and other land use ordinances to safeguard 
valuable natural resources and protect our local communities depending 
on state law and local responsibility. Counties provide extensive 
outreach and education to residents on water quality and stormwater 
impacts. We also establish rules on illicit discharges and fertilizer 
ordinances, remove septic tanks, work to reduce water pollution, adopt 
setbacks for land use plans, and are responsible for water recharge 
areas, green infrastructure and water conservation programs.
    Counties must also plan for the unexpected and remain flexible to 
address regional conditions that may impact the safety and well-being 
of our citizens. Specific regional differences, including condition of 
watersheds, water availability, climate, topography and geology are all 
factored in when counties implement public safety and common-sense 
water quality programs.
    For example, some counties in low-lying areas have consistently 
high groundwater tables and must carefully maintain drainage 
conveyances to both prevent flooding and reduce breeding grounds for 
disease-causing mosquitoes. On the other hand, counties in the arid 
West are facing extreme drought conditions in which the availability of 
water has become scarce. In these regions, counties are using 
infrastructure to preserve water for future use.
    In my Commonwealth of Pennsylvania, conservation districts are 
authorized to make critical front-line decisions relating to many 
aspects of waterway planning and management, including stormwater 
management, flood mitigation and maintenance of dams and levees (Pa. 
Act 217 of 1945, Section 2). While the Clinton County Conservation 
District is an independent entity, the county funds 40 percent of its 
annual budget and the district oversees the state's stormwater 
management permitting program, dirt and gravel road pollution 
prevention, programs to ensure water quality and protect the public 
from flooding.
    Second, counties have much at stake in this discussion as we are 
major owners of public infrastructure, including 45 percent of 
America's road miles, nearly 40 percent of bridges, 960 hospitals, more 
than 2,500 jails, 650 nursing homes and \1/3\ of the nation's airports. 
Counties also own and maintain a wide variety of public safety 
infrastructure that would be impacted by the proposed rule, including 
roadside ditches, flood control channels, stormwater culverts and 
pipes, Municipal Separate Storm Sewer Systems (MS4), and other 
infrastructure used to funnel water away from low-lying roads, 
properties and businesses. These not only protect our water quality, 
but prevent accidents and flooding. Defining what waters and their 
conveyances fall under Federal jurisdiction has a direct impact on 
counties who are legally responsible for maintaining public safety 
ditches and other infrastructure.
    In Pennsylvania, counties own more than 4,000 bridges. One rural 
Pennsylvania county had a significant issue with debris piling up 
against a railroad bridge, creating a flooding hazard, the county had 
to act quickly to protect public safety. However, due to the 
complicated permitting and planning aspects of the Federal section 404 
permit process, the estimated costs for the project soared to over 
$100,000, which was cost prohibitive for the county. Instead, the 
county worked with the state to craft a limited work plan that reduced 
flooding, but did not eliminate the problem, and kept costs to $10,000.
    Counties are also the first line of defense in any disaster, 
particularly as it relates to public infrastructure. Following a major 
disaster, county local police, sheriffs, firefighters and emergency 
personnel are the first on the scene. In the aftermath, counties focus 
on clean-up, recovery and rebuilding. In 2004, after the remnants of 
Hurricane Ivan roared through the county and flooded nearly 1,000 homes 
and businesses, local governments moved quickly to work with the state 
and multiple Federal agencies to rebuild critical infrastructure.
    This is neither a partisan nor a political issue for counties. It 
is a practical issue and our position has been guided by county 
experts--county engineers, attorneys and stormwater practitioners--who 
are on the ground working every day to implement Federal and state 
mandated rules and policies. NACo's position on the proposed rule has 
been approved and supported by urban, suburban and rural county elected 
officials and our association's policy is based on the real world 
experiences of county governments within the current Clean Water Act 
(CWA) permitting process.
2. The Consultation Process with State and Local Governments was Flawed
    Counties are not just another stakeholder group in this 
discussion--we are a key part of the Federal-state-local partnership. 
Because counties work with both Federal and state governments to 
implement Clean Water Act (CWA) programs, it is important that all 
levels of government work together to form practical and workable rules 
and regulations that achieve the shared goals of protecting clean 
water, ensuring the safety of our communities and minimizing 
unnecessary delays and costs.
    Throughout the entire rule-making process, state and local 
governments were not adequately consulted through the Regulatory 
Flexibility Act (RFA) and Executive Order 13132: Federalism (E.O. 
13132). Since 2011, NACo has repeatedly requested a transparent 
process, as directed under the Administrative Procedures Act (APA), 
which calls for meaningful consultation with impacted state and local 
governments.
    Under RFA and E.O. 13132, Federal agencies are required to work 
with impacted state and local governments on proposed regulations that 
will have a substantial direct effect on them. We believe the ``waters 
of the U.S.'' proposed rule triggers Federal consultation requirements 
with state and local governments.
    As part of the RFA process, the agencies must ``certify'' that the 
proposed rule does not have a Significant Economic Impact on a 
Substantial Number of Small Entities (SISNOSE). Small entities are 
defined as small businesses and organizations, cities, counties, school 
districts and special districts with a population below 50,000. To 
certify a proposed rule, Federal agencies must provide a ``factual 
basis'' to determine that a rule does not impact small entities. This 
means ``at minimum . . . a description of the number of affected 
entities and the size of the economic impacts and why either the number 
of entities or the size of the impacts justifies the certification.''
    The RFA SISNOSE process allows Federal agencies to identify areas 
where the proposed rule mayeconomically impact a significant number of 
small entities and consider regulatory alternatives that will lessen 
the burden on these entities. If the agencies are unable to certify 
that a proposed rule does not impact small entities, the agencies are 
required to convene a small business advocacy review (SBAR) panel. The 
agencies determined, incorrectly, that there was ``no SISNOSE''--and 
therefore did not provide the necessary review.
    In a letter sent to EPA Administrator Gina McCarthy and Corps 
Deputy Commanding General for Civil and Emergency Operations Major 
General John Peabody, Small Business Administration's Office of 
Advocacy (Advocacy) expressed significant concerns that the proposed 
``waters of the U.S.'' rule was ``improperly certified . . . used an 
incorrect baseline for determining . . . obligations under the RFA . . 
. imposes costs directly on small businesses'' and ``will have a 
significant economic impact . . .'' Advocacy requested that the 
agencies ``withdraw the rule'' and that the EPA ``conduct a Small 
Business Advocacy Review panel before proceeding any further with this 
rulemaking.'' Since over 2,000 of our nation's counties are considered 
rural and covered under SBA's responsibility, NACo supports the SBA 
Office of Advocacy's conclusions.
    Within the proposed rule, the agencies indicated that they 
``voluntarily undertook federalism consultation.'' While we appreciate 
the agencies' outreach efforts, we believe that EPA prematurely 
truncated the Federalism consultation process. In 2011, EPA initiated a 
formal Federalism consultation process but in the 17 months between the 
consultation and the proposed rule's publication, the agency failed to 
avail itself of the opportunity to continue meaningful discussions 
during this intervening period, thereby failing to fulfill the intent 
of Executive Order 13132 and the agency's internal process for 
implementing it.
    Further, because a thorough consultation process was not followed, 
the agencies released an incomplete and inaccurate economic analysis 
that did not fully capture the potential impact on other Clean Water 
Act programs. Further, the agencies used permit applications from 2009-
2010 as a baseline to estimate the costs when there was more current 
data available. NACo has repeatedly raised concerns about the potential 
costs and the data points used in the cost-benefit analysis--these 
concerns have yet to be addressed.
3. Counties Have Significant Concerns with the Proposed Rule; A One-
        Size-Fits-All Federal Regulation Is Not the Answer
    For over a decade, counties have been voicing concerns regarding 
the existing ``waters of the U.S.'' definition, as there has been much 
confusion regarding this definition even after several Supreme Court 
decisions on this issue. While we agree that there needs to be a clear, 
workable definition of ``waters of the U.S.,'' we do not believe that 
the new proposed definition provides the certainty and clarity needed 
for operations at the local level.
    After consulting extensively with county technical experts--
including county engineers, attorneys, stormwater managers and other 
county authorities--on the proposed rule's impact on daily operations 
and local budgets, we are very concerned about:

   undefined and confusing definitions.

   cascading negative impacts across all Clean Water Act 
        programs.

    First, specific definitions within the proposed rule are undefined 
and unclear, this lack of clarity could be used to claim Federal 
jurisdiction more broadly. The proposed rule extends the ``waters of 
the U.S.'' definition by utilizing new terms--``tributary,'' 
``uplands,'' ``significant nexus,'' ``adjacency,'' ``riparian areas,'' 
``floodplains'' and ``neighboring''--that could increase the types of 
public infrastructure considered jurisdictional under the CWA. For 
counties that own and manage public safety infrastructure, the 
potential implication is that public safety ditches will be treated the 
same as rivers and streams, while the functions and purposes of both 
are significantly different.
    NACo has worked with the agencies to clarify these key terms and 
their intent, but has received little assurance about how each region 
will interpret and implement the new definition. In fact, the agencies 
have delivered inconsistent information about which waters would or 
would not be covered under Federal jurisdiction.
    Second, the proposed rule could have a cascading impact on all CWA 
programs, not just the section 404 program. This means that changing 
the definitions within the proposed rule could have far-reaching 
impacts on even more local stormwater programs and county owned 
infrastructure. NACo has asked for clarification from the agencies and 
has yet to receive a direct answer on the potential reach and 
implications of a new definition on ``waters of the U.S.''
4. The Current Clean Water Act Section 404 Permit Process Already 
        Presents Significant Challenges for Counties; the New Proposed 
        Rule Only Complicates Matters
    Under Federal law, as it pertains to the Clean Water Act, counties 
serve as both the regulator and regulated entity and are responsible 
for ensuring that clean water goals are achieved and that their 
constituents are protected. In practical terms, many counties implement 
and enforce Clean Water Act programs, and also must meet Clean Water 
Act requirements themselves. However, the current system already 
presents major challenges--including the existing permitting process, 
multiple and often duplicative state and Federal requirements, and 
unanticipated project delays and costs. The proposed rule, as currently 
written, only adds to this confusion and complicates already 
inconsistent definitions used in the field by local agencies in 
different jurisdictions across the country.
    Ditches are pervasive in counties across the nation; until 
recently, they were not required to have Federal CWA Section 404 
permits. However, in recent years, some Corps districts have 
inconsistently required counties to have Federal permits for 
construction and maintenance activities on our public safety ditches. 
It is critical for counties to have clarity, consistency and certainty 
on the types of public safety infrastructure that require Federal 
permits.
    Next, the current process is already complex, time-consuming and 
expensive, leaving local governments and public agencies vulnerable to 
citizen suits. Counties across the nation have experienced delays and 
frustrations with the current section 404 permitting process. If a 
project is deemed to be under Federal jurisdiction, other Federal 
requirements are triggered, such as environmental impact statements, 
the National Environmental Policy Act (NEPA) process and Endangered 
Species Act (ESA) implications. These assessments often involve 
intensive studies and public comment periods, which can delay critical 
public safety upgrades to county owned infrastructure and add to the 
overall time and cost of projects.
    One Midwest county had five road projects that were significantly 
delayed by the Federal permitting process for over 2 years. After 
studying the projects, the county determined that the delays and extra 
requirements added approximately $500,000 to the cost of completing 
these projects. Some northern counties have even missed entire 
construction seasons as they waited for Federal permits.
    Under the current Federal program, counties can utilize a 
maintenance exemption to move ahead with necessary upkeep of ditches 
(removing vegetation, extra dirt and debris)--however, the approval of 
such exemptions is sometimes applied inconsistently, not only 
nationally but within regions. These permits come with strict special 
conditions that dictate when and how counties can remove grass, trees 
and other debris that cause flooding if they are not removed from the 
ditches.
    For example, one California county was told that they had to obtain 
a maintenance permit to clean out an earthen stormwater ditch. Because 
the ditch is now under Federal jurisdiction, the county is only 
permitted to clear overgrowth and trash from the ditch 6 months out of 
the year due to potential ESA impacts. Since the county is not allowed 
to service the ditch regularly, it has flooded private property several 
times and negatively impacted the surrounding community.
    Another county in Florida applied for 18 specific maintenance 
exemptions on the county's network of drainage ditches and canals. The 
Federal permitting process became so challenging that the county ended 
up having to hire a consultant to compile all of the data and surveying 
materials that were required for the exemptions. Three months later and 
at a cost of $600,000, the county was still waiting for 16 of the 
exemptions to be determined. At that point, the county was moving into 
its seasonal rainy season and had to deal with calls from residents as 
ditches that did not have a decision from the Corps were flooding.
    As a former PENNDOT employee that managed Clinton County, Pa.'s 
extensive highway system, I have experienced how excessive and unclear 
regulations can jeopardize road maintenance projects. I have seen many 
road construction projects take more than a year to get through the 
Federal permitting process under current regulations. The more time-
consuming and difficult the Federal permitting process, the higher the 
engineering costs for local governments, businesses and economies.
    Additionally, counties are liable for ensuring that our public 
safety ditches are maintained and in some cases counties have faced 
lawsuits over ditch maintenance. In 2002, in Arreola v. Monterey (99 
Cal. App. 4th 722), the Fourth District Court of Appeals held the 
County of Monterey (Calif.) liable for not maintaining a flood control 
channel that failed due to overgrowth of vegetation.
    Counties are also facing high levels of litigation from outside 
groups on approved permits that have been signed off by both the state 
and the EPA. Even though the counties are following the state and 
Federal permitting rules on water quality, these groups are asserting 
that the permits are not stringent enough. A number of counties in 
Washington and Maryland have been sued over the scope and sufficiency 
of their approved MS4 permits.
    These are just a few examples of the real impact of the current 
Federal permitting process. The new proposed rule creates even more 
confusion over what is under Federal jurisdiction. If the approval 
process is not clarified and streamlined, more counties will experience 
delays in safeguarding and caring for these public safety and 
stormwater ditches.
Conclusion
    Chairman Thompson, Ranking Member Grisham and Members of the 
Subcommittee, the health, well-being and safety of our residents is a 
top priority for counties. Our bottom line is that the proposed rule 
contains many terms that are not adequately defined, and NACo believes 
that more roadside ditches, flood control channels and stormwater 
management conveyances and treatment approaches will be federally 
regulated under this proposal.
    This is problematic because our members are ultimately liable for 
maintaining the integrity of these ditches, channels, conveyances and 
treatment approaches, even if Federal permits are not issued by the 
Federal agencies in a timely manner. Furthermore, the unknown impacts 
on other CWA programs are equally problematic.
    We ask that the proposed rule be withdrawn until further analysis 
has been completed and more in-depth consultation with state and local 
officials--especially practitioners--is undertaken. NACo and counties 
nationwide share the goal for a clear, concise and workable definition 
of ``waters of the U.S.'' to reduce confusion--not to mention costs--
within the Federal permitting process. Unfortunately, we believe that 
this proposed rule falls short of that goal.
    Counties stand ready to work with Congress and the agencies to 
craft a clear, concise and workable definition of ``waters of the 
U.S.'' to reduce confusion within the Federal CWA program. We look 
forward to working together with our Federal partners, as our founding 
fathers intended, to protect our nation's water resources for 
generations to come. We can achieve our shared goal of protecting the 
environment without inhibiting public safety and economic vitality of 
our communities.
    Thank you again for the opportunity to testify today on behalf of 
America's 3,069 counties. I would welcome the opportunity to address 
any questions.
                              Attachment 1
November 14, 2014

 
 
 
Donna Downing,                       Stacey Jensen,
Jurisdiction Team Leader, Wetlands   Regulatory Community of Practice
 Division,
U.S. Environmental Protection        U.S. Army Corps of Engineers,
 Agency,
Washington, D.C.;                    Washington, D.C.
 

Re: Definition of ``Waters of the United States'' Under the Clean Water 
            Act, Docket ID No. EPA-HQ-OW-2011-0880

    Dear Ms. Downing and Ms. Jensen:

    On behalf of the National Association of Counties (NACo) and the 
3,069 counties we represent, we respectfully submit comments on the 
U.S. Environmental Protection Agency's (EPA) and the U.S. Army Corps of 
Engineers (Corps) jointly proposed rule on Definition of ``Waters of 
the United States'' Under the Clean Water Act.\1\ We thank the agencies 
for their ongoing efforts to communicate with NACo and our members 
throughout this process. We remain very concerned about the potential 
impacts of the proposed rule and urge the agencies to withdraw it until 
further analysis has been completed.
---------------------------------------------------------------------------
    \1\ Definition of Waters of the U.S. Under the Clean Water Act, 79 
Fed. Reg. 22188 (April 21, 2014).
---------------------------------------------------------------------------
    Founded in 1935, NACo is the only national organization that 
represents county governments in the United States and assists them in 
pursuing excellence in public service to produce healthy, vibrant, safe 
and resilient counties.
The Importance of Clean Water and Public Safety
    Clean water is essential to all of our nation's counties who are on 
the front lines of protecting the citizens we serve through both 
preserving local resources and maintaining public safety. The 
availability of an adequate supply of clean water is vital to our 
nation and integrated and cooperative programs at all levels of 
government are necessary for protecting water quality.
    Counties are not just another stakeholder group in this 
discussion--they are a valuable partner with Federal and state 
governments on Clean Water Act implementation. To that end, it is 
important that the Federal, state and local governments work together 
to craft practical and workable rules and regulations.
    Counties are also responsible to protect the public. Across the 
country, counties own and maintain public safety ditches including road 
and roadside ditches, flood control channels, stormwater culverts and 
pipes, and other infrastructure that is used to funnel water away from 
low-lying roads, properties and businesses to prevent accidents and 
flooding incidents. Defining what waters and their conveyances fall 
under Federal jurisdiction has a direct impact on counties who are 
legally responsible for maintaining their public safety ditches and 
infrastructure.
    NACo shares the EPA's and Corps goal for a clear, concise and 
workable definition for ``waters of the U.S.'' to reduce confusion--not 
to mention costs--within the Federal permitting process. Unfortunately, 
we believe that this proposed rule falls short of that goal.
    EPA asserts that they are not trying to regulate any waters not 
historically or previously regulated. But this is misleading. Prior to 
a 2001 Supreme Court decision,\2\ virtually all water was 
jurisdictional. The EPA's and the Corps economic analysis agrees. It 
states that ``Just over 10 years ago, almost all waters were considered 
`waters of the U.S.' '' \3\ This is why we believe the proposed rule is 
an expansion of jurisdiction over current regulatory practices.
---------------------------------------------------------------------------
    \2\ Solid Waste Agency of N. Cook County v. U.S. Army Corps of 
Eng'r (SWANCC), 531 U.S. 159, 174 (2001).
    \3\ U.S. Envtl. Prot. Agency (EPA) & U.S. Army Corps of Eng'r 
(Corps), Econ. Analysis of Proposed Revised Definition of Waters of the 
United States, (March 2014) at 11.
---------------------------------------------------------------------------
    Hundreds of counties, including their respective state associations 
of counties, have submitted public comments on the proposed rule over 
concerns about how it will impact daily operations and local budgets. 
We respectfully urge the agencies to examine and consider these 
comments carefully.
    This letter will highlight a number of areas important to counties 
as they relate to the proposed rule:

   Counties Have a Vested Interest in the Proposed Rule

   The Consultation Process with State and Local Governments 
        was Flawed

   Incomplete Data was Used in the Agencies' Economic Analysis

   A Final Connectivity Report is Necessary to Justify the 
        Proposed Rule

   The Clean Water Act and Supreme Court Rulings on ``Waters of 
        the U.S.''

   Potential Negative Effects on All CWA programs

   Key Definitions are Undefined

   The Section 404 Permit Program is Time-Consuming and 
        Expensive for Counties

   County Experiences with the Section 404 Permit Process

   Based on Current Practices--How the Exemption Provisions May 
        Impact Counties

   Counties Need Clarity on Stormwater Management and Green 
        Infrastructure Programs

   States Responsibilities Under CWA Will Increase

   County Infrastructure on Tribal Land May Be Jurisdictional

   Endangered Species Act as it Relates to the Proposed Rule

   Ensuring that Local Governments Are Able to Quickly Recover 
        from Disasters
Counties Have a Vested Interest in the Proposed Rule
    In the U.S., there are 3,069 counties nationally which vary in size 
and population. They range in area from 262 miles (Arlington 
County, Virginia) to 87,8602 miles (North Slope Borough, 
Alaska). The population of counties varies from Loving County, Texas, 
with just under 100 residents to Los Angeles County, California, which 
is home to close to ten million people. Forty-eight of the 50 states 
have operational county governments (except Connecticut and Rhode 
Island). Alaska calls its counties boroughs and Louisiana calls them 
parishes.
    Since counties are an extension of state government, many of their 
duties are mandated by the state. Although county responsibilities 
differ widely between states, most states give their counties 
significant authorities. These authorities include construction and 
maintenance of roads, bridges and other infrastructure, assessment of 
property taxes, record keeping, running elections, overseeing jails and 
court systems and county hospitals. Counties are also responsible for 
child welfare, consumer protection, economic development, employment/
training, and land use planning/zoning and water quality.
    Counties own and maintain a wide variety of public safety 
infrastructure that would be impacted by the proposed rule including 
roads and roadside ditches, stormwater municipal separate storm sewer 
systems (MS4), green infrastructure construction and maintenance 
projects, drinking water facilities and infrastructure (not designed to 
meet CWA requirements) and water reuse and infrastructure.
    On roads and roadside ditches, counties are responsible for 
building and maintaining 45 percent of public roads in 43 states 
(Delaware, North Carolina, New Hampshire, Vermont and West Virginia 
counties do not have road responsibilities). These responsibilities can 
range from intermittent maintenance, such as snow plowing, debris 
cleanup, short term paving and surface repairs to maintenance of 
traffic safety and road signage and major long-term construction 
projects.
    Many of these road systems are in very rural areas. Of the nation's 
3,069 counties, approximately 70 percent of our counties are considered 
``rural'' with populations less than 50,000 and 50 percent of these are 
counties have populations below 25,000 residents. Any additional cost 
burdens are challenging to these smaller governments, especially since 
more rural counties have the most road miles and corresponding ditches. 
Since state constitutions and statutes dictate and limit the revenue 
sources counties may use, balancing increased Federal and state 
regulations with the limited financial resources available to local 
governments poses significant implementation challenges.
    Changes to the scope of the ``waters of the U.S.'' definition, 
without a true understanding of the direct and indirect impact and 
costs to state and local governments, puts our local governments in a 
precarious position, choosing between environmental protection and 
public safety. Counties do not believe this needs to be an either/or 
decision if local governments are involved in policy formations from 
the start.
    Regardless of size, counties nationwide are coping with fiscally 
tight budgets. County revenues have declined and ways to effectively 
increase county treasuries are limited. In 2007, our counties were 
impacted by the national financial crisis, which pushed the nation into 
a recession. The recession affected the capacity of county governments 
to deliver services to their communities. While a number of our 
counties are experiencing moderate growth, in some parts of the 
country, economic recovery is still fragile.\4\ This is why we are 
concerned about the proposed rule.
---------------------------------------------------------------------------
    \4\ Nat'l Ass'n of Counties, County Tracker 2013: On the Path to 
Recovery, NACo Trends Analysis Paper Series, (2014).
---------------------------------------------------------------------------
The Consultation Process with State and Local Governments was Flawed
    Throughout the entire rule-making process, state and local 
governments were not adequately consulted through the Regulatory 
Flexibility Act (RFA) and Executive Order 13132: Federalism. Since 
2011, NACo has repeatedly requested a transparent process, as directed 
under the Administrative Procedures Act (APA), which includes 
meaningful consultation with impacted state and local governments.
    The Regulatory Flexibility Act (RFA) as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA), requires Federal 
agencies to consider potential impacts of proposed rules on small 
entities. This process was not followed for the proposed ``waters of 
the U.S.'' rule.
    Under RFA, small entities are defined as small businesses and 
organizations, cities, counties, school districts and special districts 
with a population below 50,000. RFA requires agencies to analyze the 
impact any proposed rule could have on small entities and provide less 
costly options for implementation. The Small Business Administration's 
(SBA) Office of Advocacy (Advocacy) oversees Federal agency compliance 
with RFA.
    As part of the rulemaking process, the agencies must ``certify'' 
the proposed rule does not have a Significant Economic Impact on a 
Substantial Number of Small Entities (SISNOSE). To certify a proposed 
rule, Federal agencies must provide a ``factual basis'' to certify that 
a rule does not impact small entities. This means ``at minimum . . . a 
description of the number of affected entities and the size of the 
economic impacts and why either the number of entities or the size of 
the impacts justifies the certification.'' \5\
---------------------------------------------------------------------------
    \5\ Small Bus. Admin. (SBA), Office of Advocacy (Advocacy), A Guide 
for Gov't Agencies: How to Comply with the Regulatory Flexibility Act, 
(May 2012), at 12-13.
---------------------------------------------------------------------------
    The RFA SISNOSE process allows Federal agencies to identify areas 
where the proposed rule may economically impact a significant number of 
small entities and consider regulatory alternatives that will lessen 
the burden on these entities. If the agencies are unable to certify 
that a proposed rule does not impact small entities, the agencies are 
required to convene a small business advocacy review (SBAR) panel. The 
agencies determined, incorrectly, there was ``no SISNOSE''--and 
therefore did not provide a necessary review.
    In a letter sent to EPA Administrator Gina McCarthy and Corps 
Deputy Commanding General for Civil and Emergency Operations Major 
General John Peabody, SBA Advocacy expressed significant concerns that 
the proposed ``waters of the U.S.'' rule was ``improperly certified . . 
. used an incorrect baseline for determining . . . obligations under 
the RFA . . . imposes costs directly on small businesses'' and ``will 
have a significant economic impact.'' Advocacy requested that the 
agencies ``withdraw the rule'' and that the EPA ``conduct a Small 
Business Advocacy Review panel before proceeding any further with this 
rulemaking.'' \6\ Since over 2,000 of our nation's counties are 
considered rural and covered under SBA's responsibility, NACo supports 
the SBA Office of Advocacy conclusions.
---------------------------------------------------------------------------
    \6\ Letter from Winslow Sargeant, Chief Counsel for Advocacy, to 
Gina McCarthy, Adm'r, EPA and Gen. John Peabody, Deputy Commanding 
Gen., Corps of Eng'r, on Definition of ``Waters of the United States'' 
Under the Clean Water Act (October 1, 2014).
---------------------------------------------------------------------------
    President Clinton issued Executive Order No. 13132, ``Federalism,'' 
on August 4, 1999. Under Executive Order 13132--Federalism, Federal 
agencies are required to work with state and local governments on 
proposed regulations that will have a substantial direct impact on 
state and local governments. We believe the proposed ``waters of the 
U.S.'' rule triggers Executive Order 13132. Under Federalism, agencies 
must consult with state and local officials early in the process and 
must include in the final draft regulation a federalism summary impact 
statement, which must include a detailed overview of state and local 
government concerns and describe the extent the agencies were able to 
address the concerns.\7\ A federalism impact statement was not included 
with the proposed rule.
---------------------------------------------------------------------------
    \7\ Exec. Order No. 13132, 79 Fed. Reg. 43255 (August 20, 1999).
---------------------------------------------------------------------------
    EPA's own internal guidance summarizes when a Federalism 
consultation should be initiated.\8\ Federalism may be triggered if a 
proposed rule has an annual implementation cost of $25 million for 
state and local governments.\9\ Additionally, if a proposal triggers 
Federalism, EPA is required to work with state and local governments in 
a ``meaningful and timely'' manner which means ``consultation should 
begin as early as possible and continue as you develop the proposed 
rule.'' \10\ Even if the rule is determined not to impact state and 
local governments, the EPA still subject to its consultation 
requirements if the proposal has ``any adverse impact above a minimum 
level.'' \11\
---------------------------------------------------------------------------
    \8\ U.S. Envtl. Prot. Agency, EPA's Action Development Process: 
Guidance on Exec. Order 13132: Federalism, (November 2008).
    \9\ Id. at 6.
    \10\ Id. at 9.
    \11\ Id. at 11.
---------------------------------------------------------------------------
    Within the proposed rule, the agencies have indicated they 
``voluntarily undertook federalism consultation.'' \12\ While we are 
heartened by the agencies' acknowledgement of our concerns, we are 
disturbed that EPA prematurely truncated the state and local government 
Federalism consultation process. EPA initiated a formal Federalism 
consultation process in 2011. In the 17 months between the consultation 
and the proposed rule's publication, EPA failed to avail itself of the 
opportunity to continue substantial discussions during this intervening 
period with its intergovernmental partners, thereby failing to fulfill 
the intent of Executive Order 13132, and the agency's internal process 
for implementing it.
---------------------------------------------------------------------------
    \12\ 79 Fed. Reg. 22220.

---------------------------------------------------------------------------
    Recommendations:

  1.  Pursuant to the rationale provided herein, as well as that put 
            forth by the SBA Chief Counsel for Advocacy, formally 
            acknowledge that this regulation does not merit a ``no 
            SISNOSE'' determination and, thereby, must initiate the 
            full small entity stakeholder involvement process as 
            described by RFA SBREFA.
  2.  Convene a SBAR panel which provides an opportunity for small 
            entities to provide advice and recommendations to ensure 
            the agencies carefully considers small entity concerns.
  3.  Complete a multiphase, rather than one-time, Federalism 
            consultation process.
  4.  Charter an ad hoc, subject-specific advisory committee under the 
            authority of the Federal Advisory Committee Act (FACA), as 
            EPA has done on numerous occasions for less impactful 
            regulations, to underpin the development of this 
            comprehensive regulation.
  5.  Accept an ADR Negotiated Rulemaking process for the proposed 
            rule: Because of the intrinsic problems with the 
            development of the proposed rule, we would also ask the 
            agencies to consider an Alternative Dispute Resolution 
            (ADR) negotiated rulemaking with all stakeholders. An ADR 
            negotiated rulemaking process would allow stakeholders of 
            various groups to ``negotiate'' the text of a proposed 
            rule, to allow problems to be addressed and consensus to be 
            reached.
Incomplete Data was Used in the Agencies' Economic Analysis
    As part of the proposed rule, the agencies released their cost-
benefit analysis on Economic Analysis of Proposed Revised Definition of 
Waters of the U.S. (March 2014). We are concerned about the limited 
scope of this analysis since it bases its assumptions on a narrow set 
of CWA data not applicable to other CWA programs. Since EPA has held 
its 2011 Federalism briefing on ``waters of the U.S.,'' we have 
repeatedly raised concerns about the potential costs and the data 
points used in the cost-benefit analysis--these concerns have yet to be 
addressed.\13\-\15\
---------------------------------------------------------------------------
    \13\ Letter from Larry Naake, Exec. Dir., Nat'l Ass'n of Counties 
to Lisa Jackson, Adm'r, EPA & Jo Ellen Darcy, Assistant Sec'y for Civil 
Works, U.S. Dep't of the Army, ``Waters of the U.S.'' Guidance (July 
29, 2011) available at http://www.naco.org/legislation/policies/
Documents/En
ergy,Environment,Land%20Use/
Waters%20US%20Draft%20guidance%20NACo%20Comments
%20Final.pdf.
    \14\ Letter from Larry Naake, Exec. Dir., Nat'l Ass'n of Counties 
to Lisa Jackson, Adm'r, EPA, Federalism Consultation Exec. Order 13132: 
``Waters of the U.S.'' Definitional Change (Dec. 15, 2011) available at 
http://www.naco.org/legislation/policies/Documents/Energy,Environment,
Land%20Use/
Waters%20US%20Draft%20guidance%20NACo%20Comments%20Dec%2015%20
2011_final.pdf.
    \15\ Letter from Tom Cochran, CEO and Exec. Dir., U.S. Conf. of 
Mayors, Clarence E. Anthony, Exec. Dir., Nat'l League of Cities, & 
Matthew D. Chase, Exec. Dir., Nat'l Ass'n of Counties to Howard 
Shelanski, Adm'r, Office of Info. & Regulatory Affairs, Office of Mgmt. 
and Budget, EPA's Definition of ``Waters of the U.S.'' Under the Clean 
Water Act Proposed Rule & Connectivity Report (November 8, 2013) 
available at http://www.naco.org/legislation/policies/
Documents/Energy,Environment,Land%20Use/NACo%20NLC%20USCM
%20Waters%20of%20the%20US%20 Connectivity%20Response%20letter.pdf.
---------------------------------------------------------------------------
    The economic analysis uses CWA Section 404 permit applications from 
2009-2010 as its baseline data to estimate the costs to all CWA 
programs. There are several problems with this approach. Based on this 
data, the agencies expect an increase of approximately three percent of 
new waters to be jurisdictional within the section 404 permit program. 
The CWA Section 404 program administers permits for the ``discharge of 
dredge and fill material'' into ``waters of the U.S.'' and is managed 
by the Corps.
    First, we are puzzled why the agencies chose the span of 2009-2010 
as a benchmark year for the data set as more current up-to-date data 
was available. In 2008, the nation entered a significant financial 
recession, sparked by the housing subprime mortgage crisis. Housing and 
public infrastructure construction projects were at an all-time low. 
According to the National Bureau of Economic Research, the recession 
ended in June 2009,\16\ however, the nation is only starting to show 
signs of recovery.\17\ By using 2009-2010 data, the agencies have 
underestimated the number of new waters that may be jurisdictional 
under the proposed rule.
---------------------------------------------------------------------------
    \16\ Nat'l Bureau of Econ. Research, Bus. Cycle Dating Comm. 
(September 20, 2010), available at www.nber.org/cycles/sept2010.pdf.
    \17\ Cong. Budget Office, The Budget & Economic Outlook: 2014 to 
2024 (February 2014).
---------------------------------------------------------------------------
    Second, the economic analysis uses the 2009-2010 Corps section 404 
data as a baseline to determine costs for other CWA programs run by the 
EPA. Since there is only one ``waters of the U.S.'' definition used 
within the CWA, the proposed rule is applicable to all CWA programs. 
The Congressional Research Service (CRS), a public policy research arm 
of the U.S. Congress, released a report on the proposed rule that 
stated ``costs to regulated entities and governments (Federal, state, 
and local) are likely to increase as a result of the proposal.'' The 
report reiterates there would be ``additional permit application 
expenses (for CWA Section 404 permitting, stormwater permitting for 
construction and development activities, and permitting of pesticide 
discharges . . . for discharges to waters that would now be determined 
jurisdictional).'' \18\
---------------------------------------------------------------------------
    \18\ U.S. Cong. Research Serv., EPA & the Army Corps' Proposed Rule 
to Define ``Waters of the U.S.,'' (Report No. R43455; 10/20/14), 
Copeland, Claudia, at 7.
---------------------------------------------------------------------------
    We are concerned the economic analysis focuses primarily on the 
potential impacts to CWA's Section 404 permit program and does not 
fully address the cost implications for other CWA programs. The EPA's 
and the Corps economic analysis agrees, ``. . . the resulting cost and 
benefit estimates are incomplete . . . Readers should be cautious in 
examining these results in light of the many data and methodological 
limitations, as well as the inherent assumptions in each component of 
the analysis.'' \19\
---------------------------------------------------------------------------
    \19\ Econ. Analysis of Proposed Revised Definition of Waters of the 
U.S., U.S. Envtl. Prot. Agency & U.S. Army Corps of Eng'r, 11 (March 
2014), at 2.

---------------------------------------------------------------------------
    Recommendations:

   NACo urges the agencies to undertake a more detailed and 
        comprehensive analysis on how the definitional changes will 
        directly and indirectly impact all Clean Water Act programs, 
        beyond section 404, for Federal, state and local governments.

   Work with national, state and local stakeholder groups to 
        compile up-to-date cost and benefit data for all CWA programs.
A Final Connectivity Report is Necessary to Justify the Proposed Rule
    In addition to the aforementioned issues, we are also concerned 
that the draft science report, Connectivity of Streams and Wetlands to 
Downstream Waters: A Review and Synthesis of the Scientific Evidence, 
used as a scientific basis of the proposed rule, is still in draft 
form.
    In 2013, EPA asked its' Science Advisory Board (SAB), which is 
comprised of 52 scientific advisors, to review the science behind the 
report. The report focused on more than 1,000 scientific studies and 
reports on the interconnectivity of water. In mid-October, 2014, the 
SAB completed its review of the draft report and sent its 
recommendations to the EPA.\20\
---------------------------------------------------------------------------
    \20\ Letter from Dr. David T. Allen, Chair, Science Advisory Bd. & 
Amanda D. Rodewald, Chair, Science Advisory Bd. Panel for the Review of 
the EPA Water Body Connectivity Report to Gina McCarthy, Adm'r, EPA, 
SAB Review of the Draft EPA Report Connectivity of Streams & Wetlands 
to Downstream Waters: A Review and Synthesis of the Sci. Evidence 
(October 17, 2014).
---------------------------------------------------------------------------
    The SAB recommendations have yet to be incorporated into the draft 
connectivity report. Releasing the proposed rule before the 
connectivity report is finalized is premature--the agencies missed a 
valuable opportunity to review comments or concerns raised in the final 
connectivity report that would inform development of the proposed 
``waters of the U.S.'' rule.

    Recommendation:

   Reopen the public comment period on the proposed ``waters of 
        the U.S.'' rule when the Connectivity of Streams and Wetlands 
        to Downstream Waters: A Review and Synthesis of the Scientific 
        Evidence report is finalized.
The Clean Water Act and Supreme Court Rulings on ``Waters of the U.S.''
    Clean water is essential for public health and state and local 
governments play a large role in ensuring local water resources are 
protected. It is important state and local governments are involved as 
a significant partner in the CWA rule development process.
    The Clean Water Act charges the Federal Government with setting 
national standards for water quality. Under a Federal agreement for CWA 
enforcement, the EPA and the Corps share clean water responsibilities. 
The Corps is the lead on the CWA Section 404 Dredge and Fill permit 
program and the EPA is the lead on other CWA programs.\21\ 46 states 
have undertaken authority for EPA's section 402 NPDES permit program--
EPA manages NPDES permits for Idaho, Massachusetts, New Hampshire and 
New Mexico.\22\ Additionally, all states are responsible for setting 
water quality standards to protect ``waters of the U.S.'' \23\
---------------------------------------------------------------------------
    \21\ Memorandum of Agreement Between the Dep't of the Army & the 
Envtl. Prot. Agency Concerning the Determination of the Section 404 
Program & the Applications of Exemptions Under Section (F) of the Clean 
Water Act, 1989.
    \22\ Cong. Research Service, Clean Water Act: A Summary of the Law 
(Report RL30030, October 30, 2014), Copeland, Claudia, at 4.
    \23\ Id.
---------------------------------------------------------------------------
    ``Waters of the U.S.'' is a term used in CWA--it is the glue that 
holds the Clean Water Act together. The term is derived from a law that 
was passed in 1899, the Rivers and Harbors Act, that had to do with 
interstate commerce--any ship involved in interstate commerce on a 
``navigable water,'' which, at the time, was a lake, river, ocean--was 
required to have a license for trading.
    The 1972 Clean Water Act first linked the term ``navigable waters'' 
with ``waters of the U.S.'' in order to define the scope of the CWA. 
The premise of the 1972 CWA was that all pollutants discharged to a 
navigable water of the U.S. were prohibited, unless authorized by 
permit.
    In the realm of the CWA's Section 404 permit program, the courts 
have generally said that ``navigable waters'' goes beyond traditionally 
navigable-in-fact waters. However, the courts also acknowledge there is 
a limit to jurisdiction. What that limit is within section 404 has yet 
to be determined and is constantly being litigated.
    In 2001, in Solid Waste Agency of Northern Cook County (SWANCC) v. 
United States Army Corps of Engineers, the Corps had used the 
``Migratory Bird Rule''--wherever a migratory bird could land--to claim 
Federal jurisdiction over an isolated wetland.\24\ In SWANCC, Court 
ruled that the Corps exceeded their authority and infringed on states' 
water and land rights.\25\
---------------------------------------------------------------------------
    \24\ 531 U.S. 159, 174 (2001).
    \25\ Id.
---------------------------------------------------------------------------
    In 2006, in Rapanos v. United States, the Corps were challenged 
over their intent to regulate isolated wetlands under the CWA Section 
404 permit program.\26\ In a 4-1-4 split decision, the Court ruled that 
the Corps exceeded their authority to regulate these isolated wetlands. 
The plurality opinion states that only waters with a relatively 
permanent flow should be federally regulated. The concurrent opinion 
stated that waters should be jurisdictional if the water has a 
``significant nexus'' with a navigable water, either alone or with 
other similarly situated sites.\27\ Since neither opinion was a 
majority opinion, it is unclear which opinion should be used in the 
field to assert jurisdiction, leading to further confusion over what 
waters are federally regulated under CWA.
---------------------------------------------------------------------------
    \26\ 547 U.S. 715, 729 (2006).
    \27\ Id.
---------------------------------------------------------------------------
Potential Negative Effects on All CWA Programs
    There is only one definition of ``waters of the U.S.'' within the 
CWA which must be applied consistently for all CWA programs that use 
the term ``waters of the U.S.'' While Congress defined ``navigable 
waters'' in CWA section 502(7) to mean ``the waters of the United 
States, including the territorial seas,'' the Courts have generally 
assumed that ``navigable waters of the U.S.'' go beyond traditional 
navigable-in-fact waters such as rivers. However, the Courts also 
acknowledge there is a limit to Federal jurisdiction.
    Previous Corps guidance documents on ``waters of the U.S.'' 
clarifications have been strictly limited to the section 404 permit 
program. A change to the ``waters of the U.S.'' definition though, has 
implications for ALL CWA programs. This modification goes well beyond 
solely addressing the problems within the section 404 permit program. 
These effects have not been fully studied nor analyzed.
    Changes to the ``waters of the U.S.'' definition within the CWA 
will have far-reaching effects and unintended consequences to a number 
of state and local CWA programs. As stated before, the proposed 
economic analysis needs to be further fleshed out to recognize all 
waters that will be jurisdictional, beyond the current data of section 
404 permit applications. CWA programs, such as the National Pollutant 
Discharge Elimination System (NPDES), total maximum daily load (TMDL) 
and other water quality standards programs, state water quality 
certification process, or Spill Prevention, Control and Countermeasure 
(SPCC) programs, will be impacted.
Key Definitions are Undefined
    The proposed rule extends the ``waters of the U.S.'' definition by 
utilizing new terms--``tributary,'' ``uplands,'' ``significant nexus,'' 
``adjacency,'' ``riparian areas,'' ``floodplains'' and 
``neighboring''--that will be used to claim jurisdiction more broadly. 
All of these terms will broaden the types of public infrastructure that 
is considered jurisdictional under the CWA.
    ``Tributary''--The proposed rule states that a tributary is defined 
as a water feature with a bed, bank, ordinary high water mark (OHWM), 
which contributes flow, directly or indirectly, to a ``water of the 
U.S.'' A tributary does not lose its status if there are man-made 
breaks (bridges, culverts, pipes or dams) or natural breaks upstream of 
the break. The proposed rule goes on to state that ``A tributary . . . 
includes rivers, streams, lakes, ponds, impoundments, canals, and
ditches . . .'' \28\
---------------------------------------------------------------------------
    \28\ 79 Fed. Reg. 22199.
---------------------------------------------------------------------------
    For counties that own and manage public safety infrastructure, the 
potential implication is that roadside ditches will be treated the same 
as rivers and streams, while the functions and purposes of both are 
significantly different. Public safety ditches should not be classified 
as tributaries. Further fleshing out the exemptions for certain types 
of ditches, which is discussed later in the letter, would be 
beneficial.
    ``Uplands''--The proposed rule recommends that ``Ditches that are 
excavated wholly in uplands, drain only uplands, and have less than 
perennial flow'' are exempt, however, the term ``uplands'' is 
undefined.\29\ This is problematic. County public safety ditch 
systems--roadside, flood, drainage, stormwater--can be complex. While 
they are generally dug in dry areas, they run through a transitional 
area before eventually connecting to ``waters of the U.S.'' It is 
important to define the term ``uplands'' to ensure the exemption is 
workable.
---------------------------------------------------------------------------
    \29\ Id.
---------------------------------------------------------------------------
    ``Significant Nexus''--The proposed rule states that ``a particular 
category of waters either alone or in combination with similarly 
situated waters in the region, significantly affect the chemical, 
physical, or biological integrity of traditional navigable or 
interstate waters.'' \30\
---------------------------------------------------------------------------
    \30\ Id.
---------------------------------------------------------------------------
    This definition uses the watershed approach to determine 
jurisdiction--a watershed is an area of land where all of the rivers, 
streams, and other water features drain to the same place. According to 
the EPA, ``Watersheds come in all shapes and sizes. They cross county, 
state, and national boundaries. In the continental U.S., there are 
2,110 watersheds, including Hawaii, Alaska, and Puerto Rico, there are 
2,267 watersheds.'' \31\
---------------------------------------------------------------------------
    \31\ U.S. Envtl. Prot. Agency, ``What is a Watershed?,'' available 
at http://water.epa.gov/type/watersheds/whatis.cfm.
---------------------------------------------------------------------------
    There are very few parts of the country that are not in a 
watershed. This definition would create burdens on local governments 
who maintain public safety ditches and infrastructure near natural 
waterbodies; this infrastructure could be considered jurisdictional 
under the ``significant nexus'' definition.
    ``Adjacent Waters''--Under current regulation, only those wetlands 
that are adjacent to a ``waters of the U.S.'' are considered 
jurisdictional. However, the proposed regulate broadens the regulatory 
reach to ``adjacent waters,'' rather than just to ``adjacent 
wetlands.'' This would extend jurisdiction to ``all waters,'' not just 
``adjacent wetlands.'' The proposed rule defines adjacent as 
``bordering, contiguous or neighboring.'' \32\
---------------------------------------------------------------------------
    \32\ 79 Fed. Reg. 22199.
---------------------------------------------------------------------------
    Under the rule, adjacent waters include those located in riparian 
or floodplain areas.\33\
---------------------------------------------------------------------------
    \33\ Id.
---------------------------------------------------------------------------
    Expanding the definition of ``adjacency,'' will have unintended 
consequences for many local governments. Stormwater and floodwater 
infrastructure and facilities are often located in low-lying areas, 
which may be considered jurisdictional under the new definition. Since 
communities are highly dependent on these structures for public safety, 
we would encourage the agencies to assess the unintended consequences.
    ``Riparian Areas''--The proposed rule defines ``riparian area'' as 
``an area bordering a water where the surface or subsurface hydrology 
directly influence the ecological processes and plant and animal 
community structure in that area.'' Riparian areas are transitional 
areas between dry and wet areas.\34\ Concerns have been raised that 
there are very few areas within the U.S. that would not meet this 
definition, especially if a riparian area boundary remains undefined.
---------------------------------------------------------------------------
    \34\ Id.
---------------------------------------------------------------------------
    ``Floodplains''--The proposed definition states that floodplains 
are defined as areas with ``moderate to high water flows.'' \35\ These 
areas would be considered ``water of the U.S.'' even without a 
significant nexus. Under the proposed rule, does this mean that any 
area, that has the capacity to flood, would be considered to be in a 
``floodplain?''
---------------------------------------------------------------------------
    \35\ Id.
---------------------------------------------------------------------------
    Further, it is major problem for counties that the term 
``floodplain'' is not tied to, or consistent with, the generally 
accepted and understood definition used by the Federal Emergency 
Management Agency (FEMA). Notwithstanding potential conflicts with 
other Federal agencies, the multiple Federal definitions could create 
challenges in local land use planning, especially if floodplain 
designations are classified differently by various agencies.
    Aside from potential conflicts between Federal agencies, this would 
be very confusing to landowners and complicated to integrate at the 
local level. These definitions could create conflict within local 
floodplain ordinances, which were crafted to be consistent with FEMA 
National Flood Insurance Program (NFIP) rules. It is essential that 
floodplain definitions be consistent between and among all Federal 
agencies.
    ``Neighboring''--``Neighboring'' is a term used to identify those 
adjacent waters with a significant nexus. The term ``neighboring'' is 
used with the terms riparian areas and floodplains to define the 
lateral reach of the term neighboring.\36\ Using the term 
``neighboring,'' without limiting qualifiers, has the potential to 
broaden the reach of the CWA. No one county is alike, nor are the 
hydrologic and geological conditions across the U.S. Due to these 
unique challenges, it is often difficult to craft a one-size-fits-all 
regulatory approach without considering regional or local differences. 
Moreover, there could be a wide range of these types of differences 
within one state or region.
---------------------------------------------------------------------------
    \36\ Id.

---------------------------------------------------------------------------
    Recommendations:

   Redraft definitions to ensure they are clear, concise and 
        easy to understand.

   Where appropriate, the terms used within the proposed rule 
        should be defined consistently and uniformly across all Federal 
        agencies.

   Create a national map that clearly shows which waters and 
        their tributaries are considered jurisdictional.
The Section 404 Permit Program is Time-Consuming and Expensive for 
        Counties
    Ditches are pervasive in counties across the nation and, until 
recently, were never considered to be jurisdictional by the Corps. Over 
the years, numerous local governments and public agencies have 
expressed concerns that regional Corps offices sometimes require 
section 404 permits for maintenance activities on public safety 
infrastructure conveyances. While a maintenance exemption for ditches 
exists on paper, in practice it is narrowly crafted. Whether or not a 
ditch is regulated under section 404 has significant financial 
implications for local governments and public agencies.
    In recent years, certain Corps districts have inconsistently found 
public safety ditches jurisdictional, both for construction and 
maintenance activities. Once a ditch falls under Federal jurisdiction, 
the section 404 permit process can be extremely cumbersome, time-
consuming and expensive, leaving counties vulnerable to citizen suits 
if the Federal permit process is not streamlined.
    Based on our counties' experiences, while the jurisdictional 
determination process may create delays, lengthy and resource intensive 
delays also occur AFTER Federal jurisdiction is claimed. Once 
jurisdictional, the project triggers application of other Federal laws 
like environmental impact statements, National Environment Policy Act 
(NEPA) and the Endangered Species Act (ESA). These impacts involve 
studies and public comment periods, all of which can cost both time and 
money. And often, as part of the approval process, the permit requires 
the applicant to ``mitigate'' the environmental impacts of the proposed 
project, sometimes at considerable expense. There also may be special 
conditions attached to the permit for maintenance activities. These 
specific required conditions result in a lengthy negotiation process 
with counties. A number of California counties have communicated this 
process can easily take easily 3 or more years, with costs in the 
millions for one project.
    One Midwest county studied five road projects that were delayed 
over the period of 2 years. Conservatively, the cost to the county for 
the delays was $500,000. Some counties have missed building seasons 
waiting for Federal permits. These are real world examples, going on 
now, for many our counties. They are not hypothetical, ``what if'' 
situations. These are actual experiences from actual counties. The 
concern is, if more public safety ditches are considered 
jurisdictional, more counties will face similar problems.
    Counties are liable for ensuring their public safety ditches are 
maintained and there have been cases where counties have been sued for 
not maintaining their ditches. In 2002, in Arreola v. Monterey (99 Cal. 
App. 4th 722), the Fourth District Court of Appeals held the County of 
Monterey (Calif.) liable for not maintaining a flood control channel 
that failed due to overgrowth of vegetation. Counties are legally 
responsible for public safety infrastructure, regardless of whether or 
not the Federal agencies approve permits in a timely manner.
    It is imperative that the section 404 permitting process be 
streamlined. Delays in the permitting process have resulted in flooding 
of constituent and business properties. This puts our nation's counties 
in a precarious position--especially those who are balancing small 
budgets against public health and environmental protection needs.
    The bottom line is, county ditch systems can be complex. They can 
run for hundreds of miles continuously. By their very nature, they 
drain directly (or indirectly) into rivers, lakes, streams and 
eventually the ocean. At a time when local governments throughout the 
nation are only starting to experience the beginnings of economic 
recovery, proposing far reaching changes to CWA's ``waters of the 
U.S.'' definition seems to be a very precarious endeavor and one which 
should be weighed carefully knowing the potential implications.
County Experiences with the Section 404 Permit Process
    During discussions on the proposed ``waters of the U.S.'' 
definition change, the EPA asked NACo to provide several known examples 
of problems that have occurred in section 404 jurisdictional 
determinations, resulting in time delays and additional expenses. These 
examples have been provided to the agencies.
    One Midwest county received Federal Highway Authority funding to 
replace two old county bridge structures. The Corps determined that 
because the project would impact 300 of a roadside ditch, the county 
would have to go through the individual permit process. The county 
disagreed with the determination but decided to acquiesce to the Corps 
rather than risk further delay and the withdrawal of Federal funding. 
The cost associated with going through the Corps process required the 
county to significantly scale back its intended project in order to 
stay on time and budget. Ultimately, the project's completion was still 
delayed by several months.
    The delay that can result from regulating local drainage features 
is evidenced by another Midwestern county that wanted to conduct a 
stormwater improvement project to address local flooding concerns. The 
project entailed adding a second structure to a concrete box culvert 
and replacing a corrugated metal culvert. These structures were deemed 
jurisdictional by the Corps because they had a ``bank on each side'' 
and had an ``ordinary high water mark.'' Thus, the county was forced to 
go through the individual permit process.
    The delay associated with going through the Federal permit process 
nearly caused the county to miss deadlines that would have resulted in 
the forfeiture of its grant funds. Moreover, because the project was 
intended to address flooding concerns, the delay in its completion 
resulted in the flooding of several homes during heavy rains. The 
county was also required to pay tens of thousands in mitigation costs 
associated with the impacts to the concrete and metal structures. 
Ultimately, no changes were recommended by the Corps to the project, 
and thus, no additional environmental protection was provided by going 
through the Federal process.
Based on Current Practices--How the Exemption Provisions May Impact 
        Counties
    While the proposed rule offers several exemptions to the ``waters 
of the U.S.'' definition, the exclusions are vague and imprecise, and 
may broaden jurisdiction in a number of areas. Specifically, we are 
concerned about the exemptions on ditches and wastewater treatment 
systems.
    ``Ditches''--The proposed rule contains language to exempt certain 
types of ditches: (1) Ditches that are excavated wholly in uplands, 
drain only uplands, and have less than perennial flow and (2) Ditches 
that do not contribute flow, either directly or through another water, 
to a traditional navigable water, interstate water, the territorial 
seas or a jurisdictional impoundment.\37\
---------------------------------------------------------------------------
    \37\ Id.
---------------------------------------------------------------------------
    For a ditch to be exempt, it must be excavated and drain only to a 
dry area and be wet less than 365 days a year. This is immediately 
problematic for counties. County ditches are not dug solely in dry 
areas, because they are designed to drain overflow waters to ``waters 
of the U.S.''
    Counties own and manage different types of public safety ditches--
roadside, drainage, flood control, stormwater--that protect the public 
from flooding. They can run continuously for hundreds, if not 
thousands, of miles throughout the county. Very few county ditches just 
abruptly end in a field or a pond. Public safety ditches are generally 
dug in dry areas, run through a transition area, before connecting 
directly or indirectly to a ``water of the U.S.''
    Under the proposed rule, if dry ditches eventually connect, 
directly or indirectly, to a ``water of the U.S.,'' will the length of 
the ditch be considered jurisdictional waters? Or will portions of a 
dry ditch be considered exempt, even though the ditch's physical 
structure interconnects with a jurisdictional river or stream?
    The exclusion also states that ditches that do not ``contribute to 
flow,'' directly or indirectly to ``waters of the U.S.,'' will be 
exempt. The definition is problematic because to take advantage of the 
exemption, ditches must demonstrate ``no flow'' to a river, stream, 
lake or ocean. Most ditches, by their nature, have some sort of flow in 
rain events, even if those ditches are dry most of the year. Since the 
proposed rule indicates that perennial, intermittent or ephemeral flows 
could be jurisdictional, the agencies need to further explain this 
exclusion.\38\ Otherwise, there will be no difference between a stream 
and a publicly-owned ditch that protects public safety.
---------------------------------------------------------------------------
    \38\ 79 Fed. Reg. 22202.
---------------------------------------------------------------------------
    The agencies have reiterated that the proposed rule leaves in place 
the current exemption on ditch maintenance activities.\39\ EPA has 
indicated this exemption is automatic and that counties do not have to 
apply for the exemption if they are performing maintenance activities 
on ditches. However, in practice, our counties have reported the 
exemption is inconsistently applied by Corps districts across the 
nation. Over the past decade, a number of counties have been required 
to obtain special section 404 permits for ditch maintenance activities.
---------------------------------------------------------------------------
    \39\ See, 33 CFR 232.4(a)(3) & 40 CFR 202.3(c)(3).
---------------------------------------------------------------------------
    These permits often come with tight special conditions that dictate 
when and how the county is permitted to clean out the relevant ditch. 
For example, one California county has a maintenance permit for an 
earthen stormwater ditch. They are only permitted to clear grass and 
debris from the ditch 6 months out of the year due to ESA impacts. 
This, in turn, has led to multiple floodings of private property and 
upset citizens. In the past several years, we've heard from a number of 
non-California counties who tell us they must get section 404 permits 
for ditch maintenance activities.
    Some Corps districts give a blanket exemption for maintenance 
activities. In other districts, the ditch maintenance exemption is very 
difficult to obtain, with narrow conditions governing the types 
maintenance activities that are considered exempt. Additionally, a 
number of Corps districts are using the ``recapture provision'' to 
override the exemption.\40\ Under the ``recapture clause,'' previously 
exempt ditches are ``recaptured,'' and must comply for the section 404 
permitting process for maintenance activities.\41\ Additionally, Corps 
districts may require documentation to original specifications of the 
ditch showing original scope, measurements, etc.\42\ Many of these 
ditches were hand-dug decades ago and historical documentation of this 
type does not exist.
---------------------------------------------------------------------------
    \40\ U.S. Army Corps of Eng'r, Regulatory Guidance Letter: 
Exemption for Construction or Maintenance of Irrigation Ditches & 
Maint. of Drainage Ditches Under Section 404 of the Clean Water Act 
(July 4, 2007).
    \41\ Id.
    \42\ Id. at 4.
---------------------------------------------------------------------------
    Other districts require entities to include additional data as part 
of their request for an exemption. One Florida county applied for 18 
exemptions at a cost of $600,000 (as part of the exemption request 
process, the entity must provide data and surveying materials), 3 
months later, only two exemptions were granted and the county was still 
waiting for the other 16 to be granted. At that point, the county was 
moving into its seasonal rainy season and fielding calls from residents 
who were concerned about flooding from the ditches.
    This is what is happening to counties now. If the approval process 
for ditch maintenance exemptions is not clarified and streamlined, more 
counties will experience delays in safeguarding and caring for these 
public safety ditches.
    It is the responsibility of local governments to ensure the long-
term operation and protection of public safety infrastructure. The 
Federal Government must address problems within the current CWA Section 
404 regulatory framework, to ensure that maintenance activities on 
public safety infrastructure do not require Federal approval. Without 
significantly addressing these problems, the Federal agencies will 
hinder the ability of local governments to protect their citizens.

    Recommendations:

   Exclude ditches and infrastructure intended for public 
        safety.

   Streamline the current section 404 permitting process to 
        address the delays and inconsistencies that exist within the 
        existing decision-making process.

   Provide a clear-cut, national exemption for routine ditch 
        maintenance activities.

    ``Waste Treatment Systems''--Water treatment refers to the process 
of taking waste water and making it suitable to discharge back to the 
environment. The term ``waste treatment'' can be confusing because it 
is often linked to wastewater or sewage treatment. However, this can 
also include water runoff from landscape irrigation, flushing hydrants, 
stormwater runoff from roads, parking lots and rooftops.
    The proposal states that ``waste treatment systems,''--including 
treatment ponds or lagoons, designed to meet the requirements of the 
CWA--are exempt.\43\ In recent years, local governments and other 
entities have moved toward a holistic approach in treating stormwater 
by using ponds, swales and wetlands. Traditionally, such systems have 
been exempt from CWA, but due to the broad nature of the proposed rule, 
we believe the agencies should also exempt other constructed wetland 
and treatment facilities which may be included under the proposed rule. 
This would include, but not be limited to, water and water reuse, 
recycling, treatment lagoons, setting basins, ponds, artificially 
constructed wetlands (i.e., green infrastructure) and artificially 
constructed groundwater recharge basins.
---------------------------------------------------------------------------
    \43\ 79 Fed. Reg. 22199.

    It is important that all constructed features built for the purpose 
of water quality treatment or runoff control be exempt, whether or not 
it was built for CWA compliance. Otherwise, this sets off a chain 
reaction and discourages further investment which will ultimately hurt 
---------------------------------------------------------------------------
the goals of the CWA.

    Recommendation:

   The proposed rule should expand the exemption for waste 
        treatment systems if they are designed to meet any water 
        quality requirements, not just the requirements of the CWA.
Counties Need Clarity on Stormwater Management and Green Infrastructure 
        Programs
    Under the CWA Section 402 National Pollution Discharge Elimination 
System (NPDES) permit program, all facilities which discharge 
pollutants from any point source into ``waters of the U.S.'' are 
required to obtain a permit; this includes localities with a Municipal 
Separate Storm Sewer System (MS4). An MS4 is defined as ``a conveyance 
or system of conveyances (including roads with drainage systems, 
municipal streets, catch basins, curbs, gutters, ditches, man-made 
channels, or storm drains)'' owned by a state, tribal, local or other 
public body, which discharge into ``waters of the U.S.'' \44\ They are 
designed to collect and treat stormwater runoff.
---------------------------------------------------------------------------
    \44\ 40 CFR 122.26(b)(8).
---------------------------------------------------------------------------
    Since stormwater management activities are not explicitly exempt 
under the proposed rule, NACo is concerned that man-made conveyances 
and facilities for stormwater management could now be classified as a 
``water of the U.S.''
    In various conference calls and meetings over the past several 
months, the agencies have stressed that municipal MS4s will not be 
regulated as ``waters of the U.S.'' However, EPA has indicated that 
there could be ``waters of the U.S.'' designations within a MS4 system, 
especially if a natural stream is channelized within a MS4. This means 
an MS4 could potential have a ``water of the U.S.'' within its borders, 
which would be difficult for local governments to regulate.
    MS4s are subject to the CWA and are regulated under section 402 for 
the treatment of water. However, treatment of water is not allowed in 
``waters of the U.S.'' This automatically sets up a conflict if an MS4 
contains ``waters of the U.S.'' Would water treatment be allowed in the 
``waters of the U.S.'' portion of the MS4, even though it's disallowed 
under current law? Additionally, if MS4s contained jurisdictional 
waters, they would be subject to a different level of regulation, 
requiring all discharges into the stormwater system to be regulated 
along with regulating discharges from a NPDES system.
    The definitional changes could easily be interpreted to include the 
whole MS4 system or portions thereof which would be a significant 
change over current practices. It would also potentially change the 
discharge point of the MS4, and therefore the point of regulation. Not 
only would MS4 permit holders be regulated when the water leaves the 
MS4, but also when a pollutant enters the MS4. Since states are 
responsible for water quality standards of ``waters of the U.S.'' 
within the state, this may trigger a state's oversight of water quality 
designations within an MS4. Counties and other MS4 permittees would 
face expanded regulation and costs as they will now have to ensure that 
discharges from outfalls to these new ``waters of the U.S.'' meet 
designated water quality standards.
    This would be problematic and extremely expensive for local 
governments to comply with these requirements. Stormwater management is 
often not funded as a water utility, but rather through a county or 
city general fund. If stormwater costs significantly increase due to 
the proposed rule, not only will it potentially impact our ability to 
focus available resources on real, priority water quality issues, but 
it may also require that funds be diverted from other government 
services such as education, police, fire, health, etc. Our county 
members cannot assume additional unnecessary or unintended costs.
    Further, by shifting the point of compliance for MS4 systems 
further upstream, the proposed rule could reduce opportunities for 
establishment of cost effective regional stormwater management systems. 
Many counties and stormwater management agencies are attempting to 
stretch resources by looking for regional and integrated approaches for 
managing stormwater quality. The rule would potentially inhibit those 
efforts. Even if the agencies do not initially plan to treat an MS4 as 
a ``water of the U.S.,'' they may be forced to do so as a result of CWA 
citizen suits that attempt to address lack of clarity in the proposed 
rule.
    EPA has indicated these problems could be resolved if localities 
and other entities create ``well-crafted'' MS4 permits. In our 
experience, writing a well-crafted permit is not enough--localities are 
experiencing high levels of litigation from outside groups on approved 
permits that have been signed off by both the state and the EPA. A 
number of Maryland counties have been sued over the scope and 
sufficiency of their approved MS4 permits.
    In addition, green infrastructure, which includes existing regional 
stormwater treatment systems and low impact development stormwater 
treatment systems, is not explicitly exempt under the proposed rule. A 
number of local governments, as well as private developers, are using 
green infrastructure as a stormwater management tool to lessen flooding 
and protect water quality by using vegetation, soils and natural 
processes to treat stormwater runoff. The proposed rule could 
inadvertently impact a number of these facilities by requiring section 
404 permits for green infrastructure construction projects that are 
jurisdictional under the new definitions in the proposed rule. 
Additionally, it is unclear under the proposed rule whether a section 
404 permit will be required for maintenance activities on green 
infrastructure areas once the area is established.
    While jurisdictional oversight of these ``waters'' would occur at 
the Federal level, actual water quality regulation would occur at the 
state and local levels, becoming an additional unfunded mandate on our 
counties and agencies.

    Recommendation:

   Explicitly exempt MS4s and green infrastructure from 
        ``waters of the U.S.'' jurisdiction.
States Responsibilities Under CWA Will Increase
    While the EPA and the Corps have primary responsibility for water 
quality programs, everyday CWA implementation is shared with the states 
and local governments.\45\ Under the CWA, states are required to 
identify polluted waters (also known as impaired waters) and set Water 
Quality Standards (WQS) for them. State WQS are intended to protect 
jurisdictional ``waters of the U.S.,'' such as rivers, lakes and 
streams, within a state. As part of the WQS process, states must set 
designated uses for the waterbody (e.g., recreation, drinkable, 
fishable) and institute Total Maximum Daily Loads (TMDL) for impaired 
waters.
---------------------------------------------------------------------------
    \45\ Cong. Research Serv., Clean Water Act: A Summary of the Law 
(Report RL30030, October 30, 2014), Copeland, Claudia.
---------------------------------------------------------------------------
    Currently, WQS regulation focuses on waters regulated under Federal 
law, however, NACo is concerned the proposed rule may broaden the types 
of waters considered jurisdictional. This means the states will have to 
regulate more waters under their WQS and TMDL standards. This would be 
extremely costly for both the states and localities to implement.
    In EPA's and the Corps economic analysis, it states the proposed 
rule ``may increase the coverage where a state would . . . apply its 
monitoring resources . . . It is not clear that additional cost burdens 
for TMDL development would result from this action.'' \46\ The data 
used to come to this conclusion is inconclusive. As discussed earlier, 
the agencies used data from 2009-2010 field practices for the section 
404 program as a basis for the economic analysis. This data is only 
partially relevant for the CWA Section 404 permit program, it is not 
easily interchangeable for other CWA programs.
---------------------------------------------------------------------------
    \46\ Econ. Analysis of Proposed Revised Definition of Waters of the 
United States, U.S. Envtl. Prot. Agency (EPA) & U.S. Army Corps of 
Eng'r (Corps), (March 2014) at 6-7.
---------------------------------------------------------------------------
    Because of vague definitions used in the proposed rule, it is 
likely that more waters within a state will be designated as ``waters 
of the U.S.'' As the list of ``waters of the U.S.'' expand, so do state 
responsibilities for WQS and TMDLs. The effects on state non-point-
source control programs are difficult to determine, but they could be 
equally dramatic, without a significant funding source to pay for the 
proposed changes.
    Recommendation:

   NACo recommends that the Federal agencies consult with the 
        states to determine more accuratecosts and implications for the 
        WQS and TMDL programs.
County Infrastructure on Tribal Lands May Be Jurisdictional
    The proposed rule reiterates long-standing policy which says that 
any water that that crosses over interstate lines--for example if a 
ditch crosses the boundary line between two states--falls under Federal 
jurisdiction. But, this raises a larger question. If a ditch runs 
across Native American land, which is considered sovereign land, is the 
ditch then considered an ``interstate'' ditch?
    Many of our counties own and maintain public safety infrastructure 
that runs on and through Native American tribal lands. Since these 
tribes are sovereign nations with self-determining governments, 
questions have been raised on whether county infrastructure on tribal 
land triggers Federal oversight.
    As of May 2013, 566 Native American tribes are legal recognized by 
the Bureau of Indian Affairs (BIA).\47\ Approximately 56.2 million 
acres of land is held in trust for the tribes \48\ and it is often 
separate plots of land rather than a solidly held parcel. While Native 
American tribes may oversee tribal roads and infrastructure on tribal 
lands, counties may also own and manage roads on tribal lands.
---------------------------------------------------------------------------
    \47\ U.S. Dept. of the Interior, Indian Affairs, What We Do, 
available at http://www.bia.gov/WhatWeDo/index.htm.
    \48\ Id.
---------------------------------------------------------------------------
    A number of Native American tribes are in rural counties--this 
creates a patchwork of Native American tribal, private and public 
lands. Classifying these ditches and infrastructure as interstate will 
require counties to go through the section 404 permit process for any 
construction and maintenance projects, which could be expensive and 
time-consuming.
    NACo has asked the Federal agencies to clarify their position on 
whether local government ditches and infrastructure on tribal lands are 
currently regulated under CWA programs, including how they will be 
regulated under the final rule.
    Recommendation:

   We request clarification from the Federal agencies on 
        whether ditches and other infrastructure that cross tribal 
        lands are jurisdictional under the ``interstate'' definition.
Endangered Species Act As It Relates to the Proposed Rule
    NACo is concerned that provisions of the proposed rule may interact 
with provisions of the Endangered Species Act (ESA) and its 
implementing regulations in ways that may produce unintended negative 
outcomes.
    For instance, when a species is proposed for listing as endangered 
or threatened under ESA, large swaths of land may be designated as 
critical habitat, that is essential to the species' protection and 
recovery. Critical habitat requires special management and 
conservation, which can have enormous economic impacts oncounty 
governments and private landowners.
    This effect is intensified when the section 404 permit program is 
triggered. Section 7 consultation under the ESA could be required, 
which can be time-consuming and expensive, especially for public safety 
projects. Some counties are already reporting strict ESA requirements 
on maintenance of public safety ditches.
    To further compound the issue, the vague terms used in the proposed 
rule such as ``floodplains,'' may also trigger ESA compliance. In 
recent years, the Federal Emergency Management Agency (FEMA) has been 
sued for not considering the habitat needs of threatened and endangered 
species in National Flood Insurance Program (NFIP) floodplain 
designations. Local governments in certain states, who participate in 
the NFIP, must now certify they will address ESA critical habitat 
issues in floodplain areas. This litigation-driven approach circumvents 
local land use planning authority and creates an atmosphere of mistrust 
rather than providing incentives to counties and private landowners to 
actively engage in endangered species conservation.
    If the agencies plan to use broad definitions within the proposed 
rule, regulation by litigation would seem to be an increasingly likely 
outcome. These issues need to be carefully considered by the agencies.
Ensuring that Local Governments Are Able to Quickly Recover from 
        Disasters
    In our nation's history, our citizens have experienced both manmade 
and natural disasters. Counties are the initial line of defense, the 
first responders in protection of its residents and businesses. Since 
local governments are responsible for much of what constitutes a 
community--roads and bridges, water and sewer systems, courts and 
jails, healthcare, parks, and more--it is important that local 
governments quickly recover after disasters. This includes removing 
wreckage and trash from ditches and other infrastructure that are 
considered jurisdictional.\49\
---------------------------------------------------------------------------
    \49\ Disaster Mitigation: Reducing Costs & Saving Lives: Hearing 
before the Subcomm. on Econ. Dev., Pub. Bldgs. & Emergency Mgmt., H. 
Comm. on Transp. & Infrastructure, 113th Cong. (2014) (statement of 
Linda Langston, President, Nat'l Ass'n of Counties).
---------------------------------------------------------------------------
    Counties in the Gulf Coast states and the Mid-West have reported 
challenges in receiving emergency waivers for debris in ditches 
designated as ``waters of the U.S.'' after natural and manmade 
disasters. This, in turn, damages habitat and endangers public health. 
NACo would urge the EPA and the Corps to revisit that policy, 
especially if more waters are classified as ``waters of the U.S.''
Conclusion
    We appreciate the opportunity to be a part of this process. NACo 
acknowledges the efforts taken by both EPA and the Corps to conduct 
outreach on the proposed rule. This is a priority issue for our 
nation's counties who are responsible for environmental protection and 
public safety.
     As stated earlier, we believe that more roadside ditches, flood 
control channels and stormwater management conveyances and treatment 
approaches will be federally regulated under this proposal. This is 
problematic because counties are ultimately liable for maintaining the 
integrity of these ditches, channels, conveyances and treatment 
approaches. Furthermore, the unknown impacts on other CWA programs are 
equally problematic, the degree and cost of regulation will increase 
dramatically if these features are redefined as ``waters of the U.S.'' 
We urge you to withdraw the rule until further study on the potential 
impacts are addressed.
    We look forward to working together with our Federal partners, as 
our founding fathers intended, to protect our nation's water resources 
for generations to come. If you have any questions, please feel free to 
contact Julie Ufner, NACo's Associate Legislative Director at 
[[email protected]] or [202.942.4269].
            Sincerely,
            
            
Matthew D. Chase,
Executive Director,
National Association of Counties.
                              Attachment 2
November 14, 2014

 
 
 
Donna Downing,                       Stacey Jensen,
Jurisdiction Team Leader, Wetlands   Regulatory Community of Practice
 Division,
U.S. Environmental Protection        U.S. Army Corps of Engineers,
 Agency,
Washington, D.C.;                    Washington, D.C.
 

RE: Proposed Rule on ``Definition of `Waters of the United States' 
            Under the Clean Water Act,'' Docket No. EPA-HQ-OW-2011-0880

    Dear Ms. Downing and Ms. Jensen:

    On behalf of the nation's mayors, cities, counties, regional 
governments and agencies, we appreciate the opportunity to submit 
comments on the U.S. Environmental Protection Agency's (EPA) and the 
U.S. Army Corps of Engineers' (Corps) proposed rule on ``Definition of 
`Waters of the United States' Under the Clean Water Act.'' We thank the 
agencies for educating our members on the proposal and for extending 
the public comment period in order to give our members additional time 
to analyze the proposal. We thank the agencies in advance for continued 
opportunities to discuss these, and other, important issues.
    The health, well-being and safety of our citizens and communities 
are top priorities for us. To that end, it is important that Federal, 
state and local governments all work together to craft reasonable and 
practicable rules and regulations. As partners in protecting America's 
water resources, it is essential that state and local governments have 
a clear understanding of the vast impact that a change to the 
definition of ``waters of the U.S.'' will have on all aspects of the 
Clean Water Act (CWA). That is why several of our organizations and 
other state and local government partners asked for a transparent and 
straight-forward rulemaking process, inclusive of a federalism 
consultation process, rather than having changes of such a complex 
nature instituted though a guidance document alone.
    As described below, we have a number of overarching concerns with 
the rulemaking process, as well as specific concerns regarding the 
proposed rule. In light of both, we have the following requests:

  1.  We strongly urge EPA and the Corps to modify the proposed rule by 
            addressing our concerns and incorporating our suggestions 
            to provide greater certainty and clarity for local 
            governments; and

  2.  We ask that EPA and the Corps issue a revised proposed rule with 
            an additional comment period, so that we can be certain 
            these concerns are adequately addressed; or

  3.  Alternatively, if an additional comment period is not granted, we 
            respectfully call for the withdrawal of this proposed rule 
            and ask the agencies to resubmit a proposed rule at a later 
            date that addresses our concerns.
Overarching Concerns with the Rulemaking Process
    While we appreciate the willingness of EPA and the Corps to engage 
state and local government organizations in a voluntary consultation 
process prior to the proposed rule's publication, we remain concerned 
that the direct and indirect impacts of the proposed rule on state and 
local governments have not been thoroughly examined because three key 
opportunities that would have provided a greater understanding of these 
impacts were missed:

  1.  Additional analysis under the Regulatory Flexibility Act, which 
            examines economic impacts on small entities, including 
            cities and counties;

  2.  State and local government consultation under Executive Order 
            13132: Federalism, which allows state and local governments 
            to weigh in on draft rules before they are developed or 
            publicly proposed in order to address intergovernmental 
            concerns; and

  3.  The agencies' economic analysis of the proposed rule, which did 
            not thoroughly examine impacts beyond the CWA 404 permit 
            program and relied on incomplete and inadequate data.

    Additionally, we believe there needs to be an opportunity for 
intergovernmental state and local partners to thoroughly read the yet-
to-be-released final connectivity report, synthesize the information, 
and incorporate those suggestions into their public comments on the 
proposed rule. These missed opportunities and our concerns regarding 
the connectivity report are discussed in greater detail below.

  1.  The Regulatory Flexibility Act (RFA) requires Federal agencies 
            that promulgate rules to consider the impact of their 
            proposed rule on small entities, which under the definition 
            includes cities, counties, school districts, and special 
            districts of less than 50,000 people. RFA, as amended by 
            the Small Business Regulatory Enforcement Fairness Act, 
            requires agencies to make available, at the time the 
            proposed rule is published, an initial regulatory 
            flexibility analysis on how the proposed rule impacts these 
            small entities. The analysis must certify that the rule 
            does not have a Significant Economic Impact on a 
            Substantial Number of Small Entities (SISNOSE). The RFA 
            SISNOSE process allows Federal agencies to identify areas 
            where the proposed rule may economically impact a 
            significant number of small entities and consider 
            regulatory alternatives that will lessen the burden on 
            these entities. The RFA process was not undertaken for this 
            rule.

        Based on analysis by our cities and counties, the proposed rule 
            will have a significant impact on all local governments, 
            but on small communities particularly. Most of our nation's 
            cities and counties--more than 18,000 cities and 2,000 
            counties--have populations less than 50,000. The RFA 
            SISNOSE analysis would be of significant value to these 
            governments.

  2.  Executive Order 13132: Federalism requires Federal agencies to 
            work with state and local governments on proposed 
            regulations that have substantial direct compliance costs. 
            Since the agencies have determined that a change in the 
            definition of ``waters of the U.S.'' imposes only indirect 
            costs, the agencies state that the proposed rule does not 
            trigger Federalism considerations. We wholeheartedly 
            disagree with this conclusion and are convinced there will 
            be both direct and indirect costs for implementation.

        Additionally, while EPA initiated a Federalism consultation for 
            its state and local partners in 2011, the process was 
            prematurely shortened. In the 17 months between the initial 
            Federalism consultation and the publication of the proposed 
            rule, the agencies changed directions several times 
            (regulation versus guidance). In those intervening 17 
            months between the consultation and the publication of the 
            proposed rule, the agencies failed to continue substantial 
            discussions, thereby not fulfilling the intent of Executive 
            Order 13132.

  3.  The Economic Analysis of Proposed Revised Definition of Waters of 
            the U.S. is flawed because it does not include a full 
            analysis of the proposed rule's impact on all CWA programs 
            beyond the 404 program (including the National Pollutant 
            Discharge Elimination System (NPDES), total maximum daily 
            load (TMDL) and other water quality standards programs, 
            state water quality certification process, and Spill 
            Prevention, Control and Countermeasure (SPCC) programs). 
            Since a number of these CWA programs directly affect state 
            and local governments, it is imperative the analysis 
            provide a more comprehensive review of the actual costs and 
            consequences of the proposed rule on these programs.

        Moreover, we remain concerned that the data used in the 
            analysis is insufficient. The economic analysis used 2009-
            2010 data of section 404 permit applications as a basis for 
            examining the impacts of the proposed rule on all CWA 
            programs. It is insufficient to compare data from the 
            section 404 permit program and speculate to the potential 
            impacts to other CWA programs. Additionally, 2009-2010 was 
            at the height of the recession when development (and other 
            types of projects) was at an all-time low. The poor sample 
            period and limited data creates uncertainty in the 
            analysis's conclusions.

    In addition to the missed opportunities, we are concerned about the 
timing of the yet-to-be-finalized Connectivity of Streams and Wetlands 
to Downstream Waters: A Review and Synthesis of the Scientific Evidence 
report, which will serve as the scientific basis for the proposed rule. 
In mid-October, EPA's Science Advisory Board (SAB), which was tasked 
with reviewing the document, sent a letter with detailed 
recommendations on how to modify the report. The SAB raised important 
questions about the scope of connectivity in their recommendations, 
which will need to be addressed prior to finalizing the report. We 
recommend EPA and the Corps pause this rulemaking effort until after 
the connectivity report is finalized to allow the public an opportunity 
to comment on the proposed rule in relation to the final report.
    In a November 8, 2013 letter from the U.S. Conference of Mayors, 
National League of Cities and National Association of Counties to the 
Office and Management and Budget Administrator, we highlight the 
various correspondences our associations have submitted since 2011 as 
part of the guidance and rulemaking consideration process. (See 
attached.) We share this with you to demonstrate that we have been 
consistent in our request for a federalism consultation, concerns 
regarding the cost-benefit analysis, and concerns about the process and 
scope of the rulemaking. With these comments, we renew those requests.

    Requests:

   Conduct an analysis to examine if the proposed rule imposes 
        a significant economic impact on a substantial number of small 
        entities per the Regulatory Flexibility Act.

   Initiate a formal state and local government federalism 
        consultation process per Executive Order 13132: Federalism to 
        address local government concerns and issues of clarity and 
        certainty.

   Perform a thorough economic analysis inclusive of an 
        examination of impacts of the proposed rule on all CWA programs 
        using deeper and more relevant data. We urge the agencies to 
        interact with issue-specific national associations to collect 
        these data sets.

   Reopen the comment period for the proposed rule once the 
        connectivity report is finalized for a minimum of 60 days.
Specific Concerns Regarding the Proposed Rule
    As currently drafted, there are many examples where the language of 
the proposed rule is ambiguous and would create more confusion, not 
less, for local governments and ultimately for agency field staff 
responsible for making jurisdictional determinations. Overall, this 
lack of clarity and uncertainty within the language opens the door 
unfairly to litigation and citizen suits against local governments. To 
avoid such scenarios, setting a clear definition and understanding of 
what constitutes a ``waters of the U.S.'' is critical. We urge you to 
consider the following concerns and recommendations in any future 
proposed rule or final rule.
Key Definitions
    Key terms used in the proposed rule such as ``uplands,'' 
``tributary,'' ``floodplain,'' ``significant nexus,'' ``adjacent,'' and 
``neighboring'' will be used to define what waters are jurisdictional 
under the proposed rule. However, since these terms are either broadly 
defined, or not defined at all, this will lead to further confusion 
over what waters fall under Federal jurisdiction, not less as the 
proposed rule aims to accomplish. The lack of clarity will lead to 
unnecessary project delays, added costs to local governments and 
inconsistency across the country.

    Request:

   Provide more specificity for proposed definitions such as 
        ``uplands,'' ``tributary,'' ``floodplain,'' ``significant 
        nexus,'' ``adjacent,'' ``neighboring,'' and other such words 
        that could be subject to different interpretations.
Public Safety Ditches
    While EPA and the Corps have publicly stated the proposed rule will 
not increase jurisdiction over ditches, based on current regulatory 
practices and the vague definitions in the proposed rule, we remain 
concerned.
    Under the current regulatory program, ditches are regulated under 
CWA Section 404, both for construction and maintenance activities. 
There are a number of challenges under the current program that would 
be worsened by the proposed rule. For example, across the country, 
public safety ditches, both wet and dry, are being regulated under 
section 404. While an exemption exists for ditch maintenance, Corps 
districts inconsistently apply it nationally. In some areas, local 
governments have a clear exemption, but in other areas, local 
governments must apply for a ditch maintenance exemption permit and 
provide surveys and data as part of the maintenance exemption request.
    Beyond the inconsistency, many local governments have expressed 
concerns that the section 404 permit process is time-consuming, 
cumbersome and expensive. Local governments are responsible for public 
safety; they own and manage a wide variety of public safety ditches--
road, drainage, stormwater conveyances and others--that are used to 
funnel water away from low-lying areas to prevent accidents and 
flooding of homes and businesses. Ultimately, a local government is 
liable for maintaining the integrity of their ditches, even if Federal 
permits are not approved by the Federal agencies in a timely manner. In 
Arreola v. Monterey (99 Cal. App. 4th 722), the Fourth District Court 
of Appeals held the County of Monterey, California liable for not 
maintaining a levee that failed due to overgrowth of vegetation.
    The proposed rule does little to resolve the issues of uncertainty 
and inconsistency with the current exemption language or the amount of 
time, energy and money that is involved in obtaining a section 404 
permit or an exemption for a public safety ditch. The exemption for 
ditches in the proposed rule is so narrowly drawn that any city or 
county would be hard-pressed to claim the exemption. It is hard--if not 
impossible--to prove that a ditch is excavated wholly in uplands, 
drains only uplands and has less than perennial flow.

    Request:

   Provide a specific exemption for public safety ditches from 
        the ``waters of the U.S.'' definition.
Stormwater Permits and MS4s
    Under the NPDES program, all facilities which discharge pollutants 
from any point source into a ``waters of the U.S.'' are required to 
obtain a permit, including local governments with Municipal Separate 
Storm Sewer Systems (MS4s). Some cities and counties own MS4 
infrastructure that flow into a ``waters of the U.S.'' and are 
therefore regulated under the CWA Section 402 stormwater permit 
program. These waters, however, are not treated as jurisdictional 
waters since the nature of stormwater makes it impossible to regulate 
these features.
    It is this distinction that creates a conflict between the 
stormwater program and the definition of ``waters of the U.S.'' in the 
proposed rule and opens the door to citizen suits. Water conveyances 
including but not limited to MS4s that are purposed for and servicing 
public use are essentially a series of open ditches, channels and pipes 
designed to funnel or to treat stormwater runoff before it enters into 
a ``waters of the U.S.'' However, under the proposed rule, these 
systems could meet the definition of a ``tributary,'' and thus be 
jurisdictional as a ``waters of the U.S.'' The language in the proposed 
rule must be clarified because a water conveyance cannot both treat 
water and prevent untreated water from entering the system.
    Additionally, waterbodies that are considered a ``waters of the 
U.S.'' are subject to state water quality standards and total maximum 
daily loads, which are inappropriate for this purpose. Applying water 
quality standards and total maximum daily loads to stormwater systems 
would mean that not only would the discharge leaving the system be 
regulated, but all flows entering the MS4 would be regulated as well. 
This, again, creates a conflict between the stormwater program and the 
definition of ``waters of the U.S.'' in the proposed rule.

    Request:

   Provide a specific exemption for water conveyances including 
        but not limited to MS4s that are purposed for and servicing 
        public use from the ``waters of the U.S.'' definition.
Waste Treatment Exemption
    The proposed rule provides that ``waste treatment systems, 
including treatment ponds or lagoons, designed to meet the requirements 
of the Clean Water Act'' (emphasis added) are not ``waters of the 
U.S.'' In recent years, local governments and other entities have moved 
toward a holistic approach in treating stormwater by using ponds, 
swales and wetlands. Traditionally, such systems have been exempt from 
the CWA, but due to the broad nature of the proposed rule, we believe 
the agencies should also exempt other constructed wetland and treatment 
facilities which may inadvertently fall under the proposed rule. This 
would include, but not be limited to, water and water reuse, recycling, 
treatment lagoons, setting basins, ponds, artificially constructed 
wetlands (i.e., green infrastructure) and artificially constructed 
groundwater recharge basins. Therefore, we ask the agencies to 
specifically include green infrastructure techniques and water delivery 
and reuse facilities under this exemption.

  A.  Green Infrastructure

        With the encouragement of EPA, local governments across the 
            country are utilizing green infrastructure techniques as a 
            stormwater management tool to lessen flooding and protect 
            water quality by using vegetation, soils and natural 
            processes to treat stormwater runoff. These more beneficial 
            and aesthetically pleasing features, which include existing 
            stormwater treatment systems and low impact development 
            stormwater treatment systems, are not explicitly exempt 
            under the proposed rule. Therefore, these sites could be 
            inadvertently impacted and require section 404 permits for 
            green infrastructure construction projects if they are 
            determined to be jurisdictional under the new definitions 
            in the proposed rule.
        Additionally, it is unclear under the proposed rule whether a 
            section 404 permit will be required for maintenance 
            activities on green infrastructure areas once the area is 
            established. Moreover, if these features are defined as 
            ``waters of the U.S.,'' they would be subject to all other 
            sections of the CWA, including monitoring, attainment of 
            water quality standards, controlling and permitting all 
            discharges in these features, which would be costly and 
            problematic for local governments.
        Because of the multiple benefits of green infrastructure and 
            the incentives that EPA and other Federal agencies provide 
            for local governments to adopt and construct green 
            infrastructure techniques, it is ill-conceived to hamper 
            local efforts by subjecting them to 404 permits or the 
            other requirements that would come with being considered a 
            ``waters of the U.S.''

  B.  Water Delivery and Reuse Facilities

        Across the country, and particularly in the arid west, water 
            supply systems depend on open canals to convey water. Under 
            the proposed rule, these canals would be considered 
            ``tributaries.'' Water reuse facilities include ditches, 
            canals and basins, and are often adjacent to jurisdictional 
            waters. These features would also be ``waters of the U.S.'' 
            and as such subject to regulation and management that would 
            not only be unnecessarily costly, but discourage water 
            reuse entirely. Together, these facilities serve essential 
            purposes in the process of waste treatment and should be 
            exempt under the proposed rule.

    Requests:

   Clarify the waste treatment exemption by stating that green 
        infrastructure practices and water delivery and reuse 
        facilities meet the requirements of the exemption.

   Expand the waste treatment exemption to include systems that 
        are designed to meet any water quality requirements, not just 
        the requirements of the CWA.

   Provide a specific exemption for green infrastructure and 
        water delivery and reuse facilities from the ``waters of the 
        U.S.'' definition.
NPDES Pesticide Permit Program
    Local governments use pesticides and herbicides in public safety 
infrastructure to control weeds, prevent breeding of mosquitos and 
other pests, and limit the spread of invasive species. While the permit 
has general requirements, more stringent monitoring and paperwork 
requirements are triggered if more than 6,400 acres are impacted in a 
calendar year. For local governments who have huge swathes of land, the 
acreage limit can be quickly triggered. The acreage limit also becomes 
problematic as more waterbodies are designated as a ``waters of the 
U.S.''
Additional Considerations
    Finally, we would like to offer two additional considerations that 
would help to resolve any outstanding confusion or disagreement over 
the breath of the proposed rule and assist local governments in meeting 
our mutual goals of protecting water resources and ensuring public 
safety.
Appeals Process
    Many of the definitions in the proposed rule are incredibly broad 
and may lead to further confusion and lawsuits. To lessen confusion, we 
recommend the agencies implement a transparent and understandable 
appeals procedure for entities to challenge agency jurisdictional 
determinations without having to go to court.

    Request:

   Institute a straight-forward and transparent process for 
        entities to appeal agency jurisdictional determinations.
Emergency Exemptions
    In the past several years, local governments who have experienced 
natural or man-made disasters have expressed difficulty obtaining 
emergency clean-up waivers for ditches and other conveyances. This, in 
turn, endangers public health and safety and jeopardizes habitats. We 
urge the EPA and the Corps to revisit that policy, especially as more 
waters are classified as ``waters of the U.S.'' under the proposed 
rule.

    Request:

   Set clear national guidance for quick approval of emergency 
        exemptions.
Conclusion
    On behalf of the nation's mayors, cities, counties, regional 
governments and agencies, we thank you for the opportunity to comment 
on the proposed rule. Changing the CWA definition of ``waters of the 
U.S.'' will have far-reaching impacts on our various constituencies.
    As local governments and associated agencies, we are charged with 
protecting the environment and protecting public safety. We play a 
strong role in CWA implementation and are key partners in its 
enactment; clean and safe drinking water is essential for our survival. 
We take these responsibilities seriously.
    As partners in protecting America's water resources, it is 
essential that state and local governments have a clear understanding 
of the vast impact the proposed ``waters of the U.S.'' rule will have 
on our local communities. We look forward to continuing to work with 
EPA and the Corps as the regulatory process moves forward.
            Sincerely,
            
            

 
 
 
Tom Cochran,             Clarence E. Anthony,     Matthew D. Chase,
CEO and Executive        Executive Director,      Executive Director,
 Director,
The U.S. Conference of   National League of       National Association
 Mayors;                  Cities;                  of Counties;
 

                                                   
                                                   

 
 
 
Joanna L. Turner,        Brian Roberts,           Peter B. King,
Executive Director,      Executive Director,      Executive Director,
National Association of  National Association of  American Public Works
 Regional Councils;       County Engineers;        Association;
 

                                                   
                                                   

 
 
 
Susan Gilson,
Executive Director,
National Association of
 Flood and Stormwater
 Management Agencies.
 

                               attachment
November 8, 2013

  Hon. Honorable Howard Shelanski,
  Administrator, Office of Information and Regulatory Affairs,
  Office of Management and Budget,
  Washington D.C.

RE: EPA's Definition of ``Waters of the U.S.'' Under the Clean Water 
            Act Proposed Rule and Connectivity Report (Docket ID No. 
            EPA-HQ-OA-2013-0582)

    Dear Administrator Shelanski:

    On behalf of the nation's mayors, cities and counties, we are 
writing regarding the U.S. Environmental Protection Agency (EPA) and 
the U.S. Army Corps of Engineers' (Corps) proposed rulemaking to change 
the Clean Water Act definition of ``Waters of the U.S.'' and the draft 
science report, Connectivity of Streams and Wetlands to Downstream 
Waters: A Review and Synthesis of the Scientific Evidence, which EPA 
indicated will serve as a basis for the rulemaking. We appreciate that 
EPA and the Corps are moving forward with a rule under the 
Administrative Procedures Act, as our organizations previously 
requested, however, we have concerns about the process and the scope of 
the rulemaking.
Background
    In May 2011, EPA and the Corps released Draft Guidance on 
Identifying Waters Protected by the Clean Water Act (Draft Guidance) to 
help determine whether a waterway, water body or wetland would be 
jurisdictional under the Clean Water Act (CWA).
    In July 2011, our organizations submitted comments on the Draft 
Guidance, requesting that EPA and the Corps move forward with a 
rulemaking process that features an open and transparent means of 
proposing and establishing regulations and ensures that state, local, 
and private entity concerns are fully considered and properly 
addressed. Additionally, our joint comments raised concerns with the 
fact that the Draft Guidance failed to consider the effects of the 
proposed changes on all CWA programs beyond the 404 permit program, 
such as Total Maximum Daily Load (TMDL) and water quality standards 
programs and the National Pollutant Discharge Elimination System 
(NPDES) permit program.
    In response to these comments, EPA indicated that it would not move 
forward with the Draft Guidance, but rather a rulemaking pertaining to 
the ``Waters of the U.S.'' definition. In November 2011, EPA and the 
Corps initiated a formal federalism consultation process with state and 
local government organizations. Our organizations submitted comments on 
the federalism consultation briefing in December 2011. In early 2012, 
however, EPA changed course, putting the rulemaking on hold and sent a 
final guidance document to the Office of Management and Budget (OMB) 
for interagency review. Our organizations submitted a letter to OMB in 
March 2012 repeating our concerns with the agencies moving forward with 
a guidance document.
    Most recently, in September 2013, EPA and the Corps changed course 
again and withdrew the Draft Guidance and sent a draft ``Waters of the 
U.S.'' rule to OMB for review. At the same time, the agencies released 
a draft science report, Connectivity of Streams and Wetlands to 
Downstream Waters: A Review and Synthesis of the Scientific Evidence.
Concerns
    While we acknowledge the federalism consultation process that EPA 
and the Corps began in 2011, in light of the time that has passed and 
the most recent developments in the process toward clarifying the 
jurisdiction of the CWA, we request that EPA and the Corps hold a 
briefing for state and local governments groups on the differences 
between the Draft Guidance and the propose rule that was sent to OMB in 
September. Additionally, if EPA and the Corps have since completed a 
full cost analysis of the proposed rule on all CWA programs beyond the 
404 permit program, as our organizations requested, we ask for a 
briefing on these findings.
    In addition to our aforementioned concerns, we have a new concern 
with the sequence and timing of the draft science report, Connectivity 
of Streams and Wetlands to Downstream Waters: A Review and Synthesis of 
the Scientific Evidence, and how it fits into the proposed ``Waters of 
the U.S.'' rulemaking process, especially since the document will be 
used as a basis to claim Federal jurisdiction over certain water 
bodies. By releasing the draft report for public comment at the same 
time as a proposed rule was sent to OMB for review, we believe EPA and 
the Corps have missed the opportunity to review any comments or 
concerns that may be raised on the draft science report actually inform 
the development of the proposed rule. We ask that OMB remand the 
proposed rule back to EPA and the Corps and that the agencies refrain 
from developing a proposed rule until after the agencies have 
thoroughly reviewed comments on the draft science report.
    While you consider our requests for additional briefings on this 
important rulemaking process and material, we also respectfully request 
additional time to review the draft science report. We believe that 44 
days allotted for review is insufficient given the report's technical 
nature and potential ramifications on other policy matters.
    As partners in protecting America's water resources, it is 
essential that state and local governments have a clear understanding 
of the vast affect that a change to the definition of ``Waters of the 
U.S.'' will have on all aspects of the CWA. We look forward to 
continuing to work with EPA and the Corps as the regulatory process 
moves forward.
            Sincerely,
            
            

 
 
 
Tom Cochran,             Clarence E. Anthony,     Matthew D. Chase,
CEO and Executive        Executive Director,      Executive Director,
 Director,
The U.S. Conference of   National League of       National Association
 Mayors;                  Cities;                  of Counties;
 

CC:

Gina McCarthy, Administrator, U.S. Environmental Protection Agency;
Lt. General Thomas P. Bostick, Commanding General and Chief of 
Engineers, Army Corps of Engineers.
                              Attachment 3
November 11, 2014

  Donna Downing,
  Jurisdiction Team Leader, Wetlands Division,
  U.S. Environmental Protection Agency,
  Washington, D.C.;

  Stacey Jensen,
  Regulatory Community of Practice,
  U.S. Army Corps of Engineers,
  Washington, D.C.

RE: Proposed Rule on ``Definition of `Waters of the United States' 
            Under the Clean Water Act,'' Docket No. EPA-HQ-OW-2011-0880

    Dear Ms. Downing and Ms. Jensen:

    On behalf of the County Commissioners Association of Pennsylvania, 
representing all 67 counties in the commonwealth, I write to ask the 
U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of 
Engineers (Corps) to withdraw the proposed rulemaking for the on the 
definition of `` `Waters of the United States' under the Clean Water 
Act,'' as published in the Federal Register on April 21, 2014, and to 
amend the rule only after consideration of the comments received, and 
with a better understanding of existing state programs.
    In Pennsylvania, there are more than 86,000 miles of waterways, 
from major rivers to local streams and creeks, to large lakes and small 
ponds. This commonwealth has a long history of taking our duty to 
protect water quality seriously. Our state Clean Streams Law, which is 
older than the Federal Clean Water Act, clearly protects all waters of 
the commonwealth from pollution or potential pollution. Over the years, 
we have developed a strong set of regulations and permitting programs 
that are specific to Pennsylvania's needs. In addition, counties and 
conservation districts make critical front-line decisions related to 
many aspects of waterway planning and management, including stormwater 
management, flood mitigation and maintenance of dams and levees. We are 
familiar with the local environmental issues because we are on the 
ground in our counties every day, providing local response and 
oversight.
    However, a complex web of laws, regulations and policies has made 
it increasingly difficult, less efficient and more costly for counties 
to undertake needed waterway infrastructure projects such as dams and 
levees, and stormwater management. These projects are critical elements 
of public health and safety, helping to manage flooding events, 
assuring water quality and promoting sustainable land use and community 
development. As a priority for this year, Pennsylvania's counties are 
encouraging a review of current Federal and state laws and regulations 
with a goal of promoting more effective policies and procedures.
    The confusing Waters of the U.S. definition proposed by EPA and 
Army Corps goes in the entirely opposite direction of this goal, 
tangling the web further rather than facilitating more efficient 
delivery of environmental programs. We are very concerned that, despite 
the assertions of the EPA and Army Corps to the contrary, the proposed 
rule would modify and expand existing regulations which have been in 
place for over 25 years. For Pennsylvania, because of the strong 
tradition of state and local oversight that has been in place for 
decades, subjecting more waters to Federal jurisdiction represents only 
a paper fix, increasing the paperwork, time and cost for acquiring 
additional Federal permits without any actual improvement to water 
quality.
Pennsylvania's Clean Streams Law
    Presentations made by the EPA have indicated that the proposed rule 
will help states protect their waters because \2/3\ of the nation's 
states rely on the Federal definition. However, other states, including 
Pennsylvania, apply jurisdiction to ``waters of the state,'' which must 
be as inclusive as ``waters of the U.S.'' but may be more inclusive. 
Pennsylvania's Clean Streams Law, enacted prior to the Federal Clean 
Water Act, includes a definition of ``waters of the commonwealth'' 
which protects all of the state's ``rivers, streams, creeks, rivulets, 
impoundments, ditches, watercourses, storm sewers, lakes, dammed water, 
wetlands, ponds, springs and other bodies or channels of conveyance of 
surface and underground water, or parts thereof, whether natural or 
artificial, within or on the boundaries'' of the commonwealth. This 
statute also provides the foundation of delegation to the Pennsylvania 
Department of Environmental Protection (DEP) of the National Pollution 
Discharge Elimination System (NPDES) program under section 402 of the 
Clean Water Act.
    While the Clean Streams Law is the principal governing statute 
regarding Pennsylvania's water quality, other state statutes addressing 
water quality and control include the Dam Safety and Encroachment Act 
(Act 325 of 1978), the Flood Plain Management Act (Act 166 of 1978), 
the Sewage Facilities Act (Act 537 of 1965), the Storm Water Management 
Act (Act 167 of 1978), the Water Resources Planning Act (Act 220 of 
2002) and the Nutrient Management Act (Act 38 of 2005, replacing Act 6 
of 1993). Under these laws, Pennsylvania has developed comprehensive 
regulations and an extensive permitting system to assure our water 
quality remains at the highest levels. In addition, our definition of 
``waters of the commonwealth'' already covers the types of waters it 
appears the EPA and Army Corps are seeking jurisdiction over in the 
proposed Waters of the U.S. rule.
    Despite these extensive protections already in place, EPA has 
continued to heavily rely on a 2013 Environmental Law Institute study, 
State Constraints--State-Imposed Limitations on the Authority of 
Agencies to Regulate Waters Beyond the Scope of the Federal Clean Water 
Act. This study, referenced in the background information supporting 
the rulemaking (though not in the rulemaking itself), fails to identify 
Pennsylvania's state statutes and regulations; in fact, there is no 
mention of the Clean Streams Law at all. Instead, the study proposes 
that the Waters of the U.S. rulemaking is needed to address states' 
regulatory loopholes, including Pennsylvania. Given that the background 
to the proposed rule states, ``This proposal does not affect 
Congressional policy to preserve the primary responsibilities and 
rights of states to prevent, reduce, and eliminate pollution, to plan 
the development and use of land and water resources . . . under the 
CWA,'' we would hope that the EPA and Army Corps would withdraw this 
rule until such time as it has a better, and more accurate, 
understanding of existing state laws, regulations and programs 
developed pursuant to that primary responsibility.
    Since it seems likely that the proposed Waters of the U.S. 
definition would expand the scope of waters under Federal jurisdiction 
(as discussed below), this means new permits would be required for 
activities and waters that are already regulated under state law. In 
addition to the cost and time associated with preparing and filing 
these applications, many entities report that it is at least a 30 day 
wait for approval of a nationwide permit, as many as 60 days for 
approval of an isolated permit and up to 180 days or longer for an 
individual permit. If these permits are required for activities that 
are traditionally just routine maintenance, the expansion of 
jurisdiction creates a bureaucratic mess for what should be a simple 
task.
    Further, states are required to expand their current water quality 
designations to protect jurisdictional waters, increasing reporting and 
attainment standards at the state level. Section 305(b) of the Clean 
Water Act requires a report from states that includes (among other 
items) a description of the water quality of all navigable waters in 
the state and an analysis of the extent to which they meet the 
101(a)(2) goals of the Act. Any increase to do these surveys and 
reports (and to what gain?) will also create a cost for local 
governments as resources are used for these purposes rather than for 
on-the-ground projects that actually benefit water quality.
    Again, the expansion of Federal jurisdiction over waters, as 
interpreted in this proposed rule, would do nothing to better protect 
Pennsylvania's water resources, only create more paperwork, make 
permitting processes more costly and more time consuming--and 
ultimately, undermine the good work we have been doing in this state 
for decades.
State and Local Oversight
    In addition to the oversight provided by the state's DEP, under the 
Pennsylvania Conservation District Law (Act 217 of 1945), all counties 
except Philadelphia were authorized to create a county conservation 
district ``as a primary local government unit responsible for the 
conservation of natural resources in this Commonwealth and to be 
responsible for implementing programs, projects and activities to 
quantify, prevent and control non-point sources of pollution'' (Section 
2). County conservation districts bring a local perspective to 
balancing environmental protection with growth, including local 
geologic and topographic knowledge. In addition, their knowledge and 
experience of the issues in their communities lead to better management 
of resources, targeted technical assistance, educational guidance to 
landowners on matters such as reducing soil erosion, stormwater 
management, dirt and gravel road pollution prevention, protection of 
water quality and prevention of hazardous situations such as floods.
    The 66 districts also accept delegation agreements with DEP and the 
State Conservation Commission to implement nutrient management, 
permitting processes, wetland management, bridges, and erosion and 
sedimentation controls. The districts have three options--basic 
education, technical assistance (non-enforcement) and enforcement; 
twelve districts are enforcement districts. Conservation districts also 
cooperate with DEP regarding spraying for black fly populations along 
affected streams, and have been actively engaged in the development and 
implementation of Pennsylvania's Chesapeake Bay Watershed 
Implementation Plan to help meet the Total Maximum Daily Load (TMDL) 
goals set by the EPA.
    Again, since the proposed Waters of the U.S. definition appears to 
expand the scope of waters under Federal jurisdiction (as discussed 
below), it follows that EPA and Army Corps would have additional 
oversight responsibilities for those waters, undermining our successful 
model of local oversight. Not only is this duplicative, but this 
additional layer of permitting would be reviewed and approved by staff 
at EPA's regional offices, which cover several states. With such an 
expansive territory, it is far more difficult for EPA regional staff to 
be active regularly in the communities for which they work and to have 
the ``boots on the ground'' that can help develop solutions.
    We urge the EPA and Army Corp to include counties in all decision-
making processes as they develop new regulations and programs that will 
affect waterway infrastructure, including withdrawal of the currently 
proposed Waters of the U.S. definition until such local input can be 
considered. This way, counties may remain fully engaged as the 
foundation for local conservation and environmental problem-solving 
efforts.
Proposed Definition of ``Waters of the U.S.''
    The proposed Waters of the U.S. (hereafter referred to as WOTUS) 
definition would modify existing regulations regarding which waters 
fall under Federal jurisdiction through the Clean Water Act. Its 
purpose is to clarify issues raised in U.S. Supreme Court decisions 
over the past decade or so that have created uncertainty over the scope 
of CWA jurisdiction. The newly proposed rule attempts to resolve this 
confusion by broadening the geographic scope of Clean Water Act 
jurisdiction, defining WOTUS under Federal jurisdiction to include 
navigable waters, interstate waters, territorial waters, tributaries 
(ditches), wetlands and ``other waters.'' It also redefines or contains 
new definitions for key terms, such as adjacency, riparian area and 
flood plain.
    While EPA and Army Corp claim that the intention is to provide more 
regulatory certainty for land developers, farmers and other businesses, 
the language used only results in additional confusion. A good 
regulation would be clear, so everyone--both regulator and regulated--
knows what is allowed and when a permit is required. Instead, the key 
terms used by the proposed WOTUS definition are inadequately explained, 
even less clear than current law and raise important questions. Because 
the proposed definitions are vague, the only certainty is that this 
matter will be tied up in the courts and projects unnecessarily delayed 
for years to come, creating additional doubt within industries and 
communities across the state and assuring resources are devoted to 
administrative and legal burdens rather than actually protecting water 
quality.
    The agencies further claim that the proposed rule is based on the 
best available science, yet they acknowledge that the final rule will 
be informed by the final version of the EPA's Office of Research and 
Development synthesis of published peer-review scientific literature 
discussing the nature of connectivity and effects of streams and 
wetlands on downstream waters. The final connectivity report as of the 
submission of these comments, just days before the public comment 
deadline, has not yet been released, giving the public no opportunity 
to review it in conjunction with the language of the proposed rule. If 
the proposed rule is going to be revised based on the final 
connectivity report, will there be another public comment period once 
the rule is revised based on that data?
    The EPA and Army Corps have indicated that the proposed WOTUS rule 
creates ``bright line categories'' of waters that are and are not 
jurisdictional. However, the definition's reliance on the 
interconnectivity of waters in reality dulls this line, and the 
definition is so vague, it is difficult to tell where Federal 
jurisdiction would actually end. The proposed regulation further claims 
to have a goal of greater predictability and consistency through 
increased clarity, but at the same it emphasizes ``the categorical 
finding of jurisdiction for tributaries and adjacent waters was not 
based on the mere connection of a water body to downstream waters, but 
rather a determination that the nexus, alone or in combination with 
similarly situated waters in the region, is significant based on data, 
science, the CWA, and caselaw.'' With all of these factors in play, how 
is it possible to draw a black and white line to determine 
jurisdiction?
    This concern is highlighted by the Oct. 17 release by EPA's Science 
Advisory Board Panel (SAB) of its review of the agency's draft 
connectivity report. The more than 100 page SAB review agrees with 
EPA's assessment that streams and wetlands are connected with larger 
water bodies such as rivers, lakes, estuaries and oceans, but also 
suggests that these ``connections should be considered in terms of a 
connectivity gradient,'' highlighting the difficulty in determining 
``bright line jurisdiction.'' For this and many other reasons, the EPA 
and Army Corps would be well served to withdraw the proposed rule until 
the connectivity report has been finalized. Otherwise, the agencies may 
be missing a valuable opportunity to review comments or concerns raised 
in the final report that would inform development of the proposed rule.
    The terminology and definitions used serve to illustrate how 
difficulty it will be to determine what jurisdiction Federal agencies 
have under the proposed rule. One of the more ambiguous terms defined 
within the proposed rule is that of ``significant nexus,'' a term which 
is to be used to determine jurisdictional waters on a case-by-case 
basis. This single term would essentially grant EPA and Army Corps 
jurisdiction over virtually all waters and connecting lands, because in 
reality, there is almost nothing from a hydrological standpoint that is 
not somehow connected or is not significant within the hydrologic 
cycle. This is a point the regulation seems to concede repeatedly as it 
refers to the important role of tributaries and adjacent waters in 
maintaining the chemical, physical and biological integrity of 
traditional navigable waters, interstate waters and the territorial 
seas, and by insisting that the effects of small water bodies in a 
watershed need to be considered in the aggregate. In addition, the 
proposed rule even indicates that a water body could in fact have a 
significant nexus without a hydrologic connection because it has a 
``functional relationship'' with the traditional navigable water, 
interstate water or territorial sea, such as retention of flood waters 
or other pollutants that would otherwise flow downstream. In the 
alternative, attributes that may not be jurisdictional by themselves 
may be when considered in combination for the significant nexus test, 
and waters near a WOTUS could also be jurisdictional without a 
significant nexus if they are in the floodplain or a riparian area.
    Despite the insistence of the EPA and Army Corps that the proposed 
rule does not expand the waters over which the agencies have 
jurisdiction, the reliance on this one term alone begs to differ. If 
there are waters the agencies do not intend to have jurisdiction over 
in this rule, that intention should be explicitly spelled out with 
clearer definitions and terminology.
    Further, the Clean Water Act protects the chemical, physical and 
biological integrity of the nation's waters. Generally, the three terms 
have always been considered together. However, throughout the proposed 
rule, and specifically in the term ``significant nexus,'' the terms are 
grouped differently--sometimes they are linked by an ``and'' (chemical, 
physical and biological) and sometimes they are linked by an ``or'' 
(chemical, physical or biological). How the terms are linked will have 
a huge impact on how this regulation is enforced, because it means the 
difference between whether all three must be present to create a 
significant nexus, or merely any one of the three. Why were the changes 
made and where will these changes have the biggest impact?
    Similar uncertainty rests with the way ``waters in the region'' and 
``watershed'' are used to determine a significant nexus, as it appears 
the two are being used interchangeably throughout the explanation. 
While the definition of ``significant nexus'' notes that a region of 
similarly situated waters could be the watershed that drains to the 
nearest traditional navigable water, interstate water or territorial 
sea, this reference to watersheds is included as an ``i.e.,'' implying 
that the proposed rule could also be open to other interpretations of 
``region.'' Further, the definition of ``significant nexus'' also 
refers to the ability of other waters to be evaluated as a ``single 
landscape unit''--is this different than a region or a watershed, and 
if so, how?
    It is also not clear what level of watershed the agencies intend to 
use to determine a significant nexus. For instance, Pennsylvania has 
six major watersheds--the Ohio, the Genesee, the Susquehanna, the 
Delaware, the Erie and the Potomac. The Chesapeake Bay watershed is 
also demarcated within commonwealth borders, and more than 50 percent 
of the state's land drains to the Bay. Yet within each of these 
watersheds, the individual watersheds of smaller creeks and rivers have 
also been determined and are outlined in the Pennsylvania State Water 
Plan. By way of example, the State Plan designates four watersheds 
within York County (a county in south-central Pennsylvania bordering 
the Susquehanna River), which have been further divided into nine sub-
watersheds for stormwater management and Rivers Conservation Plan 
purposes. Which level of watershed, or region, is purported to be the 
one that will determine the relationship or significant nexus to the 
nearest traditional navigable water, interstate water or territorial 
sea?
    Other terminology used throughout the proposed rule only adds to 
the confusion about which waters will be considered to be Waters of the 
U.S. For instance, one of the supposed bright-line categories of 
jurisdiction is a water that is ``adjacent'' to a traditional navigable 
water, interstate water or territorial sea. Yet the definition of 
``adjacent'' contains even more vague terms--bordering, contiguous or 
neighboring, the latter of which leads us to the floodplain or riparian 
area of a jurisdictional water. There are further references to 
``aquatic systems'' incorporating navigable waters. As we have noted 
previously, all of these terms only highlight the interdependence of 
hydrological systems and implies that virtually every water has a nexus 
in some way to a traditional navigable water, interstate water or 
territorial sea. The proposed rule should be considerably clearer on 
which waters will be considered in the aggregate.
Practical Examples
    CCAP shares several real world examples of the far-reaching impact 
of the proposed Waters of the U.S. rule.
    Ditches: Roadside ditches common in rural areas could be brought 
under CWA regulation if they are determined to either flow to navigable 
waters (tributary) or are considered ``adjacent'' to a ``water of the 
U.S.'' or have a ``significant nexus'' to those waters, which would 
require a specific case-by-case determination by the agencies. These 
ditches typically do not have perennial flow and should be considered 
exempt from CWA jurisdiction. If they are not clearly exempted and are 
thus considered ``waters of the U.S.'', more of these ditches will 
likely fall under Federal jurisdiction and certain maintenance 
activities might require a CWA Section 404 permit.
    In recent years, section 404 permits have been required for ditch 
maintenance activities such as cleaning out vegetation and debris. Once 
a ditch is under Federal jurisdiction, this permit process can be 
extremely cumbersome, time-consuming and expensive. While, in theory, a 
maintenance exemption for ditches exists, it is difficult for local 
governments to use the exemption. The Federal jurisdictional process is 
not well understood and the determination process can be extremely 
cumbersome, time-consuming and expensive, creating legal 
vulnerabilities for communities that are responsible for maintaining 
these ditches, even if the Federal permit is not approved in a timely 
manner. For example, in 2002, in Arreola v. Monterey (99 Cal. App. 4th 
722), the Fourth District Court of Appeals held the County of Monterey 
in California liable for not maintaining a levee that failed due to 
overgrowth of vegetation, even though the County argued that the Corps 
permit process did not allow for timely approvals.
    Further, a ditch in a backyard or a swail could arguably be 
jurisdictional by the definition of ``adjacent'' or ``significant 
nexus'', if it rains and the resulting water flow runs downhill to a 
stream. If a homeowner fills that ditch or swail in without a Federal 
permit, what happens? Is that homeowner then subject to the extensive 
penalties found in the CWA, even if that individual met all other state 
and local permitting obligations intended to assure water quality is 
adequately protected?
    Floodplain management: With thousands of miles of waterways in 
Pennsylvania, the ability to manage flood waters is critical, and there 
are concerns over how this proposed rule may impact counties' public 
disaster response, mitigation and recovery processes with an unforeseen 
additional regulatory process. Many communities have public 
infrastructure to funnel water away from low-lying roads, properties 
and businesses. In recent years, our state has seen several major 
storms wreak havoc, such as Tropical Storm Lee and Hurricane Irene in 
the fall of 2011, which have taken substantial time and resources from 
which to recover. Combined with the impacts of rising flood insurance 
costs, the commonwealth's counties seek to do as much as they can to 
implement mitigation projects and encourage municipalities to 
participate in the Community Rating System under the National Flood 
Insurance Program by undertaking a comprehensive approach to floodplain 
management. As with every other aspect of governance, though, there are 
limited resources for such efforts and time is of the essence since the 
next big flooding event could occur at any time. Counties want to use 
the time and funding they have in the most effective way possible, but 
adding confusion and bureaucratic burdens to these waterway projects 
only makes it harder to take action that will keep our citizens out of 
harm's way.
    Stormwater/MS4s: Since stormwater activities are not explicitly 
exempt under the proposed rule, concerns have been raised that 
Municipal Separate Storm Sewer System (MS4) ditches could now be 
classified as a ``Water of the U.S.'' Some counties and cities own MS4 
infrastructure including ditches, channels, pipes and gutters that flow 
into a ``water of the U.S.'' and are therefore regulated under the CWA 
Section 402 stormwater permit program. In various conference calls and 
meetings, the agencies have stressed that MS4s will not be regulated as 
``waters of the U.S.'' But since MS4s are essentially a series of 
ditches, pipes, and channels--all of which could fall under the 
tributary and adjacency definition--MS4s could easily be interpreted to 
be ``waters of the U.S.'' This is a significant potential threat for 
local governments that own MS4 infrastructure because they would be 
subject to additional water quality standards (including total maximum 
daily loads) if their stormwater ditches are considered a ``water of 
the U.S.'' Not only would the discharge leaving the system be 
regulated, but all flows entering the MS4 would be regulated as well. 
And even if it is not the intent of the agencies to regulate MS4s, 
vague Federal rules have been used by various outside groups to 
litigate for years, which may ultimately force the agencies to regulate 
MS4s unless they are explicitly exempted from the requirements.
    In addition, green infrastructure is not explicitly exempt under 
the proposed rule. A number of local governments are using green 
infrastructure as a stormwater management tool to lessen flooding and 
protect water quality by using vegetation, soils and natural processes. 
The proposed rule could inadvertently impact a number of these county-
maintained sites by requiring section 404 permits for non-MS4 and MS4 
green infrastructure construction projects. Additionally, it is unclear 
under the proposed rule whether a section 404 permit will be required 
for maintenance activities on green infrastructure areas once the area 
is established.
    Chesapeake Bay TMDL: More than 50 percent of the land (more than 14 
million acres) in Pennsylvania drains to the Chesapeake Bay, currently 
subject to Total Maximum Daily Load (TMDL) requirements as established 
by the EPA in 2010 pursuant to section 303 of the Clean Water Act. The 
TMDL requirements set limits for the amount of nitrogen, phosphorus and 
sediment runoff into the Bay and its tidal tributaries, both from point 
sources like sewage treatment plants and non-point sources such as 
agricultural lands and stormwater. Pennsylvania is currently in the 
process of implementing its Phase II Watershed Implementation Plan 
(WIP), whose primary goal has been to ensure local partners, including 
local governments, are engaged in helping to meet TMDL requirements. 
Under the state's WIP, landowners and local governments have 
implemented innovative green infrastructure to reduce stormwater 
runoff, and the agriculture community has made significant investments 
into best management practices (BMPs) to reduce nutrient runoff, often 
going above and beyond requirements.
    The 2014-2015 programmatic milestones in Pennsylvania's WIP include 
having county conservation district staff make field visits to farms to 
provide education and outreach materials on Pennsylvania's existing 
regulatory programs. The county conservation districts have also been 
engaging the farm community in the technical assistance necessary for 
implementation of BMPs. Grant funding continues to be focused on BMPs 
that provide cost-effective solutions for the reduction of nutrient and 
sediment loads to the Bay, including no till/conservation tillage, 
cover crops, conservation and nutrient management planning activities, 
and stream bank fencing using Federal Chesapeake Bay Implementation 
Grant (CBIG) grant monies. The state DEP also plans to conduct a series 
of five to ten MS4 workshops and/or webinars across the state to 
educate the regulated community on the implementation of the MS4-PA 
General Permit 13, including TMDL plans and Chesapeake Bay Pollutant 
Reduction Plans. If the proposed WOTUS rule goes forward as is and 
Federal jurisdiction is not clear, or is expanded, as a result, 
Pennsylvania will have to go back to the drawing board to revisit all 
of the work it has already done on education and BMP implementation to 
provide new information on any new permitting requirements.
    Furthermore, if states do not make progress toward achieving the 
TMDL goals, EPA has the option of strengthening permits, so if Federal 
permits now become necessary under the WOTUS definition proposed by the 
agencies where they had not been required before, this would have a 
tremendous impact on the costs and burdens of compliance with the TMDL. 
It is very likely that the agricultural community would be unable to 
continue the positive work they have done thus far, and may even have 
difficulty maintaining those best management practices they have 
already put in place if new Federal permits are required. In addition, 
the need for additional funding is already one of the challenges most 
consistently raised when it comes to complying with the TMDL; if the 
commonwealth is to continue its progress to meet nutrient and sediment 
reductions to improve the quality of the Chesapeake Bay, available 
funds must be put to use on the ground and not on needless paperwork 
and administrative burdens. However, the proposed WOTUS definition and 
the apparent expansion of jurisdiction make it almost certain this is 
what would happen, again doing nothing to assist Pennsylvania and its 
local governments with the goal of protecting our water resources.
    Agriculture: Production agriculture is one of the top industries 
and economic drivers in the commonwealth, with more than 7.7 million 
acres devoted to farmland. Farmers, ranchers and even water quality 
advocates have noted that the proposed WOTUS regulation is likely to 
curtail many voluntary water quality improvement projects if such 
projects would trigger the cost and delay of seeking Federal permits, 
and make it increasingly difficult to meet required water quality 
requirements.
    We also note that state pesticide/herbicide programs and 
regulations will need to be reevaluated under the proposed WOTUS rule, 
as the EPA has a pesticide/herbicide permit for all Waters of the U.S. 
within threshold guidelines. This means anytime a pesticide/herbicide 
is applied on or near Waters of the U.S. a permit is needed, including 
strict program and paperwork requirements for pesticide use in 
communities of more than 10,000. In addition, the use of some pesticide 
products could be jeopardized by the proposed definition--for example, 
when farmers and other landowners seek to use land-based pesticides 
with labels that state ``do not apply to water'' or that require no-
spray setbacks from jurisdictional waters to avoid potential spray 
drift. Confusion over what are Federal ``waters'' may expose pest-
control operators to litigation and threaten effective pest management.
    Finances are already one of the single biggest factors in young 
people's decision to get into the farming industry. Adding more 
uncertainty, compliance burdens and costs to their operations will not 
make it any more likely that this critical industry will have a viable 
future for the next generation.
    Unexpected consequences: There are at least 13 different places in 
Federal regulations that reference Waters of the U.S., either directly 
or through the definition of ``navigable waters''. For instance, Part 
120 of the CFR, oil spill prevention regulations, requires a permit 
anytime an individual uses equipment or tanks around navigable waters; 
that permit includes requirements for spill prevention kits, training 
and emergency plans. The term is also referenced regarding oil 
pollution prevention under Part 112, which applies to homeowners that 
have oil tanks near navigable waters, and Part 116 related to hazardous 
substance and planning. CWA Section 311 covers oil spill prevention and 
preparedness, reporting obligations, and response planning requirements 
that apply to facilities engaged in production or storage of oil 
products based on total volume. In particular, inland non-
transportation oil facilities of a certain size that have potential to 
discharge to navigable waters must prepare and implement Spill 
Prevention, Control, and Countermeasure (SPCC) plans.
    While these are all important elements of protecting water quality, 
it does not appear the agencies have fully reviewed the far-reaching 
implications of the proposed definition and what the uncertainty it 
provides will mean in the broader picture. And with the potential for 
civil suits and civil penalties of $7,000 per day for violations of the 
Clean Water Act for individual homeowners, businesses, farmers, 
governments and others, it is critical that the agencies get this 
definition right and that it is clear and explicit.
Determination of Jurisdiction
    The proposed rule's introduction also notes that there are other 
tools and approaches underway to increase efficiency in determining 
whether waters are covered, including improving the precision of desk-
based jurisdictional determinations. In addition, the agencies indicate 
that information derived from a field observation may not be required 
in cases where a desktop analysis can provide sufficient information to 
make the requisite finding. While we understand the use of such desktop 
tools may be more efficient from a human resource perspective, we are 
concerned about the potential for over-reliance on these tools that 
seems to be suggested here. Several times in recent years, we have seen 
significant errors in modeling and other output because the data cannot 
always accurately reflect what is happening on the ground. For 
instance, as new FEMA flood maps are established throughout the state, 
communities have discovered technical problems in which topography 
indicated a flood zone would exist but a corresponding hydraulic study 
would have shown otherwise, had the maps been checked for real-world 
accuracy. In relationship to the Chesapeake Bay, the Land Use Model 
does not yet fully account for all BMPs, and often shows that 
Pennsylvania has made less progress than we see in our communities. On 
top of the confusion the proposed rule already creates, an over-
reliance on desktop tools may create inaccurate jurisdictional 
determinations that will take more time and resources to resolve.
Other Questions
    To what extent are tributaries considered Waters of the U.S.? 
Tributary streams are to be considered jurisdictional by rule under 
this proposal. Yet the proposed rule does not appear to limit the 
claimed jurisdiction to just waters that are direct tributaries to 
navigable waters, but also claims the entire network of perennial, 
intermittent, ephemeral and headwater streams, noting that the water 
must be part of a tributary system or network of tributaries that 
drains to a jurisdictional water. The defining characteristic of a 
tributary seems to be whether the water ever eventually flows to a 
jurisdictional water, not whether it is a direct tributary of a 
jurisdictional water. Is this accurate?
    How will the jurisdiction of a ditch be determined? The proposed 
rule states that man-made conveyances are considered jurisdictional 
tributaries if they have a bed, bank and ordinary high water mark, and 
flow directly or indirectly into an interstate water, territorial sea 
or their impoundments, regardless of perennial, intermittent or 
ephemeral flow. There is an exemption for certain types of upland 
ditches with less than perennial flow or those that do not contribute 
flow to a WOTUS. But based on the uncertainty of terminology, what does 
``contribute flow'' mean, and how will ``do not contribute flow'' in 
the exemption be determined? How would this be proven (i.e., what tests 
would be used?). Who would have the onus to prove the ditch does not 
contribute to flow--the agencies or the permittee?
    How is indirect flow determined? Also, when determining an indirect 
flow, the proposed rule says that an indirect flow is one that is 
``through another water''--does this mean that if more than one water 
stands between the ditch and the jurisdictional water, that ditch would 
not be considered to flow into the jurisdictional water? Or would 
jurisdiction be established regardless of how many ``other waters'' 
stand between the ditch and the jurisdictional water? Given that 
tributaries are supposed to be a ``jurisdictional by rule'' category 
(i.e., a bright line category), this uncertainty should be resolved, 
preferably by narrowing the scope of the indirect flow rather than 
expanding it.
    What are uplands? In the Q&A document issued by EPA, the agency 
defines an ``upland'' as used in the proposed rule as any area that is 
not a wetland, stream, lake or other water body, and further explains 
that upland areas can exist in floodplains. On page 22207 of the 
proposed rule's explanation, there is a statement that absolutely no 
uplands located in riparian areas and floodplains can ever be WOTUS 
subject to jurisdiction of the CWA. We have difficulty finding where 
either of these concepts is detailed in the proposed definition or the 
explanation and recommend that a definition be provided in the rule to 
avoid future confusion.
    Why is perennial flow not defined within the proposed regulation 
itself? In the explanation of the proposed rule on page 22203, the 
agencies note that perennial flow means that water is present in a 
tributary year round when rainfall is normal or above normal. Yet there 
is no reference to this definition in the proposed regulation itself--
why? The agencies indicate they are seeking comment on the appropriate 
flow regime for a ditch with regard to the (b)(3) exclusion; will this 
become part of a definition in a final rule and will there be an 
opportunity to comment if so?
    Can jurisdiction change along the length of a ditch? The proposed 
definition creates a three-part test for ditches to be excluded--must 
be excavated wholly in uplands, drain only in uplands, and have less 
than perennial flow. Does this mean that a ditch that stretches for 
miles, which meets this definition in part but not in whole, would not 
be exempt? Or that parts of the ditch could be exempt while others are 
not? It seems that the entire ditch would be jurisdictional, as there 
is a reference on page 22203 that indicates ditches that meet these 
conditions for exclusion for their entire length are not tributaries 
nor are they Waters of the U.S., implying that those ditches that do 
not meet all three parts of the exclusion would be jurisdictional. Is 
this a correct interpretation?
    What does the term ``incidental to construction'' mean? The 
proposed rule excludes ``water-filled depressions created incidental to 
construction activity.'' Many construction projects have such ditches 
or depressions for foundations or footers that do not appear or 
disappear overnight. How will ``incidental'' be determined to qualify 
for the exclusion?
    To what extent does distance factor into the determination of 
``significant nexus''? The definition of ``significant nexus'' makes a 
reference to distance as a factor--located ``sufficiently close'' 
together or ``sufficiently close'' to a WOTUS so they can be evaluated 
as a single landscape unit. The agencies also note that there has 
always been an element of ``reasonable proximity'' in evaluating 
adjacency (page 22207), even though this term is not actually found in 
the proposed definition. The agencies further acknowledge that the 
distance between water bodies may be far enough that the presence of a 
hydrologic connection does not support an adjacency determination, even 
though by definition, only the hydrologic connection would matter and 
not the distance separating the bodies. If the agencies intend, as 
described, to interpret the definition of neighboring to not include 
wetlands a great distance from a jurisdictional water, then perhaps a 
distance factor should be more clearly written into the definition 
instead of left up to interpretation.
    Why is there a separate definition for floodplains in this proposed 
rule? FEMA has been working with states and local jurisdictions to 
update its Flood Insurance Rate Maps over the past several years, and 
state and local governments are adopting and updating hazard mitigation 
plans based on those maps. The Biggert-Waters Flood Insurance Reform 
Act of 2012 required FEMA to contract to prepare a Report on how FEMA 
can improve interagency and intergovernmental coordination on flood 
mapping, which was released in November 2013. Given all of the work 
that has already been going into the new FEMA flood maps and the 
emphasis on stakeholder coordination, we believe it would make more 
sense if EPA and Army Corps worked off the same understanding of what a 
floodplain is.
    EPA and Army Corps also seem confused among themselves on what 
standard they based their definition of floodplain. While the 
explanation of the proposed rule indicates that the definition of 
floodplain used is scientifically based (page 22207), question 17 of 
EPA's Q&A document states ``The proposed rule does not define 
floodplain because there is no scientific consensus on how to do so.'' 
It is further difficult to believe that adjacent (or neighboring) 
waters in a floodplain are to be determined on a case-by-case basis on 
the best professional judgment of which flood interval to use--here 
described as the 10 or 20 year flood zone (22209). If the standard can 
keep changing, how does this create a bright line category for a 
jurisdictional water? In addition, the commonly understood distinction 
between floodplains as used by FEMA is a 100 year or 50 year flood 
zone. Consistency among Federal agencies, and among Federal, state and 
local government, should be considered instead.
Connectivity Study
    Finally, as noted earlier, we also believe that the underlying 
science of the proposed rule has not been fully vetted by the agencies 
in collaboration with the public to allow the rule to move forward. A 
public comment period should be opened on the final Connectivity Report 
when the report is finalized with the SAB recommendations attached, 
with further public comment on the proposed rule after the Connectivity 
Report is finalized as well.
Conclusion
    The Waters of the U.S. definition proposed by EPA and Army Corps is 
confusing and so vague as to lead to interpretations of broadened 
jurisdiction for the Federal Government. Such expansion is wholly 
unnecessary here in Pennsylvania, where we have long had a 
comprehensive laws and regulations and a strong tradition of state and 
local oversight in place to protect our waterways.
    The agencies have indicated their belief that the proposed rule 
provides greater clarity as to what waters are subject to CWA 
jurisdiction, thereby reducing the need for permitting authorities, 
including states, to make case-specific determinations, and leaving 
them with more resources to protect their waters. Pennsylvania's 
counties disagree with this analysis, and believe this proposed rule 
will certainly have a negative impact on our ability to protect our 
waters by adding a layer of Federal permitting where it has not been 
needed before. Creating this level of confusion and uncertainty 
guarantees we will spend far more time and resources arguing over who 
has jurisdiction and what permits and paperwork must be completed, with 
no actual benefit or improvement to water quality.
    Further, with expanded Federal jurisdiction under this proposed 
rule, the permitting and decision making processes will be removed 
several levels. The benefits of local county and state knowledge 
working on the ground will be lost, sowing distrust between communities 
and regulators they never see and with whom they lack a similar 
relationship.
    A good regulation would engage state governments, local communities 
and affected industries as active partners in the regulatory decision-
making process. Instead, the proposed regulations seek to federalize 
many of the land use and community and economic development decisions 
that should be made by state officials and local communities. Without a 
clear line on what is in and what is out of WOTUS jurisdiction, it will 
be difficult for agriculture, industry and other businesses to plan for 
the future. We must achieve a better balance to assure the clarity 
sought in the proposed rule is in fact achieved and that additional 
burdens are not unintentionally and unnecessarily added to our efforts 
to protect water quality throughout the commonwealth.
    We respectfully request that the agencies withdraw the proposed 
rule, and amend the rule in conjunction with input from local 
governments only after the final connectivity report is released, after 
consideration of the comments received and with a better understanding 
of existing state programs. CCAP would be pleased to work with the 
agencies to assist in assuring that the clarity sought in the proposed 
rule is in fact achieved and that additional burdens are not 
unintentionally and unnecessarily added to our efforts to protect water 
quality throughout the commonwealth.
    We thank you for your attention to these comments. If you have any 
questions or would like to discuss further, please do not hesitate to 
contact Lisa Schaefer, CCAP Director of Government Relations, at 
[[email protected]] or [717-526-1010 x 3148].
            Sincerely,
            
            
Douglas E. Hill,
Executive Director, CCAP,
Harrisburg, PA.

    The Chairman. Thank you, Commissioner.
    Mr. Fox, please proceed with your 5 minutes when you are 
prepared.

 STATEMENT OF JOSEPH S. FOX, STATE FORESTER, ARKANSAS FORESTRY 
COMMISSION, LITTLE ROCK, AR; ON BEHALF OF NATIONAL ASSOCIATION 
                       OF STATE FORESTERS

    Mr. Fox. Thank you, and good afternoon, Chairman Thompson, 
Ranking Member Lujan Grisham, and Members.
    I am Joe Fox, and, by the way, I am honored to be here. I 
am the State Forester of Arkansas, and I represent the National 
Association of State Foresters. We are in 50 states, in eight 
territories, and the District of Columbia. State Foresters 
direct programs and protection for America's private forest, 
\2/3\ of the nation's forest, 500 million acres. We are 
responsible for the silviculture, non-point source pollution 
control measures. We call them BMPs, forestry best management 
practices.
    A recent Virginia Tech study, data collected in 2013, shows 
that 87 percent of our forestry BMPs are complied with, 87 
percent compliance with our BMPs nationally. Arkansas' BMPs 
happen to be voluntary, and like other states, are very 
effective. In the recent EPA national assessment database, of 
all the sources of water impairment, it lists forestry as 
significantly less than any of the other sources. Healthy 
forests mean clean air, but they also slow water run-off, 
allowing sediment to drop out. Healthy forests are clean water 
things, if you will.
    The new definition of the WOTUS rule, Waters of the U.S. 
rule, and terms within the rule, is in response to a Supreme 
Court ruling, we realize that, but I am concerned that what is 
meant for clarity is just the opposite. The National 
Association of State Foresters shared our concerns with our 
formal comments last November. In those comments, we say that 
terms like all tributaries of navigable waters mean a broader 
and generalized reach by the agency. Riparian areas and 
floodplains can be quite different if they are in New Mexico or 
Pennsylvania or Arkansas. It is difficult to generally describe 
water and land features that are regionally different. In south 
Arkansas, where I am from, the pine and oak flat woods of 
Calhoun County, 6" means a ridge. You go over there in the 
ridge and you cut those trees, or you paint those trees, or you 
make that wildlife habitat. That is a ridge in south Arkansas, 
and it is not in other places. Regional differences require 
case-by-case solutions, not significant nexus generalities. 
National rules need the flexibility to do just that, to have a 
case-by-case analysis. Healthy, productive forests that are 
beside a road, that has a ditch, which now might be classified 
as a tributary, do not need oversight by EPA because of a 
generalized rule.
    In conclusion, state forestry BMPs work, and what works in 
Arkansas is different than what works in Pennsylvania, or what 
works in New Mexico.
    Thank you for the opportunity to speak. I will be happy to 
answer questions at the proper time.
    [The prepared statement of Mr. Fox follows:]

Prepared Statement of Joseph S. Fox, State Forester, Arkansas Forestry 
Commission, Little Rock, AR; on Behalf of National Association of State 
                               Foresters
    Good morning, Chairman Thompson, Ranking Member Lujan Grisham, and 
Members of the Subcommittee. I am Joe Fox, Arkansas State Forester, and 
I thank you for the opportunity to appear before the Subcommittee today 
on behalf of the National Association of State Foresters. I am pleased 
to provide testimony to the Subcommittee on Conservation and Forestry 
concerning the U.S. Environmental Protection Agency (EPA) and Army 
Corps of Engineers (Corps) proposed rule to define ``Waters of the 
United States'' (WOTUS) under the Clean Water Act (CWA). The National 
Association of State Foresters (NASF) represents the directors of state 
forestry agencies from all 50 states, eight U.S. territories, and the 
District of Columbia. State foresters direct programs that assist 
landowners in the management and protection of more than \2/3\ of the 
nation's forests; over 500 million acres of private forestland. State 
foresters have primary responsibility for the development and 
implementation of state non-point source water pollution control 
programs for silviculture, commonly referred to as forestry best 
management practices, or ``BMPs.''
    BMPs have been an integral part of state forestry agency programs 
since the 1970s and have provided effective, affordable, and practical 
measures that protect water quality when managing forests through 
harvesting, thinning, replanting, construction and maintenance of 
forest roads, and related silvicultural activities. NASF's latest 
report examining the effectiveness and implementation rates of state 
BMP programs is nearly complete. I am pleased to report to the 
Subcommittee that the findings indicate high rates of implementation 
and successful performance in protecting water quality nationwide.
    I would also like to thank the Subcommittee for the strong, 
bipartisan support you demonstrated in the 2014 Farm Bill by including 
a provision to preserve the exclusion of forest roads from point source 
permitting under the CWA. Such action acknowledges the efficacy of BMP 
measures and reaffirms the significant role of state forestry agencies 
in protecting water quality.
    NASF members work to ensure the continued flow of benefits from the 
nation's forests including clean air and water, forest products and 
jobs, wildlife habitat, and aesthetic values. These forests face many 
threats including wildfire and damaging insects and disease, but 
permanent loss of forestland from conversion to other land uses is an 
issue of increasing national significance. Barriers to long-term 
management such as inadequate markets for forest products can increase 
the likelihood of conversion. Similarly, confusing or complex 
regulatory policy can create uncertainty and administrative burdens 
that frustrate a landowner's inclination to invest in forest management 
and thereby consider other land use options
    I recognize that the EPA and the Corps proposed the new definition 
of waters of the United States in response to direction from the 
Supreme Court of the United States and in hopes of providing more 
clarity for landowners and stakeholders. However, I am concerned that 
the proposal, as written, will do just the opposite and generate 
uncertainty, complicate existing procedures, and result in new legal 
exposure for forest landowners under the CWA. As such, NASF 
communicated to the EPA and Corps through comments filed in November 
2014 that the association did not support the proposed rule as drafted 
and offered comments on specific concerns within the proposed rule.
    In particular, the proposed rule's categorical definition of ``all 
tributaries'' as WOTUS, including man-made ditches and certain lands 
adjacent to tributaries such as riparian areas and floodplains, would 
seem to result in a much broader reach of Federal jurisdiction, one 
that distorts the concept of ``significant nexus to'' and ignores 
whether there is relative permanence of water. We propose that if a new 
definition of the term tributary is necessary, then that new definition 
needs to be more precise than what is currently proposed as ``all 
tributaries.''
    Furthermore, NASF shared concern with the EPA and the Corps that 
attempting to codify and define such broad and diverse terms as 
riparian area and floodplain in a national rule is problematic and will 
not bring clarity or consistency to the implementation of the proposed 
WOTUS rule. If such terms are deemed necessary, then each term must be 
defined with specific, measurable, repeatable, and science-based 
metrics that can be easily understood and quickly derived when 
assessing all possible landscape features across the United States. 
This is the only way that use of these terms can lead to the 
consistency in application of the CWA which is the goal of this rule. 
In practical application, neither of these terms is appropriate for 
inclusion in a regulatory framework intended for national 
implementation, and ultimately, NASF suggests that these two terms be 
excluded from the proposed rule.
    While the concepts of significant nexus, ecoregion, and other 
situated waters attempt to address scale and specific conditions, they 
tend to produce generalized findings and potentially unnecessary 
conclusions about the need for Federal jurisdiction. Due to the high 
variability in water features across the United States, the rule should 
provide some flexibility for regional or state-specific criteria rather 
than a one size fits all national standard. Such an approach is needed 
to maintain the role of local knowledge and to provide managers with 
flexibility while ensuring program consistency.
    NASF appreciates the acknowledgement in the proposed rule that the 
longstanding permitting exemption in section 404 of the CWA for 
silviculture is not affected by the proposed rule. The silviculture 
exemption is an important tool that supports sustainable forest 
management which is critical to ensuring that private landowners have 
an incentive to retain forestland.
    To reiterate, I am concerned that the proposed rule in its current 
form will likely create circumstances of more confusion rather than 
clarity in implementation. EPA's public acknowledgment that the 
proposed language may not adequately convey the principles as intended 
suggests that significant revisions to the proposed language will be 
forthcoming. Incorporating such findings will significantly change the 
proposed rule that NASF and many other stakeholders considered in 
submitting comments to the EPA and the Corps and it remains unclear if 
the agencies will seek additional comments from stakeholders.
    Thank you, Chairman Thompson, Ranking Member Lujan Grisham, and 
Members of the Subcommittee for the opportunity to provide testimony 
this morning. I look forward to answering any questions you may have.

    The Chairman. Thank you, Mr. Fox.
    Commissioner Mettler, please go ahead and proceed whenever 
you are ready.

           STATEMENT OF MARTHA CLARK METTLER, DEPUTY
        ASSISTANT COMMISSIONER, OFFICE OF WATER QUALITY,
 INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT, INDIANAPOLIS, 
   IN; ON BEHALF OF ASSOCIATION OF CLEAN WATER ADMINISTRATORS

    Ms. Mettler. Thank you. Chairman Thompson, Ranking Member 
Lujan Grisham, and Members of the Subcommittee, my name is 
Martha Clark Mettler, and it is my pleasure to appear before 
you today to provide the Association of Clean Water 
Administrators' perspective on the proposed rule revising 
Waters of the United States.
    I am here today representing the members of ACWA as the 
association's President. I am currently the Deputy Assistant 
Commissioner of the Office of Water Quality with the Indiana 
Department of Environmental Management. I have been with IDEM 
since 1995, was named Deputy Assistant Commissioner in 2005, 
and have been a member of ACWA since that time. ACWA is the 
national nonpartisan professional organization representing 
state and interstate water quality control officials, 
responsible for the implementation of surface water protection 
programs throughout the nation.
    The proposed rule raises implementation issues and 
questions that vary from state to state. Due to the varied 
opinions of the states, ACWA is unable to support or oppose the 
proposed rule. My statement today does not supersede or alter 
the perspective or input of any individual state. According to 
an analysis done by one stakeholder group, eight states support 
the rule, one state supports the rule with revisions, four 
states are neutral, ten states oppose, and 22 states believe 
the rule should be withdrawn.
    Time spent reviewing the individual state comments will 
provide the Subcommittee with a clear understanding of how the 
proposed rule will affect state programs. I will highlight some 
broad categories of concern.
    Geographic variability: Due to state-to-state differences 
in geohydrology and water-related legal authorities, as well as 
uncertainty as to the effects of the rule on the implementation 
of various sections of the Clean Water Act, ACWA finds it 
difficult to comment on whether the proposed rule is suitable 
for all states. For example, some states question the 
appropriateness of Federal jurisdiction over all ephemeral 
streams since some rain-dependent streams flow so infrequently 
their effect on downstream waters is inconsequential. However, 
some ACWA members support Federal jurisdiction over all 
ephemeral streams either because they have identified a strong 
connection to downstream protection, or because relying on 
case-by-case determinations of significant nexus to downstream 
waters is too resource-intensive.
    Exclusions: ACWA agrees that specific exclusions listed in 
the proposed rule provide increased clarity for regulators and 
the regulated community. Clear exclusion should help streamline 
permitting by reducing the number of individual jurisdictional 
determinations that will have to be made. However, some 
exclusions need clarification. For example, the agencies need 
to clarify in the final rule that ditches that drain upland, 
but eventually do discharge to Waters of the United States are 
not jurisdictional throughout the upland portion of the ditch. 
Additional clarity is needed throughout the rule. ACWA agrees 
with EPA and the Corps that clarity in Clean Water Act 
jurisdictional determinations is needed. However, to achieve 
that clarity, ACWA believes the agencies need to provide clear 
definitions in the final rule. For example, the proposed rule 
failed to provide clear bounds on the spatial extent of 
floodplains and riparian areas. Terms like rills, gullies, and 
uplands are not defined, but should be to add the needed 
clarity to the final rule. ACWA also believes that the final 
rule must make it clear that the ability of states to assume 
the 404 program is not affected.
    Significant nexus analysis: The agencies should strive to 
limit the categories of waters that will require a case-by-case 
significant nexus analysis. For the, hopefully, few waters that 
do require significant nexus analysis, the burden should be on 
EPA and the Corps to make timely determinations. Agreement and 
consistency between Corps districts and EPA is needed to afford 
successful implementation of the final rule.
    Finally, additional guidance is necessary. ACWA feels 
strongly that the agencies should develop a set of regional, 
ecologically-delineated guidance for key elements of the rule, 
like the significant nexus determinations. However, for this 
guidance to be useful, states must be involved in its 
development. Without clearer terms and guidance, states will be 
left to interpret the rule on their own, which will undermine 
national consistency, increase litigation, and perpetuate 
uncertainty.
    Mr. Chairman, Ranking Member Lujan Grisham, and Members of 
the Subcommittee, I thank you for this opportunity to share 
ACWA's perspective on the proposed Waters of the U.S. rule. I 
am happy to answer any questions.
    [The prepared statement of Ms. Mettler follows:]

      Prepared Statement of Martha Clark Mettler, Deputy Assistant
      Commissioner, Office of Water Quality, Indiana Department of
Environmental Management, Indianapolis, IN; on Behalf of Association of 
                       Clean Water Administrators
    Chairman Thompson, Ranking Member Grisham, and Members of the 
Committee, my name is Martha Clark Mettler and it is my pleasure to 
appear before you today to provide the Association of Clean Water 
Administrators (ACWA) perspectives on the proposed rule revising the 
Definition of ``Waters of the United States'' Under the Clean Water 
Act. I am here today representing the members of ACWA as the 
association's President.
    I am currently the Deputy Assistant Commissioner, Office of Water 
Quality, with the Indiana Department of Environmental Management 
(IDEM). IDEM is responsible for the daily implementation of the Clean 
Water Act (CWA) water quality programs in Indiana. I have been with 
IDEM since 1995, was named Deputy Assistant Commissioner in 2005 and 
have been a member of ACWA since that time.
    ACWA is the national, nonpartisan professional organization 
representing the state, interstate and territorial water quality 
control officials responsible for the implementation of surface water 
protection programs throughout the nation. ACWA's members are on the 
front lines of Clean Water Act (CWA) monitoring, permitting, 
inspection, compliance and enforcement across the country and ACWA's 
members are dedicated to Congress' goal of restoring and maintaining 
the chemical, biological and physical integrity of our nation's waters.
    As the primary entities responsible for carrying out the CWA, 
states are uniquely positioned to provide input on how the proposed 
rule will impact their current activities under the various CWA 
programs and how the reach of jurisdiction may change, dependent on 
their current authority under state law. The proposed rule also raises 
implementation issues and questions that vary from state to state; 
important considerations when developing a national rule of this 
breadth. ACWA's members reviewed and considered the proposed rule and 
were left with remaining comments, questions and concerns that were 
conveyed to the agencies in our comment letter. Due to the varied 
opinions of the states, ACWA is unable to support or oppose the 
proposed rule.
    My statement today does not supersede or alter the perspective or 
input of any individual states and I encourage you to review individual 
state comments that are included in the docket so that you and the 
Members of the Committee fully understand the breadth of diversity 
among the states on this proposal. According to an analysis done by one 
stakeholder group, eight (8) states support the rule as proposed; one 
(1) state supports the rule as proposed but suggests the agencies 
should revise the final rule based on specific comments; four (4) 
states expressed a neutral opinion on the proposal; ten (10) states 
oppose the proposal in current form and suggest revisions; 22 believe 
the rule should be withdrawn and, it is not clear how the remaining six 
(6) states view the proposal. A review of the rulemaking docket shows 
that there is a wide variety of opinions among the states on the 
proposed rule. Time spent reviewing individual state comments will 
provide the Committee with a clear understanding of how the proposed 
rule will affect state programs and highlight the concerns that these 
states have with the proposal.
Lack of Consultation with States
    States have long supported early, meaningful and substantial state 
involvement in the development and implementation of the Clean Water 
Act. Following publication of the proposed rule, ACWA coordinated with 
EPA, the Corps and other state associations to hold a series of co-
regulator calls to discuss questions from the states and to gain 
further understanding of the proposal. These discussions were helpful 
and ACWA appreciates the time and effort that the agencies put into 
these discussions in order to explain what the rule is intended to do 
and not do, and to hear the viewpoints of the states. We believe, 
however, that EPA and the Corps must continue to engage states as their 
co-regulators and partners as the Waters of the U.S. rulemaking process 
comes to its culmination. Since the states are the primary entities for 
carrying out the CWA, we encourage the agencies to maintain regular 
forums and contact with ACWA and its members leading to any 
finalization of the proposed rule and associated implementation 
guidance. We look forward to continuing to work with EPA and the Corps 
on refining the proposal to add additional clarity and certainty to 
jurisdictional determinations. Writing such a fundamental rule that 
applies nationally is very difficult and state regulators can help the 
agencies as the states have an intimate knowledge of their own 
watersheds and delegated authorities and an understanding of the on-
the-ground implementation of CWA programs.
Geographic Variability
    Due to state-to-state differences in geohydrology and water-related 
legal authorities, as well as uncertainty as to the effects of the rule 
on the implementation of various sections of the CWA including the 
TMDL, NPDES, Non-point Source and Wetlands programs, ACWA finds it 
difficult to comment on whether the proposed rule is suitable for all 
states. For example, some states question the appropriateness of 
Federal jurisdiction over all ephemeral tributaries since some rain-
dependent streams flow so infrequently, their effect on downstream 
waters is inconsequential. However, some ACWA members support Federal 
jurisdiction over all ephemeral tributaries, either because they have 
identified a strong connection between ephemeral streams and downstream 
protection in their state, or because relying on case-by-case 
determinations of whether ephemeral streams have a significant nexus to 
downstream waters is too resource and time intensive.
Exclusions
    ACWA agrees that specific exclusions listed in the proposed rule 
provide increased clarity for regulators and the regulated community 
and we encourage the agencies to expand the list of clear exclusions in 
any final rule. This, in turn, may help to streamline permitting by 
reducing the number of individual jurisdictional determinations that 
will have to be made. However, some exclusions need clarification. ACWA 
encourages the agencies to clarify in the final rule that such ditches 
that drain upland, but eventually discharge to waters of the United 
States are not jurisdictional throughout the portion of the ditch that 
was excavated in uplands. The agencies should also include detail in 
the final rule or subsequent guidance on how to parse out exactly where 
the line is between nonjurisdictional and jurisdictional stretches of 
ditches, as well as how to affirm that a ditch does not contribute flow 
to a downstream, navigable water. Clarity is also needed on whether, 
when, or what parts of stormwater collection and treatment systems fall 
within the exclusion of ``waste treatment systems'' and therefore, a 
definition of these systems is warranted.
Additional Clarity Is Needed
    ACWA agrees with EPA and the Corps that recent Supreme Court 
decisions created an environment of uncertainty and that clarity in CWA 
jurisdictional determinations is needed. However, to achieve that 
clarity, ACWA believes the agencies need to provide clearer definitions 
in the final rule. For example, the proposed rule failed to provide 
clear bounds on the spatial extent of floodplains and riparian areas. 
Similarly, additional detail is needed on the scope of a ``shallow 
subsurface hydrologic connection.'' While ACWA's members agree that 
shallow subsurface flow can connect adjacent waters to proposed 
jurisdictional waters, the significance of the connection is a critical 
factor. The definition of ``shallow subsurface hydrologic connection'' 
should establish a clear limit beyond which a case-by-case significant 
nexus analysis is needed to assert jurisdiction. Additionally, the 
final rule should clearly state that the shallow subsurface aquifer is, 
itself, not jurisdictional. Terms like rills, gullies and uplands are 
not defined, but should be to add needed clarity to the final rule. 
Finally, ACWA believes that the final rule must make clear that the 
ability of states to assume the 404 program is not affected.
Other Waters and Significant Nexus Analysis
    ACWA agrees and supports the agencies' efforts to specifically 
exclude certain hydrologic features from CWA jurisdiction. These 
exclusions will provide greater clarity and streamline the 
certification review process. However, for features not specifically 
excluded, a case-by-case significant nexus analysis will be needed to 
assert jurisdiction which could slow down projects. The agencies should 
strive to limit the categories of waters that will require a case-by-
case analysis. Moreover, the proposed rule failed to clarify whether 
the 2008 joint guidance issued by EPA and the Corps after the Rapanos 
decision will still be relied upon to make such determinations. If not, 
there needs to be enough flexibility in the final rule allowing the 
agencies to work with the states to develop a process for determining a 
significant nexus. ACWA also strongly encourages the agencies to work 
with states on a regional basis to jointly identify policies that 
consistently implement the significant nexus analysis allowing for 
grouping of geomorphically similar waterbodies. For waters that do not 
easily fit into such groups, the burden should be on EPA and the Corps 
to timely determine jurisdiction after requests for jurisdictional 
determinations are made. Importantly, greater transparency from the 
Corps and better agreement and consistency between Corps districts and 
EPA is needed to afford successful implementation of the final rule.
Additional Guidance is Necessary
    ACWA feels strongly that the agencies develop a set of regional, 
ecologically delineated guidance for both significant nexus 
determinations and the any of the desired clarifications described 
above not captured in the final rule itself. However, for this guidance 
to be useful, states must be involved in its development. States need 
greater detail on how to identify beds, banks and ordinary high water 
marks for the purpose of recognizing tributaries. States need greater 
detail on how to determine if a wetland ``contributes flow, either 
directly or through another water'' to one of the proposed 
jurisdictional waters set forth in the proposed rule. As was done for 
identification of regional hydric soils under the  404 program, ACWA 
encourages the agencies to form regional committees made up of EPA, 
Corps and state partners, to develop any further definitions and 
guidance that may be needed to ensure consistent implementation of any 
final rule. In addition, the agencies should develop guidance on water 
quality standards applicable to ephemeral streams. This is important 
because many of these streams are dry a great majority of the time and 
do not generally support the CWA goals of fishable and swimmable, 
unlike streams and rivers that run for sustained periods (intermittent) 
or continuously (perennial) throughout the year. Without clear terms 
and guidance, states will be left to interpret this rule on their own, 
which will undermine national consistency, increase litigation and 
perpetuate uncertainty.
    Mr. Chairman, Ranking Member Grisham, and Members of the 
Subcommittee, I thank you for this opportunity to share ACWA's 
perspectives on the Water of the U.S. proposed rule. We remain 
committed to the goals of the CWA and look forward to working with our 
partners at EPA and the Corps as they finalize the proposal. We remain 
ready to answer any questions or concerns the agencies may have in 
follow-up to our comments, and would be pleased to facilitate further 
dialogue with our state member agencies. I am happy to answer any 
questions that you may have.

    The Chairman. Commissioner, thank you very much.
    We will now proceed with the questioning part. Each Member 
will be recognized for 5 minutes of questioning, and I will 
exercise the opportunity to ask the first 5 minutes of 
questioning to this panel.
    The Pennsylvania Department of Environmental Protection 
submitted comments on October 8, 2014 and November 14, 2014, 
which, if there is no objection, I would like to submit them 
for the record.
    Seeing none, those will be submitted.
    [The information referred to is located on p. 101.]
    The Chairman. In these comments, the agency stated: ``the 
rule as drafted creates more confusion than it clarifies, and 
is already subject to differing interpretations by the 
Environmental Protection Agency and Army Corps of Engineer 
staff. This confusion will delay permitting that could 
undermine strong state programs. Pennsylvania asks the EPA and 
the Army Corps to consider an approach that recognizes regional 
differences and geography, climate, geology, soils, hydrology 
and rainfall, and that supports the strong and comprehensive 
state programs.''
    So with this in mind, my first question for the panel--this 
panel is would you agree that with the assertion that EPA added 
confusion and that this WOTUS rule could actually undermine 
strong and existing state efforts? Go ahead, Commissioner 
Smeltz.
    Mr. Smeltz. Yes, thank you, Congressman Thompson, for that 
question, and I would be happy to try to address that. Being 
that I am from Pennsylvania and I have worked with DEP in a 
number of permitting issues in my career, I agree--the question 
you asked was--if you would phrase it again. I believe it was--
will the WOTUS decision or determination--rule definition----
    The Chairman. Would it undermine strong, robust state 
programs that are currently in place?
    Mr. Smeltz. In the Commonwealth of Pennsylvania--and I have 
seen this history evolve over time, in the Commonwealth of 
Pennsylvania, the state has worked diligently, particularly 
with soil conservation districts which do have authority at the 
local level in Pennsylvania to help process environmental 
permits of various kinds. They have worked diligently to 
develop a permitting process that the counties and local 
jurisdictions currently fully understand. In fact, I would 
suggest that those regulations within the Commonwealth of 
Pennsylvania are actually more stringent than some--or as 
stringent, I had better say as stringent, as some of the 
Federal legislation.
    So if you are already truly regulating an environmental 
condition, I don't know what additional Federal regulation on 
top of that is going to accomplish. What we are concerned about 
is then it will lead to more cost, more public safety risk, and 
more cost because the state has developed a--what they call a 
guaranteed turnaround time for permits. And so to answer your 
question, if we again add additional confusing terminology to 
the permitting process in a state where you already have a very 
thorough permitting process, then the counties that I am 
dealing--the counties that I represent across these--not just 
Pennsylvania, but across the United States, but in this case 
Pennsylvania, you are going to add a mixed message. You are 
going to delay permitting processes, you are going to add 
engineering fees and engineering costs. You may sometimes add 
risks because now a project that you are trying to complete is 
delayed because there are additional steps that need to be 
taken over and above that which is already in place. And you 
are going to get the desired results with the existing state 
permit procedures that are in place, you are going to protect 
water, and NACo wants counties to protect water. NACo 
encourages local jurisdictions and states to have regulatory 
and permitting procedures in place.
    So to answer your question, additional confusing 
terminology will, in fact, do what you suggest, it will make it 
more complicated, more costly, and not accomplish the intended 
results.
    The Chairman. Yes.
    Secretary Witte, any thoughts from New Mexico's 
perspective, do you see WOTUS as in any way undermining the 
existing efforts that may be in place today?
    Mr. Witte. Chairman Thompson, I really couldn't have said 
it any better than Mr. Smeltz. The confusing issue of who 
regulates what has always been a problem in states like New 
Mexico, and when you--we have thousands of miles of streams 
that are intermittent, ephemeral, and you put a regulation like 
what is in the proposed WOTUS regulation on top of that, for 
the landowners, the agencies, and even the state environment 
department in our case in New Mexico, to know who is going to 
be in charge of those regulations is going to create a 
logistical and a costly system. And so I believe we are--it 
will cause a lot of confusion in our state.
    The Chairman. Thank you very much.
    I now recognize the Ranking Member for 5 minutes of 
questioning.
    Ms. Lujan Grisham. Thank you, Mr. Chairman.
    I am going to start just where you left off. Secretary 
Witte, I really appreciate your following up on that question 
about whether or not one of the unintended consequences would 
be to see a lessening of states' authority and 
responsibilities, and I use state in the broadest sense, the 
local governments and our private partners under the current 
regulatory framework, to manage clean water protections 
currently. What you referenced, and I am going to do it both 
referring back to your testimony and your comment just now, is 
that water jurisdiction, water management, water quality, and 
clean water protections are very complex, and in fact, today we 
know that we have several communities that, in fact, don't have 
safe drinking water. So the status quo in the current system 
one can argue is problematic, and that we need to do something 
moving forward because there are jurisdictional questions and 
issues in the current context that are not working. Would you 
agree?
    Mr. Witte. Yes, Ranking Member Lujan Grisham, I would 
absolutely agree that it is a challenge in today's environment, 
even without the WOTUS rule.
    Ms. Lujan Grisham. I really appreciate that because--and 
that is not to minimize that you identified significant issues 
with the current proposed rule, but that getting to a place 
where all of the stakeholders are clarifying responsibilities 
and opportunities so that ultimately we protect our water is 
really important.
    One of the other issues that you identified is that arroyos 
and we have another thing called acequias in the Southwest, 
primarily New Mexico. One is naturally occurring, arroyos, 
which are often sort of monsoon and are natural geography-
related. It is dry, then it is really wet, it is dry, really 
wet, so we have these incredible erosions that water will flow 
through. And then we make some of those ourselves, those are 
acequias so that we can create a water management and 
irrigation system opportunity. These are not defined by the 
proposed rule, and it is a small example, but an important 
example, to a rural state like New Mexico, about the inability 
for EPA in the current context to really understand some of the 
issues that we have to deal with, and the complexities of the 
jurisdiction.
    I was struck by several of the panelists talking about the 
withdrawal of the rule, and I am wondering, as we look at 
methods, going forward, if we should also ask EPA to do a 
supplemental rule because they have significant comments that, 
frankly, they ought to address and they ought to reengage their 
stakeholders using, in fact, the arroyo as an example, that 
they are not quite prepared to move forward, and a supplemental 
rule would give my stakeholders and yours a much quicker 
opportunity to weigh-in from that baseline.
    What do you think about that?
    Mr. Witte. Chairman Thompson, Ranking Member Lujan Grisham, 
I couldn't agree more. The opportunities that EPA has really to 
bring people--you had over one million people comment on this 
proposed rule, and while we call for the withdrawal of the 
rule, we know that WOTUS, the Waters of the U.S., has to be 
addressed at some form and fashion.
    As a regulator in my state, I know that regulations were 
created for a purpose, and over time they evolve, either 
through other decisions or court cases or whatever. And every 
now and then as an agency, we have to take a step back and look 
at the real true purpose. Every comment that I reviewed in 
preparing for this hearing said virtually the same thing: 
withdraw, re-propose, collaborate with the local groups from 
the ground up. EPA has an unprecedented opportunity to bring 
people together and really consider--there are some dynamite, 
fantastic comments that EPA could use to make a rule that 
works. It doesn't fit--one size doesn't fit all, as was pointed 
out on this panel. We, in New Mexico, are unique, just as the 
folks in Pennsylvania and Arkansas, and all across this nation, 
and you really have to take that local input. It is important, 
and they have an opportunity to bring it back together and get 
something that works.
    They propose a rule that doesn't address a lot of these 
issues, it is just going to be as confusing as it is today.
    Ms. Lujan Grisham. Mr. Secretary, I appreciate your time. I 
am really out of time for the rest of the panel. Thank you for 
being here today.
    Mr. Chairman, I yield back the balance of my time.
    The Chairman. The gentlelady yields back, and I thank her.
    And we now recognize the gentleman from Tennessee, Mr. 
DesJarlais, for 5 minutes.
    Mr. DesJarlais. Thank you, Mr. Chairman. And thanks to our 
panel.
    We have an awful lot of issues that we face here in 
Congress, whether it is the healthcare law, whether it is the 
threat of ISIS, or the deficit, any number of issues, but I can 
tell you that this Waters of the U.S. rule has really grabbed 
the attention of a lot of people, and I would--I know it is not 
Tennessee-centric because I have contacts from around the 
country, whether it is California, South Dakota, Colorado, 
calling me saying you have to stop this rule. So I am very 
grateful that we are having this hearing today.
    I want to kind of look at it from an oversight perspective 
a little bit today in terms of how so many agencies are taking 
steps to circumvent the rule review process, and specifically I 
would like to look at it economically in terms of how the OIRA 
and EPA have tried to circumvent this rule.
    On March the 3rd, Mr. Howard Shelanski, the Administrator 
of the Office of Information and Regulatory Affairs, OIRA, easy 
for me to say, right, testified before the House Oversight and 
Government Reform Subcommittee on Administrative Rules, and 
this, of course, is the office responsible for reviewing the 
legality and economic impact of a new Federal rule before they 
are published, and ultimately accepting or rejecting the 
proposed rule. It was troubling to me that when we asked Mr. 
Shelanski whether or not he could present to our committee the 
documents that they used to make a ruling, that this was non-
major or economically non-significant. We know the cut-off for 
that is $100 million per year, so what I am going to ask of you 
all later, and possibly the second panel, is that we talk about 
that $100 million per year cost. Somehow after reviewing the 
Waters of the U.S. rule, OIRA determined that it was not a 
significant rule and, therefore, not subject to Congressional 
review, despite estimates of annual costs ranging from $160 to 
$278 million per year, and some of these estimates coming from 
Army Corps of Engineers and EPA. And what was also concerning 
was the lack of documentation that Mr. Shelanski was unable to 
provide because it wasn't just the Tennessee Farm Bureau, which 
is the largest in the nation, who was here asking questions, or 
farmers from all around our district, the NFIB, or National 
Federation of Independent Businesses sent a FOIA request, a 
Freedom of Information Acts request, to the EPA, and also Small 
Business Office of Advocacy sent letters asking for 
documentation on how they came about this rule, and the EPA 
sent a letter back saying they have no documentation.
    So I guess what I would like to accomplish today is that, 
next time we have Mr. Shelanski or the EPA in front of one of 
our committees, we can give them documentation that this rule 
is indeed going to cost more than $100 million.
    So I don't know if anyone on the panel came prepared with 
numbers but, Mr. Smeltz, do you have any idea from what you 
have been hearing from your folks back home what the economic 
impact might be?
    Mr. Smeltz. Well, I don't know what broad spectrum of 
jurisdiction this $100 million figure you are speaking of is. 
Are you talking about across the state?
    Mr. DesJarlais. Across the nation.
    Mr. Smeltz. Across the nation. Okay, well, it would be hard 
for me to address that from that perspective.
    I can only tell you, while I don't have any raw numbers, I 
can get raw numbers, and we have done this now since the 
times--I can tell you that the imposition of any delays. For 
example, there was a project in our area in Pennsylvania where 
an amendment had to be made to a $27 million road project. Now, 
this road project--there was a change in the environmental 
design, there was a change in the ditch pattern that they were 
going to use to build--it was a bridge in an interchange, it 
was worth $27 million.
    Mr. DesJarlais. Okay. Mr. Smeltz, if you could, just 
because I only have about 24 seconds----
    Mr. Smeltz. Okay.
    Mr. DesJarlais.--does anyone else on the panel----
    Mr. Smeltz. I am sorry.
    Mr. DesJarlais.--have an estimate or an opinion as to 
whether or not they are hearing that this would have an 
economic impact of more than $100 million per year?
    Okay, if anyone can get that, perhaps the second panel, 
that would be useful information to make sure we get to the EPA 
and we get to OIRA when they are trying to make a determination 
on this rule.
    And thank you for your time. Sorry to interrupt you, sir.
    The Chairman. I thank the gentleman.
    Just so everyone is aware, our votes will be pending here 
perhaps--well, any time----
    Voice. Started.
    The Chairman. Have they started already?
    Voice. I think so.
    The Chairman. Okay. So we will continue here with 
questioning to see how far we can get until--we do want to make 
sure Members get to the floor in time to cast their vote.
    So I now recognize, from Washington State, Ms. DelBene for 
5 minutes.
    Ms. DelBene. Thank you, Mr. Chairman. And I just want to 
thank all of you for being here with us today. This is an 
important issue. I have heard about it from farmers throughout 
my district, and also on the other side, we had over 17,000 
Washingtonians who sent in comments in support of the rule. So 
it is definitely a very relevant issue in our region.
    Ms. Mettler, I wanted to make sure that everyone is kind of 
operating with the same information, I wondered if you could 
walk us through the differences in section 402 and 404 permits, 
the kind of the activities they cover, and the special case for 
pesticides.
    Ms. Mettler. Sure. For section 402, that is generally 
wastewater discharges either from municipal or industrial 
dischargers, and most states have a broad definition of waters 
of the state that they use to implement that program if it has 
been delegated to their state, which most states have, but not 
all. And so those kind of permits regulate the discharges from 
ends of pipes from those facilities, and would just regulate a 
number of regulated contaminants that we would want to keep 
under the water quality standards.
    Section 401 is a water quality certification that any 
fill--discharge or fill material would be meeting our water 
quality standards. And that is a companion document to the Army 
Corps' section 404 permit. So you do have to work in 
conjunction with the Corps to make sure that you get all your 
permits, and that was one of the things that was mentioned 
earlier.
    The pesticide general permit was, as mentioned, kind of 
added as a concern due to a court ruling to maintain permits 
for applications of pesticides on or near water. That is a 
general permit so most states developed a broad set of 
requirements that if you satisfy those in your applications of 
permits, you send in a notice of intent and you are covered by 
that permit. With that, you are under FIFRA regulations as well 
to apply according to the label.
    Ms. DelBene. Thank you. I appreciate that. You also said in 
your testimony that--and everyone mentioned this--that many 
parts of the rule need additional clarification, and that is 
definitely something I have heard from all of our farmers as 
well. I ran a state agency, I understand rules are not always 
applied how they were intended, and that they aren't always 
perfect. Given that, are there adequate clarifications that if 
they were made to a final rule where you could see the rule as 
a benefit for the community and from your perspective as a 
regulator?
    Ms. Mettler. Well, if you go back in history to the 
agencies first attempted guidance, I won't be able to give you 
the date but a few years back, and that was not sufficient for 
most states that were trying to maintain regulatory certainty 
because they are trying to follow the Federal rule and the 
implementation of their state rules. So there are different 
ways, as the Ranking Member mentioned, of getting to that 
regulatory certainty in this rule, and I think that states 
would be open to different ways as long as you ended up in that 
place where you did have a clear understanding of the meaning, 
and again, to really get there you do need to collaborate with 
the regulated community as well as your state co-regulators, 
and that is important
    Ms. DelBene. You actually brought up a concern that we have 
heard from folks about the proposed rule not having engagement 
with state and local officials. Were any of you involved or 
contacted, asked for feedback?
    Ms. Mettler. Prior to the proposal, no.
    Mr. Witte. No.
    Mr. Smeltz. No.
    Mr. Fox. No.
    Ms. DelBene. Thank you. Each region of the country also 
faces unique issues with water. I think you brought this up in 
terms of Arkansas. In the Northwest, we have a lot of water but 
not always necessarily in the right place at the right time. A 
concern I have heard repeatedly is that working farmland is at 
risk. In addition, many of our farmers have brought up the 
interface between water quality and quantity, specifically 
related--and you talked about this earlier, specifically 
related to new upland areas within the Clean Water Act 
jurisdiction where water is withdrawn for irrigation or other 
uses. There is now a potential link to the Clean Water Act, and 
thus some farmers are worried about a prohibition on 
withdrawals or against future allocation of waters.
    This is a general question for everyone. I guess I don't 
have enough time left to get all your answers, but I wondered 
if you could comment on this concern from your perspectives or 
if you are able to send us feedback on that another time, 
because I am running out of time.
    The Chairman. The gentlelady's time has expired, but that 
information certainly would be appreciated if you could put 
that in writing and follow up to the Committee.
    Ms. DelBene. Thank you, Mr. Chairman. I yield back.
    The Chairman. Thank you.
    I now recognize the gentleman from Michigan, Mr. Benishek, 
for 5 minutes.
    Mr. Benishek. Thank you, Mr. Chairman. I would like to also 
thank the panel for being here. I truly appreciate you coming 
to Washington to talk to us.
    I represent northern Michigan, and Michigan has over 20 
million acres of forestland, which represents over \1/2\ the 
landmass of the state, and of that, over 12 million acres is 
privately owned. And our foresters and timber managers are 
working hard to keep the forests properly managed. And I am 
concerned about the cost and burden of additional Federal 
forest regulations that would prove detrimental to a struggling 
industry in my state.
    Mr. Fox, what are you hearing from foresters in your area 
about the proposed rule and how it will impact the forest 
industry in your state?
    Mr. Fox. Well, in general, they are fairly worried about 
the possibilities of the stretch of our longstanding forest 
road ditches that are connected to something, are they going to 
be jurisdictional with EPA and the Corps of Engineers. There is 
talk of closing roads, there is talk of closing certain private 
lands. There are worries over, if I am in the business of 
producing timber, will I be able to get the timber to the mill. 
So those worries actually depreciate the value of the trees and 
the land they are on.
    Mr. Benishek. What effect do you think the proposed rule 
will have on forest health, Mr. Fox?
    Mr. Fox. Well, the healthy forests are those forests that 
are thinned, and in Arkansas, thinned underneath as well as 
thinned from above. And if we can't get skidders and feller 
bunchers and forwarders on the ground, or over the roads, the 
trucks to the mills, that is a real big problem. The effect is 
the uncertainty of whether we can produce from these acres. And 
that uncertainty, again, leads to sometimes conversion to other 
uses rather than forests, which would be the worst thing that 
can happen for our forests, or sometimes it leads to 
devaluation of the land and timber.
    Mr. Benishek. Let me ask another question. If the rule goes 
through as proposed, does the infrastructure currently exist to 
help both private landowners and other foresters remain in 
compliance? What issues do you see them facing?
    Mr. Fox. Arkansas is a non-regulatory state, so the 
infrastructure does not exist to do that. We would have to 
build our State Forestry Commission personnel to help 
landowners or contract with consultants. The infrastructure is 
not in place in my state to deal with it.
    Mr. Benishek. Mr. Smeltz, do you have any opinion on that? 
Do you have to deal with these issues in your county?
    Mr. Smeltz. We are not specific with forest perhaps, but we 
are a largely forested county where I am from in Clinton 
County, but county governments are responsible for the 
maintenance of a vast majority of the nation's raw highway 
system when you leave the non-interstate systems, so that the 
key to maintaining an infrastructure system is, of course, 
drainage, proper drainage. And if the abilities to maintain--
because of the ambiguity in some of the terminology and 
additional permits being required, and knowing what to do--
where the counties to maintain highway systems and road 
systems, where the rubber meets the road, if there is confusion 
in that arena it is going to lead to failures in your 
infrastructure if you don't--if you are not able to maintain 
ditches and be able to clean ditches. So we certainly don't 
want a rule interpretation that hinders that process at the 
county level. And so, yes, that----
    Mr. Benishek. And----
    Mr. Smeltz.--is of grave concern.
    Mr. Benishek. Secretary Witte, let me ask you a question 
similar to that. Do you think that this regulation adds more 
clarity to a plan of managing the Waters of the U.S.?
    Mr. Witte. Mr. Chairman, Congressman Benishek, absolutely 
not. As it is currently stated and proposed, it does not add 
clarity. It actually adds confusion. My concern would be is the 
attitude of the agency going to be regulatory enforcement or 
compliance assistance, and typically it has been, in the past, 
regulatory enforcement. And that is the thing you have to watch 
out for if you have unclear rules and regulations.
    Mr. Benishek. Thank you very much.
    The Chairman. The gentleman's time has expired.
    The chair would just inform everybody they have called 
votes, but we are going to be able to get through the Members 
that are present for questions, should you choose to stay. And 
then we will resume 10 minutes after the last call to vote is 
announced. So I encourage you to vote right away and please 
come on back.
    I now recognize the gentlelady from Arizona, Mrs. 
Kirkpatrick, for 5 minutes.
    Mrs. Kirkpatrick. Thank you, Mr. Chairman, and thank you, 
Ranking Member, for having this important hearing.
    This is a big issue for my huge Arizona Congressional 
district. In fact, with all due respect to you, Mr. Chairman, 
and Mr. Smeltz, my Congressional district is bigger than the 
entire Commonwealth of Pennsylvania, and it is covered in 
forest. We have recently had some horrific and fatal forest 
fires. In fact, my neighbors in New Mexico may have experienced 
some of the smoke from those fires.
    Secretary Witte, my question is for you. And actually, I 
have three, so in the interest of time, I am going to ask the 
three questions at one time, and then you can answer them. In 
your testimony, you said that the proposed rule would make fire 
prevention, fire management, and rehabilitation more difficult. 
My first question is what specifically in the proposed rule 
would do that, would make fire prevention more difficult. My 
second question is will the proposed rule require any new or 
different permitting. And then what is your suggestion to 
changes in the rule that would allow us to continue our forest 
practices uninterrupted?
    Mr. Witte. Mr. Chairman, Congresswoman Kirkpatrick, it is 
my belief that if you look at the rule and the potential, 
because of the unclear definitions of arroyos and ditches and 
things like that, gullies, that if we, in fact, have regulatory 
creep into areas that weren't historically regulated, you could 
increase permitting. And if you are going to go in and, we in 
New Mexico, and probably in Arizona, they are a lot the same, 
we wish we had a forest industry. We have mismanaged, overgrown 
forests that are causing these catastrophic wildfires, and we 
have to get in there. And right now, the Forest Service is 
hampered because of issues, but they have to do their 
environmental assessments, their environmental impact 
statements and things like that. If you add this on top of 
that, there is one more permit and one more step they have to 
go through before we can actually manage the forest properly to 
avoid these catastrophic wildfires.
    I think that is the critical point of confusion that we 
have to address and clarify in forest management.
    Mrs. Kirkpatrick. In other words, we need to streamline the 
process for clearing the acreage that can be logged, rather 
than increasing that regulation process.
    Mr. Witte. Mr. Chairman, Congresswoman Kirkpatrick, 
exactly.
    Mrs. Kirkpatrick. Okay, thank you.
    I am going to yield back, Mr. Chairman.
    The Chairman. I thank the gentlelady.
    And I now recognize the gentleman from Illinois, Mr. Bost, 
for 5 minutes.
    Mr. Bost. Thank you, Mr. Chairman.
    I am going to ask a fairly simple question real quick 
because we are kind of pressed for time to get across the 
street--and anybody on the panel, if you can. Whether the 
agency--if they expand the definition, or we just stop them 
from expanding the definition, do you think your local 
governments are in the position to make sensible law to take 
the control that is necessary? I came from state government and 
I know how I feel about that, but I would like to hear your 
comments on that.
    Mr. Fox. My comment from Arkansas would be that we have 
little regulation in this area for forest. We are a very 
collaborative state. We are working together with groups like 
the Nature Conservancy, the Arkansas Timber Producers 
Association, the Arkansas Forestry Association, Arkansas Game 
and Fish Commission, and we train loggers and foresters and 
forest landowners how to treat their roads, their stream 
crossings, their harvesting units, and it is all done on a 
voluntary basis, and it is working rather well.
    Our compliance rate in Arkansas is 87 percent overall, and 
90 percent on those, in my mind, that really mean something, 
and that is like stream crossings. It is a big deal to us to 
regulate ourselves, but on a voluntary basis, and that is what 
I like.
    Mr. Smeltz. Thank you, Congressman, for that question. I 
would say that the--a collaborative effort is what is desired 
by NACo, and that collaborative effort, it varies from--we are 
hearing it varies from state to state as far as the--as you are 
saying in Illinois, the regulatory processes within each state, 
but for those who--if I may say, the boots on the ground folks 
at the county level, those who are responsible for maintaining 
infrastructure who have to deal with the consequences of this 
regulatory, they are the ones you really need to consult with. 
But I can speak to Pennsylvania, that the collaborative effort 
between the soil conservation districts, the county 
governments, the state government has produced the results that 
I believe this rule is trying to accomplish. There may be areas 
where it does need to be tightened perhaps in other parts of 
the country, but please, I would ask that that collaborative 
approach be used, and please consult with the people who do the 
work, and they will tell you and they will help you try to get 
what you are trying to accomplish. And, therefore, that is why 
we ask for the rule to be withdrawn and start all over with a 
more complete process where all the facts are considered. Thank 
you.
    Mr. Witte. Chairman Thompson, Congressman Bost, the states 
have the capacity to deal with at a certain level, but all of 
the states are--as I was visiting with our environmental 
department secretary earlier today about this, his point was 
that even today, states are struggling with their budgets and 
if you add one more thing onto the state requirement, they are 
not sure they can handle it without further resources from EPA 
or whoever is requiring it.
    Because of the budget stress though, it causes 
collaboration. And as Mr. Smeltz added, the environmental 
department works with our agency, the State Department of 
Agriculture, soil and water conservation districts, and others, 
to collaborate and find the best opportunities to work together 
to address the water quality needs in the State of New Mexico, 
and that is including EPA at this point in time.
    Ms. Mettler. I guess I would just simply say that, as 
mentioned before, the beauty of the Clean Water Act is it 
delegates certain authorities to the state, and the states are 
pretty dedicated to protecting their waters and prioritizing 
based on what they think is important within their own 
regulatory frameworks. And so to have that flexibility to 
prioritize based on their own landscape is important.
    Mr. Bost. Thank you all for your answers.
    From state government is where I came originally, and I 
kind of agree with all of you that this is kind of an 
overreach, so hopefully we can move forward in the right 
direction.
    Mr. Chairman, I yield back.
    The Chairman. The gentleman yields back.
    I now recognize the gentleman from Georgia, Mr. Allen, for 
5 minutes.
    Mr. Allen. Thank you, Mr. Chairman.
    And obviously hearing lots about this issue, and it sounds 
like that EPA has made some determination here that we have a 
serious problem. What are they using as evidence that would 
create all of this discussion? Are we not taking care of our 
streams and tributaries like we should be? What exactly are 
they up to here?
    Mr. Fox, I would like to know your viewpoint on that.
    Mr. Fox. Well, if I am able to give my opinion, they are 
responding to two things, and first is a Supreme Court 
decision, the Rapanos decision; and second, to budget cuts. EPA 
has suffered several budget cuts over the last several years. 
They have less capacity to do site-by-site jurisdictional 
investigations, and they don't have enough people to do what--
the way they have done business before. And, frankly, I see 
this as a generalized effort to streamline their work so that 
they can get their work done. I think it takes a year to get a 
ruling on a jurisdiction.
    Mr. Allen. Yes. Mr. Smeltz, would you have an opinion on 
that?
    Mr. Smeltz. Yes. I am not sure what the EPA is trying to 
do. I would tell you this, sir, that counties across the United 
States, it is to our advantage for purposes of agriculture, 
tourism, recreation, we want clean water. You don't need to 
teach us at the county level that we want to--we want to do 
that because we--I like Mr. Fox's comment that collaborative--
would we do it to the degree without any--I don't know, but we 
know the importance.
    The other thing is, I would suggest that they are 
creating--not to dispute Mr. Fox's comments, it was 
interesting, they may be creating themselves more work by----
    Mr. Allen. Yes.
    Mr. Smeltz. So I----
    Mr. Allen. That is what I am thinking----
    Mr. Smeltz. Yes. If they already----
    Mr. Allen.--is----
    Mr. Smeltz.--are short-staffed, they are going to create 
more work----
    Mr. Allen. Yes.
    Mr. Smeltz.--for the counties.
    Mr. Allen. Counties, states----
    Mr. Smeltz. Yes.
    Mr. Allen.--everybody is going to be imposed on.
    Mr. Smeltz. Everybody, and we are going to have to hire 
more engineers, we are going to have to perhaps hire more 
attorneys----
    Mr. Allen. Yes.
    Mr. Smeltz.--to resolve these issues, and we certainly 
don't want to do that, no offense to any attorneys in the room, 
but we don't want to spend our money that way. We want to spend 
our money in building infrastructure, not in sorting out 
confusing rules. So I scratch my head in response to your 
question.
    Mr. Allen. Yes. Exactly, and----
    Mr. Smeltz. Thank you, sir.
    Mr. Allen. Mr. Secretary, any comments in that regard?
    Mr. Witte. Chairman Thompson, Congressman Allen, I have no 
idea what EPA was thinking. When you are under the kind of 
budget situation that we meet with our region 6 and they talk 
about their tightness of resources all the time, and when you 
come out with a rule like this that is going to require more, 
sometimes it is better off if they would take a step back and 
try to figure out something that makes more sense and really 
hit the ground with something that will work.
    Mr. Allen. And, Ms. Mettler, would you have a comment as 
well?
    Ms. Mettler. Well, I just was going to mention that the 
current rule does lead to some regulatory uncertainty.
    Mr. Allen. Yes.
    Ms. Mettler. And if you believe EPA in their description of 
what they were trying to accomplish was additional clarity----
    Mr. Allen. It covers everything, right?
    Ms. Mettler. Yes.
    Mr. Allen. I mean a hole in the ground, pretty much.
    Ms. Mettler. So some states have struggled with----
    Mr. Allen. Yes.
    Ms. Mettler.--current wording to try and get those 
jurisdictional determinations. So if you could get clarity, 
that would be good.
    Mr. Allen. Right. What bothers me is that they just don't 
seem to want to know what you are thinking. How do we solve 
whatever problem we have here, and so they create all this 
uncertainty, and everyone is up in arms about it because you 
are talking about a lot of money here that could be spent, that 
folks--things are tight everywhere, and folks are--it is tough. 
It is tough out there. I mean the timber business is tough 
right now, and it is wet everywhere, at least in my district, 
so it is hard to get the timber out of there.
    But thank you so much for being here today, and I 
appreciate your expertise, and we will do everything we can for 
you.
    The Chairman. The gentleman yields back. I appreciate it.
    Thank you to the first panel for your expertise and your 
testimony. It is greatly appreciated.
    As announced before, there is a series of votes that have 
been called and in process, and I anticipate this series of 
votes to last approximately until 3:55 p.m., and Members will 
return to the hearing as quickly as possible following the last 
vote.
    This hearing will stand in recess subject to the call of 
the chair.
    [Recess.]
    The Chairman. Thank you everybody for your patience as we 
were interrupted on the floor. I assure you that was the last 
vote series on the floor, so we won't have any other 
interruptions like that at this point.
    I would like to welcome our second panel of witnesses to 
the table. Ms. Ellen Steen, General Counsel and Secretary, 
American Farm Bureau Federation, from Washington, D.C.; Mr. 
Jonathan Gledhill----
    Mr. Gledhill. Gledhill.
    The Chairman. Gledhill. See, I should go with my gut 
instincts, and I didn't do that, I waivered there. President of 
the Policy Navigation Group, on behalf of the Waters Advocacy 
Coalition, Annandale, Virginia; Mr. Russ Biggica, Director of 
Government, Legislative and Economic Development, Pennsylvania 
Rural Electric Association out of Harrisburg, Pennsylvania; Mr. 
Sledge Taylor, cotton, corn, soybean, wheat, sorghum, and 
peanut producer, from Como, Mississippi; and Mr. Steve 
Foglesong, livestock producer, from Astoria, Illinois. Thank 
you all for your written testimony you submitted. I know that 
all Members received a copy of that. I thought it was just very 
thorough, great information. We are looking forward to your 
oral testimony. Your oral testimony is 5 minutes. The light 
system is in front of you. Basically, when it gets to red we 
just ask that you begin to wrap up whatever thoughts you are on 
at that point.
    And, Ms. Steen, would you please go ahead when you are 
ready?

STATEMENT OF ELLEN STEEN, J.D., GENERAL COUNSEL AND SECRETARY, 
                AMERICAN FARM BUREAU FEDERATION,
                        WASHINGTON, D.C.

    Ms. Steen. Thank you, Chairman Thompson, and Ranking Member 
Lujan Grisham. My name is Ellen Steen and I am the General 
Counsel and Secretary of the American Farm Bureau Federation.
    I have spent the better part of my legal career, more than 
2 decades, focused on the Clean Water Act and its implementing 
rules, particularly as they apply to agriculture and forestry 
activities. I have defended farmers and forestland owners 
against the enforcement actions by EPA and by environmental 
interest groups who advocate broad interpretations of 
regulatory obligations, and narrow interpretations of 
agricultural and forestry exemptions.
    I have closely studied the proposed rule, reading it 
against the backdrop of my own experience, and I would stake my 
professional reputation on the fact that this rule, unless it 
is dramatically altered from what was proposed, will result in 
Clean Water Act permit requirements and potential liability for 
an enormous number of commonplace and essential farming, 
ranching and forestry practices nationwide. I say potential 
liability only because we cannot know today which farmers will 
face agency enforcement or citizen lawsuits. We also cannot 
know exactly when those inspections and lawsuits will happen, 
but what is certain is that a tremendous number of common, 
responsible farming and ranching and forestry practices that 
occur today without any need for a Federal permit will be 
highly vulnerable to agency enforcement and citizen lawsuits 
under this rule.
    Congress never intended to impose Clean Water Act 
regulation on ordinary farming and ranching activities. 
Instead, Congress designed incentive-based, state-led programs 
to promote responsible farming and ranching practices. We 
support those programs. We support environmental stewardship 
among farmers and ranchers, and we certainly support clean 
water, but what we don't support is regulatory changes that 
would impose costly, complex and highly punitive Federal 
regulatory programs on hundreds of thousands of farmers and 
ranchers nationwide.
    Over the past year, EPA and the Corps have repeatedly told 
farmers and ranchers that they have nothing to fear from the 
proposed rule because normal farming is exempt from regulation. 
These statements are false. The existing agricultural 
exemptions, as interpreted by the agencies, will not protect 
farmers and ranchers from burdensome Federal permitting 
requirements and potentially devastating liability under this 
proposed rule. I have summarized the reasons why in my written 
testimony, and I would be pleased to answer questions here 
today or at any time about the scope of the agricultural 
exemptions.
    The EPA officials here in Washington have said that our 
concerns about the rule are not justified, even silly, but out 
in the countryside, our experience is that EPA and the Corps 
interpret their rules broadly, not narrowly. Just as important, 
citizen plaintiffs had the power to enforce the Clean Water 
Act, and their lawyers will take the broadest possible 
interpretation of the rule. At least based on the language in 
the proposed rule, which is all we have seen, I can say that 
farmers who dare to farm near or across ditches, small wetlands 
or ephemeral drainages will be at great risk if they ever catch 
the eye of agency inspectors or environmental interest groups.
    Promulgation of this rule will leave farmers and ranchers 
with no acceptable alternative. They can either continue 
farming, but under a cloud of uncertainty and risk, they can 
take on the complexity, cost and equal uncertainty of Clean 
Water Act permitting, or they can try to avoid doing anything 
near ditches, small wetlands or stormwater drainage pads on 
their land. It is a no-win situation for farmers and ranchers. 
It is not what Congress intended, and it is not necessary for 
clean water.
    Thank you for the opportunity to speak, and I look forward 
to any questions you may have.
    [The prepared statement of Ms. Steen follows:]

Prepared Statement of Ellen Steen, J.D., General Counsel and Secretary, 
           American Farm Bureau Federation, Washington, D.C.
    I would like to thank Chairman Thompson, Ranking Member Lujan 
Grisham, and Members of the Subcommittee for the opportunity to testify 
on the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps 
of Engineers' (Corps) (together, ``the Agencies'') proposed rule to 
define ``waters of the United States'' under the Clean Water Act (CWA) 
and on the rule's impact on farmers, ranchers and rural America.\1\
---------------------------------------------------------------------------
    \1\ The proposed rule is published at 79 Fed. Reg. 22188 (April 21, 
2014).
---------------------------------------------------------------------------
    My name is Ellen Steen, and I am the General Counsel and Secretary 
of the American Farm Bureau Federation (AFBF). In my current position 
and in 2 decades of private law practice prior to joining AFBF, I have 
become all-too familiar with how Clean Water Act regulations are 
interpreted by the Agencies and by the courts. I have litigated over 
the validity and interpretation of Clean Water Act regulations 
concerning the use of pesticides, permit requirements for livestock and 
poultry farms, the scope of Clean Water Act exemptions for farming and 
forestry, and the scope of ``waters of the United States.'' I have 
defended farmers and forest landowners against enforcement actions by 
EPA and by environmental interest groups who advocate broad 
interpretations of Clean Water Act regulatory obligations and narrow 
interpretations of agricultural and forestry exemptions.
    I have closely studied the proposed rule--reading it against the 
backdrop of my own experience with the interpretation and enforcement 
of Clean Water Act regulations. I would stake my professional 
reputation on the fact that this rule--unless it is dramatically 
altered from what was proposed--will result in potential Clean Water 
Act liability and Federal permit requirements for a vast number of 
commonplace and essential farming, ranching and forestry practices 
nationwide. I say ``potential'' liability only because it is impossible 
to know how many farmers, ranchers and forest landowners will be 
visited by agency enforcement staff or will be sued by citizen 
plaintiffs' lawyers--and it is impossible to know when those 
inspections and lawsuits will happen. But what is certain is that a 
vast number of common, responsible farming, ranching and forestry 
practices that occur today without the need for a Federal permit would 
be highly vulnerable to Clean Water Act enforcement under this rule.
    Several statutory exemptions demonstrate Congress's clear 
determination not to impose Clean Water Act regulation on ordinary 
farming and ranching activities. Over the past year, EPA and the Corps 
have repeatedly said that farmers and ranchers have nothing to fear 
from the proposed rule because those traditional agricultural 
exemptions remain intact. These statements are misleading. The existing 
agricultural exemptions, as interpreted by the Agencies, will not 
protect farmers and ranchers from burdensome Federal permit 
requirements and potentially devastating liability under this proposed 
rule.
    Agency and judicial interpretations over the past several decades 
have significantly limited the agricultural exemptions that have 
traditionally insulated farming and ranching from Clean Water Act 
permit requirements. Much of the remaining benefit of those exemptions 
would be eliminated by an expansive interpretation of ``waters of the 
United States'' to cover ditches and drainage paths that run across and 
nearby farm and pasture lands. The result would be wide-scale 
litigation risk and potential Clean Water Act liability for innumerable 
routine farming and ranching activities that occur today without the 
need for cumbersome and costly Clean Water Act permits. To understand 
why, one must look to the specifics of each exemption.
1. Exemption from Section 402 Permitting for Agricultural Stormwater 
        and Return Flows from Irrigated Agriculture
    One key agricultural exemption applies to ``agricultural stormwater 
discharges'' and ``return flows from irrigated agriculture.'' Congress 
recognized that stormwater and irrigation waters can carry nutrients, 
pesticide and other materials from agricultural lands, but did not want 
to impose section 402 permit requirements for farmland runoff or 
irrigation waters. Thus, Congress specifically excluded precipitation 
runoff and irrigation water from regulation as a ``point source'' 
discharge.\2\ The exemption applies even if the stormwater 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 National Pollutant 
Discharge Elimination System (NPDES) permit requirements.
---------------------------------------------------------------------------
    \2\ See 33 U.S.C.  1362(14).
---------------------------------------------------------------------------
    The proposed rule would severely undermine this exemption by 
regulating as ``waters of the U.S.'' the very ditches and drains that 
carry stormwater and irrigation water from farms. As drafted, the 
statutory exemption applies to pollutants discharged into navigable 
waters carried by stormwater or irrigation water, which would typically 
flow through ditches or ephemeral drainages. However, the exemption was 
not crafted to cover the direct addition of pollutants into ``waters of 
the U.S.'' by other means--such as materials that fall into or are 
sprayed into jurisdictional waters.
    In enacting the Clean Water Act in 1972, Congress likely would not 
have imagined that the beneficial and intentional application of useful 
products to farm fields could be viewed as a discharge of 
``pollutants''--even if those fields might contain wetlands or might 
adjoin streams. Over the past 2 decades, however, courts have found 
that the beneficial use of pesticide in accordance with label 
requirements can be a discharge of ``pollutant'' that requires a Clean 
Water Act section 402 permit, if pesticide falls into waters of the 
U.S.\3\ The reasoning of those court decisions also would place other 
useful activities at risk of being deemed a discharge of 
``pollutant''--such as the application of chemical or organic 
fertilizer.
---------------------------------------------------------------------------
    \3\ See League of Wilderness Defenders/Blue Mountains Biodiversity 
Project v. Forsgren, 309 F.3d 1181 (9th Cir. 2002); National Cotton 
Council v. EPA, 553 F.3d 927 (6th Cir. 2009).
---------------------------------------------------------------------------
    Because ditches and ephemeral drainages 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 Clean Water Act ``pollutant'' discharge liability and permit 
requirements. A Clean Water Act pollutant discharge to waters of the 
U.S. arguably would occur each time even a molecule of fertilizer or 
pesticide falls into a jurisdictional ditch, ephemeral drainage or low 
spot--even if the feature is dry at the time of the purported 
``discharge.'' Courts (and EPA) have long held that there is no de 
minimis defense to Clean Water Act discharge liability. Thus, to avoid 
liability, farmers will have no choice but to seek a discharge permit 
for farming, or else ``farm around'' these features--allowing wide 
buffers to avoid activities that might result in a discharge. Such 
requirements are contrary to Congressional intent and would present 
substantial additional hurdles for farmers who wish to conduct 
practices essential to growing and protecting their crops.
2. Section 404(f) Exemption for ``Normal'' Farming and Ranching 
        Activities
    Another important exemption excludes ``normal'' farming, ranching 
and forestry activities from section 404 ``dredge and fill'' permit 
requirements.\4\ This exemption specifically applies to discharges of 
``dredge and fill'' material, which would include moving dirt--e.g., 
plowing, grading, digging, etc.--in wetlands that are deemed to be 
``waters of the United States.'' Congress enacted the exemption in 
1977, in response to Corps regulations defining ``waters of the United 
States'' to include certain wetlands. Under the exemption, ``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.\5\
---------------------------------------------------------------------------
    \4\ 33 U.S.C.  1344(f)(1).
    \5\ 33 U.S.C.  1344(f)(1)(A).
---------------------------------------------------------------------------
    While Congress's plain words might seem to broadly insulate all 
``normal'' farming, ranching and forestry from section 404 permit 
requirements, EPA and the Corps quickly narrowed the exemption--and 
have continued to narrow it over the years. For example, the Agencies 
immediately promulgated regulations interpreting the exemption to apply 
only to ``established''--i.e., ``ongoing''--operations.\6\ Because the 
exemption was enacted in 1977, this has been construed to mean that 
only farming ongoing at the same location since 1977 was exempted from 
permit requirements.\7\ Newer (post-1977) operations that involve 
farming or ranching in jurisdictional wetlands would, according to the 
Agencies, require a section 404 permit until the operation has become 
``established.'' \8\ Even where farming or ranching has been 
temporarily stopped, and then recommenced, the Agencies have found the 
operation ceased to be ``ongoing,'' and the exemption no longer 
applies.
---------------------------------------------------------------------------
    \6\ 33 CFR  323.4(a)(1)(ii); 40 CFR  232.3(c)(1)(ii)(A).
    \7\ See, e.g., United States v. Cumberland Farms of Conn., Inc., 
647 F. Supp. 1166 (D. Mass. 1986), aff'd 826 F.2d 1151 (1st Cir. 1987).
    \8\ Despite multiple inquiries during the public comment period on 
the proposed rule, the Agencies have so far refused to publicly confirm 
or deny this point. In at least one private meeting, however, high 
ranking EPA officials have confirmed that farming (in a jurisdictional 
feature) that has not been ongoing since 1977 would require a section 
404 permit, but only ``for the first year'' (after which it would be 
deemed an ``established'' operation). See Letter from Craig Hill, 
President, Iowa Farm Bureau, to Ken Kopocis, Deputy Assistant 
Administrator, U.S. EPA Office of Water (Sept. 29, 2014) (http://
www.regulations.gov/#!documentDetail;D=EPA-HQ-OW-2011-0880-7633).
---------------------------------------------------------------------------
    Many farming and ranching operations cannot qualify for the 
``normal'' exemption, as interpreted by the Agencies, because they have 
not been continuously conducted at the same location since 1977. Under 
the proposed rule, these operations will be subject to section 404 
permit requirements (and potential Clean Water Act enforcement and 
penalties) for moving dirt (plowing, planting, building fences, etc.) 
where those activities occur in low spots and drainage paths deemed to 
be waters of the U.S. under the proposed rule.
    Another limitation on the scope of the ``normal'' farming exemption 
is the so-called ``recapture'' provision. Under this provision, the 
normal farming exemption does not apply to any activity ``having as its 
purpose bringing an area of navigable water into a use to which it was 
not previously subject, where the reach of navigable waters may be 
impaired or the reach of such waters be reduced'' (i.e., converting 
wetland to non-wetland so as to make it amendable to crop 
production).\9\ Put differently, where discharges of dredged or fill 
material are used to bring land into a new use (e.g., making wetlands 
amenable to farming) and impair the reach or reduce the scope of 
jurisdictional waters, those discharges are not exempt.
---------------------------------------------------------------------------
    \9\ 33 U.S.C.  1344(f)(2).
---------------------------------------------------------------------------
    The Agencies have broadly interpreted the ``recapture'' provision 
to apply even when the ``new use'' is simply a change from one crop to 
another crop.\10\ But the greatest expansion yet would result from the 
current proposed rule. If ``waters of the United States'' include land 
features as subtle as an ephemeral drainage path running across a farm 
field--or small, isolated wetlands in a field--even ordinary plowing 
could easily ``impair'' the reach or ``reduce'' the scope of those 
purported ``waters.'' In fact, in the preamble to the proposed rule, 
the Agencies admit that if farming has eliminated a bed and bank where 
one previously existed (e.g., cultivation has smoothed the gradient on 
a farm field, eliminating a subtle channel), the Agencies would view 
that as ``converting'' a jurisdictional water into a 
``nonjurisdictional water.'' \11\ Any such action--including ordinary 
plowing--would violate the Clean Water Act in the Agencies' view.
---------------------------------------------------------------------------
    \10\ See, e.g., http://www.spk.usace.army.mil/Missions/Regulatory/
Permitting/Section404
Exemptions.aspx#farming (Corps Sacramento district website discussing 
normal farming exemption).
    \11\ 79 Fed. Reg. at 22204, n. 8.
---------------------------------------------------------------------------
3. Section 404(f) Exemption for Construction or Maintenance of Farm 
        Ponds
    A third important agriculture-related exemption is the exemption in 
section 404 for ``construction or maintenance of farm or stock ponds or 
irrigation ditches.'' \12\ This provision exempts any discharge of 
dredged or fill material into waters of the U.S. for the purpose of 
construction or maintenance of farm or stock ponds or irrigation 
ditches. This exemption, however, like the ``normal'' farming and 
ranching exemption, is subject to the ``recapture'' provision.\13\
---------------------------------------------------------------------------
    \12\ 33 U.S.C.  1344(f)(1)(C).
    \13\ Id.  1344(f)(2); see also 33 CFR  324.3(c).
---------------------------------------------------------------------------
    Through guidance and enforcement actions, the Corps and EPA have 
interpreted the farm pond exemption narrowly and applied the so-called 
``recapture'' provision broadly. In the Agencies' view, impounding a 
jurisdictional feature is an unlawful discharge of dredged or fill 
material, and the resulting impoundment is itself a ``water of the 
U.S.'' \14\ In the experience of many farmers, the recapture provision 
essentially swallows the farm pond exemption. Where farm or stock pond 
construction has involved wetlands or small ephemeral drainages later 
deemed to be jurisdictional ``tributaries,'' farmers have been 
ensnarled in enforcement.
---------------------------------------------------------------------------
    \14\ See 79 Fed. Reg. 22188, 22201 (April 21, 2014).
---------------------------------------------------------------------------
    The proposed rule will further limit farmers' and ranchers' ability 
to build and maintain farm ponds. While some farmers have already been 
harmed by ``case-by-case'' determinations that impounded ephemeral 
drainages were jurisdictional tributaries, the proposed rule would 
establish categorical jurisdiction over virtually any ephemeral 
drainage as a ``tributary.'' Thus, any impoundment of those features 
will be an unlawful discharge absent a section 404 permit, and the 
resulting farm pond itself will be a water of the U.S. Likewise, any 
construction of a farm pond in a small low spot (wetland) now deemed to 
be jurisdictional will also require a section 404 permit and the 
resulting pond will also be a water of the U.S.
    This aspect of the rule will affect countless (maybe most) farm and 
stock ponds--of which there are millions. By expanding jurisdiction to 
include common ephemeral drainages and isolated wetlands, the rule will 
prohibit the impoundment of these natural drainage or depressional 
areas--which is often the only rational way to construct a farm or 
stock pond. Farm or stock ponds are typically constructed at natural 
low spots to capture stormwater that enters the pond through sheet flow 
and ephemeral drainages. Depending on the topography, pond construction 
may be infeasible without diking a natural drainage path on a hillside. 
For that reason, the proposal's exclusion 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'' is almost meaningless. ``Dry land'' would exclude 
anything that qualifies as a wetland or any ephemeral feature where 
stormwater naturally channels--presumably even nonjurisdictional 
wetlands or ephemeral features. This leaves little ``dry land'' 
available for any rational construction of a farm pond. 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 
expansion of jurisdiction would render the farm pond exclusion 
meaningless, and the proposed regulatory exclusion for certain farm or 
stock ponds would provide no relief for most farmers and ranchers.
          * * * * *
    Countless farmers and ranchers nationwide urgently need the 
assistance of this Committee to avoid the harmful effects of this 
proposed rule. Thank you for your consideration and for any action you 
take to ensure that the effects of this rule on farmers and ranchers 
are fully considered.

    The Chairman. Thank you so much for your testimony.
    Mr. Gledhill, please go ahead and proceed for 5 minutes 
when you are ready.

 STATEMENT OF JONATHAN GLEDHILL, PRESIDENT, POLICY NAVIGATION 
               GROUP, ANNANDALE, VA; ON BEHALF OF
                   WATERS ADVOCACY COALITION

    Mr. Gledhill. Thank you, Chairman Thompson, Ranking Member 
Lujan Grisham, and Members of the Committee. Thank you for 
inviting me to testify on how EPA's rulemaking will affect the 
USDA's agricultural programs, especially the ones in the 
jurisdiction of your Committee.
    My testimony today stems from two experiences. First, I 
represent the Waters Advocacy Coalition, a large coalition of 
cross-section of the nation's construction, real estate, 
mining, manufacturing, energy, and agriculture and forestry 
sectors. The coalition is deeply concerned with how this 
proposal could stymie growth and opportunity throughout our 
economy, and especially in rural America. Second, I have the 
honor as serving as a career official in the Office of 
Information and Regulatory Affairs, and the Office of 
Management Budget. My responsibility in OIRA was to determine 
how EPA draft regulations and policies affect our national 
welfare, and the budgets and missions of other Federal 
agencies.
    From these twin streams of experience, I am very concerned 
that EPA is rushing forward with a rulemaking without 
considering the full ramifications, and without fully 
estimating the benefits and costs of this proposal. USDA's 
recent budget submission, performance plan, and other program 
analyses do not evaluate how the WOTUS rule will increase the 
cost, and will reduce the performance of USDA programs. From my 
own analysis, the impact on USDA programs will be significant 
and complex.
    As you have heard this afternoon, the cost of the WOTUS 
rule is multifold. Some of the costs have been mentioned about 
the permitting, but let me mention some other ones, that once 
you define something as the Waters of the United States, many 
other provisions of the Clean Water Act apply. The spill 
protection requirements, the water quality standards, the anti-
backsliding provisions, and the citizen suit provisions. We 
just heard about the citizen suit provisions, how they can 
enforce the Clean Water Act in place of EPA or the states. 
Anti-backsliding means that once a permit is set, so once a 
farmer has a cropland, has a discharge that is permitted, they 
can't make that change and make any change to that crop. 
Farmers are constantly innovating, they are constantly adding 
new crop protection programs, new crops, new techniques. This 
would stymie and make changes in land use more difficult.
    So what are the implications for rural America? Well, as we 
have heard, farmers and landowners have a choice. They can 
either cede jurisdiction of their land to Federal permitting, 
or they get--acquire--spend the money to acquire those Federal 
permits. Those costs are significant. EPA estimates it to be 
$57,000 at a minimum. The WAC has submitted and other experts 
have submitted testimony that they would be hundreds of 
thousands of dollars in certain cases, just to obtain and allow 
the same practices that currently happen today.
    But that is not all. We heard a lot through the testimony 
about uncertainty. Well, uncertainty affects one of the other 
vital elements of rural America and farming: financing. Our 
financing for farming is a shared risk between farmers, 
commercial private institutions and the Federal Government. If 
there is uncertainty, that financing dries up, and that makes 
it very hard for farmers to have certainty so that they can 
move forward.
    So if we look at those costs of both uncertainty and of 
permitting on USDA, how does it ripple through? Well, there are 
several things. First, there is an effect on crop insurance 
demand. The recent farm bill elevated crop insurance as the 
main means to share farming risk in this nation. As farmers 
face higher cost and look at greater risks, their use of farm 
insurance will change--crop insurance will change. The academic 
literature says this interaction is complex. USDA, because this 
is so vital to our farming program and our farming policy, 
needs to look at the impact of this rulemaking on crop 
insurance demand and cost. There will certainly be a greater 
demand for farm operating loans. USDA farm operating loans 
serve as a vital safety net when farmers cannot obtain credit 
from commercial sources. This program offers a lifeline to many 
farmers. With an average loan of $57,000, and $1.25 billion 
obligated, you can see many farmers take advantage of this 
program. As the WOTUS increases the cost of farming, the 
opportunities and the risks to these programs will increase. 
Certainly, we will hear from others about other infrastructure 
programming that USDA supports in rural America, be it 
telecommunications, energy. The more project risk increases, 
the more the risk of default and other cost to USDA.
    Certainly familiar to this Committee is the management of 
U.S. forests. Forest--land managers must comply with this rule 
in the same way the private sector does. The Forest Service 
will have to redo its NEPA analyses to establish jurisdiction, 
and to decide the impact as part of its managers the multiple 
uses of National Forest. Right now, just since October, there 
are 14 pending EISs that will probably have to be stopped and 
reevaluated based on the jurisdictional changes in this 
rulemaking, and that will ripple through the hundreds of U.S. 
forests as each land manager tries to make the right decisions 
in compliance with the rule.
    Finally, and just in conclusion, there is little evidence 
that USDA has considered these impacts. If you look at the 
budget documents, the performance plans, the financial analysis 
OMB does of credit programs that have all been submitted in the 
last 2 months to Congress, none of the effect of WOTUS is 
considered in this rulemaking.
    So what do we do? What can this Committee do? Well, USDA 
has opportunities in the interagency process under OMB to raise 
its concerns. This Committee could ask questions of USDA 
officials that are they--do they understand the budget impacts, 
do they understand the additional demands on USDA programs from 
this rulemaking, and have they brought those up, because policy 
officials can only make decisions when they have information. 
The White House, Congress, and USDA can't understand if they 
haven't done the analysis. So this Committee can play an 
important role to have those questions answered.
    I am running out of time but I would say that, Ranking 
Member Lujan, you raised a great question about supplemental 
versus withdrawal, and the Representative from Tennessee raised 
a question about the economic impact. I would be happy to 
answer those questions, time permitting.
    Thank you for the opportunity to testify today.
    [The prepared statement of Mr. Gledhill follows:]

 Prepared Statement of Jonathan Gledhill, President, Policy Navigation 
      Group, Annandale, VA; on Behalf of Waters Advocacy Coalition
    Chairman Thompson, Ranking Member Grisham, and Members of the 
Committee, thank you for inviting me today to testify on how the United 
States Environmental Protection Agency's (EPA) and the United States 
Army Corp of Engineers' ``Waters of the United States'' (WOTUS) 
proposed rule will affect United States Department of Agriculture 
(USDA) programs, especially those in the jurisdiction of your 
Committee.
    My testimony today stems from two experiences. First, I represent 
the Waters Advocacy Coalition (WAC), a large cross-section of the 
nation's construction real estate, mining, manufacturing, energy, 
public health and safety, agriculture and forestry sectors. The 
Coalition is deeply concerned with how this proposal could stymie 
growth and opportunity throughout our economy and especially in rural 
America. Second, I had the honor of serving as a career official in the 
Office of Information and Regulatory Affairs (OIRA) in the Office of 
Management and Budget (OMB). My responsibility in OIRA was to determine 
how EPA draft regulations and policies affect our national welfare and 
the budgets and the missions of other Federal agencies.
    From these twin streams of experience, I am very concerned that EPA 
is rushing forward with a rulemaking without considering the full 
ramifications and without fully estimating the social benefits and 
costs. USDA's recent budget submission, performance plan, and other 
program analyses do not evaluate how the WOTUS rule will increase the 
cost and will reduce the performance of USDA programs. From my own 
analysis, the impacts on USDA programs will be significant and complex.
    Based on the Administration's stated schedule for this rule, there 
isn't enough time for USDA understand the implication for USDA programs 
in the jurisdiction of this Committee. EPA's leadership has stated that 
they plan to issue the final rule this spring. Under the Executive 
Order for regulatory review issued by this Administration, OIRA only 
has 60 days to 90 days to review the draft final WOTUS rule. To avoid 
the adverse effects of this rulemaking on USDA and rural America, EPA 
and the Corps should re-propose other regulatory alternatives and 
reanalyze their social benefits, social costs, and Federal budget 
impacts.
The WOTUS Rulemaking Will Increase Costs and Uncertainty for Farming 
        and for Services in Rural America
    While the Committee has heard these costs described from other 
witnesses this morning, let me summarize the major ones:

   Expanding jurisdiction under regulation to most ditches, 
        ephemeral streams, and lands containing adjacent waters will 
        increase the land available that can only be farmed under 
        Federal permitting conditions.

   While much attention has been paid to the rule's expansive 
        definitions of wetlands, the rulemaking has implications far 
        beyond wetland permitting. The regulatory definition triggers 
        many other expansive and expensive provisions of the CWA 
        including the following:

     Permitting for discharges in waters of the United 
            States.

     Spill Protection Requirements.

     Water Quality Standards.

     Anti-backsliding provisions.

     Citizen suit provisions.

    The last two deserve some mention. Under the Clean Water Act, once 
effluent permit limits are established, they cannot be made less 
stringent even if the initial environmental problem has been solved. 
Whatever the value of this ``anti-backsliding'' provision is for 
industrial discharges, it certainly does not fit well for farming, 
grazing, and other active land uses. Farmers innovate constantly--new 
seeds, new crops, new pest control systems, new equipment. Under the 
CWA, if a farmer must seek a CWA permit for any runoff into a ditch, 
those limits become binding in the future. It may become very difficult 
to grow a new crop and remain in compliance with permit based on the 
previous crop.
    The threat of citizen suits is not a false scare. It has been said 
that EPA and the Corps will not change their jurisdictional 
determinations, allowing current land uses to continue. This argument 
ignores the consequences of regulation. Under the CWA, authorized 
states must establish water quality standards for all waters of the 
United States and permit discharges into these waters. On behalf of 
EPA, citizens can sue potential dischargers and the states for failure 
to comply with permitted conditions or for failure to establish 
standards under the CWA. Once most ditches become waters of the United 
States, citizen groups can file suit against adjacent land owners for 
unpermitted discharges. Just last month, citizen groups in California 
gave notices to hundreds of businesses and property owners that they 
intend to sue these business if they are not in compliance with an 
upcoming CWA stormwater rule.
Implications of these Regulations for Rural America
    The vast number of land owners who own, or are adjacent to, 
jurisdictional waters face a difficult choice. They can either cede 
control of the land to Federal jurisdiction or they can pay significant 
permitting costs to maintain the current use. Let's explore each 
choice. If they cede control of the land now deemed water of the U.S., 
they will lose production from that land. More significantly, they 
likely will also have lower yields on their remaining nonjurisdictional 
land. For example, to receive a discharge permit for pesticide 
application adjacent to a waters of the U.S., farmers will need buffer 
zones or engineering barriers to prevent discharge to these 
jurisdictional waters.
    On the other hand, if they seek to maintain their current use, they 
must pay to obtain Federal permits. Obtaining these permits are not 
cheap--EPA estimates that they are at least $57,000. The WAC has 
submitted data to EPA to show that these costs are much higher than 
EPA's estimates. In addition to the permitting cost, farmers will then 
have to pay to comply with the permit. These compliance costs include 
monitoring, reporting, wetland mitigation purchases, and other costs. 
As EPA states in its economic analyses for other rulemakings, these 
costs can easily exceed hundreds of thousands of dollars.
    Whether a farm's revenue goes down or its costs go up, the bottom 
line is the same--the rulemaking will reduce the nation's net farm 
income.
    But that isn't all. There is another cost that often doesn't 
receive as much attention, but is extremely important for farmers. 
Uncertainty. This rulemaking increases farming uncertainty both in 
terms of time and space. Permit applications and permit approval takes 
time. The Corps of Engineers' or EPA's permit approval process is not 
aligned to, or as predictable as, the growing season. There is also 
uncertainty in space, i.e., the extent of EPA's asserted jurisdiction. 
Since EPA's definitions are not clear, farmers face some uncertainty 
where they can plant without prior approval.
    Uncertainty matters because of another vital ingredient in farming 
and in rural America, affordable and available financing. Our nation 
has a long tradition of loss mitigation and shared risk between the 
farmer, commercial financial institutions, and the Federal Government. 
In the face of this rule's negative and uncertain effects on farm 
income, private lenders are likely to charge higher financing costs or 
may cut off loans to certain farmers until the jurisdictional issues 
are resolved.
    EPA has not considered the costs of uncertainty in its rulemaking. 
More importantly, USDA has apparently not either.
Effect of the WOTUS Proposed Rule on USDA Programs
    EPA's rulemaking conflicts with USDA's mission to promote rural 
America's prosperity. Here are just some of the impacts on USDA 
programs:

   Greater Demand for Crop Insurance. As farmers' costs 
        increase and income uncertainty increases due to this rule, 
        they will sensibly pay to reduce their overall risk in other 
        areas. Farmers then are likely to increase their coverage under 
        Federal crop insurance programs. USDA has experienced increased 
        demand for coverage over time as other revenue risks (e.g., 
        trade restrictions) have increased.

   Greater Demand for Farm Operating Loans. USDA's farm loan 
        programs serve as a safety net when farmers cannot obtain 
        credit from commercial sources. This program offers a lifeline 
        to a large number of farmers--with an average loan size of 
        $57,000, the $1.25 billion in obligations goes a long way. As 
        the WOTUS rule reduces net farm income for many farmers, their 
        balance sheets will be stressed. More farmers will seek USDA's 
        farm operating loans. Unfortunately, more farmers will be 
        unable to keep current on their existing Federal loans. When 
        net income falls, delinquency rates and thus Federal budget 
        costs.

   Greater Demand for Other Rural Infrastructure Financing. 
        USDA supports investments in rural infrastructure for 
        telecommunication, energy, and education. USDA has multiple 
        grant, loan guarantee, and loan programs to share rural 
        development risk. This rulemaking increases infrastructure 
        project cost and uncertainty and thus will increase USDA's 
        infrastructure support costs.

   Greater Costs to Manage U.S. Forests. USDA manages our 
        nation's forest resources for their multiple uses. The Forest 
        Service must comply with NEPA in its use decisions. As with 
        farmers, the Forest Service will must comply with the rule and 
        evaluate the new extent of jurisdictional waters on or adjacent 
        to its land. Past jurisdiction decisions under NEPA will likely 
        be need to be revised due the rule. For example, the Forest 
        Service has submitted 14 draft EIS for public and EPA comment 
        since the beginning of October. Conducting new evaluations for 
        these EIS documents will increase Federal spending and 
        potentially delay using our forest resources.

   Greater Demand for NRCS Decisions. The USDA's Natural 
        Resources Conservation Service (NRCS) plays two important roles 
        in this rule. First, the 2014 Farm Bill make eligibility for 
        all Federal assistance dependent upon complying with NRCS's 
        wetland determinations. The stakes are incredibly high for this 
        compliance. Violations on one field disqualifies farmers from 
        Federal assistance on all of their fields. Therefore, farmers 
        have strong incentives to seek NRCS determinations for their 
        fields and to follow them.

      It is worth noting that the proposed WOTUS rule adopts a 
        different definition of wetland than NRCS regulation. Last 
        month, NRCS called for comment on State Offsite Methods for 
        several states that outline procedures for NRCS staff to make 
        remote wetland determinations. These NRCS proposals make no 
        mention of EPA's proposed rule, even though they are both 
        wetland delineations. As a result, we are heading to a future 
        where farmers must farm based on two sets of maps--one 
        determining their eligibility for Federal farm programs and the 
        other determining their legal compliance with the waters of the 
        United States rulemaking.
      Second, it is not only NRCS' responsibilities for its wetland 
        determinations, but the responsibility EPA gave it for EPA's 
        determinations. In its interpretive rule published with the 
        proposed rule, EPA and USDA put forth limited exemptions from 
        compliance with section 404 of the Clean Water Act for normal 
        farming operations provided farmers follow approved NRCS 
        management plans. Given the substantial fines possible under 
        the CWA, farmers will move to ensure that NRCS staff explicitly 
        approve their plans. Commercial lenders are in turn likely to 
        insist on NRCS approved plans prior to approving financing.
      For these reasons, NRCS staff will face significantly greater 
        demands for their time. Since their decisions will have greater 
        consequences, NRCS staff will have less time to pursue their 
        other responsibilities that are of great interest to this 
        Committee.
Little Evidence That USDA is Considering These Impacts
    USDA has given little public indication that they are planning for 
these consequences. However, we do know that USDA's recent public 
documents do not anticipate or quantify the rule's impacts on USDA 
programs. For example:

   There is no mention of this rule's effect in USDA's FY 2016 
        budget request. In fact, the Administration proposes to reduce 
        NRCS's budget authority in 2016 at the time when farmers will 
        need their services more.

   There is no mention of this rule's effect in USDA's 
        Performance Plan. The broad breadth of the rulemaking's effect 
        on USDA programs receives no mention.

   There is no mention of this rule's effect in OMB's Federal 
        Credit Supplement to the FY16 Budget Submission. Since OMB 
        projects the default rate to increase by 50 percent in FY 2015 
        as compared to FY 2014, accounting for the effect of the 
        additional financial burden of this rule in FY16 would be 
        prudent financial planning.
Recommendations
    In addition to its public planning documents, USDA has 
opportunities within the interagency regulatory review process to raise 
the WOTUS rulemaking's effect on its programs. For more than 30 years, 
each President has required Federal agencies to submit draft regulation 
to OMB for review. OMB coordinates interagency review of each 
regulation, allowing other agencies to review the impact on their 
programs and mission. Policy officials and the public can then see the 
trade-offs. For it is not a choice of environmental protection or rural 
development, but rather how can we use America's limited resources as 
efficiently as possible to achieve a mix of both policy goals.
    However, policy officials can only make these trade-offs if they 
have information. And the timeframe is limited--the Executive Order 
only give OMB 60 to 90 days to review even regulations with profound 
economic impacts. USDA must be ready and active advocate for rural 
America during this review.
    This Committee can ensure USDA participates actively in the 
Executive branch interagency review by asking senior officials these 
questions:

  b What are the budget impacts of the rulemaking on USDA programs and 
        loan guarantees in FY16?

  b What are the additional demands on USDA personnel from EPA's 
        rulemaking?

  b Has USDA offered alternatives to EPA and OMB to lessen the impact 
        of EPA's proposal on farmers, the rural American economy, and 
        USDA?

    If USDA officials are not prepared to answer these questions, then 
the rulemaking is not ready to have the force and effect of law. The 
Administration then should reconsider the proposal, fully analyze its 
potential economic effects as required by law and Executive Orders, and 
ask for additional public comment.
    Members of the Committee, thank you for the opportunity to speak to 
you today on this important topic. I would be happy to answer any 
questions you may have.

    The Chairman. Thank you, sir. I appreciate your testimony.
    Mr. Biggica, whenever you are ready, please go ahead and 
proceed with 5 minutes.

          STATEMENT OF RUSSELL J. BIGGICA, DIRECTOR OF
              GOVERNMENT, LEGISLATIVE AND ECONOMIC
            DEVELOPMENT, PENNSYLVANIA RURAL ELECTRIC
                  ASSOCIATION, HARRISBURG, PA

    Mr. Biggica. Thank you. Chairman Thompson, Ranking Member 
Lujan Grisham, Members of the Subcommittee, my name is Russ 
Biggica, and I am the Director of Government and Regulatory 
Affairs for the Pennsylvania Rural Electric Association. PREA 
is a nonprofit service organization that is headquartered in 
Harrisburg, and represents 14 electric cooperatives in 
Pennsylvania and New Jersey that supply electricity to 230,000 
rural households, representing more than 600,000 consumers.
    PREA has significant concerns with the rule as proposed by 
EPA and the Army Corps. As the agencies try to establish 
greater clarity for the authority and jurisdiction of the Clean 
Water Act, we are concerned that new and broadly-defined 
regulatory definitions will create more confusion, unnecessary 
Federal jurisdiction, and greater and unnecessary cost.
    As the matter has risen to an issue of national concern for 
the 900 cooperatives in 46 states throughout the country, I 
have talked with a number of our cooperative engineers who are 
responsible for line construction and maintenance, and in those 
discussions and the shared information that we have with one 
another, we have the same concerns regarding definition 
clarity, jurisdictional expansion, and the cost-benefit 
problems that these regulations present to us.
    A couple of examples from these conversations with these 
engineers who do our maintenance--our constructions and 
maintenance, they said that the proposed broadly-defined term 
for tributary and all waters in floodplains and riparian areas 
are now considered adjacent waters. This broad-brush definition 
would capture many features commonly found on rural land 
already. Such definition expands Federal jurisdiction, and 
would effectively eliminate a general nationwide permit already 
established by the Corps for utility line activities in and 
around existing waters of the United States. These permits and 
the limits that they propose, we would not be able to ascertain 
under these new guidelines.
    Another concern we have under the proposed rules is that 
our rights-of-ways may be considered Waters of the United 
States, even though they are often simple ditches alongside 
roads, and are rural, and that is all you ever see, that 
receive road and water runoff and infrequently hold that water. 
Though we have been told that the rule exempts ditches that 
drain only upland, and are constructed upland, but the term 
itself upland is not defined within the regulations. Again, 
confusion and uncertainty, and I can go on and on, really 
relate to excess cost and increased cost.
    I can also talk, but it is in my testimony, about the 
uncertainty when it comes to granting general permits for 
vegetation control throughout our cooperative area. Broadly 
stated, any increase in Federal jurisdiction would cause 
greater hardship and greater costs with these permits. As you 
know, Congressmen, we as a distribution entity of electricity, 
reliability and safety is our major concern. Any increased cost 
in providing reliable and safe electricity to our members would 
be a hardship for our consumer members who are our owners. In 
rural Pennsylvania, we average about seven consumers a mile. 
Our cousins, the investor-owned utilities in Pennsylvania, 
average about 42. So we have seven people paying for our mile 
distribution line, as opposed to an IOU paying for that same 
mile with 44 consumers. Any cost inordinately affects us 
greater than any other utility in Pennsylvania. Cost does 
matter.
    In conclusion, the Rural Electric Cooperative would like to 
see and recommend that EPA and the Corps withdraw and re-
propose the rule to provide clean limitations on the scope of 
the Clean Water Act. Doing so will allow the agencies to better 
understand the impacts to small businesses like rural electric 
cooperatives, and hopefully alleviate the cost created by this 
ever-expanding and overreaching regulation.
    I would like to thank the Subcommittee for allowing me to 
testify today. Thank you.
    [The prepared statement of Mr. Biggica follows:]

   Prepared Statement of Russell J. Biggica, Director of Government,
   Legislative and Economic Development, Pennsylvania Rural Electric
                      Association, Harrisburg, PA
Introduction
    Chairman Thompson, Ranking Member Lujan Grisham, Members of the 
Subcommittee, thank you for inviting me to testify today on the 
definition of the ``waters of the United States'' (WOTUS) proposed rule 
and its impact on rural America. Since 1942, the Pennsylvania Rural 
Electric Association (PREA) has served as the unified voice for 
electric cooperatives in Pennsylvania and New Jersey. PREA is a 
nonprofit, service organization headquartered in Harrisburg, Pa., and 
is governed by a 14 member board of directors. Today, 14 electric 
cooperatives in Pennsylvania and New Jersey supply electricity to more 
than 230,000 rural households, businesses and industries, representing 
more than 600,000 consumers.
    As locally owned and locally controlled businesses, electric 
cooperatives play vital roles in maintaining the economic health of 
their rural communities--providing jobs and contributing to the overall 
quality of life. Established to provide reliable electric service to 
their member-owners at the lowest reasonable cost, electric 
cooperatives are private, independent electric utilities owned by the 
members they serve, each governed by a board of directors elected by 
and from the membership. Access to affordable energy resources is 
especially important to residents of rural communities who already 
spend more per capita on energy than citizens in more populous areas.
    Electric co-ops' operating costs are borne by our member-owners--
not investors--and many of our member-owners already experience 
challenging economic circumstances. Nine out of ten electric 
cooperative member-owners have average household incomes below the 
national average, and more than seven million Americans served by 
electric cooperatives live below the poverty line. In fact, 
cooperatives serve 90 percent of the nation's persistent poverty 
counties (i.e., those with deeply entrenched poverty rates consistently 
20 percent above the national average for the last 3 decades).
PREA's Concerns with the ``Waters of the United States'' Proposed Rule
    PREA has significant concerns with the rule proposed by the U.S. 
Environmental Protection Agency (EPA) and the U.S. Army Corps of 
Engineers (Corps) to revise the definition of WOTUS under the Federal 
Clean Water Act (CWA), especially the expanded universe of features 
that would become WOTUS. Electric cooperatives in Pennsylvania own and 
maintain about 12.5 percent of the electric distribution lines in the 
state, covering nearly \1/3\ of the Commonwealth's land area in 42 
counties. These lines, an essential component of rural business and 
industry, represent one of the Commonwealth's largest non-governmental 
investments in rural infrastructure.
    Several activities associated with providing electric service 
require Federal CWA permits. The proposed rule would necessitate even 
more permits. Power lines require regular maintenance, including 
necessary repair and replacement of poles and towers. In addition, 
these facilities require upgrades to make the system more resilient in 
the event of severe weather events. As our members increase generating 
capacity to meet the growing demands of our members and to invest in 
generation from other fuels including renewables, electric cooperatives 
in Pennsylvania and elsewhere will need to build new transmission and 
distribution infrastructure.
    Serving some of the least densely populated areas of the country 
requires an expansive network of power lines for both electric 
transmission and distribution. The Corps has a nationwide permit (NWP 
12) for utility line activities that allows co-ops to construct and 
maintain power lines so long as each ``single and complete'' project--
each separate and distinct crossing of a WOTUS--does not result in the 
loss of more than \1/2\ acre of WOTUS. Cooperatives configure lines and 
structures to avoid many wetland and streams to stay within the half 
acre limit. However, the broad proposed definition of ``tributary'' and 
assertion that all water in floodplains and riparian areas are 
``adjacent'' waters would capture many features commonly found on rural 
land spanned by cooperative power lines. Such a broad expansion of 
jurisdictional waters would significantly limit, if not eliminate, 
cooperatives' ability to stay within the nationwide permit limits, 
potentially rendering the nationwide permit useless.
    More permitting--especially more individual permitting--increases 
uncertainty, delay, and ultimately the cost of constructing and 
maintaining power lines. An individual permit can be expected to cost 
ten times as much as a general permit, and take twice as long to 
obtain. In many cases, increased delay and increased costs can make the 
difference between proceeding with, delaying, or canceling a project. 
The economic challenges faced by our members underscore the importance 
of a cost-effective regulatory program. A ten-fold increase in cost of 
permitting to construct and maintain critical infrastructure with no 
appreciable environmental benefit is not cost-effective.
    PREA believes the broad categories and ambiguous definitions in the 
proposed rule will vastly expand the reach of the CWA. Under the 
proposed rule, our rights of way may be considered WOTUS, even though 
they are often simple ditches alongside roads that receive road run-off 
and infrequently hold water. EPA and the Corps have said that they are 
exempting ditches that drain only upland and are constructed in 
uplands, but the term ``upland'' is not defined. This gives the Federal 
Government the final say on whether or not ditches are eligible for the 
exemption.
    To maintain the reliable delivery of electricity, cooperatives must 
maintain rights of way, keeping them clear by controlling vegetation 
which may include the use of herbicides. Electric cooperatives must 
control vegetation around generating facilities and substations as 
well. Permits are required if herbicides are applied in WOTUS, so an 
expansion of WOTUS as described in the proposed rule will also increase 
the requirement for vegetation control permits. EPA and states have 
issued general permits for vegetation, but if you spray more than 20 
linear miles, there are added burdens. And, if the area is considered a 
WOTUS or potential habitat for endangered species, there will be even 
more requirements, all triggered by the assertion of Federal 
jurisdiction.
Concerns of Small Business
    The proposed rule will impose significant costs on small 
businesses, including electric cooperatives. All distribution 
cooperatives, and all but three generation and transmission 
cooperatives, meet the Small Business Administration definition of a 
small business. The typical distribution co-op serves 13,000 consumers 
and, on average, seven customers per mile of electric distribution 
line--far fewer than the national average of 34 customers per mile of 
distribution line for investor owned utilities and 48 customers per 
mile for publicly owned utilities (municipals).
    PREA agrees with the findings of the Small Business Administration 
Office of Advocacy (SBA Advocacy) that the EPA and the Army Corps of 
Engineers improperly certified the rule as not posing a significant 
economic impact on a substantial number of small entities. We also 
agree with SBA Advocacy that the agencies should have prepared and made 
available in the rulemaking record an initial regulatory flexibility 
analysis describing the impact of the proposed rule on small entities. 
Furthermore, the EPA erred in not conducting a small business advocacy 
review (SBAR) panel in accordance with the requirements of the Small 
Business Regulatory Enforcement Fairness Act (SBREFA).
Conclusion
    Electric cooperative members value, and deserve, a healthy 
environment. Affordable and reliable electricity is also an interest of 
critical importance to our members and the nation. As electric 
cooperatives work to harmonize these interests on behalf of our 
members, maintaining the electric infrastructure on which our member 
owners rely, we cannot afford the delays and additional red tape this 
proposed rule would create. The increased costs and lengthy permitting 
for constructing and maintaining power lines imposed by the proposed 
rule would result in little--if any--enhanced protection for the 
nation's waters.
    The economic challenges faced by so many cooperatives and their 
member-owners underscore the importance of a cost-effective regulation. 
The proposed rule is not cost-effective and will impose significant 
economic impacts on a substantial number of small entities, including 
electric cooperatives. We call on EPA and the Corps to withdraw the 
proposal and engage in a meaningful dialogue with all stakeholders, 
including electric cooperatives and others that provide essential 
services to the rural community.
    I appreciate the invitation to testify and would be happy to 
address questions from the Committee on this important issue.
Pennsylvania/New Jersey Territorial Map



    The Chairman. Well, thank you so much for your testimony.
    Mr. Taylor, go ahead and proceed whenever you are ready for 
5 minutes of testimony.

   STATEMENT OF SLEDGE TAYLOR, COTTON, CORN, SOYBEAN, WHEAT, 
             SORGHUM, AND PEANUT PRODUCER, COMO, MS

    Mr. Taylor. Chairman Thompson, Ranking Member Lujan 
Grisham, and Members of the Subcommittee, thank you for the 
opportunity to offer our views regarding the EPA and the Corps 
of Engineers' proposed rule to define Waters of the United 
States under the Clean Water Act.
    My name is Sledge Taylor, and my family and I raise cotton, 
corn, soybean, wheat, peanuts, and cattle in Como, Mississippi, 
and I also served this year as the Chairman of the National 
Cotton Council.
    It is our belief that the proposed rule will result in 
Federal permit requirements for many commonplace and essential 
farming practices. This will result in farmers like myself 
being forced to endure even more costly regulations, and place 
many of us at risk for fines from agencies, or facing a citizen 
suit for normal farming practices. In both the proposed rule 
and the agencies' marketing campaign aimed at selling the 
proposal to farmers, they paint two misleading and 
contradictory pictures. First is the attempt by two Federal 
agencies to make only minor tweaks. The second picture is more 
critical, where the proposed rule purports to protect roughly 
60 percent of the nation's flowing rivers, lakes, wetlands, and 
drinking water sources, which have been left vulnerable by 
state inaction and the Supreme Court's confusing opinions. The 
proposed rule provides none of the clarity and certainty it 
promises. Instead, it creates confusion and risk by providing 
the agencies with almost unlimited authority to regulate at 
their discretion any low spot where water--rainwater collects, 
including common farm ditches, ephemeral drainages, and 
agricultural ponds found in and near farms across the nation.
    The proposed rule defines terms like tributary and adjacent 
in ways that make it impossible for a farmer to know whether 
the specific ditches or low areas at their farm will be deemed 
Waters of the U.S. These definitions are broad enough to give 
regulators and citizen plaintiffs plenty of room to assert that 
such areas are subject to Clean Water Act jurisdiction. Given 
the breadth of the definitions in the proposed rule, the vast 
majority of ephemeral drainage features and ditches on 
farmlands would be categorically regulated as jurisdictional 
tributaries. The vast majority of ponds and puddles would 
either be categorically regulated as adjacent waters, or could 
still be regulated as other waters. With the exception of very 
narrow section 404 exemptions, any discharge of a pollutant 
such as fertilizer into the ditches will be unlawful without a 
permit.
    If low spots in farm fields are defined as jurisdictional 
waters, a Federal permit will be required for farmers to 
protect their crops. The same goes for the application of 
fertilizer. As a result, the proposed rule will impose on 
farmers the burden of obtaining a section 402 permit.
    I farm in the Delta and in the hill regions of Mississippi. 
Our area has soils that have very little internal drainage, so 
water must drain across the land to adjacent ditches and 
streams. As a standard agricultural practice we use an 
implement called a water furrow plow to better define a small 
drain through these depressions deemed working lands by the 
USDA. This allows water from storm events to drain more 
quickly. Since these areas are normally dry, except during 
extreme storm events, we plant through these areas, and the 
approximately 6" deep depressions we create with a water furrow 
plow. In addition, we apply crop protection products and 
fertilizer when needed on the plants that grow in these areas.
    The proposed rule, by its terms, extend permit requirements 
to water furrows. If these small drains become regulated, 
producers will not be able to apply needed inputs to raise a 
crop within 100 or more of these drains.
    I have served on my county's NRCS Committee for 25 years, 
and appreciate the importance of USDA's voluntary conservation 
programs. On my farm we have utilized the EQIP and CSP 
Programs. Many farmers have worked with NRCS to implement land-
leveling practices on their operations. Water quality data 
clearly show these land-leveling practices significantly reduce 
non-point source pollutants. Under this proposed rule, these 
practices will require permits which will require mitigation, 
which will make these voluntary conservation measures too 
costly to implement, even with financial assistance.
    Everyday farming activities in or near ephemeral drainages, 
ditches, or low spots could be a violation of the Clean Water 
Act unless a costly permit is obtained. The tens of thousands 
of dollars of additional cost for Federal permitting of 
ordinary farming activities is beyond the means of most farmers 
and ranchers, the vast majority of whom are family-owned, small 
businesses.
    The agencies have made promises to make significant changes 
to the rule, and this is a positive step. Given the amount of 
pubic interest in this rule, we strongly encourage the agencies 
to release the revised rule again for public comment. The Clean 
Water Act involves an extremely complex set of rules and 
regulations, and it is important for rural America to have 
ample input into any final rule. It is clear that this rule 
will have significant impact on rural America and production 
agriculture.
    I thank this Committee for its diligence in defending 
agriculture, and appreciate the opportunity to testify on this 
important issue. And I would be pleased to respond to any 
questions.
    [The prepared statement of Mr. Taylor follows:]

  Prepared Statement of Sledge Taylor, Cotton, Corn, Soybean, Wheat, 
                 Sorghum, and Peanut Producer, Como, MS
    I would like to thank Chairman Thompson, Ranking Member Lujan 
Grisham, and Members of the Subcommittee for the opportunity to offer 
our views regarding the U.S. Environmental Protection Agency (EPA) and 
U.S. Army Corps of Engineers (Corps) (together, ``the Agencies'') 
proposed rule to define ``waters of the United States'' under the Clean 
Water Act (CWA). My name is Sledge Taylor, and my family and I raise 
cotton, corn, soybeans, wheat, peanuts and cattle in Como, Mississippi 
and in addition to other duties I also serve this year as the Chairman 
of the National Cotton Council.
    It is our belief that the proposed rule will result in Federal 
permit requirements for many commonplace and essential farming 
practices. This will result in farmers like myself being forced to 
endure even more costly regulations and place many of us at risk for 
fines from the Agencies or facing a citizen suit for normal farming 
practices.
    In both the proposed rule and the Agencies' marketing campaign 
aimed at selling the proposal to farmers, ranchers and the general 
public, the Agencies paint two misleading and contradictory pictures. 
First is the attempt by two Federal agencies to make only minor tweaks 
to increase the ``clarity'' and ``certainty'' of a regulatory scheme 
long accepted by landowners and businesses. Under this scenario, the 
rule merely clarifies and provides certainty for a regulatory scheme 
needlessly muddled by the U.S. Supreme Court. So minor is the impact on 
landowners, the Agencies claim that the proposed rule would impact a 
mere 1,332 acres nationwide under the section 404 program. The second 
picture is more critical, where the proposed rule purports to protect 
roughly 60% of the nation's flowing rivers, lakes, wetlands, and 
drinking water sources, which have been left vulnerable by state 
inaction and the Supreme Court's confusing opinions.
    The proposed rule provides none of the clarity and certainty it 
promises. Instead, it creates confusion and risk by providing the 
Agencies with almost unlimited authority to regulate, at their 
discretion, any low spot where rainwater collects, including common 
farm ditches, ephemeral drainages, agricultural ponds, and isolated 
wetlands found in and near farms and ranches across the nation. The 
proposed rule defines terms like ``tributary'' and ``adjacent'' in ways 
that make it impossible for a typical farmer or rancher to know whether 
the specific ditches or low areas at his or her farm will be deemed 
``waters of the U.S.'' These definitions are certainly broad enough, 
however, to give regulators (and citizen plaintiffs) plenty of room to 
assert that such areas are subject to CWA jurisdiction. Moreover, no 
crisis exists. The Agencies do not argue that they need to regulate 
farming and ranching to protect navigable waters. Yet, the proposed 
rule gives them sweeping authority to do so, which they may exercise at 
will, or in response to a citizen plaintiff.
    Farming and ranching are water-dependent enterprises. Whether they 
are growing plants or raising animals, farmers and ranchers depend upon 
water. For this reason, much of the farming and ranching tend to occur 
on lands where there is either plentiful rainfall or adequate water 
available for irrigation (some via ditches). There are many features on 
those lands that contain or carry water only when it rains and that may 
be miles from the nearest truly ``navigable'' water. Farmers and 
ranchers regard these landscape features as simply low spots in farm 
fields.
    There are also features on farms and ranches that tend to be wet 
year round, but are not jurisdictional waters today. For example, many 
ponds are used on farms and ranches for purposes such as stock 
watering, providing irrigation water, or settling and filtering farm 
runoff. Additionally, irrigation ditches 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 these ditches channel return flows back to those 
source waters. In short, America's farm and ranch lands are an 
intricate maze of ditches, ponds, wetlands, and ephemeral drainages.
    Given the breadth of the definitions in the proposed rule, the vast 
majority of ephemeral drainage features and ditches on farmlands and 
pastures described above would be categorically regulated as 
jurisdictional tributaries under the proposed rule. The vast majority 
of small wetlands, ponds and pools (including, potentially, ephemeral 
ponds, which some might call ``puddles'') would be either categorically 
regulated as ``adjacent'' waters or could still be regulated as ``other 
waters.'' Consequently, with the exception of very narrow section 404 
exemptions, regulating drains, ditches, stock ponds, and other low 
spots within farm fields and pastures as ``navigable waters'' would 
mean that any discharge of a pollutant (e.g., soil, dust, pesticides, 
fertilizers and ``biological material'') into those ditches, drains, 
ponds, etc. will be unlawful without a CWA permit.
    This jurisdictional expansion will be disastrous for farmers and 
ranchers. Farmers need to apply weed, insect, and disease control 
products to protect their crops. On much of our most productive 
farmlands (areas with plenty of rain), it would be extremely difficult 
to avoid entirely the small wetlands, ephemeral drainages, and ditches 
in and around farm fields when applying such products. If low spots in 
farm fields are defined as jurisdictional waters, a Federal permit will 
be required for farmers to protect crops. Absent a permit, even 
accidental deposition of pesticides and herbicides into these 
``jurisdictional'' features (even at times when the features are 
completely dry) would be unlawful discharges.
    The same goes for the application of fertilizer--including organic 
fertilizer (manure)--another necessary and beneficial aspect of many 
farming operations. It is simply not feasible for farmers to avoid 
adding fertilizer to low spots within farm fields that may become 
jurisdictional. As a result, the proposed rule will impose on farmers 
the burden of obtaining a section 402 National Pollutant Discharge 
Elimination System permit to fertilize their fields--and put EPA into 
the business of regulating whether, when, and how a farmer's crops may 
be fertilized. In fact, if low spots in fields and pastures become 
jurisdictional wetlands or tributaries, EPA or citizens groups could 
sue any time a farmer plows, plants, or builds a fence across small 
jurisdictional wetlands or ephemeral drains. Given the ``very low'' 
``threshold'' the Agencies apply before ``truly de minimis activities'' 
turn into ``adverse effects on any aquatic function,'' farmers and 
ranchers would even have to think about whether ``walking or driving a 
vehicle through'' a jurisdictional feature is prohibited. Federal 
permits would be required (again, subject to the very narrow exemption 
of certain activities from section 404 permits) if such activities 
cause fertilizer, pesticides, or dirt to fall into low spots on the 
field, even if they are dry at that time.
    I farm in the Mississippi Delta, and in the Oless hills of 
Mississippi. Our area has alluvial soils that have very little internal 
drainage so water must drain across the land to adjacent wetlands and 
streams. During storm events, water runs to shallow valleys in the 
middle of fields and slowly runs off. As a standard agricultural 
practice, we use an implement called a water furrow plow to better 
define a small drain through these depressions deemed ``working lands'' 
by the USDA. This allows water from storm events to drain more quickly. 
These shallow valleys rarely flood, except during extreme storm events, 
so we plant through these areas and the approximately 6" deep 
depressions we create with the water furrow plow. In addition, we apply 
crop protection products and fertilizer when needed on the plants 
growing across these drains. However, the proposed rule by its terms 
extends Federal CWA requirements to ephemeral drainages, which would 
include such a field drain, or as we call them, water furrows. If these 
small drains become regulated, producers will not be able to apply crop 
protection products, fertilizer, or other needed inputs to raise a crop 
within a hundred feet or more of each of these drains.
    I have served on my counties Natural Resources Conservation Service 
(NRCS) county committee for 25 years and appreciate the importance of 
USDA's voluntary conservation programs. These programs are 
incentivizing producers to implement conservation practices that reduce 
erosion and nutrient loss from cropland. On my farm, we have utilized 
the Environmental Quality Incentives Program as well as the 
Conservation Stewardship Program. Many farms have worked with the NRCS 
to implement land-leveling practices. Water quality data clearly shows 
these land-leveling practices significantly reduce non-point source 
pollutants. Yet, under this proposed rule, these practices will require 
permits, which will require mitigation, which will make these voluntary 
conservation measures too costly to implement, even with financial 
assistance.
    These are just some of the examples of how disruptive the proposed 
rule would be to our members' livelihoods. The stakes could not be 
higher. The regulation of low areas on farmlands and pastures as 
jurisdictional ``waters'' means that any activity on those lands that 
moves dirt or applies any product is subject to regulation. Everyday 
farming activities such as plowing, planting, disking, fertilizing, 
insect and disease control, and fence building in or near ephemeral 
drainages, ditches, or low spots could be a violation of the CWA, 
triggering civil penalties of up to $37,500 per violation per day--or 
even higher criminal penalties--unless a permit is obtained. The tens 
of thousands of dollars of additional costs for Federal permitting of 
ordinary farming activities, however, is beyond the means of most 
farmers and ranchers--the vast majority of whom are family-owned small 
businesses. Even those farmers and ranchers who can afford it should 
not be forced to wait months, or even years, for a Federal permit to 
plow, plant, fertilize, or protect their crops.
    The Agencies have downplayed the significant impact this regulatory 
expansion will have on the business of farming and ranching. Telling 
farmers and ranchers to just ``get a permit'' is unhelpful when getting 
a permit means far more than filling out a form and paying a permit 
fee. The costs associated with obtaining a permit often include fees of 
both lawyers and technical consultants whose expertise is necessary to 
ensure an accurate application and to develop the plans that must be 
submitted with the application. There are also ongoing compliance costs 
related to management practices, record-keeping, reporting and 
monitoring.
    For section 404 permits in particular, the costs can be extremely 
burdensome. There are two types of permits available depending on the 
farming activity and the amount of ``navigable waters'' that will be 
impacted. If a farming activity will impact less than \1/2\ an acre of 
``navigable waters'' (or less than 300 linear feet), a farmer can seek 
a Nationwide Permit (NWP), such as NWP 40 for certain agricultural 
activities, under CWA section 404(e). Studies show that the average 
cost to secure an NWP is almost $36,000. With more ephemeral streams 
and ditches deemed ``navigable waters,'' fewer activities will qualify 
for NWPs and more farmers will need to seek individual section 404 
permits, which have a staggering average cost of $337,577.
    Some of the most substantial costs associated with section 404 
permitting include ``mitigation'' requirements and other ``conditions'' 
attached to any permit that a farmer must accept to be able to conduct 
the permitted activity. Moreover, obtaining these permits takes time 
(assuming a permit is granted at all). While an NWP may take ``only'' 
10 months to obtain, an individual permit often takes more than 2 
years. In the meantime, permit applicants cannot move forward with 
their operations. Clearly, such timelines are not consistent or 
feasible relative to the production of annual crops that have an 
average growing season of 5 to 8 months.
    Few studies have quantified the costs of seeking and complying with 
section 402 permits, perhaps because of the great variability among 
industries and the wide range of costs associated with individual 
permits versus ``general'' permits. For pesticide applications, a 
section 402 ``general'' permit may or may not be available, as many 
pesticide National Pollutant Discharge Elimination System NPDES general 
permits have been drafted for specific types of applications that would 
not include row crop production. Several EPA public statements during 
the comment period have indicated that general permits are available 
for pesticide use, but EPA has provided no specific information on how 
many states actually offer general permit coverage for pesticide 
applications to row crops. Meanwhile, EPA has been completely silent on 
the absence of any general permits (to our knowledge) for fertilizer 
application (outside the CAFO context).
    Unless and until EPA and the states that administer the section 402 
permitting program issue general permits for fertilizing crops, farmers 
may have no choice but to pursue individual permits simply to fertilize 
their crops grown within or near the countless newly jurisdictional low 
spots on farm fields. Whether general or individual permits are 
involved, perhaps the largest likely cost of NPDES permitting 
requirements for essential farming practices is the cost of not being 
allowed to apply products or nutrients in or around newly 
jurisdictional features that are ubiquitous across our nation's most 
productive farming regions. This cost is in the form of diminished 
productivity, reduced efficiency and increased risk of disease--not to 
mention the risk of enforcement (imagine a farmer being forced to prove 
in court that he turned the spray nozzle off before passing over a dry 
ephemeral drainage). EPA's failure to even consider implications such 
as these further undermines the credibility of its already fatally 
flawed economic impact analysis of the proposed rule.
    The Agencies have done a tremendous amount of outreach to the 
agricultural community. Unfortunately this was only after the release 
of the proposed rule, and while appreciated, it would have been much 
more beneficial for that outreach to have occurred prior to the release 
of the rule. The agriculture community has hosted the Region 4 EPA 
Administrator as well as other EPA officials on operations in 
Mississippi to help show the ``on the ground'' impacts of their 
proposed rule. During this process, the Agencies have made promises to 
make significant changes to the rule, and this is a positive step. My 
concern is that once these significant changes are made, in all 
likelihood, the public will not have an opportunity to review and offer 
comments to the Agencies. Given the amount of public interest in this 
rule, we strongly encourage the Agencies to release the revised rule 
again for public comment. The CWA involves an extremely complex set of 
rules and regulations, and it is important for rural America to have 
ample input into any final rule that the Agencies promulgate.
    It is clear that this rule will have a significant impact on rural 
America and production agriculture. I thank this Committee for its 
diligence in defending agriculture and appreciate the opportunity to 
testify on this important issue.

    The Chairman. Thank you, Mr. Taylor. Your testimony is 
appreciated.
    Mr. Foglesong, whenever you are ready, go ahead and proceed 
with your testimony for 5 minutes.

 STATEMENT OF STEVE FOGLESONG, LIVESTOCK PRODUCER, ASTORIA, IL

    Mr. Foglesong. Let me fix the audio. I don't have near the 
speaking voice of Mr. Taylor, so I want to be heard here.
    Good afternoon. I am Steve Foglesong. I am a cattle and hog 
farmer from west central Illinois, and we raise corn and 
soybeans up there, and we have a ranch down in southwest 
Georgia as well. And I am a member of the National Cattlemen's 
Beef Association. This afternoon, I will be speaking on behalf 
of livestock producers, dairy guys, and poultry producers 
across the United States. It is a great opportunity. We 
certainly thank you for giving us the chance to do that.
    Animal agriculture producers pride themselves on being good 
stewards to this country's resources. We maintain lots of open 
spaces, rangelands provide wildlife habitat, and all the while 
we are doing this, we are working on sustainably producing food 
for the world. But in order to provide these important 
functions, we need to be able to operate without excessive 
Federal burdens. This one we are talking about here today is 
excessive.
    As a livestock producer, I can tell you that after reading 
the proposed rule, it has the potential to impact everything 
that I do on my place. And every tributary, stream, dry pond, 
you name it and we have a lots of them, are going to be an 
issue. And what is worse, the ambiguity that is proposed in 
this rule. And then these folks and everybody today has done a 
great job of explaining just the problems that we have there. 
And what I want to do is spend a few minutes, plus you guys are 
being bored, and if the Clerk could fix that, we are going to 
put up some pictures here. We are going to do a little 
pictorial here of my place.*
---------------------------------------------------------------------------
    * Editor's note: The images displayed during the witnesses' 
statement are retained in Committee file.
---------------------------------------------------------------------------
    This picture here that you are seeing, this is my house. 
You can see my house tucked away there. And tonight when you go 
on Google and you dial down a little bit closer down there, you 
are going to see my wife and one my grandkids, and they are 
swimming right there next to that dock there that goes out. 
There is a little blue dot and a little white dot. I did this. 
This picture was taken in 2012. The worst drought in my entire 
life. By far a bad deal for us, but it is going to be a great 
day today because all the vegetation is gone off of our ranch, 
and we are going to be able to see every depression that is out 
there pretty clearly. There is a little blue and white dot, and 
when you see those, you are going to wonder what that is all 
about. Well, we are real sensitive around our place to skin 
cancer, and we wear protective clothing. That is why I could 
pick them out and I knew where they were at. So that is kind of 
where we live. This is all old coal strip mines is what this 
is. Everything out here has been reclaimed. Man turned it all 
upside down, and we spent the--all of my lifetime putting it 
back together and turning it into a ranch where we can produce 
cattle.
    When we go to this next picture, this is 2012. This looks 
like a moonscape. This is a pasture just north of the house up 
there. You can see we have been feeding the cows. It is about 8 
o'clock in the morning here, and you can see that little line 
of ants over there that look like they are going back and 
forth--that is cows, but we are a long way up. The question 
here that this picture brings up, you see that dry lake right 
there. That dry lakebed. There is no water left in it. All of 
those little rills that run down to that, are those WOTUS? Is 
that a Waters of the United States? That is the question I have 
to answer.
    Here is another little picture. Same kind of deal. Little 
pond out there. Now, Mr. Lucas, in your country, this is called 
a tank, and farmers and ranchers go out and they build tanks 
and they build them so that the cattle have water. And in the 
summertime, those cattle will go out and hang out in that tank, 
and it is really nice on a morning that it is warm enough that 
you can go swimming at 8 o'clock in the morning. It is pretty 
doggone hot. Now, the question I ask you here, is this a Waters 
of the United States?
    Here is a picture of our confinement barn. Just the end of 
it right there. We run about 4,500 head of cattle in there. 
That is a root structure with slats underneath of it. All of 
the waste in that--those cattle produce goes in that tank, and 
we use every last bit of it to improve the soil conditions and 
the fertility on this ranch. We do a darn good job of 
maintaining that. There is no run-off coming out of that 
building. And and here is a little lake that is only about a 
\1/4\ of a mile away from that building right there, and all of 
that land that runs around there drains into it. Our concern 
is, do we have to do something about it, is this Waters of the 
United States?
    Here is the other end of the barn. It is \1/4\ of a mile 
long. You can see it from a jetliner if you leave Peoria and 
fly to Dallas, so it is a pretty good size shed. Same deal; we 
have to have a few pens around there where we gather up cattle. 
When they come in, they have to hang out someplace, and this is 
where they wind up. But everything drains someplace.
    Now, this is another question here. Those buildings there 
happen to be hog buildings. They could just as easily be 
chicken barns, but those are hog buildings there. And you will 
notice, and here is the question on this one here, see that 
parking lot? There are about 25 employees that park their cars 
right there, and all the dust that comes out of the fans on 
those buildings lands here. Lois Alt and West Virginia fought a 
great battle with the EPA a year or so ago over this very 
question, because when it rains, that water flows somewhere. 
You all understand how that goes, and it all goes downhill. 
Well, it goes east here, and it runs through those rills and it 
winds up in that lake. That lake is where we water those hogs. 
Does the EPA have jurisdiction over that lake?
    And this is the last picture I want to show you right here. 
If you look down there to the far right-hand corner on there, 
that little circle, that is Illinois River. Now, boats float 
there, we ship corn up and down that river on barges. That is 
navigable. That is a Water of the United States, and it always 
has been. Nobody owns that. That is a water that were 
considered--at the opposite end of that deal right there, you 
are going to see that little circle. That is the middle of my 
ranch. And you see those little lakes that I have been showing 
you, those little blue lines that are on there, and that is 
Otter Creek, all the little fingers that go around there that 
flow all the way up, and they go down into that deal. Now, here 
is the deal. I pay for that. I don't see the EPA or the Corps 
on any mortgage that I have that says they have jurisdiction 
over that, and I sure as heck don't see them come payday. So it 
causes me quite a bit of concern when they want to have control 
over that. And it flows all the way to the Illinois River, 
11\1/2\ miles away. Where does that thing end? Where does their 
jurisdiction start and stop? That is the question that we have 
to ask.
    I certainly thank you for the opportunity, and will 
entertain any questions that you might have.
    [The prepared statement of Mr. Foglesong follows:]

 Prepared Statement of Steve Foglesong, Livestock Producer, Astoria, IL
    Good morning, my name is Steve Foglesong. I raise and feed cattle 
and hogs and grow corn, soybeans, and hay in Astoria, Illinois and I am 
a member of the National Cattlemen's Beef Association. I am testifying 
before you today representing livestock, dairy and poultry producers 
across the United States. Thank you Chairman Thompson and Ranking 
Member Lujan Grisham for allowing me to testify today on the impacts of 
the Environmental Protection Agency and the Army Corps of Engineers' 
proposed rule on the definition of Waters of the United States.
    First and foremost, I want to thank you for your interest in this 
issue and for including language in the omnibus package that led to the 
withdrawal of EPA's WOTUS Interpretive Rule. I am thankful that 
Congress continues to be engaged on this because EPA intends to 
finalize the underlying rule, the WOTUS rule, at some point this year.
    Animal agriculture producers pride themselves on being good 
stewards of our country's natural resources. We maintain open spaces, 
healthy rangelands, provide wildlife habitat and feed the world. But to 
provide all these important functions, we must be able to operate 
without excessive Federal burdens, like the one we are discussing 
today. I am extremely concerned about the devastating impact this 
proposed rule could have on me and other ranchers and farmers. As a 
livestock producer, I can tell you that after reading the proposed rule 
it has the potential to impact every aspect of my operation and others 
like it by regulating potentially every tributary, stream, pond, and 
dry streambed on my land. What's worse is the ambiguity in the proposed 
rule that makes it difficult, if not impossible, to determine just how 
much my farm will be affected. This ambiguity over key definitions will 
result in disparate interpretation by bureaucrats in different regions 
of the country and place all landowners in a position of uncertainty 
and inequity. Because of this, I ask that the EPA and the Army Corps of 
Engineers withdraw the proposed rule and sit down with farmers and 
ranchers to discuss our concerns and viable solutions, before any 
additional action.
    Let's be clear--everyone wants clean water. Farmers and ranchers 
rely on clean water to be successful in businesses. But, expanding the 
Federal regulatory reach of the EPA and Army Corps does not equal clean 
water. After reading the proposed rule, I can say that only one thing 
is clear, the proposed definitions are ambiguous. If the agencies' goal 
was actually to provide clarity they have missed the mark completely. 
Despite the agencies' assertion that a tributary is clearly defined by 
a bed, bank, and ordinary high water mark, confusion and ambiguity is 
introduced when the rule explains ``[a] water that otherwise qualifies 
as a tributary under the proposed definition does not lose its status 
as a tributary if, for any length, there are one or more man-made 
breaks (such as bridges, culverts, pipes, or dams), or one or more 
natural breaks (such as debris piles, boulder fields, or a stream 
segment that flows underground) so long as a bed and banks and an 
ordinary high water mark can be identified upstream of the break.'' How 
far will I have to look ``upstream'' to ensure I am not liable for 
applying fertilizer or pesticide into an area that may lack a bed and a 
bank and an ordinary high water mark yet is still considered a 
jurisdictional water?
    Although the proposed rule provides exemptions for ditches, they 
are ambiguous and are of little or no value to agricultural operations. 
For example, the proposed rule excludes ``ditches that are excavated 
wholly in uplands, drain only uplands and have less than the perennial 
flow.'' Unfortunately, the term, ``uplands'' was not explained or 
clarified in the proposed rule.
    Similarly, the proposed rule also excludes ``ditches that do not 
contribute flow either directly or through another water'' to navigable 
waters or tributaries. To qualify for this exclusion a ditch must 
contribute zero flow (even indirectly) to any navigable water or 
tributaries. Because most ditches convey at least small flow indirectly 
to minor tributaries, this exclusion provides no benefit to 
agricultural operations.
    The proposal would also make everything within a floodplain and a 
riparian area a Federal water by considering them ``adjacent waters.'' 
While this alone is concerning, the extent of this authority is equally 
ambiguous. The proposed rule provides no clarification on how far a 
riparian area extends away from the water body nor does it delineate 
the flood frequency that would determine jurisdictional boundaries. 
Using ``best professional judgment'' to answer this on a case-by-case 
basis, as is suggested in the proposed rule, provides no meaningful 
guidance to agricultural operations and once again highlights the 
proposed rule's lack of clarity.
    We are currently feeding 4,000 head of cattle in our slatted floor 
confinement barn. I also graze cattle on my land. My partners and I 
have 18,000 sows in confinement barns, and I grow corn and soybeans. My 
land is reclaimed strip mine ground. We used cattle and hogs and the 
manure they produce to get this land back into a state of production. I 
have seasonal streams running through my pastures and fields, as well 
as many ponds, lakes, and ditches. We have literally 500-600 acres of 
water on our land. It appears to me that many of these features could 
now become Federal waters under this proposed rule. If they are `waters 
of the U.S.' I will need a 404 or 402 permit to conduct everyday 
activities near those waters. Permits that will be costly and time-
consuming.
    Farmers, ranchers and poultry producers often rely on working and 
shaping the land to make it productive. This includes installing 
practices to control and utilize stormwater for the benefit of growing 
crops and forage and also sustaining and protecting agricultural 
livestock. Regardless of the agencies' claims to the contrary, the new 
jurisdictional framework crafted from the proposed rule would require 
me to obtain Federal permits to plow certain fields, apply fertilizer, 
graze cattle in the pasture, build a fence, or operate a poultry and 
egg production operation.
    Not only could I be required to obtain a 404 permit for grazing my 
cows in the pasture or a 402 permit for my feeder cattle and sows, but 
by making it a Federal water there are now considerations under the 
National Environmental Policy Act and the Endangered Species Act due to 
the Federal decision-making in granting or denying a permit. There is 
also the citizen suit provision under section 505 of the Clean Water 
Act that would expose my operation and my family to frivolous legal 
action and unnecessary expense. For the price of a postage stamp 
someone who disagrees with eating red meat could throw me into court 
where I will have to spend time and money proving that I am not 
violating the Clean Water Act. This is not what anyone had in mind when 
Congress passed the Clean Water Act forty-three years ago.
    I'm fearful the proposed rule, if finalized without substantial 
change, will result in cattle grazing becoming a discharge activity 
subject to legal liability under the Clean Water Act. To my knowledge, 
the Federal Government has not considered cattle, raised on pastures, 
to be a point source or require dredge and fill permits to operate. 
Unfortunately, the proposed rule seems to be the mechanism that will 
initiate these changes. This did not have to be the result; all the 
agencies had to do was engage agriculture early on in the process, 
incorporate our suggestions and we would be much farther along in 
crafting a rule that actually would clarify the scope of Clean Water 
Act jurisdiction.
    We are particularly concerned with the lack of outreach with the 
small business community, contrary to the Regulatory Flexibility Act. 
As a family-owned business and knowing the detrimental impact this 
regulation will have on my operation, it is appalling the agencies 
could assert that it will not have a ``significant economic impact on a 
substantial number of small entities.'' It is clear to me that the 
rule's primary impact will be on small landowners across the country. 
The agencies should have conducted a robust and thorough analysis of 
the impact, but it is clear from the certification that they have not 
completed this important step in developing the regulation. There was 
also zero outreach to us in the agriculture community before the rule 
was proposed. Despite what the EPA and Army Corps are saying, they did 
not have a meaningful dialogue with the small business community as a 
whole. Even when cattle producers asked the head of EPA's Office of 
Water a year ago about the proposal, all we were told was to ``wait and 
see what the proposal says.'' Well we were forced to wait instead of 
having input and what we got was a proposal that doesn't work for small 
businesses, doesn't work for animal agriculture, and doesn't work for 
the environment. Farmers respond to carrots not the stick. If you give 
us the tools to achieve improved water quality, we will be receptive to 
that and work together.
    We want to continue to do our part for the environment, but this 
ambiguous and expansive proposed rule does not help us achieve that. 
This is why the animal agriculture community has joined with land 
owners across the country asking the EPA and Army Corps to withdraw the 
current WOTUS Proposed Rule. Then EPA and Army Corp must have serious 
and meaningful dialogue with the agricultural community to find the 
necessary solution that will provide the clarity and certainty we 
require. We look forward to working with the Agriculture Committee to 
ensure that we have the ability to do what we do best--produce the 
world's safest, most nutritious, abundant and affordable protein while 
giving consumers the choice they deserve. Together we can sustain our 
country's excellence and prosperity, ensuring the viability of our way 
of life for future generations. I appreciate the opportunity to visit 
with you today. Thank you for your time.

    The Chairman. Okay. Well, I thank all the witnesses for 
your testimony. And we are going to proceed with questioning.
    And I am going to yield my time to the Chairman Emeritus of 
the full Agriculture Committee, Mr. Lucas.
    Mr. Lucas. Well, I am always proud to know, Mr. Chairman, 
when there is acknowledgement I am still alive. There is 
something to be said for that. And a wonderful Ranking Member 
too, and our friends on the panel there who went through all 
the joys of the farm bill process with us, and tried to make 
sure that the resources for crop insurance and EQIP and all 
those things were there. Now, quite clearly, as you all make 
the case, along comes issues that essentially are beyond our 
control. Depending on what the EPA determines on Waters of the 
U.S., and a myriad of other rulings, it literally could turn us 
inside out. So thank you for being here today to create a 
permanent record for the Subcommittee to use and the full 
Committee to use as we work with the folks who care about sound 
science to try and make sure that we can continue to farm and 
ranch and do the things we love, which is feed not only the 
people of this country, but for that matter, the entire world.
    Again, Mr. Chairman, I thank you for the chance to have a 
word. And I don't know that I have a particular question for 
our witnesses other than they presented very factual, high-
quality information for the record, and that is a part of it. 
You help us make the case.
    I yield back, Mr. Chairman.
    The Chairman. I thank the gentleman.
    I now recognize the Ranking Member for 5 minutes.
    Ms. Lujan Grisham. Thank you, Mr. Chairman. And I too want 
to recognize the panel and appreciate your efforts today. I 
agree that we have heard a great deal of testimony, and had the 
opportunity to review your written testimony that shows that 
there is a great deal of uncertainty. The point that we were 
able to clarify, one point, in the earlier panel is the status 
quo, we have significant issues in terms of clarity about who 
does what, and in the proposed rule by EPA we find ourselves in 
much the same situation. I am reminded, quickly before I go to 
two questions to the panel, Mr. Chairman, recently I was in 
Florida and I had the chance to visit a Native American tribe, 
the Miccosukee Tribe, and they used to farm in the Everglades, 
and are no longer able to do that or enjoy the--and not just 
enjoy, for their livelihood and diet, they can't hunt or fish 
on their reservation anymore because of the phosphorus and 
other pollutants largely due to agricultural practices. We 
don't want to stop those agricultural practices, so we have to 
figure out what it is that we are going to do. And so I really 
appreciate that we look at this issue carefully, and agree that 
we have a long way to go.
    Ms. Steen, in your testimony and your efforts, and I am 
going to quote you, ``to ditch the rule or start all over,'' I 
want to say that, according to the EPA, that the agency has 
received letters and comments from over 100 organizations 
including the American Farm Bureau Federation requesting 
clarification of the WOTUS rulemaking, and part of it is 
because the status quo is generating too much uncertainty. So 
sort of on the other side of your comments. Does the Farm 
Bureau still believe that the current situation, without regard 
to the new proposed rule, is not adequate to deal with clean 
water?
    Ms. Steen. Yes, ma'am. We do believe that there is a need 
for a rule. We do not find the current situation to be 
acceptable, however, we think that this proposed rule would be 
dramatically worse than the current situation, and we need a 
different rule, not this rule.
    Ms. Lujan Grisham. I appreciate that. And I would love it 
as a follow-up, and I want to make sure I have enough time for 
my second question, to restate for the Committee, and for the 
Chairman and myself, if you can, what you are proposing as best 
practice so that we are, in fact, doing more for clean water 
and management, and the complexities of these issues. That 
would be helpful to the Committee, even though we don't have 
jurisdiction over EPA, we want to do best practices and engage 
with USDA. So that would be great, because basically, we agree, 
and you heard that resoundingly in the Committee, that the 
stakeholder involvement on this proposed rule is inadequate.
    With that, I am going to use the balance of my time for 
another question. I appreciate your testimony, Mr. Gledhill, 
thank you very much for your comments. I actually want to get 
right at some of the permitting issues. I really want to get a 
handle on how we come up with the cost of permitting, because I 
agree that that uncertainty is problematic and the economic 
consequences are significant, but we really do need to know 
what is real and what is not real. Can you cite an EPA number 
of that $57,000 for cost of a permit? I can't find that, or the 
tangible evidence that that is the cost.
    Mr. Gledhill. Yes. That number is in EPA's economic 
analysis.
    Ms. Lujan Grisham. All right. I am having trouble with 
that. Is it for a section 402 permit, or is it for a general or 
individual permit?
    Mr. Gledhill. It would be for an individual permit.
    Ms. Lujan Grisham. Okay. And then can you give me what all 
goes into the cost of the $57,000, and associated costs?
    Mr. Gledhill. Well, we don't have EPA's detailed 
information to know exactly what goes into it, but the typical 
parts of a permit would be to show that you--what your 
discharge is, your monitoring requirements, you have to propose 
it, there is an administrative cost to file it. So there are 
several different components using consulting as well as 
monitoring that would go into that cost.
    Ms. Lujan Grisham. Yes, I would like to submit that for the 
Chairman and, again, a request for you. I appreciate your being 
here.
    Mr. Gledhill. Sure.
    Ms. Lujan Grisham. I think it is important both from the 
EPA and from our expert witnesses, we really need to understand 
the genesis of that cost, given particularly that this panel 
has identified the cost to individuals and private landholders 
could be considerable, we ought to know exactly what that is, 
how that was identified and arranged, and have that as part of 
our record, Mr. Chairman.
    With that, I yield back the balance of my time.
    The Chairman. Without objection.
    The Chairman. The gentleman from Ohio, Mr. Gibbs, is not a 
Member of the Subcommittee, but has joined us today. Pursuant 
to Committee Rule XI(e), I have consulted with the Ranking 
Member and we are pleased to welcome him to join in the 
questioning of the witnesses.
    I now recognize Mr. Gibbs for 5 minutes.
    Mr. Gibbs. Thank you, Mr. Chairman. And thank you for the 
panel and thank you to our livestock farmers and our cotton 
farmers, and all that you do to feed the American people, and 
clothe the American people.
    Couple of things I want to start with. First of all, Mr. 
Foglesong, if I said your name right.
    Mr. Foglesong. You did pretty good. That is good.
    Mr. Gibbs. You asked quite a few questions, and I think I 
can answer some of those questions for you. This will be a 
little bit reversed.
    First of all, the EPA did a study, more than a year, to 
figure out that water flows downhill. So our taxpayer dollars 
were, I am sure, used wisely. We had hearings in my committee, 
I chair the committee that does have jurisdiction on this 
issue, and we had joint committee with the Senate a few weeks 
ago, and what we heard from Administrator McCarthy and 
Secretary Darcy of the Army Corps that they are going to look 
at all this on a case-by-case basis, be very subjective, 
because that is how they have to do that. So they are going to 
really open up the door for a lot of bureaucrats to come out to 
your farm and tell you that is Waters of the United States.
    And to answer the Ranking Member's question. I have a 
picture here. Mr. Chairman, this is a farm in Tennessee. It is 
a no-till field. You can see the corn residue. You see the 
wheat--I don't know how well you can see this, but it kind of 
looks like a washout to me a little bit. Probably should be 
maybe a grass waterway there a little bit. Well, apparently--
not apparently--it happened that the Army Corps in the 
Nashville district declared that Waters of the United States. 
Now, I held this picture up in front of Mr. McCarthy and Darcy, 
and they said, ``Well, that is why they need the rule because 
that wouldn't have happened.'' I would argue that the Nashville 
district of the Army Corps has already implemented the rule. 
And in this case, the Ranking Member was asking about cost to 
get the section 404 permits. $318,000, by the time they did the 
studies and the consultants in this case, in this instance.
    And then what also happens, the land around it, joining 
property owners because the connectivity rule, they are 
automatically declared Waters of the United States. And the 
panelists, you are absolutely right, that field now would have 
to get a section 402 permit from the EPA to apply herbicides. 
So the cost, it is just really, really outrageous.
    And you mentioned, Mr. Gledhill, about stifling innovation 
and unknown, and the citizen lawsuits, and I would argue, Mr. 
Chairman, that this rule, and it is probably going to get 
implemented because the EPA is moving fast and furious in the 
next 30 to 60 days, and I asked the question of Administrator 
McCarthy in our hearing, a lot of questions came up, and I 
said, they said they would address that in the final rule, and 
I said, ``Well, are you going to issue a supplemental so 
Members of Congress and the American people can see it?'', and 
they said, ``No, that is not necessary, we are moving 
forward.'' And I would argue that this takes us backwards, 
because a one-size-fits-all policy out of Washington, D.C., 
when it comes to water and land, is best regulated at the state 
and local level and not a one-size-fits-all policy, because 
when you think about bodies of water, and lakes and streams 
around the country, there are a lot of different things 
happening. The flow, the critters in those bodies of water, the 
sunshine, the pH, and to have just this power grab--and by the 
way--the Ranking Member talked about comments. Thirty-four 
states out of the 50 states are opposed to the rule, and 22 of 
those states urge that it be withdrawn completely. Thirty-four 
states. I believe it takes 36 states to ratify an amendment of 
the Constitution, so you can see the point. And we all know 
that there are a whole bunch of organizations, both state and 
local, and private sector entities and the Farm Bureau, that 
are opposed to the rule. We need to stop this, and I don't know 
if we are going to be able to do that. We have to get support 
in Congress because they are moving ahead.
    And I want to thank you for coming today to share real 
stories of what you are--your challenges you have every day. 
And your pictures were excellent. I am a farmer myself, so I 
can share some of those thoughts with you. But for them to put 
this rule out, circumvent Congress, is really outrageous, and 
it makes us go backwards to protect the environment because, if 
you remember how the Clean Water Act in 1972 when it was 
passed, it was passed to be a Federal cooperative where the 
states would implement and enforce the Clean Water Act, and the 
feds would have guidance, and that is why every 3 years the 
states have to submit a plan of action to the U.S. EPA. And so 
this is nothing but a power grab, takes power away from the 
states, it erodes personal property rights, and it is going to 
add to cost both the state and local governments, and the 
farmers and developers and so on.
    I guess I don't really have a question, I was just 
answering some of your questions. We need to stay on this. And 
I want to thank you for coming and trying to bring more light 
to this issue because--another point that needs to be made, Mr. 
Chairman, as a farmer, and the farmers are here today, they 
drink that water first and they live on that land, and farmers 
are excellent stewards of the land, and we all want to make the 
water as clean as possible and for the next generations to 
come. And so just again, thank you, and I yield back, Mr. 
Chairman.
    The Chairman. I thank the gentleman.
    I take the liberty of taking my round of questions at this 
point.
    I am going to start with Ms. Steen. Historically, we have 
looked to the word navigable in the Clean Water Act, and a 
Commerce Clause connection in answering the question of what is 
under Federal jurisdiction as navigable, and how does this 
proposal fit with those concepts.
    Ms. Steen. Well, it goes completely beyond and would have 
nothing to do with the Commerce Clause or commercial use of 
waters. And, in fact, what it really codifies in our view is 
something even beyond the substantial--or rather--any 
hydrologic connection test that the Supreme Court rejected in 
the Rapanos decision. At that point in time, EPA had already 
been told that the Migratory Bird Rule, which was purportedly 
based on the Commerce Clause authority, was unlawful. They went 
back, they developed a theory for saying that waters or so-
called waters with any hydrologic connection to navigable 
waters would be jurisdictional. The Supreme Court rejected that 
in Rapanos. And this rule now would codify a view that anything 
with any not insignificant, not speculative connection, no 
matter how remote, no matter if it is a hydrologic connection 
or a biological connection of animals moving back and forth 
within a region, and we all know that resources are connected, 
we all know that waters are--there is a hydrologic cycle. 
Animals move around. I mean the breadth of the connection that 
EPA is saying here and the Corps can justify sweeping areas 
that don't even look like water, that don't even look like 
water, into the term navigable waters is astounding.
    And if I could on that point just cite to one particularly 
striking piece of the preamble. The term water isn't defined in 
the rule, and it is because a lot of the things being regulated 
as waters under this rule don't look like water. They are land. 
But they say in a footnote that the agencies use the term water 
and waters in categorical reference to streams, rivers, 
ditches, wetlands, ponds, lakes, blah, blah, and other types of 
natural or manmade aquatic systems. And then they say, well, 
puddles won't be regulated. Well, how big does it have to be to 
be a pond? We already know ephemeral waters, waters that exist 
only when it rains, can be regulated because that is what they 
call an ephemeral stream. There is literally no limit to what 
could be viewed as a jurisdictional water under this rule.
    The Chairman. In your opinion, would you agree that given 
the realities--the definition of the Clean Water Act, which was 
fairly well articulated back in 1972, 1973, that what both the 
EPA and the Corps of Engineers are trying to do is really to 
exercise legislative functions. They are trying to, through 
rulemaking, trying to circumvent the Legislative Branch and 
create new law?
    Ms. Steen. Regardless of intent, I think that is the effect 
of what they are proposing.
    The Chairman. No, that was--again----
    Ms. Steen. Absolutely.
    The Chairman. What is most important is--yes.
    Ms. Steen. Absolutely. The effect of what they are----
    The Chairman. Consequence.
    Ms. Steen. What they are proposing here would be to 
dramatically expand worlds beyond what Congress ever had in 
mind in 1972 when it used the term navigable water----
    The Chairman. Yes.
    Ms. Steen.--and beyond what the Supreme Court has said is 
within their authority. They have tried to shoehorn, or they 
have shoehorned this rule into the term significant nexus that 
was used by Justice Kennedy, but they have made it limitless. 
They have made it absolutely limitless.
    The Chairman. Yes, that is our concerns----
    Ms. Steen. Yes, sir. And----
    The Chairman.--here. Mr. Gledhill, it seems that the 
Federal Government has conflicting missions. The Agriculture 
Department promotes food production, yet the EPA and the Corps 
are doing everything they can to stifle such production through 
increased regulation. If the EPA and the Corps succeed with all 
these regulations, in your opinion, what will be the impact on 
the rural economy and, quite frankly, our nation's food supply 
for all Americans?
    Mr. Gledhill. Well, thank you, Chairman. One way I look 
at--try to do the economic impact, if I look at Mr. Taylor and 
Mr. Foglesong, there are 70 million farms in the United States, 
small, medium-sized farms. If each one of them spends $1\1/2\ 
to try to understand this rulemaking, we are already at $100 
million of effect, which should--which triggers under the 
statute and Executive Order's rigorous review--the highest 
level of rigorous review by the Executive Branch. And we do 
have conflicting missions in the Federal agencies between USDA, 
FDA, EPA, all these agencies, and OMB and the White House, and 
the Executive Office of the President is where these issues are 
supposed to be resolved, where people estimate the impact. So 
policy officials and elected officials can understand and make 
the trade-offs, because it is not between environmental 
protection or rural development, it is having the right balance 
of both that allows us to achieve both, and we can only do that 
if we have the information, and if we make these decisions in a 
public, transparent way, in which many stakeholders are 
collaborative and collaborating. And we are concerned from the 
impact on USDA programs that that collaboration is not 
happening even within the Administration, much less, as you 
have heard from all the stakeholders here on these two panels, 
with the broader stakeholders in our economy, especially our 
rural economy.
    So I don't think we know the impact. My concern is the 
agencies are not doing their role to understand the budget and 
mission impact, and conveying that to elected officials in the 
Administration, and more importantly to the public as a whole.
    The Chairman. Thank you, sir.
    Mr. Biggica, our rural electric co-ops, they are just well-
known for affordable and reliable electricity. And could you 
elaborate on the specific challenges facing utilities, such as 
rural electric co-ops, with an expansion of the WOTUS rule, and 
where there is, obviously, an obligation to keep the lights on?
    Mr. Biggica. That is correct, Congressman. The challenges 
that we will face----
    The Chairman. Russ, you want to check your microphone 
there.
    Mr. Biggica. The challenges that we will face if this 
proposed rule goes through are ones of enormous cost. As I 
mentioned in my testimony, with the broad definitions of 
tributaries and adjacent waters, that is what our environment 
is. We have power lines that have to be extended, we have 
transmission lines that have to be extended. In Pennsylvania, 
we are basically talking about distribution lines, but with our 
900 cooperatives across the country in 46 states, we are 
talking about transmission lines, bringing some of that clean 
energy back to our members, and we are going to need the 
ability for quick and honest permitting that is affordable for 
us to transmit that power.
    We have a study that says if we go beyond what is that 
general permit that I have alluded to in my testimony, that the 
cost of individual permitting, and it is documented in the 
written testimony, is ten times higher than a general permit. 
So the cost of--that we are experiencing right now will more 
than five times the amount. We can't afford to do that, 
especially the people that we represent. We have a higher 
poverty rate than most areas of the country serviced by 
investor-owned utilities. And as I said before, the striking 
difference between us and other power companies that are owned 
by stockholders is that we have a population density of about 
seven members per mile. They, on average, nationally it is 42 
members per mile. We can't afford any cost input, especially 
now as we have gotten through this economic climate, as we all 
know in rural Pennsylvania and rural United States, rural areas 
are the first one in when hit with economic downturn, and we 
are the last ones out. So any additional cost to maintain and 
to strengthen and to expand out rural infrastructure, with this 
rule being in effect, would only cost us more money.
    The Chairman. Thank you, sir.
    Mr. Taylor and Mr. Foglesong, on a related issue, part of 
the testimony I heard about is in terms of if this would go 
into effect, those who would have responsibility to be the 
regulators, the police, so to speak--with the lack of clarity 
in this rule, I have a concern that we would see a wide 
variance of interpretation depending on what region, where you 
lived. In Pennsylvania I ran into this with--we are blessed--
God has blessed us with great natural gas, and it has really 
been good for my Congressional district and good for the 
Commonwealth, and yet I can tell you because of the size of the 
state, we are in a number of different Corps of Engineer 
districts. Depending on what office you are in, supposedly 
these regulations are the same, but there is wide variance in 
terms of how they are interpreted. And so my question for both 
of you is: as the EPA and the Corps continue to claim that 
normal farming practices are and will continue to be exempt, 
yet there has been considerable concern about how this will be 
interpreted. Can each of you expand on your concerns regarding 
this? Let us start with Mr. Taylor.
    Mr. Taylor. Well, of course, that is one of my main 
concerns, and it is not just the regulators that may come in, 
and you may check with one and they may give you one opinion, 
and one would give you another, but also citizens bringing suit 
would concern me greatly because the law is so broad that it 
doesn't necessarily define what those waters are but it is 
broad enough that it could be taken to court. I might even win, 
but in the meantime it has cost me, I don't know how many tens 
of thousands of dollars to defend myself, and it is a real 
concern. I am not sure--did I----
    Mr. Foglesong. Unfortunately, I am afraid just about every 
farmer is going to wind up with some practical experience, and 
I am no different than that. We have experienced that at home 
where the Illinois Department--or the Illinois EPA is the cop 
on this deal. And I have land in at least two different 
districts, with two different guys that interpret the rules 
dramatically differently. The one guy, if there is an issue 
that we need to deal with, comes out, we sort it out, we get it 
fixed and we go on. The other guy, you wind up sitting with the 
Attorney General of the State of Illinois just like that, and 
you spend a boatload of money trying to fix and defend your 
deal. And then it becomes a matter of principle, and you know 
what principles are. Principles means you have to see how deep 
your pockets are. But unfortunately, in my situation, I have 
children and I have grandchildren that I have to set an example 
for, and I will be doggone if we are going to lose this fight, 
so we are spending money hand over fist. And this just makes it 
that much worse.
    I have had the opportunity to sit with the U.S. EPA on a 
couple of occasions where we were talking about the 
definitions. The last time I was here in D.C. we sat down with 
EPA. I had three attorneys with me, they had seven or eight 
with them, and we didn't get a damn thing done all day because 
we argued. And you ask about solutions on what this is. I have 
a solution for you. You get Sledge and me and a whole bunch of 
these other shareholders, we get together with some folks over 
at the EPA, we ban all attorneys from being in the room, 
because all they want to do is fight, and we can come out of 
there with a set of recommendations that are actually workable. 
But until we get to that point, I am not sure that there is a 
solution or an endgame in this. It is so hard for us to know 
where we want to be tomorrow and what we should do, and what 
those rules are going to impact us.
    At our place, and most farms around the country, I am out 
doing stuff. I am not a detail guy, I want to go build 
something. My wife is the bookkeeper and that is the way you 
find out. And she has buckets that she puts money into. And 
when we put $100,000 to defend our right to farm in a bucket 
for the EPA, that means I don't have $100,000 to go out on this 
place and build another pond or put in some dry dams or 
something else, and at the bottom line, no water ends up 
getting any cleaner because of extra regulations.
    If you really want to fix the thing, give me a carrot not a 
stick, because all the stick does, wants me to go sharpen my 
sword And when you get to be 60 years old, you know how that 
is, we are all pretty crusty and pretty tough to deal with, so 
that is the issue. But I appreciate the question and the 
opportunity to answer it.
    The Chairman. Well, thank you.
    I am going to take this opportunity to yield any additional 
time to my colleagues. Mr. Gibbs?
    Mr. Gibbs. Yes, thank you. I just want to follow up on the 
ag exemptions.
    For Ms. Steen, we had the interpretative rule and, of 
course, we got that out in the Cromnibus, but USDA working with 
the EPA said they had to do the interpretive rule to make it 
clear for agriculture, but is it correct to say that the 
interpretive rule was only in effect for farmers out here if 
they were partnering with NRCS on a program? Is that true?
    Ms. Steen. Yes. Well, it required compliance with NRCS 
standards in order to qualify for the exemption for the normal 
farming exemption for those conservation practice. Yes.
    Mr. Gibbs. Yes.
    Ms. Steen. Yes.
    Mr. Gibbs. So I guess you could extrapolate from that that 
they need--when the WOTUS rule is in place and they were trying 
to get--USDA was trying to look out, but your concerns are 
really legitimate, and I guess you would concur that without 
the interpretive rule, I think it was kind of a facade, trying 
to demonstrate that USDA was trying to help, but it really 
didn't have the impact because you would have to have NRCS sign 
off. And so if a farmer wanted to go out and build a fence on 
his own, and not do cost-sharing or do anything with NRCS, he 
possibly could be forced to get a section 404 permit for dredge 
and fill, correct?
    Ms. Steen. Yes, sir. We were always pretty mystified by 
what the interpretive rule was meant to do because it really 
seemed like a distraction from the real issue about the 
expansion of----
    Mr. Gibbs. Yes.
    Ms. Steen.--Waters of the U.S., and it, in our view, it 
gave farmers nothing of any real value because it made the NRCS 
standards regulatory in effect by saying you are only exempt 
for these practices if you comply with NRCS standards. So you 
place NRCS in the position of a regulatory authority, 
essentially, and at the same cast a cloud of doubt over the 
other farming practices that aren't listed on that interpretive 
statement, which should be exempt in any event----
    Mr. Gibbs. I----
    Ms. Steen.--at least to qualify----
    Mr. Gibbs. Mr. Chairman, that is an important point, 
working with the farmers, it is the carrot approach, as Mr. 
Foglesong said, and in the President's budget for the EPA he 
actually cut compliance expenses and increased enforcement 
expenses. So we are going the wrong way there on that.
    And the other point before I just conclude I want to make 
is there is a misnomer out there that if the water is not being 
regulated by the U.S. EPA, it is not being regulated under the 
traditional navigable waters, the waters that aren't 
traditional navigable--they are being regulated. Me as a 
farmer, our farmers out here, they can't just go out and 
haphazardly do things. I mean they would be in trouble. And so 
the states are doing that regulation. That water that is non-
navigable--traditional non-navigable waters as we would see 
them are being regulated. And so that is a misconception out 
there. I wanted to make that point, sir.
    Thank you, Mr. Chairman, thank you for having this hearing 
to bring more light to the impact on agriculture. It is very 
important.
    The Chairman. The gentleman is welcome.
    I am now pleased to yield to the Ranking Member for any 
additional questions and a closing statement.
    Ms. Lujan Grisham. Thank you, Mr. Chairman. And I am just 
going to make my closing statement, but I am going to include 
something that one of the panel experts identified.
    Mr. Foglesong, there is a very important balance, and 
starting with the carrot and creating collaboration, and 
getting folks who are willing to come to the table and have 
good ideas is really the purpose of this hearing today. We know 
that there are considerable comments. We don't believe, you 
heard that from both sides, that is one of the benefits of the 
Agriculture Committee is that there is a real reasonable sense 
about how we move forward by all of my colleagues on both the 
Subcommittee and the full Committee, and we need the EPA and we 
need others in any Administration to be clear who their 
stakeholders are. Where we have real problems, and where we 
have to do real compliance, a carrot is not working, and then 
we have to have the tools and resources to do that right job, 
but you start with creating an environment where we can do 
something about clean water. I really appreciate that from 
everyone here. I appreciate very much the Chairman for raising 
the issue, and inviting so many different stakeholders to come 
here today and share your concerns, reiterate those, and help 
us identify some possible solutions forward with both EPA and 
USDA.
    Thank you very much, Mr. Chairman.
    The Chairman. You are welcome. Thank you, Ranking Member.
    I just want to thank this panel of witnesses, and once 
again, the first panel of witnesses. I thought the testimony 
was just outstanding, both oral and your written testimony. I 
think that it will all be a part of the record that we are 
going to be able to use as we continue to look at this 
situation. Granted, the Clean Water Act is not under the 
jurisdiction of the Agriculture Committee and this 
Subcommittee, but quite frankly, the implications on rural 
America and the implications on agriculture, that is clearly 
within our wheelhouse. That is what we are responsible for. I 
thought there was great information, great issues raised. Quite 
frankly, the Clean Water Act was a very good piece of 
legislation that was written. It was written in a very 
thoughtful way, but it had limitations that were defined that 
way purposely when it was enacted. It was written with a 
section that includes a strong federalism reference where it 
recognized the primacy of the states in terms of the regulation 
of water. Clearly navigable waters were meant to be very 
prescriptive, and stepped over the line. And so I am very 
pleased that we are having this hearing, and this--as well as 
the hearings in other Committees such as Transportation and 
Infrastructure, a Subcommittee that my good friend from Ohio 
chairs on that committee.
    Once again, thank you to everybody. I thought this was very 
thoughtful, very helpful.
    And under the rules of the Committee, the record of today's 
hearing will remain open for 10 calendar days to receive 
additional material, and supplementary written responses from 
the witnesses to any questions posed by a Member.
    This Subcommittee on Conservation and Forestry hearing is 
now adjourned.
    [Whereupon, at 5:19 p.m., the Subcommittee was adjourned.]
    [Material submitted for inclusion in the record follows:]
 Submitted Comment Letters by Hon. Glenn Thompson, a Representative in 
               Congress from Pennsylvania; on Behalf of:
    kelly j. heffner, deputy secretary, pennsylvania department of 
                        environmental protection
October 8, 2014

  Water Docket,
  Environmental Protection Agency,
  Washington, D.C.

Re: Proposed Rulemaking: Definition of ``Waters of the United States'' 
            Under the Clean Water Act (79 FR 22188, April 21, 2014)

    To Whom It May Concern:

    Enclosed please find the Pennsylvania Department of Environmental 
Protection's (PADEP) comments on the United States Environmental 
Protection Agency's (EPA) proposed rulemaking: Definition of ``Waters 
of the United States'' Under the Clean Water Act (79 FR 22188, April 
21, 2014).
    Pennsylvania respectfully requests EPA and Army Corps of Engineers 
(ACOE) to withdraw this proposed rulemaking, and to amend the rule 
after careful consideration of the comments, further collaboration with 
states, and public hearings. The rule as drafted creates more confusion 
than it clarifies, and is already subject to differing interpretations 
by EPA and ACOE staff. This confusion will delay permitting and could 
undermine strong state programs. Pennsylvania asks EPA and ACOE to 
consider an approach that recognizes regional differences in geography, 
climate, geology, soils, hydrogeology and rainfall, and that supports 
strong and comprehensive state programs.
    PADEP appreciates the opportunity to submit these comments to EPA 
and reserves the right to submit additional comments after review of 
the final Scientific Advisory Board report: Connectivity of Streams and 
Wetlands to Downstream Waters: A Review and Synthesis of the Scientific 
Evidence.
    Should you have questions or need additional information, please 
contact me by e-mail at [email protected] or by telephone at 
717.783.4693.
            Sincerely,
            
            
Kelly J. Heffner,
Deputy Secretary.
                               attachment
Commonwealth of Pennsylvania, Department of Environmental Protection
Comments on the U.S. Department of Defense, Department of the Army, 
        Corps of Engineers and U.S. Environmental Protection Agency
Proposed Rulemaking: Definition of ``Waters of the United States'' 
        Under the Clean Water Act (79 FR 22188, April 21, 2014)
    General Comment

    The Commonwealth of Pennsylvania has abundant and precious water 
resources with approximately 86,000 miles of streams, 404,000 acres of 
wetlands, 161,445 acres of lakes, 172 miles of the Delaware 
estuary, and 63 miles of Great Lakes shore front.\1\ These ``waters of 
the Commonwealth'' have long been protected in Pennsylvania by a 
network of state laws, of which the Pennsylvania Clean Streams Law, 
passed in 1937, is central \2\ Under the Pennsylvania Clean Streams Law 
(``CSL''), the scope of protected waters is not subject to confusion or 
debate, but is clear and comprehensive, with the statutory prohibition 
on pollution or potential pollution to waters \3\ of the Commonwealth 
providing the framework. In contrast to the confusing definition 
proposed by this rulemaking, the Pennsylvania Clean Streams Law 
protects all waters of the Commonwealth, which are defined as: 
``Rivers, streams, creeks, rivulets, impoundments, ditches, 
watercourses, storm sewers, lakes, dammed water, wetlands, ponds, 
springs and other bodies or channels of conveyance of surface and 
underground water, or parts thereof, whether natural or artificial, 
within or on the boundaries of this Commonwealth.'' \4\ The 
Pennsylvania Clean Streams Law in turn provides authority for at least 
56 Chapters in Title 25 of the Pennsylvania Code. These regulations 
constitute a robust, comprehensive and effective regulatory framework 
for protection of waters of the Commonwealth.
---------------------------------------------------------------------------
    \1\ 2012 Pennsylvania Integrated Water Quality Monitoring and 
Assessment Report.
    \2\ Act of June 22, 1937, P.L. 1987, No. 396, as amended.
    \3\ 35 P.S.  301, 401 and 402.
    \4\ 35 P.S.  691.1.
---------------------------------------------------------------------------
    The Pennsylvania Clean Streams Law is the principal state law 
authority for the state's permitting programs and the foundation of 
delegation under section 402 of the Federal Water Pollution Control Act 
(commonly referred to as the Clean Water Act) \5\ by the U.S. 
Environmental Protection Agency (``EPA'') of the National Pollution 
Discharge Elimination System (``NPDES'') program to the Pennsylvania 
Department of Environmental Protection (``DEP''). The Clean Streams Law 
also provides authority (together with the Pennsylvania Dam Safety and 
Encroachments Act (``DSEA'') \6\ ) for the companion state law program 
under Title 25, Chapter 105 of the Pennsylvania Code relied on by the 
U.S. Army Corps of Engineers (``ACOE'') in their administration of the 
Pennsylvania State Programmatic General Permit (``SPGP'') for Clean 
Water Act Section 404 \7\ permitting.
---------------------------------------------------------------------------
    \5\ 33 U.S.C.  1342.
    \6\ 32 P.S.  693.1 et seq.
    \7\ 33 U.S.C.  1344.
---------------------------------------------------------------------------
    Pennsylvania was therefore frustrated, disappointed and frankly, 
alarmed, to discover that in formulating this rulemaking, EPA is 
relying on inadequate and inaccurate information regarding the breadth 
and scope of state law programs. It is of great concern to Pennsylvania 
that, despite delegation agreements referencing existing state laws, 
and the routine interaction with Pennsylvania DEP regarding our 
obligations and collaboration in administering our NPDES duties alone, 
EPA would nonetheless rely on and cite in public forums with 
Pennsylvania DEP officials, the 2013 Environmental Law Institute 
(``ELI'') study titled: State Constraints--State Imposed Limitations on 
the Authority of Agencies to Regulate Waters Beyond the Scope of the 
Federal Clean Water Act. This assessment is named as background 
information supporting the rulemaking,\8\ in articles \9\ and in public 
presentations by EPA officials,\10\ although it is not cited in the 
rulemaking. One of DEP's significant concerns with this rulemaking is 
EPA's unfamiliarity with existing state law programs reflected by its 
reliance on the ELI study, which is cited for the proposition that this 
rulemaking is needed because state programs to protect water resources 
are lacking, and purporting that the proposed rule will address states' 
regulatory loopholes. EPA has asserted that Pennsylvania is one such 
state. This characterization and assertion by EPA is completely 
erroneous and reflects a lack of due diligence and coordination with 
states.
---------------------------------------------------------------------------
    \8\ http://www2.epa.gov/uswaters/documents-related-proposed-
definition-waters-united-states-under-clean-water-act.
    \9\ http://yosemite.epa.gov/opa/admpress.nsf/
3881d73f4d4aaa0b85257359003f5348/ae90dedd9595a02485257ca600557e30.
    \10\ June 13, 2014, Berks County, EPA Official Nancy Stoner.
---------------------------------------------------------------------------
    The ELI study fails entirely to identify codified statutes and 
regulations that have provided the foundation for Pennsylvania's 
regulatory programs for decades--in some instances for nearly half a 
century. Instead, the ELI report only cites a 1996 Executive Order and 
the wetlands provisions under the PA Dam Safety and Encroachments Act 
(``DSEA''), and identifies these as loopholes in Pennsylvania. The ELI 
report does not further analyze the Pennsylvania wetlands permitting 
program (or compare it to the ACOE 404 permitting program) and more 
egregiously, fails to reference or acknowledge the regulatory authority 
under the Pennsylvania Clean Streams Law and the multiple chapters of 
the Pennsylvania Code which comprise the state's regulatory program. 
Again, these state laws and regulations form the basis for delegation 
of the Clean Water Act NPDES program to Pennsylvania, as well as the 
foundation for the ACOE Pennsylvania SPGP for Clean Water Act Section 
404 authorizations.
    In 2013 alone, DEP provided approximately 13,066 state law water 
program authorizations--4,914 of which were under the Clean Streams Law 
for the delegated NPDES program. These numbers represent the extensive 
state law oversight in Pennsylvania over projects which affect or have 
the potential affect waters of the Commonwealth. In order to obtain 
each one of these authorizations, the permittee is required to 
undertake its project in compliance with one or more chapters of Title 
25 of the Pennsylvania Code. It is particularly noteworthy given the 
ELI assessment of the Pennsylvania program, that the authorizations and 
oversight undertaken by PADEP pursuant to the delegated NPDES program 
constitutes only 38% of the water related permitting in 2013. In other 
words, 62% of the 2013 water related permitting in Pennsylvania was 
pursuant to state law authority only.

 
 
 
DSEA/CSL--Chapter 105                                              3,224
CSL/NPDES                                                          4,914
CSL/Sewage Facilities Act \11\/Non-NPDES                           4,928
\11\ Pennsylvania Sewage Facilities Act, 35 P.S.  750.1
 et seq.
 

    As these statistics demonstrate, Pennsylvania does in fact have a 
significant and robust regulatory program that reaches beyond the 
Federal Clean Water Act. Pennsylvania's approach in fact could serve as 
a model for the cooperative federalism at the heart of the Clean Water 
Act, which envisions a Federal-state partnership in the oversight and 
protection of the nation's waters with the Federal law providing a 
broad general regulatory framework that relies on and supports strong 
state programs specifically tailored to the unique attributes of each 
states.

    Specific Comments

   Overcoming structural and authority limitations of the Clean 
        Water Act through the revision of the definition of ``Waters of 
        the United States'' is not appropriate. Pennsylvania recognizes 
        that the challenges in protecting water resources have evolved 
        since passage of the Clean Water Act in 1972. However, trying 
        to address the problems of 2014 (which are largely wet weather 
        driven and/or are associated with non-point sources) by 
        changing the definition of ``Waters of the United States'' is 
        not appropriate. The proposed definition will expand 
        jurisdiction over stormwater related systems, which is 
        particularly inappropriate after EPA has chosen not to proceed 
        with the national stormwater rulemaking. Further, using this 
        new definition in the existing permitting programs under 
        sections 402 and 404 will render both of these programs more 
        cumbersome and confusing. Expansion of Federal regulatory 
        oversight through a definitional change is not appropriate, hut 
        more significantly, will not be effective. The permitting 
        authorities (state and Federal) will be mired in litigation and 
        disputes related to the proper interpretation of the proposed 
        re-definition of ``Waters of the United States.''

   The proposed rule is premature in relation to the ongoing 
        discussions with the Scientific Advisory Board (SAB).

     The determination of applicable science, which provides a baseline 
        for the proposed rule, is not complete or finalized. The 
        proposed rule cites the report and recommendations titled 
        Connectivity of Streams and Wetlands to Downstream Waters: A 
        Review and Synthesis of the Scientific Evidence which is 
        currently being peer reviewed by the SAB. This process of 
        simultaneously evaluating the science during the comment 
        process provides a major obstacle in providing substantive 
        comments and recommendations regarding the scientific basis for 
        the validity of the obligations established in the rule. It 
        also implies that the scientific basis provided in the draft 
        rule is irrelevant. PADEP recommends that the states and the 
        public be provided with a 60 to 90 day review and comment 
        period, and an opportunity to submit additional comments on the 
        rule given the relationship of the study to this rule.

   Pennsylvania is not experiencing the purported confusion 
        that is one of the drivers for the rule. Our state law 
        jurisdiction is common-sense in application and does not 
        generate confusion. As the foundation of our delegated NPDES 
        program and the basis for the ACOE's Pennsylvania State 
        Programmatic General Permit, our state law based programs are 
        effective. Clarification or expansion of Federal CWA 
        jurisdiction is not needed from Pennsylvania's perspective.

   One size does not fit all. EPA asserts that protection of 
        the 60 percent of nation's stream miles that flow only 
        seasonally \12\ is an important objective of the rule. However, 
        Pennsylvania is not a state for which the majority of stream 
        miles only flow seasonally. Further, to the extent Pennsylvania 
        streams have seasonal flow, they are protected under state law. 
        Administering a detailed and specific but `one-size-fits-all' 
        definition applicable nationwide in states with distinct 
        surface and groundwater attributes, and extremely divergent 
        average annual rainfall and snowmelt characteristics will be 
        difficult, and such a rule may in fact undermine existing state 
        law protections.
---------------------------------------------------------------------------
    \12\ Pennsylvania uses the terminology ``intermittent stream'' and 
``perennial stream'' rather than seasonal. 25 Pa. Code  102.1

   The rule's focus on section 404 permitting is problematic 
        for section 402 permitting. It appears that the rule, which 
        grows out of section 404 cases decided by the United States 
        Supreme Court, is focused on providing clarification for 
        purposes of section 404 permitting. This clarity in the section 
        404 context, however, will come at the expense of clarity and 
---------------------------------------------------------------------------
        common sense administration of the section 402 NPDES program.

   The proposed rule as drafted creates more confusion than it 
        clarifies. The proposal put forth by EPA and ACOE seems to 
        replace the current ``other waters'' case-by-case analysis with 
        a new ``significant nexus'' analysis. However, the 
        ``significant nexus'' analysis appears to be done on a case-by-
        case basis. As a result, agencies may be doing little more than 
        exchanging one collection of uncertainties for another. See the 
        following language from the preamble to the proposed rule:

     ``The purposes of the proposed rule are to ensure 
            protection of our nation's aquatic resources and make the 
            process of identifying `waters of the United States' less 
            complicated and more efficient.'' 79 FR 22190 (emphasis 
            added).

     ``The agencies did not adopt the all in or the all-out 
            approach to `other waters.' Based on the information 
            currently available in the scientific literature, 
            applicable case law, and the agencies' policy judgment 
            about how best to provide clarity and certainty to the 
            public regarding the jurisdictional status of `other 
            waters' the agencies today propose the case-specific 
            significant nexus analysis presented in this rule and 
            explained in the preamble.'' 79 FR 22198 (emphasis added).

   EPA staff assurances and presentations suggest that despite 
        the new rule, the implementation of the section 402 and 404 
        programs in Pennsylvania will not change. This does not provide 
        sufficient certainty to Pennsylvania. Because the rule as 
        drafted can be interpreted in ways that could significantly 
        impact the administration of these programs, the language of 
        the rule itself must be clarified in a manner that provides 
        assurance to the public, the regulated community and to states 
        such as Pennsylvania with robust programs and bountiful water 
        resources.

   The ``significant nexus'' approach to determining 
        jurisdiction in the proposed rule is impractical. The proposed 
        procedures provided in the preamble for documenting whether 
        there is a ``significant nexus'' with individual wetlands such 
        that they should be treated as ``Waters of the United States,'' 
        are extremely complex and will be very time consuming. The 
        procedures may be scientifically valid, but will be largely 
        impractical for routine regulatory determinations.

   The proposed definitions do not exclude wet weather/
        stormwater conveyance or treatment systems. The proposed rule 
        would include wet weather or stormwater conveyance and 
        treatment systems as regulated waters of the U.S. This result 
        is unrealistic and unsound from the scientific perspective. The 
        application to current regulated efforts to treat and manage 
        stormwater through pipes, conveyances, and other engineered 
        structures, or through passive green infrastructure practices, 
        would result in these activities being categorized as waters of 
        the U.S. EPA has indicated in the Q&A related to the rule that 
        this is not the intention, but language in the rule should be 
        added to the exemptions in order to clarify this.

   The proposed rule will impose a significant impact on 
        available resources to implement CWA program requirements. If 
        the issues related to the definitions, and uncertainty about 
        how EPA and ACOE administration of the terms described above 
        are not addressed, the number of water bodies needing to be 
        assessed, water quality standards established, and 
        determinations of impairment will significantly increase. For 
        example, a shallow subsurface aquifer with an established 
        connection to a water body into which septic systems discharge 
        under the proposed rule could now be defined as jurisdictional 
        triggering the need for an NPDES permit to discharge. Would the 
        aquifer itself also have to be assessed, added to the list of 
        water bodies and defined as impaired or not?

   As written, many of the proposed definitions have the 
        potential to expand the scope of ``CWA jurisdictional'' waters. 
        This will result in states expending a significant amount of 
        resources assessing, listing, and issuing NPDES discharge 
        permits for activities that have traditionally, and should 
        continue to be, treated as a non-point sources, with no real 
        meaningful benefit to protection of water resources in 
        Pennsylvania. For example, discharges from best management 
        practices for the treatment of stormwater runoff, individual 
        discharges to MS4 systems, and septic systems discharging into 
        an aquifer with an established hydrologic connection could all 
        potentially be subject to NPDES permit requirements, even 
        though they are all subject to state law regulations and permit 
        requirements. States do not have the resources to deal with the 
        increase in workload that this change could potentially cause, 
        without any increased water quality protection.

   To address some of the problems described above, 
        Pennsylvania proposes the following specific revisions to 
        definitions in the rule:

    1.  Neighboring--Delete ``or waters with a shallow subsurface 
            hydrologic con-
              nection or confined surface hydrologic connection to such 
            a jurisdictional
              water.''

    2.  Floodplain--Define moderate to high water flows in term of a 
            certain rain
              event. The lands adjoining a channel or conveyance that 
            have been or may
              be expected to be inundated by flood waters in a 100 year 
            frequency flood.

    3.  Tributary--Define to mean a channel or conveyance of surface 
            water having
              both defined bed and banks, whether natural or 
            artificial, with perennial
              or intermittent flow that flows to a larger stream or 
            other body of water;
              the ``bed'' being the bottom/substrate area/base of the 
            channel or convey-
              ance; and ``banks'' being the break in slope between the 
            edge of the bed of
              the channel and the surrounding terrain and generally 
            parallel to the chan-
              nel or conveyance.

    4.  Significant nexus--Terms like ``significantly'', 
            ``speculative'' or ``insubstan-
              tial'' are too subjective. A scientifically defensible 
            definition of significant,
              based on water quality assessment, health standards, etc. 
            is necessary.

    5.  Significant nexus--Delete the ``case-specific basis'' for other 
            waters.

    Conclusion

    Pennsylvania respectfully requests EPA and ACOE to withdraw this 
proposed rulemaking, and to amend the rule after careful consideration 
of the comments, further collaboration with states, and public 
hearings. The rule as drafted creates more confusion than it clarifies, 
and is already subject to differing interpretations by EPA and ACOE 
staff. This confusion will delay permitting and could undermine strong 
state programs. Pennsylvania asks EPA and ACOE to consider an approach 
that recognizes regional differences in geography, climate, geology, 
soils, hydrogeology and rainfall, and that supports strong and 
comprehensive state programs.
 george d. grieg, secretary, pennsylvania department of environmental 
                               protection
November 14, 2014

  Water Docket,
  Environmental Protection Agency,
  Washington, D.C.

Re: Proposed Rulemaking: Definition of ``Waters of the United States'' 
            Under the Clean Water Act (79 FR 22188, April 21, 2014)

    To Whom It May Concern:

    Enclosed please find the Pennsylvania Department of Agriculture's 
(PDA) comments on the United States Environmental Protection Agency's 
(EPA) proposed rulemaking: Definition of ``Waters of the United 
States'' Under the Clean Water Act (79 FR 22188, April 21, 2014).
    Pennsylvania respectfully requests EPA and Army Corps of Engineers 
(ACOE) to withdraw this proposed rulemaking, and to amend the rule 
after careful consideration of the comments, further collaboration with 
states, and public hearings. The rule as drafted creates more confusion 
than it clarifies, and is already subject to differing interpretations 
by EPA and ACOE staff. This confusion will delay permitting and could 
undermine strong state programs. Pennsylvania asks EPA and ACOE to 
consider an approach that recognizes regional differences in geography, 
climate, geology, soils, hydrogeology and rainfall, and that supports 
strong and comprehensive state programs.
    Should you have any questions or need additional information, 
please contact me by e-mail at [email protected] or by telephone at 717-
783-6986.
            Sincerely,
            
            
George D. Grieg,
Secretary.
Commonwealth of Pennsylvania, Department of Agriculture
Comments on the U.S. Department of Defense, Department of the Army 
        Corps of Engineers and U.S. Environmental Protection Agency
Proposed Rulemaking: Definition of ``Waters of the United States'' 
        Under the Clean Water Act (79 FR 22188, April 21, 2014)
    General Comment

    The Commonwealth of Pennsylvania is home to more than 59,000 farms 
and 7.7 million acres of farmland. The agriculture industry contributes 
$74 billion in total economic impact to the Commonwealth. Pennsylvania 
also has abundant and precious water resources that our farmers work 
hard to protect, with approximately 86,000 miles of streams, 404,000 
acres of wetlands, 161,445 acres of lakes, 172 miles of the 
Delaware estuary, and 63 miles of Great Lakes shore front.\1\ These 
``waters of the Commonwealth'' have long been protected in Pennsylvania 
by a network of state laws. These regulations constitute a robust, 
comprehensive and effective regulatory framework for protection of 
waters of the Commonwealth.
---------------------------------------------------------------------------
    \1\ 2012 Pennsylvania Integrated Water Quality Monitoring and 
Assessment Report.
---------------------------------------------------------------------------
    The Pennsylvania Department of Agriculture (PDA) is frustrated and 
disappointed to discover that in formulating this rulemaking, EPA is 
relying on inadequate and inaccurate information regarding the breadth 
and scope of state law programs. It is of great concern to PDA that, 
despite delegation agreements referencing existing state laws, and the 
routine interaction with the state Department of Environmental 
Protection (DEP), EPA would rely on the 2013 Environmental Law 
Institute (``ELI'') study titled: State Constraints--State-Imposed 
Limitations on the Authority of Agencies to Regulate Waters Beyond the 
Scope of the Federal Clean Water Act. This assessment is named as 
background information supporting the rulemaking,\2\ in articles \3\ 
and in public presentations by EPA officials,\4\ although it is not 
cited in the rulemaking. One of PDA's main concerns with this 
rulemaking is EPA's unfamiliarity with existing state law programs 
reflected by its reliance on the ELI study, which is cited for the 
proposition that this rulemaking is needed because state programs to 
protect water resources are lacking, and purporting that the proposed 
rule will address states' regulatory loopholes. EPA has asserted that 
Pennsylvania is one such state. This characterization and assertion by 
EPA is completely erroneous and reflects a lack of due diligence and 
coordination with states.
---------------------------------------------------------------------------
    \2\ http://www2epa.gov/uswaters/documents-related-proposed-
definition-waters-united-states-under-clean-water-act.
    \3\ http://yosemite.epa.gov/opa/admpress.nsf/
3881d73f4d4aaa0b85257359003f5348/ae90dedd9595a02485257ca600557e30.
    \4\ June 13, 2014, Berks County, EPA Official Nancy Stoner.
---------------------------------------------------------------------------
    Pennsylvania does in fact have a significant and robust regulatory 
program that reaches beyond the Federal Clean Water Act. Pennsylvania's 
approach in fact could serve as a model for the cooperative federalism 
at the heart of the Clean Water Act, which envisions a Federal-state 
partnership in the oversight and protection of the nation's waters with 
the Federal law providing a broad general regulatory framework that 
relies on and supports strong state programs specifically tailored to 
the unique attributes of each state.
    PDA is very concerned that the EPA and the Corps (the agencies) 
have proposed this rule without engagement with state and local 
authorities, consideration of their prerogatives and budgets, or 
without realistically examining the potential economic and legal 
impacts on agriculture. Pennsylvania believes the proposed rule is ill-
conceived and exceeds the legal and statutory boundaries of the CWA. 
Rather than clarify the intent of Congress and the Supreme Court, the 
proposed rule would add complexity and uncertainty, disrupt the timely 
use of FIFRA-registered pesticide products, and cause significant 
adverse economic impacts to state departments of agriculture and other 
agencies.
    The proposed rule confuses Federal control with environmental 
protection. It is likely to curtail many voluntary water quality 
improvement projects if such projects would trigger cost and delay of 
seeking Federal permits. Such unintended consequences are precisely why 
the agencies need to better engage state and local governments and 
affected industries such as agriculture.
    PDA believes EPA and the Corps must withdraw the proposed rule and 
initiate significant discussions with states and other affected 
stakeholders. We urge the agencies to initiate a replacement rulemaking 
that reflects those consultations and is supported by science and case 
law.

    Specific Comments

  1.  The proposed rule was premature in relation to the ongoing 
            discussions with the Scientific Advisory Board (SAB). On 
            the same day the draft Connectivity report was released to 
            the public, the proposed rule was sent to the Office of 
            Management and Budget (OMB) for interagency review. This is 
            inappropriate and prevented the public from being able to 
            provide meaningful comments on the proposed rule. The 
            Connectivity report is the scientific basis the agencies 
            rely on to support their proposed rule. The science should 
            have been final prior to the proposed rule being developed.

        Recently the agencies extended the public comment period, and 
            weeks later the final Connectivity report was released. 
            This extension fails to rectify the procedural failures of 
            the agencies for not providing a final report in the 
            proposed rule for comment when the rule was first released. 
            The process of simultaneously evaluating the science during 
            the comment process provides a major obstacle in providing 
            substantive comments and recommendations regarding the 
            scientific basis for the validity of the obligations 
            established in the rule. It also implies that the 
            scientific basis provided in the draft rule is irrelevant.

  2.  Pennsylvania is not experiencing the purported confusion that is 
            one of the drivers for the rule. Our state law jurisdiction 
            is common-sense in application and does not generate 
            confusion. As the foundation of our delegated NPDES program 
            and the basis for the ACOE's Pennsylvania State 
            Programmatic General Permit, our state law based programs 
            are effective. Clarification or expansion of Federal CWA 
            jurisdiction is not needed from Pennsylvania's perspective.

  3.  One size does not fit all. EPA asserts that protection of the 60 
            percent of nation's stream miles that flow only seasonally  
            \5\ is an important objective of the rule. However, 
            Pennsylvania is not a state for which the majority of 
            stream miles only flow seasonally. Further, to the extent 
            Pennsylvania streams have seasonal flow, they are protected 
            under state law. Administering a detailed and specific but 
            ``one-size-fits-all'' definition applicable nationwide in 
            states with distinct surface and groundwater attributes, 
            and extremely divergent average annual rainfall and 
            snowmelt characteristics will be difficult, and such a rule 
            will undermine existing state law protections.
---------------------------------------------------------------------------
    \5\ Pennsylvania uses the terminology ``intermittent stream'' and 
``perennial stream'' rather than seasonal. 25 PA Code  102.1.

  4.  The proposed rule as drafted creates more confusion than it 
            clarifies. PDA is disappointed in the proposed rule's lack 
            of clarity due to ambiguous or undefined terms and phrases. 
            Terms and phrases throughout the proposal are left 
            undefined, or the definition is left so ambiguous that 
            farmers will be left wondering, with no possible way of 
            determining, whether waters on their property will be 
            jurisdictional or not. The proposed rule only increases 
---------------------------------------------------------------------------
            confusion.

        For example, the ``significant nexus'' is the lynchpin concept 
            of the agencies' proposed rule, but the rule provides no 
            metrics or criteria for how to measure ``significance'' of 
            effects. Moreover, the proposed rule identifies factors 
            that could be evidence of a significant nexus but provides 
            no guidance on when the presence of these factors rise to 
            the level of significance and instead seems to suggest that 
            merely the presence of any of these factors is sufficient 
            to satisfy the significant nexus standard.
        Additional uncertainty is created by:

       according ``interstate waters'' the same status as 
            traditional navigable wa-
              ters while failing to provide a definition of 
            ``interstate waters,''

       allowing certain features to be considered 
            jurisdictional based on their rela
              tionship to ``impoundments'' while leaving 
            ``impoundment'' undefined,

       using the confusing concept of ordinary high water 
            mark (OHWM) as the
              key identifier for tributaries,

       extending the concept of ``adjacency'' to non-
            wetlands without providing a
              limit to ``waters'' that can be considered adjacent,

       relying on vague and undefined concepts such as 
            ``floodplain,'' ``riparian
              area,'' and ``shallow subsurface hydrologic connection'' 
            to identify
              ``adjacent waters,''

       creating exemptions for certain ditches, but making 
            the exemptions so nar-
              row that few ditches can meet the criteria, and

       allowing for exempted features, such as groundwater, 
            gullies, and rills to
              serve as connections that can render a feature 
            jurisdictional ``adjacent
              water'' or ``other water.''

        These are just a few examples of the ambiguity and uncertainty 
            created by the proposed rule. Unfortunately each of these 
            examples fails to provide the necessary clarity on which to 
            base a regulatory program and will likely cause regulatory 
            confusion, inconsistency, and litigation.

  5.  The agencies did not adequately consider adverse impacts on rural 
            communities and small agribusinesses. Throughout this 
            rulemaking process, the Agencies have failed to engage with 
            the states, as required by Executive Order 13132 
            (Federalism), or the small business community, as required 
            by the Regulatory Flexibility Act (RFA). Instead, the 
            Agencies certified, without any supporting analysis, that 
            ``this proposed rule will not have a significant impact on 
            a substantial number of small entities'' because, in their 
            opinion, ``[t]he scope of regulatory jurisdiction in this 
            proposed rule is narrower than under the existing 
            regulations.'' There is no factual basis for this 
            certification. It is based on several false assumptions: 
            That the jurisdictional scope of the proposed rule is 
            smaller than existing regulations, all the impacts of the 
            proposed rule will be ``indirect'' and such impacts on 
            farmers, ranchers and small agribusinesses will be 
            insignificant.

        Even a cursory analysis indicates that the revised definition 
            will have a significant economic impact on a substantial 
            number of small entities and on the states. Notwithstanding 
            impacts on state agriculture and water programs, the 
            proposed rule will have dramatic impacts on farmers, 
            supporting agribusiness companies, and the infrastructure 
            of small rural communities. The specter of new Federal 
            regulations for traditional stakeholder activities in and 
            around previously-unregulated marginal conveyances, ditches 
            or other land features on farms and rural communities 
            speaks volumes about likely impacts on such small entities. 
            PDA is convinced the agencies have not adequately 
            considered small business impacts in the development of the 
            proposal.

  6.  The proposed rule results in limitless Federal authority and is 
            inconsistent with limits set by Congress and recognized by 
            the Supreme Court. Pennsylvania is concerned that under the 
            proposed rule, the agencies' authority to assert 
            jurisdiction is limitless. The proposed rule confuses 
            Federal control with environmental protection. Where in the 
            past, jurisdiction was based on a site-specific analysis, 
            the proposed rule creates broad categories of waters that 
            would now be considered jurisdictional by rule. For 
            example, under the proposed rule, remote features on the 
            landscape that carry only minor water volumes (e.g., 
            ephemeral drainages, storm sewers and culverts, directional 
            sheet flow during storm events, drain tiles, and man-made 
            drainage ditches), would now automatically be subject to 
            Federal CWA jurisdiction.

        In addition, under the proposed rule, waters and wetlands are 
            regulated if they are ``located within the riparian area or 
            floodplain'' of a traditional navigable water, interstate 
            water, territorial sea, impoundment, or tributary, or if 
            they have ``a shallow subsurface hydrologic connection or 
            confined surface hydrologic connection to such a 
            jurisdictional water.'' \6\ The proposed rule does not 
            provide a limit for the extent of riparian areas or 
            floodplains, but leaves it to the agencies' ``best 
            professional judgment'' to determine the appropriate area 
            or flood interval.\7\ The proposal also fails to provide 
            the limits of ``shallow subsurface hydrological 
            connections'' that can render a feature jurisdictional but 
            instead leaves that analysis to the best professional 
            judgment of the agencies.\8\
---------------------------------------------------------------------------
    \6\ 79 Fed. Reg. at 22262-63.
    \7\ Id. at 22208.
    \8\ Id.
---------------------------------------------------------------------------
        Inconsistent with the limits established by Congress and 
            recognized by the Supreme Court, the proposed rule creates 
            sweeping jurisdiction based on connections under newly 
            devised theories such as ``any hydrological connection,'' 
            ``significant nexus,'' ``aggregation,'' and new definitions 
            and key regulatory terms such as ``tributary,'' ``adjacent 
            waters,'' and ``other waters.'' Through use of the broad 
            definition of ``tributary'' the agencies will extend 
            jurisdiction to any channelized feature, (e.g., ditches, 
            ephemeral drainages, stormwater conveyances), wetland, lake 
            or pond that directly or indirectly contributes flow to 
            navigable waters, without any consideration of the duration 
            or frequency of flow or proximity to navigable waters.\9\
---------------------------------------------------------------------------
    \9\ 79 Fed. Reg. at 22201.
---------------------------------------------------------------------------
        The rule also proposes to expand ``adjacent waters,'' to 
            include any wetland, water, or feature located in an 
            undefined floodplain or riparian area, or that has a sub-
            surface hydrologic connection to navigable waters.\10\ A 
            new catch-all ``other waters'' category would include 
            isolated waters and wetlands that, when aggregated with all 
            other wetlands and waters in the entire watershed, have a 
            ``more than speculative or insubstantial'' effect on 
            traditional navigable waters.\11\ Under the proposed rule, 
            ditches, groundwater and erosional features (i.e., gullies, 
            rills, and swales) can serve as a subsurface hydrological 
            connection that would render a feature a jurisdictional 
            ``adjacent water'' or demonstrate that a feature has a 
            ``significant nexus'' and is therefore a jurisdictional 
            ``other water.'' \12\ Such far-reaching jurisdiction over 
            features far from navigable waters and carrying only minor 
            volumes of flow was not what Congress intended and goes far 
            beyond even the broadest interpretation of recent Supreme 
            Court decisions in Solid Waste Agency of Northern Cook 
            County v. U.S. Army Corps of Eng'rs, 531 U.S. 159, 172 
            (2001) (SWANCC), and Rapanos v. United States, 547 U.S. 715 
            (2006).
---------------------------------------------------------------------------
    \10\ Id. at 22206.
    \11\ Id. at 22211.
    \12\ Id. at 22219.

  7.  The proposed rule will have direct and substantial effects on 
            other state programs, such as soil conservation, nutrient 
            management, pesticide regulation, etc. Examples include the 
---------------------------------------------------------------------------
            following:

       State conservation programs that stress edge-of-
            field practices to limit
              flooding, contaminated runoff and soil erosion could be 
            adversely affected
              if in-field conveyances are deemed WOTUS under one of the 
            new categories
              or through BPJ determination of a ``significant nexus.'' 
            Farm bill steward-
              ship programs administered at the state level will have 
            to be evaluated to
              properly embrace the expansion of jurisdictional waters 
            under this proposed
              rule.

       State pesticide programs and regulations will need 
            to be reevaluated under
              the proposed WOTUS rule. Some labeled uses of pesticide 
            products could
              be jeopardized by the proposed federalization of 
            ephemeral conveyances and
              ditches; for example, when farmers, natural resource 
            managers and others
              seek to use terrestrial pesticides with labels that state 
            ``do not apply to
              water'' or require no-spray setbacks from jurisdictional 
            waters to avoid po-
              tential spray drift. Confusion over what are Federal 
            ``waters'' may expose
              pest-control operators to legal uncertainty under CWA 
            and/or FIFRA, and
              threaten effective pest management in certain 
            topographies.

    Conclusion

    Pennsylvania respectfully requests EPA and Army Corps of Engineers 
(ACOE) to withdraw this proposed rulemaking, and to amend the rule 
after careful consideration of the comments, further collaboration with 
states, and public hearings. The rule as drafted creates more confusion 
than it clarifies, and is already subject to differing interpretations 
by EPA and ACOE staff. This confusion will delay permitting and could 
undermine strong state programs. Pennsylvania asks EPA and ACOE to 
consider an approach that recognizes regional differences in geography, 
climate, geology, soils, hydrogeology and rainfall, and that supports 
strong and comprehensive state programs.
                                 ______
                                 
  Submitted Letter by Hon. Michelle Lujan Grisham, a Representative in
 Congress from New Mexico; on Behalf of Steve Moyer, Vice President of 
                  Government Affairs, Trout Unlimited
March 17, 2015

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

  Hon. Michelle Lujan Grisham,
  Ranking Minority Member,
  Subcommittee on Conservation and Forestry,
  House Committee on Agriculture,
  Washington, D.C.

    Dear Chairman Thompson and Ranking Member Lujan Grisham:

    On behalf of Trout Unlimited's (TU) 150,000 members nationwide, I 
am writing to provide testimony for your March 17, 2015, hearing on the 
Clean Water proposal from the Army Corps of Engineers (Corps) and the 
EPA. 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, especially the small headwater 
streams that serve as the keystone of watershed health. 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 clean water proposal is 
worthy of your thoughtful consideration. When it is finalized, it will 
provide landowners, conservationists, and businesses with substantial 
improvements in how the law is implemented.
    In that light, we urge the Subcommittee to review the final rule 
when it is completed in the coming months. The agencies have conducted 
hundreds of stakeholder meetings and have considered over one million 
comments on the draft. I am pleased to note that more than 85% of the 
comments supported the proposal. I believe that the final draft will 
contain changes designed to fix the constructive criticisms that some 
have been offered during the comment period, resulting in a clearer, 
stronger final product.
    I want to take a moment to talk about how vitally important the 
Clean Water Act is to TU's work, and to anglers across the nation. 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 1 
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.
    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. Finally, we believe that the 
final rule must, and likely will, include even greater clarity on 
agricultural exemptions.
    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 producers on the ground.
    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. These 
hunting and fishing economies depend on healthy habitat and clean 
water. They depend on the Clean Water Act.
    Last, the Clean Water Act and the farm bill, passed last 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 new Clean Water rule will 
provide clarity and allow producers to continue with these practices 
with predictability. The farm bill has spurred fish 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 last 
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, New Mexico, 
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 Hon. Michelle Lujan Grisham, a Representative in 
   Congress from New Mexico; on Behalf of Joe Logan, President, Ohio 
                             Farmers Union
Introduction
    On behalf of the family farmers, ranchers and rural members of Ohio 
Farmers Union, thank you for the opportunity to testify regarding the 
Environmental Protection Agency and Army Corps of Engineers' proposed 
changes to the definition of ``waters of the U.S.'' OFU was organized 
in 1934. We work to protect and improve the well-being and quality of 
life of family farmers, ranchers and rural communities in Ohio and 
throughout the country by promoting grassroots-derived policy adopted 
annually by our membership. OFU members represent producers of varied 
commodities, crops, and livestock employing varied practices, but hold 
in common reliance on and good stewardship of our shared water 
resources.
    Clean water is vital to the productivity and well-being of 
America's farms, ranches and rural communities. The Clean Water Act 
(CWACWA seeks to ``restore and maintain the chemical, physical, and 
biological integrity of the nation's waters.'' \1\ OFU's members 
understand the importance of respecting clean water as a shared 
resource and believe the integrity of the nation's water can be 
protected without unnecessarily encumbering the activities of the 
regulated community.
---------------------------------------------------------------------------
    \1\ 33 U.S.C.  1241(a).
---------------------------------------------------------------------------
    The EPA and Corps' (agencies) stated goal for the proposed rule is 
to improve protection of public health and water resources while 
increasing certainty for the regulated community and reducing 
troublesome and costly litigation. Protecting the nation's water 
resources is a complicated matter, and so by necessity are the CWA and 
any rule implementing it. This topic requires careful consideration and 
measured discourse over the legitimate concerns facing the regulated 
community. This proposed rule is so important because all discharges 
made to waters of the United States from point sources require a 
National Pollutant Discharge Elimination System (NPDES) Permit under 
the CWA. A discharge is any addition of a pollutant to a ``water of the 
United States,'' including dredge or fill material. Although normal 
farming, silviculture and ranching activities are exempt from dredge 
and fill requirements under  404(f)(1)(A) of the CWA and certain 
activities pursuant to agriculture are exempted from NPDES permitting 
requirements under  402, the legal basis for the regulation of many 
construction and business activities rests on the definition of 
``waters of the United States.''
    It is not satisfactorily clear whether the proposed rule, in its 
present form, would implement policies that OFU supports. However, 
OFU's members recognize the agencies' rulemaking process on this matter 
as an opportunity to achieve their policy goals because the current 
regulatory landscape allows for inconsistent determinations that expand 
the CWA's definition of jurisdictional waters. The purpose of the 
following testimony is to provide the agencies with advice for drafting 
a final rule that does not increase CWA jurisdiction and promotes 
consistent application of EPA policies, which aligns with the agencies' 
stated intent. OFU will oppose a rule that does not respect these 
critical components of the organization's policy. This testimony will 
help the agencies avoid language that, even when drafted in good faith, 
could be taken out of context and used to stretch CWA jurisdiction in 
the future.
    The agencies' stated intent is to replace inconsistent practices 
with clear, bright-line tests through this proposed rule. If the 
testimony below is given proper consideration, the final rule will 
allow the regulated community the certainty it needs to conduct its 
business free from fear of undue regulatory interference and without 
sacrificing the agencies' ability to protect the United States' water 
resources. The proposed rule warrants comments on the agencies' changes 
to the definition of ``waters of the United States'' and the exclusions 
of certain waters from that definition.
I. Proposed Definition of ``waters of the United States.''
``Tributary''
    The CWA establishes the agencies' permitting jurisdiction over 
specifically-listed waters. Paragraphs (a)(1)-(a)(5) of the proposed 
rule restate well-settled tenets of the agencies' jurisdiction under 
the CWA and do not warrant further comment. However, section (a)(5)'s 
inclusion of ``All tributaries of waters identified in paragraphs 
(a)(1) through (4) of this section'' warrants examination. This 
language has invoked significant concern in the regulated community 
that the proposed rule would increase the jurisdictional reach of the 
CWA. The agencies should address this concern and confirm this language 
does not increase jurisdiction by incorporating the following points in 
the final rule.
    The preamble to the proposed rule notes that the proposed rule sets 
forth, for the first time, a regulatory definition of ``tributary.'' 
The proposed rule defines ``tributary'' \2\ as ``a water physically 
characterized by the presence of a bed and banks and ordinary high 
water mark . . . which contributes flow, either directly or through 
another water, to a water identified in paragraphs (a)(1) through (4) 
of this section.'' \3\ In order to provide more clarity to the 
regulated community, the agencies should note in the final rule that 
these features take years to form. This should mitigate concern that 
temporary accumulations directly related to isolated rain events will 
be considered jurisdictional. The agencies should add further 
clarifying language, including but not limited to descriptive examples 
of water and events that are not considered tributaries, in the final 
rule in order to ensure these distinctions are well-understood in the 
regulated community.
---------------------------------------------------------------------------
    \2\ Definition of ``Waters of the United States'' Under the Clean 
Water Act, 79 Fed. Reg. 22198, (proposed April 21, 2014) (amending 33 
CFR  328.3).
    \3\ Id. at 22263.
---------------------------------------------------------------------------
    The preamble notes that existing Corps regulations define the 
ordinary high water mark (OHWM) ``as the line on the shore established 
by fluctuations of water and indicated by physical characteristics such 
as a clear, natural line impressed on the banks, shelving, changes in 
the character of soil, destruction of terrestrial vegetation, the 
presence of litter and debris, or other appropriate means that consider 
the characteristics of the surrounding areas. 33 CFR 328.3(e).'' \4\ 
The agencies should incorporate this definition within the final rule 
so that the regulated community can refer to one place for as much of 
the information that is needed to maintain compliance as possible.
---------------------------------------------------------------------------
    \4\ Id. at 22202.
---------------------------------------------------------------------------
    These points should ensure that the definition of ``tributary'' in 
the proposed rule will not bring any water into jurisdiction that would 
not be found jurisdictional under the ``significant nexus'' test that 
is applied to ``other waters.'' If incorporated, they would create 
regulatory certainty and lessen administrative burden by settling 
jurisdiction for waters that would have been subject to a case-by-case 
determination but ultimately found jurisdictional.
    Also, the proposed rule treats wetlands that are connected to 
tributaries as tributaries themselves, but the preamble requests 
comment on this approach and offers an alternative.\5\ Wetlands should 
not be considered tributaries. Treating wetlands as tributaries would 
negate the bed, bank and OHWM criteria the Corps uses for identifying 
tributaries. The agencies should enact the alternative proposed in the 
preamble and ``clarify that wetlands that connect tributary segments 
are adjacent wetlands, and as such are jurisdictional waters of the 
United States under (a)(6).'' This alternative creates a bright-line 
definition for ``tributary'' without relinquishing any opportunities to 
protect water resources.
---------------------------------------------------------------------------
    \5\ Id. at 22203.
---------------------------------------------------------------------------
``Adjacent''
    The proposed rule would change section (a)(6) from an articulation 
of the CWA's jurisdiction over wetlands adjacent to ``waters of the 
United States'' to an explanation of the CWA's jurisdiction over ``All 
waters, including wetlands, adjacent to'' waters identified in (a)(1) 
to (a)(5) as jurisdictional. As with the definition of ``tributary'' 
discussed above, this change is causing apprehension among the 
regulated community. The agencies should consider the following points 
in drafting the final rule to make clear that this change does not 
expand jurisdiction.
    The proposed rule defines ``adjacent'' as ``bordering, contiguous 
or neighboring'' at (c)(1). It notes further that ``Waters, including 
wetlands, separated from other waters of the United States by man-made 
dikes or barriers, natural river berms, beach dunes and the like are 
`adjacent waters.' ''
    The jurisdictional reach of ``adjacent waters,'' then, is largely 
dependent on the definition of ``neighboring.'' This proposed rule 
defines ``neighboring'' for the first time. The preamble notes that the 
term is currently applied broadly, but the proposed rule defines 
``neighboring'' as ``waters located within the riparian area or 
floodplain of a water identified in (a)(1) through (5) of this section, 
or waters with a shallow subsurface hydrological connection or confined 
surface hydrologic connection to such a jurisdictional water.'' \6\
---------------------------------------------------------------------------
    \6\ Id. at 22207.
---------------------------------------------------------------------------
    Waters located in the riparian area or floodplain of a 
jurisdictional water, or with a confined surface hydrologic connection 
to a jurisdictional water, would be found jurisdictional under the 
``significant nexus'' test, even without the proposed rule's 
explanation of jurisdiction over adjacent waters. This inclusion of 
``adjacent waters'' as per se jurisdictional increases certainty for 
the regulated community and alleviates administrative burden without 
increasing the CWA's jurisdictional reach.
    The preamble explains that, to date, the agencies' professional 
judgment has been a factor in determining matters of adjacency. ``The 
agencies recognize that this may result in some uncertainty as to 
whether a particular water connected through confined surface or 
shallow subsurface hydrology is an `adjacent' water.'' The preamble 
then specifically requests comments on options for providing clarity 
and certainty on these matters.
    One of the proposed alternatives put forth by the agencies is 
``asserting jurisdiction over adjacent waters only if they are located 
in the floodplain or riparian area of a jurisdictional water.'' \7\ 
This is the proper way to address these waters. It creates certainty 
for the regulated community since waters located a substantial distance 
from a jurisdictional water would not be subject to jurisdiction due to 
an insubstantial connection to the jurisdictional water. Even in the 
current regulatory framework, the agencies consider distance from a 
jurisdictional water when determining whether a water that is located 
outside the floodplain or riparian area of the jurisdictional water, 
but that is connected to the jurisdictional water by a shallow 
subsurface or confined surface hydrologic connection, is adjacent to 
that jurisdictional water.\8\
---------------------------------------------------------------------------
    \7\ Id. at 22208.
    \8\ Id.
---------------------------------------------------------------------------
    This alternative also reserves to the agencies the ability to 
address waters that could actually have a consequential impact on the 
quality of a water of the United States, since the water located 
outside the floodplain and riparian area of the jurisdictional water, 
unless otherwise excluded, would be subject to the ``significant 
nexus'' test. Holding the definition of ``adjacent water'' to waters 
within a jurisdictional water's floodplain or riparian area allows the 
regulated community maximum certainty without encumbering the agencies' 
ability to protect water resources.
    The agencies also request comment on whether a water with only a 
small confined surface or shallow subsurface hydrologic connection to a 
jurisdictional water should be exempt if it is outside a specified 
distance from the jurisdictional water. For the same reasons why the 
best approach to ``adjacent waters'' is to limit the category to waters 
within the floodplain or riparian area of a jurisdictional water as 
discussed above, placing a cap on the distance from a jurisdictional 
water within which other waters may be considered ``adjacent'' is a 
second-best alternative. Under this approach, more waters that do not 
have the actual ability to affect the water quality of a jurisdictional 
water will be considered jurisdictional than the ``floodplain and 
riparian area-only'' alternative. This will result in greater 
administrative burden for the regulated community and the agencies. 
However, a bright-line rule limiting the area surrounding a 
jurisdictional water in which a water may be found ``adjacent'' could 
still be referenced, increasing certainty compared to the regulatory 
framework as it exists today.
    The preamble also asks for specific comment ``on whether the rule 
text should provide greater specificity with regard to how the agencies 
will determine if a water is located in the floodplain of a 
jurisdictional water.'' \9\ The agencies should uniformly use a 20 year 
flood interval zone when evaluating these waters. This will provide the 
regulated community with certainty without inhibiting the agencies' 
ability to protect waters of the United States, since waters not 
captured within this zone will still be jurisdictional under the 
``significant nexus'' test if they have the potential to impact a 
jurisdictional water.
---------------------------------------------------------------------------
    \9\ Id. at 22209.
---------------------------------------------------------------------------
    The agencies should also provide clarity to the regulated community 
by stating in the final rule, ``mere proximity to a jurisdictional 
water is not cause for a determination that a water is jurisdictional 
as `neighboring' or `adjacent,' and a scientifically-verifiable, 
substantial surface connection must be present for any water outside a 
floodplain or riparian zone to be found jurisdictional.''
``Significant Nexus''
    Other waters not covered by the above-discussed jurisdictional 
categories may fall within the CWA's jurisdiction if a case-by-case 
determination is made finding the water has a ``significant nexus'' 
with a water identified in sections (a)(1) through (3).
    The proposed rule at section (c)(7) says ``The term significant 
nexus means that a water, including wetlands, either alone or in 
combination with other similarly situated waters in the region (i.e., 
the watershed that drains to the nearest water identified in paragraphs 
(a)(1) through (3) of this section), significantly affects the 
chemical, physical, or biological integrity of a water identified in 
paragraphs (a)(1) through (3) of this section.'' The proposed rule also 
states ``Other waters, including wetlands, are similarly situated when 
they perform similar functions and are located sufficiently close 
together or sufficiently close to a `water of the United States' so 
that they can be evaluated as a single landscape unit with regard to 
their effect on the chemical, physical, or biological integrity of a 
water identified in paragraphs (a)(1) through (a)(3) of this section.'' 
The agencies intend that this language more precisely describes the 
scope of jurisdiction by explicitly leaving out waters that have a mere 
commercial connection to navigable waters and codifies the agencies' 
practice since the Supreme Court's decision in Solid Waste Agency of 
Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 
(2001).
    The term ``similarly situated'' must be examined, since it allows 
the agencies to consider multiple waters together in making 
``significant nexus'' determinations. The prerequisite condition for 
``other waters'' to be considered ``similarly situated,'' before any 
assessment of geographic proximity to additional ``other waters'' or 
jurisdictional waters, is performance of similar functions. The 
preamble further explains that a ``similarly situated'' determination 
requires an evaluation of whether waters in a region ``can reasonably 
be expected to function together in their effect on the chemical, 
physical, or biological integrity of downstream traditional navigable 
waters, interstate waters, or the territorial seas,'' and whether 
waters are ``sufficiently close'' to each other or a jurisdictional 
water.\10\
---------------------------------------------------------------------------
    \10\ Id. at 22213.
---------------------------------------------------------------------------
    The description of ``similarly situated'' waters above includes so 
many variables that it would be difficult for the regulated community 
to accurately anticipate the outcome of such a determination, opening 
the door to increased uncertainty. To give the regulated community more 
clarity in anticipating the results of ``similarly situated'' 
evaluations, the agencies should provide a list of functions that a 
group of waters must perform together in order to be considered 
``similarly situated.'' These functions include affecting the reach and 
flow of a jurisdictional water and allowing or barring the movement of 
aquatic species, nutrients, pollutants or sediments to a jurisdictional 
water.
    The agencies should also require ``other waters'' to have a 
confined surface connection to each other in order to be considered 
``similarly situated.'' This distinction would be helpful to the 
agencies and to the regulated community because ``other waters'' that 
are completely separate and distinct from a jurisdictional water will 
not be able to form a significant nexus with a jurisdictional water 
cumulatively unless they maintain such a nexus individually or with 
each other. The final rule should also strictly limit the distance 
allowed between separate waters that can be considered ``similarly 
situated.''
    Otherwise, no ``other waters'' should be determined to be similarly 
situated, as the agencies put forth as an alternative in the 
preamble.\11\ The limited environmental benefit of bringing waters that 
would not trigger jurisdiction by themselves into jurisdiction as 
``similarly situated'' does not justify the uncertainty and 
administrative burden that would be created for the agencies and the 
regulated community. The ``significant nexus'' evaluation ensures that 
waters of genuine concern are jurisdictional.
---------------------------------------------------------------------------
    \11\ Id. at 22215.
---------------------------------------------------------------------------
    The agencies request comment as to whether the agencies should 
evaluate all ``other waters'' in a single point of entry watershed as a 
single landscape unit for purposes of determining whether these ``other 
waters'' are jurisdictional.\12\ This would create substantial negative 
economic impact by unduly imposing a regulatory burden on many waters 
that cannot affect the integrity of ``waters of the United States.'' It 
would also increase the agencies' administrative load without a return 
of environmental benefit, since the agencies would have to perform more 
case-by-case jurisdictional determinations. Since this approach to 
evaluating ``other waters'' would create significant administrative 
burden for the agencies and the regulated community, and would not 
produce an environmental benefit, the agencies should not include this 
approach in the final rule.
---------------------------------------------------------------------------
    \12\ Id. at 22217.
---------------------------------------------------------------------------
Additional Clarity
    The agencies can alleviate agriculture's concerns by noting that 
waters not listed under section (b) of the proposed rule are not 
jurisdictional by default and will not be considered within CWA 
jurisdiction unless they fall into one of the categories listed in 
sections (a)(1) to (a)(7).
    The agencies should also make clear in the final rule that any 
wetland determination made by the Department of Agriculture's Natural 
Resources Conservation Service (NRCS) will be considered final and 
ruling. While NRCS' wetlands determinations are not jurisdictional 
determinations, the ability to rely on NRCS' decisions regarding the 
presence of a wetland would increase clarity for the regulated 
community, reduce the agencies' administrative burden and prevent 
inconsistent wetland determination.
II. Excluded Waters and Exempted Activities
Ditches
    In section (b) of the proposed rule, the agencies list several 
categories of waters that are explicitly excluded from the definition 
of ``waters of the United States,'' placing them outside the 
jurisdiction of the CWA. The proposed rule specifically excludes two 
types of ditches that otherwise would have been subject to a case-by-
case determination, increasing regulatory certainty and reducing the 
CWA's jurisdictional reach. The exclusion of these ditches increases 
certainty for the regulated community without impairing the agencies' 
ability to protect the nation's water resources.
    Sections (b)(3) and (b)(4) explain the circumstances in which a 
``ditch'' is not a ``water of the United States.'' These sections 
exclude ditches that do not contribute flow, directly or through other 
waters, to a ``water of the United States,'' and any ditches that are 
wholly within an upland and drain only uplands and are without 
perennial flow. These explicitly-stated exclusions do not interfere 
with the CWA's objective of protecting water resources because the 
ditches concerned are unlikely to impact the integrity of waters of the 
United States. The exclusions at (b)(3) and (b)(4) will give the 
regulated community added certainty, allowing them to conduct their 
business without fear of regulatory action.
    With regards to section (b)(3), the preamble states ``Ditches that 
are excavated wholly in uplands means ditches that at no point along 
their length are excavated in a jurisdictional wetland (or other 
water).'' \13\ The agencies should restate this description of ``upland 
ditches'' as a definition of ``uplands'' by writing, ``an upland is any 
land that is not a wetland, floodplain, riparian area or water.'' This 
definition should be included in the final rule in order to provide 
clarity.
---------------------------------------------------------------------------
    \13\ Id. at 22219.
---------------------------------------------------------------------------
    The agencies should provide further clarity to the regulated 
community by defining ``perennial flow'' in section (c) of the final 
rule. The description of ``perennial flow'' in the preamble \14\ could 
be altered slightly to function as the definition, codifying that 
``perennial flow'' is ``the presence of water in a tributary year round 
when rainfall is normal.'' Including this definition in the final rule 
would reduce the administrative burden for members of the regulated 
community as they attempt to maintain compliance with the CWA.
---------------------------------------------------------------------------
    \14\ Id. at 22203.
---------------------------------------------------------------------------
    The agencies request comment on whether perennial flow is the 
proper distinction to use in separating excluded ditches from ditches 
that may be jurisdictional under section (b)(3).\15\ Given the 
agencies' stated goal of providing clarity to the regulated community, 
perennial flow is the proper distinction. The presence or absence of 
perennial flow is easily-verifiable. Using perennial flow as the 
distinction allows the regulated community to be confident in their own 
assessment of ditches, which encourages the normal course of business 
and reduces unexpected enforcement actions. It also checks the 
agencies' administrative burden, since the presence or absence of 
perennial flow would also be easier for the agencies to verify than 
intermittent flow.
---------------------------------------------------------------------------
    \15\ Id. at 22219.
---------------------------------------------------------------------------
Exemptions for Agricultural Activities
    The preamble indicates that the proposed rule does not affect 
existing regulatory exemptions for agricultural activities.\16\ There 
is nothing in the proposed rule that calls this assertion into 
question. Some of these exemptions are referenced in the ``Interpretive 
Rule Regarding Applicability of the Exemption from Permitting under 
section 404(f)(1)(A) of the Clean Water Act to Certain Agricultural 
Conservation Practices'' (Interpretive Rule), which was published on 
the same day as the proposed rule.\17\ The Interpretive Rule states the 
list of exempted practices is illustrative rather than exhaustive and 
the CWA exempts those, like other activities conducted in the normal 
course of agriculture production, including conservation activities, 
are also exempted from CWA permitting requirements. In order to provide 
the regulated community with increased certainty, the agencies should 
consider codifying the Interpretive Rule and adding language explicitly 
stating that engaging in these exempted activities does not invoke any 
reporting requirement or other obligation to the agencies, including 
when these activities take place on land newly brought into farming. 
The agencies should also explicitly note that conservation activities 
do not need to follow specific National Resource Conservation Service 
guidelines for cost-share or technical assistance eligibility when 
engaging in these activities in order for their actions to remain 
exempt from permitting requirements.
---------------------------------------------------------------------------
    \16\ Id. at 22218.
    \17\ http://www2.epa.gov/sites/production/files/2014-03/documents/
cwa_section404f_
interpretive_rule.pdf.
---------------------------------------------------------------------------
    The proposed rule also specifically continues the exclusion of 
prior converted cropland from the definition of ``waters of the United 
States'' at section (b)(2). The proposed rule and preamble's direct 
confirmation of these matters provides clarity for the regulated 
community. The agencies should provide further clarity for the 
regulated community on this point by stating in the final rule, ``This 
rule does not require a permit for any plowing and planting activity 
that was legally conducted without a permit before this rule was 
issued.'' This language captures the intent of the agencies and 
provides the regulated community with the certainty it needs to 
continue farming its existing planted acreage without threat of new 
interference.
III. Miscellaneous Matters
Shallow Subsurface Hydrologic Connections
    The existing regulatory framework defining ``waters of the United 
States'' and the proposed rule assume that a shallow subsurface 
hydrologic connection is sufficient for finding that waters with this 
connection to a jurisdictional water are ``neighboring'' and so 
jurisdictional themselves as ``adjacent waters.'' Hydrologic science 
does not support such a uniform determination. Shallow subsurface 
hydrologic connections should be carefully studied to assess their 
impacts on jurisdictional waters, and the perennial nature of many of 
these connections should be taken into account. Further research must 
be conducted before the agencies determine which, if any, subsurface 
hydrologic connections can be considered sufficient grounds for finding 
such waters ``adjacent'' to jurisdictional waters. Until more 
scientific evidence is provided, groundwater connections alone should 
not be used to find non-navigable waters jurisdictional.
Pesticide Applications
    The proposed rule does not address pesticide applications other 
than applications directly to a jurisdictional water. Similarly, it is 
clear that the proposed rule does not specifically address fertilizer 
applications. This is not the proper venue for discussing these 
applications. Future opportunities will arise to work with EPA on these 
topics, especially the problem of redundant CWA and Federal 
Insecticide, Fungicide, and Rodenticide Act (FIFRA) regulations 
governing pesticide applications.
Army Corps' Engagement
    Given the importance of this rule to the regulated community, the 
Corps' lack of participation in discussion of this proposed rule is 
frustrating. The Corps is ultimately tasked with jurisdictional 
determinations under the final rule. The Corps' refusal to provide any 
insight on how it plans to interpret and implement the proposed rule 
undermines the regulated community's confidence that our good faith 
involvement in the rulemaking process will result in adequate 
consideration of our help when jurisdictional determinations will 
actually be made. The Corps must join this discussion immediately.
IV. Conclusion
    OFU understands the agencies' stated goal of enhancing protections 
for our nation's water resources while providing increased certainty to 
the regulated community. The testimony above reflect OFU's 
understanding of the proposed rule and explain ways the proposed rule 
could be improved to more effectively accomplish the agencies' stated 
goal in the final rule while maintaining conformity with OFU's policy. 
OFU stands ready to offer further assistance in this regard as the 
agencies may find helpful. Thank you for your consideration of this 
testimony.
            Sincerely,

Joe Logan,
President.
                                 ______
                                 
      Submitted Comment Letters by Hon. Michelle Lujan Grisham, a 
       Representative in Congress from New Mexico; on Behalf of:
 lynne andersen, naiop new mexico chapter president, naiop, commercial 
                  real estate development association
November 13, 2014

  Water Docket,
  U.S. Environmental Protection Agency,
  Washington, D.C.

Attention: Docket ID No. EPA-HQ-OW-2011-0880

Re: Definition of ``Waters of the United States'' under the Clean Water 
            Act

    Dear Reviewer:

    Please find herein comments on the proposed new definition of 
``Waters of the United States'' (WOTUS). These comments are submitted 
by the New Mexico Chapter of NAIOP, the Commercial Real Estate 
Development Association. Our association's members are developers, 
owners, investors, and related professionals involved in building, 
maintaining and selling office, industrial and mixed-use real estate in 
and around New Mexico.
    Our Chapter agrees with the comments submitted by national NAIOP 
leadership. However, we also have concerns that are specific to our 
region. This letter addresses those concerns.
    It is not clear to us whether arroyos are intended to be regulated 
as ``ephemeral streams.'' However, according to page 4-67 of the report 
issued to support EPA's rulemaking. Connectivity of Streams and 
Wetlands to Downstream Waters: A Review and Synthesis of the Scientific 
Evidence (Report), ``arroyos are ephemeral streams.'' a. The Report 
further concludes at page 4-69 that ``Many tributary streams to 
southwestern rivers are ephemeral, but they exert strong influences on 
the structure and function of the rivers.'' This suggests that EPA and 
the Corps intend to regulate intermittent, ephemeral streams such as 
arroyos as ``tributaries.'' Doing so would increase EPA's jurisdiction 
dramatically as shown on page 4-57 of the report, which is copied 
below.


    We have several concerns.

  1.  The New Definition Does Not Adequately Consider the Varied Nature 
            and Function of ``Ephemeral Streams.'' First, we feel that 
            it is inaccurate to lump different kinds of intermittent 
            and ephemeral water flows into the category of ``ephemeral 
            streams.'' The function of the ``bed and banks'' and the 
            contribution of the flow to a regulated water vary among 
            different types of ephemeral streams. Consider the 
            difference among:

    a.  A stream that flows seasonally as it is fed by snowmelt. Such a 
            stream is
              likely to flow at a relatively steady rate until its 
            source melts out in late
              summer. It will support wildlife and recharge groundwater 
            in a relatively
              constant manner while it is flowing.

    b.  A stream that flows underground in reaches. It is hard to 
            determine wheth-
              er such a flow is ``groundwater'' (i.e., unregulated by 
            the Clean Water Act),
              and surely such a flow bears a strong connection to 
            groundwater. Such
              a stream-sometimes flowing above ground and sometimes 
            below--could
              have water flow year round and still fall under the 
            category of ``ephemeral
              streams.''

    c.  An arroyo (also known as a ``wash'' or a ``gully''). These 
            pathways for storm
              water runoff have formed naturally over time because, for 
            every upward
              wrinkle of the dirt and rock, there is a downward low 
            point into which
              water has carved a downhill path. In some cases, arroyos 
            flow with rain
              water runoff very rarely. When they do flow, it can be 
            with a heavy sudden
              flow that ends soon thereafter.

        Each of these examples is a very different type of flow. 
            Lumping them all together as ``ephemeral streams'' and 
            regulating them similarly does not make sense to us.

  2.  Lack of Clarity as to How Far Upstream. We believe there is a 
            lack of clarity about how far upland the Clean Water Act 
            extends. In the case of Smith v. United States Army Corps 
            of Engineers, No. 1 :12-CV-01282-MV-LFG, filed in the New 
            Mexico Federal court in December of 2012, the Corps 
            initially claimed jurisdiction over an arroyo 25 miles away 
            from the Rio Grande. The Corps later determined that the 
            arroyo did not have a significant nexus, and the case was 
            settled.

        This issue is of concern because, with New Mexico's rugged 
            terrain, there are many arroyos and many opportunities for 
            uncertainty.

  3.  Gullies, Rills and Arroyos All Function Similarly. It further 
            does not make sense that ``gullies and rills'' are exempted 
            from WOTUS, but arroyos are not. Functionally, each is a 
            path of stormwater runoff . . . runoff which could reach 
            jurisdictional water. From our research, the only 
            difference is that ``gullies and rills'' (to the EPA) are 
            paths on farm fields. We found no support in the Report for 
            treating functionally similar stormwater paths (``gullies 
            and rills'' on the one hand and arroyos on the other) 
            differently.

  4.  Recommendation. For the above reasons, we agree with the 
            recommendation of our national NAIOP leadership that a more 
            reasonable and justifiable approach is, as a matter of 
            policy, to not regulate arid ephemeral streams. Obviously, 
            exceptions to this policy also make sense. For example, 
            exceptions based on history such as if ephemeral stream has 
            been (a) proven to flow, at a rate that is more than de 
            minimis, into a regulated water, for a determined number of 
            hours (e.g., 240), for a determined number of years (e.g., 
            5 consecutive), based on historic flow, or (b) the Corps 
            has made a case-by-case determination under the significant 
            nexus criteria. Given the lack of justification for 
            treating ephemeral streams differently than gullies and 
            rills--which function similarly in transporting 
            stormwater--please replace ``(vii) Gullies and rills and 
            non-wetland swales'' with:

                  (vii) Gullies, rills, non-wetland swales and arid 
                ephemeral streams such as arroyos.

            Sincerely yours,
            
            
Lynne Andersen,
NAIOP New Mexico Chapter President,
NAIOP, Commercial Real Estate Development Association.

CC: NAIOP NM Board of Directors.
   hon. jeff m. witte, director/secretary, new mexico department of 
                              agriculture
November 11, 2014

  Donna Downing, Environmental Protection Agency,
  Stacey Jensen, U.S. Army Corps of Engineers,
  Washington, D.C.

ATTN: Docket ID No. EPA-HQ-OW-2011-0880

RE: Proposed Rule--Definition of ``Waters of the United States'' Under 
            the Clean Water Act [Docket EPA-HQ-OW-2011-0880]

    Dear Ms. Downing and Ms. Jensen:

    New Mexico Department of Agriculture (NMDA) submits the following 
comments in response to the United States Army Corps of Engineers 
(Corps) and Environmental Protection Agency's (EPA) (collectively 
``Agencies'') Proposed Rule for Definition of Waters of the United 
States (Waters of the U.S.) under the Clean Water Act (CWA) (79 FR 
22188-22274) [Docket EPA-HQ-OW-2011-0880].
    One part of NMDA's role is to provide proactive advocacy and 
promotion of New Mexico's agricultural industries. Agriculture 
contributed $4 billion in cash receipts to New Mexico's economy in 
2012.\1\ NMDA maintains a strategic goal to promote responsible and 
effective use and management of natural resources in support of 
agriculture.
---------------------------------------------------------------------------
    \1\ U.S. Department of Agriculture, National Agricultural 
Statistics Service, ``New Mexico 2012 Agricultural Statistics.'' 
Available at: http://www.nass.usda.gov/Statistics_by_State/New_Mexico/
Publications/Annual_Statistical_Bulletin/bulletin12.asp.
---------------------------------------------------------------------------
    NMDA requests the withdrawal of this proposed rule due to the fact 
that the rule will create an undue burden on small businesses--
including agricultural operations, unclear and inconsistent 
definitional changes, inadequate provision of supporting documentation, 
and poor outreach and communications prior to and during this comment 
period with the regulated community and state agencies. NMDA has 
numerous comments and requests for additional information that we would 
like to have addressed prior to a final rulemaking.
    NMDA has been involved in researching the proposed rule, 
participating in numerous webinars and hearings, and staying well-
informed on other associated Federal requests and actions since April 
of this year. NMDA has numerous comments and requests for additional 
information that we would like to have addressed prior to a final 
rulemaking. In addition to providing these extensive comments, we have 
also prepared a reader's guide to assist the agencies in answering our 
questions and concerns raised throughout the document.
    NMDA's comments are organized to mirror the bright line categories 
of the proposed rule and our other major concerns (see Table of 
Contents).
Table of Contents
Waters of the U.S.

  Tributaries--(s)(5)
  Adjacent Waters--(s)(6)
  Other Waters--(s)(7)

Exclusions from Waters of the U.S.--(t)

  Prior Converted Cropland--(t)(2)
  Upland Ditches--(t)(3)
  Disconnected Ditches--(t)(4)
  Gullies, Rills and Non-Wetland Swales--(t)(5)(vii)
  Closed Basins

New Definitions

  Adjacent--(u)(1)
  Neighboring--(u)(2)
  Riparian Area--(u)(3)
  Floodplain--(u)(4)
  Tributary--(u)(5)
  Significant Nexus--(u)(7)

Clarity and Consistency

  Other Waters
  Comprehensive List of Waters
  Interpretive Rule and Other Guidance Documents
  Land Use

Public Involvement

  Outreach
  Concerns from Congress
  Document Availability

Economic Analysis

  Analytical Errors
  Benefits
  Costs
  Barriers to Entry
  Federalism (E.0. 13132) and Costs to State and Local Agencies
  Environmental Justice (E.O. 12898), the Regulatory Flexibility Act 
        (RFA), and Impacts toSmall Businesses

Conclusion
Appendix A: NMDA Comments--Reader's Guide
Appendix B: Previously Submitted Comments

  Extension of the Deadline for the Proposed Rule for Definition of 
        ``Waters of the U.S.'' Under the Clean Water Act
  Exemption from Permitting Under Section 404(f)(1)(A) of the Clean 
        Water Act to Certain Agricultural Conservation Practices
  Notice of Proposed Changes to the National Handbook of Conservation 
        Practices for the Natural Resources Conservation Service
  Freedom of Information Act Request to the U.S. Army Corps of 
        Engineers
Waters of the U.S.
          ``For purposes of all sections of the CWA, 33 U.S.C. 1251 et 
        seq. and its implementing regulations, subject to the 
        exclusions in paragraph (t) of this section, the term `Waters 
        of the U.S.' means'':
Tributaries--(s)(5)
          ``All tributaries of waters identified in paragraphs (s)(1) 
        through (3) and (5) of this section'';

    Though the inclusion of tributaries is not a new jurisdictional 
feature of the definition of Waters of the U.S., the definitional 
inclusion of ditches is problematic for the Southwest's agricultural 
community.
Ditches
    The explanation in the Federal Register of the proposed changes to 
the definition of the term tributaries is not clear enough to 
systematically discern EPA's jurisdiction over ditches. The inclusion 
of this category is already causing confusion for the regulated public 
in distinguishing jurisdictional from nonjurisdictional ditches. As 
such, NMDA would support an additional paragraph in the definitions 
section clarifying EPA's intentions regarding jurisdictional 
determinations over ditches separate from the language pertaining to 
tributaries.
    Determining the perenniality of tributaries and ditches is a major 
component of making jurisdiction determinations for this category. The 
vagueness of this category and its corresponding definitions are 
confusing to the regulated public and should be revised for clarity.
    In the Southwest many agricultural ditches connect to larger water 
bodies due to the lack of replenishing rainfall. According to the New 
Mexico Environment Department, there are about 2,727 miles of ditches 
and canals in New Mexico, which accounts for about 2.5 percent of the 
total stream miles in the state.\2\ Many of these ditches may be 
classified as tributaries due to the possibility of contributions of 
flow to a water identified in paragraphs (s)(1) through (4). However, 
most of these ditches in New Mexico are not perennial and are, 
therefore, connected only a few months out of the year, particularly 
during irrigation season. NMDA requests clarification on how 
perenniality will be determined. Specifically, we would like to know if 
the public will be given the opportunity to be involved in the 
determination process and how conflicting determinations will be 
mediated.
---------------------------------------------------------------------------
    \2\ New Mexico Environment Department. ``WQCC Draft 2014-2016 State 
of New Mexico CWA Section 303(d)/305(b) Integrated Report.'' September 
9, 2014. Available at: http://www.nmenv.statc.nm.us/swqb/303d-305b/
2014-2016/.
---------------------------------------------------------------------------
    Please see our comments regarding the term ditches in the 
``Exclusions'' section and the new definition for the term tributary in 
the ``New Definitions'' section below for additional concerns regarding 
indirect jurisdictional assertions over tributaries via other 
nonjurisdictional waters.
Adjacent Waters--(s)(6)
          ``All waters, including wetlands, adjacent to a water 
        identified in paragraphs (s)(1) through (5) of this section'';

    The definition of the term adjacent is embedded in several terms 
that concern NMDA. Please see our comments pertaining to the terms 
adjacent, neighboring, and floodplain within the ``New Definitions'' 
section below.
Other Waters--(s)(7)
          ``On a case-specific basis, other waters, including wetlands, 
        provided that those waters alone, or in combination with other 
        similarly situated waters, including wetlands, located in the 
        same region, have a significant nexus to a water identified in 
        paragraphs (s)(1) through (3) of this section.''

    The inclusion of language pertaining to other waters has added an 
additional layer of complexity to this proposed rule, which goes 
against EPA' s stated goal of increasing clarity by the publication of 
this proposed rule.
    The case-specific basis on which EPA will assert jurisdiction over 
other waters leaves the public unsure of the jurisdiction of waters on 
their land. Therefore, NMDA suggests the removal of the catch-all 
category--other waters. If the Agencies maintain the other waters 
category, we request clarification on these points described below.
Jurisdictional Determinations
    The Federal Register notice requests comment on how better to 
categorize the other waters category. EPA has already composed a list 
of scientifically designated ecoregions for the State of New Mexico \3\ 
and for the rest of the United States. This list is far more 
comprehensive than the proposed new list on page 22215 of the Federal 
Register. Starting the process of creating a new list of ecoregions 
would require a duplication of effort for no scientific purpose. 
Therefore, NMDA recommends using the existing ecoregions as a more 
robust and descriptive starting point in better categorizing the other 
waters definition.
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    \3\ U.S. Environmental Protection Agency. ``Ecoregions of New 
Mexico.'' Accessed September 26, 2014. http://www.epa.gov/wed/pages/
ecoregions/nm_eco.htm.
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    The Federal Register notice of this proposed rule states, ``If 
waters are categorized as nonjurisdictional because of lack of science 
available today, the Agencies request comment on how to best 
accommodate evolving science in the future that could indicate a 
significant nexus for these other waters. Specifically the agencies 
request comment as to whether this should be done through subsequent 
rulemaking, or through some other approach, such as through a process 
established in this rulemaking'' (79 FR 22217). NMDA has concern over 
this request for information because it asks the regulated community to 
provide insight on ways to increase or change the jurisdictional reach 
of Waters of the U.S. in the future.
    Furthermore, the ``best available science'' is constantly evolving. 
In a second draft of this rulemaking, EPA should specify areas where 
changes may occur in order to assist the regulated community in 
identifying ways this proposed rule may change in the future.
    Because the catch-all category other waters includes case-by-case 
jurisdictional determinations, many stakeholders are apprehensive about 
the duration of these processes. Moreover, the path EPA has proposed 
could create substantial backlogs and force agricultural producers to 
postpone activities that may require a jurisdictional determination 
thus leading to a potential delay in agricultural production and 
economic losses.
    In addition to the duration of the process, stakeholders are 
unclear of the steps involved in the jurisdictional determination and 
still have many questions. Will the Corps be the sole agency 
responsible for making determinations or will they consult with 
external experts? Will the process take into consideration economic 
activity that could be disrupted? How will stakeholders be notified if 
their operations occur on or near a jurisdictional water? Will 
stakeholders have the right to request an appeal?
    To help mitigate these concerns, NMDA requests written guidance for 
agricultural producers that would clarify how to proactively determine 
if they may have jurisdictional waters on or near their owned or leased 
property.
    The Federal Register notice for this proposed rule specifically 
states, ``. . . To improve efficiencies, the EPA and Corps are working 
in partnership with states to develop new tools and resources that have 
the potential to improve precision of desk based jurisdictional 
determinations . . . (79 FR 22195).'' As of yet, the tools mentioned in 
this passage are unknown to NMDA. These tools as well as those that 
help the regulated proactively determine jurisdiction should be made 
available as soon as possible. Will these tools and resources be shared 
with the regulated community prior to the final rule publication? 
Additionally, NMDA requests clarification on how these tools and 
resources will help stakeholders ensure their compliance.
    The definition of the term significant nexus is of concern to NMDA. 
Please see our comments pertaining to the definition of this term in 
the ``New Definitions'' section below.
Exclusions from Waters of the U.S.--(t)
    ``The following are not `Waters of the U.S.' notwithstanding 
whether they meet the terms in paragraphs (s)(1) through (7) of this 
section.''
Prior Converted Cropland--(t)(2)
          ``Prior converted cropland. Notwithstanding the determination 
        of an area's status as prior converted cropland by any other 
        Federal agency, for the purposes of the Clean Water Act the 
        final authority regarding Clean Water Act jurisdiction remains 
        with EPA.''

    The Federal Register notice for this proposed rule (in a footnote) 
states the Agencies use the Natural Resources Conservation Service 
(NRCS) definition of prior converted cropland for purposes of 
determining jurisdiction under the CWA (79 FR 22189). The NRCS defines 
prior converted cropland as farmland that was:

   ``Cropped prior to December 23, 1985, with an agricultural 
        commodity (an annually tilled crop such as corn);

   The land was cleared, drained or otherwise manipulated to 
        make it possible to plant a crop;

   The land has continued to be used for agricultural purposes 
        (cropping, haying or grazing);

   And the land does not flood or pond for more than 14 days 
        during the growing season.'' \4\
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    \4\ Natural Resources Conservation Service. ``Wetland Fact Sheet--
Prior Converted Cropland.'' http://www.nrcs.usda.gov/wps/portal/nrcs/
detail/vt/programs/?cid=nrcs142p2_010517.

    NMDA is highly concerned with the exclusion of prior converted 
cropland, as it is currently identified, because it relies on the 
NRCS's use of 1985 as the year that farmland must have been used for 
agricultural purposes. This creates a clear barrier to entry and is 
further analyzed in the subsection ``Barriers to Entry'' in the 
``Economic Analysis'' section below. NMDA requests that all 
agricultural land be excluded due to the fact that these lands are 
managed to provide food, fiber, and other necessary products--
regardless of whether the agricultural operation was established before 
or after 1985.
    Also, several NRCS programs, such as the Conservation Reserve 
Program (CRP), incentivizes agricultural producers to take land out of 
production:

          ``In exchange for a yearly rental payment, farmers enrolled 
        in the program agree to remove environmentally sensitive land 
        from agricultural production and plant species that will 
        improve environmental health and quality. Contracts for land 
        enrolled in CRP are 10-15 years in length. The long-term goal 
        of the program is to re-establish valuable land cover to help 
        improve water quality, prevent soil erosion, and reduce loss of 
        wildlife habitat.'' \5\
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    \5\ U.S. Department of Agriculture, Farm Service Agency. 
``Conservation Reserve Program.'' http://www.fsa.usda.gov/FSA/
webapp?area=home&subject=copr&topic=crp.

    Will being enrolled in conservation programs such as NRCS's CRP bar 
agricultural producers from this exemption because the land in question 
has not ``continued to be used for agricultural production''?
    Furthermore, even though the Federal Register notice for this 
proposed rulemaking claims the Agencies will use the NRCS's definition, 
the language of the proposed rule states the Agencies have ``final 
authority regarding Clean Water Act jurisdiction.'' The Agencies have 
neglected to independently define prior converted cropland, which is 
contrary to logic given that EPA's claims of final authority over 
determining exclusions. Providing a clear definition would assist in 
offering consistency for the regulated public in determining if their 
land will be considered prior converted cropland thus excluded from 
being jurisdictional.
Upland Ditches--(t)(3)
          ``Ditches that are excavated wholly in uplands, drain only 
        uplands, and have less than perennial flow.''

    The exclusion requirements for ditches rests upon the term uplands, 
the definition of which is not found anywhere in the proposed rule. 
According to the proposed rule, ditches are excluded only if they ``are 
excavated wholly in uplands, drain only uplands, and have less than 
perennial flow.'' EPA has the responsibility to adequately describe 
criteria that is pertinent to classification.
    In addition to the ambiguity resulting from lack of a definition, 
this clause is arbitrarily stringent. In the context of irrigated 
agriculture, a ditch's relationship to uplands and its flow 
perenniality are not sufficient or even necessary conditions of a 
ditch.
    How will agricultural producers know when ditches are excluded 
given the confusing nature of this exclusion? To provide consistency 
and clarity, NMDA requests a visual tool, perhaps in the form of a 
decision tree, to simplify what ditches are and are not jurisdictional.
Disconnected Ditches--(t)(4)
          ``Ditches that do not contribute flow, either directly or 
        through another water, to a water identified in paragraphs 
        (s)(1) through (4) of this section.''

    The proposed exemption is so narrow that it may not exclude many 
ditches. Waters may pass from a ditch through nonjurisdictional waters 
and still be jurisdictional according to the proposed rule's language, 
``[d]itches that do not contribute flow, either directly or through 
another water, to a water identified in paragraphs (s)(1) through (4) 
of this section.''
    NMDA requests the removal of language that would allow for 
ephemeral ditches to be claimed as jurisdictional Waters of the U.S. We 
recommend striking the qualifier ``or through another water,'' and 
leaving the wording, ``Ditches that do not directly contribute flow to 
a water identified in paragraphs (s)(1) through (4) of this section.''
Gullies, Rills and Non-Wetland Swales--(t)(5)(vii)
          ``The following features . . . (vii) Gullies and rills and 
        non-wetland swales.''
Erosional Features
    The proposed rule lacks a definition for any of the terms: gullies, 
rills, or non-wetland swales. However, the Federal Register notice for 
this proposed rule does indicate that gullies ``are ordinarily formed 
on valley sides and floors where no channel previously existed,'' 
indicating the relative impermanence thus variability that these 
erosional features contribute in flow into jurisdictional waters.
    Arroyos are another type of erosional feature found throughout many 
western states. They are dry the vast majority of the year and are wet 
only immediately following a strong precipitation event. The topography 
in the arid West, with low-density vegetative cover and highly erodible 
soils, causes arroyos to form in much the same way as gullies.
    Arroyos are similar to gullies in their hydrological significance. 
However, one main difference between the two features is that arroyos 
are typically wide and shallow, whereas gullies are relatively deep 
channels. This difference is inconsequential regarding the volume of 
water either can carry or contribute to a system, especially when 
considering the arid landscapes in which arroyos exist. In these 
regions, arid top soils are more prone to erosion hence erosional 
features tend to be wider.
    NMDA requests that arroyos be added to this exclusion category.
    Aside from gullies, rills, and non-wetland swales, how do the 
Agencies plan on differentiating other erosional features not 
specifically excluded from the definition of Waters of the U.S.?
Closed Basins
    According to consultation with the New Mexico Environment 
Department, waters within closed basins do not drain into any navigable 
or interstate waters and have not historically been under the 
jurisdiction of the CWA. Instead, these waters are under state 
jurisdiction. In New Mexico closed basins are defined as ``closed with 
respect to surface flow if its topography prevents the occurrence of 
visible outflow. It is closed hydrologically if neither surface nor 
underground outflow can occur.'' \6\ Therefore, NMDA requests the 
addition of waters within ``closed basins'' to the list of exclusions 
presented in this proposed rule, as they cannot satisfy any criteria 
required for a water to be jurisdictional.
---------------------------------------------------------------------------
    \6\ ``Glossary of Water Terms.'' New Mexico Office of the State 
Engineer. http://www.ose.state.nm.us/water_info_glossary.html#C.
---------------------------------------------------------------------------
    Also, the former definition of Waters of the U.S. includes in part 
(c), ``All other waters such as . . . playa lakes.'' Will playa lakes 
be excluded due to their hydrologic disconnect from major waterways or 
are they assumed to be included under one of the new Waters of the U.S. 
categories?
New Definitions
    The ``Definitions'' section of the proposed rule attempts to 
clarify several terms used in the definition of Waters of the U.S. 
However, NMDA would like the clarification and addition of several 
terms.
Adjacent--(u)(1)
          ``Adjacent. The term adjacent means bordering, contiguous or 
        neighboring. Waters, including wetlands, separated from other 
        Waters of the U.S. by man-made dikes or barriers, natural river 
        berms, beach dunes and the like are `adjacent waters.' ''

    The qualifying separations between Waters of the U.S. and adjacent 
waters, including ``man-made dikes or barriers, natural river berms, 
beach dunes, and the like,'' are clear. However, without guidance on 
the size and extent of the separations, the term adjacent is still 
unclear.
    The definition of adjacent relies heavily on the definitions of 
several other key terms. Please see our comments regarding the terms 
neighboring, riparian area, and floodplain below for further concerns 
regarding the use of the term adjacent.
Neighboring--(u)(2)
          ``Neighboring. The term neighboring, for the purposes of the 
        term `adjacent' in this section, includes waters located within 
        the riparian area or floodplain of a water identified in 
        paragraphs (s)(1) through (5) of this section, or waters with a 
        shallow subsurface hydrologic connection or confined surface 
        hydrologic connection to such a jurisdictional water.''

    EPA explicitly notes their lack of jurisdiction over groundwater in 
paragraph (t)(5)(vi), stating that among other features 
``[g]roundwater, including groundwater drained through subsurface 
drainage systems . . .'' is not jurisdictional. However, the term 
neighboring is dependent on language that directly contradicts this 
exclusion.
    The proposed definition for the term neighboring includes, ``waters 
with a shallow subsurface hydrologic connection or confined surface 
hydrologic connection to such a jurisdictional water.'' EPA has no 
jurisdiction over groundwater thus no jurisdiction over ``shallow 
subsurface'' water. We request striking the second half of the 
sentence, ``or waters with a shallow subsurface hydrologic connection 
or confined surface hydrologic connection to such a jurisdictional 
water.'' Further, the term shallow in this definition is subjective and 
undefined by the Agencies.
    Allowing waters located ``within the riparian area or floodplain'' 
creates confusion. If the floodplain is larger than a water's riparian 
area, will the floodplain be used as the guiding jurisdiction criteria? 
If so, it is not necessary to include riparian area as a jurisdictional 
criteria.
    This new definition of neighboring waters relies on the definitions 
of the terms riparian area and floodplain, both of which have confusing 
definitions that in-turn make the definition of neighboring waters 
confusing. Please see our comments regarding these terms below.
Riparian Area--(u)(3)
          ``Riparian area. The term riparian area means an area 
        bordering a water where surface or subsurface hydrology 
        directly influence the ecological processes and plant and 
        animal community structure in that area. Riparian areas are 
        transitional areas between aquatic and terrestrial ecosystems 
        that influence the exchange of energy and materials between 
        those ecosystems.''

    Again, although the CWA does not grant EPA jurisdiction over 
groundwater, this definition refers to groundwater using the term 
``subsurface hydrology.'' The first sentence of the paragraph states it 
is problematic because nonjurisdictional and, therefore, irrelevant 
considerations would be allowed to influence jurisdictional 
determinations.
    We recommend striking the qualifier ``or subsurface'' and leaving 
the wording, ``The term riparian area means an area bordering a water 
where surface hydrology directly influences the ecological processes 
and plant and animal community structure in that area.''
Floodplain--(u)(4)
          ``Floodplain. The term floodplain means an area bordering 
        inland or coastal waters that was formed by sediment deposition 
        from such water under present climatic conditions and is 
        inundated during periods of moderate to high water flows.''

    The U.S. Geological Survey defines the term floodplain as ``a strip 
of relatively flat and normally dry land alongside a stream, river, or 
lake that is covered by water during a flood.'' \7\ Floodplains are 
hydrologically defined by flood intervals. Flood intervals can range 
from 10 to 500 years yet the proposed definition does not include 
information about which flood interval the Agencies plan to use. This 
means floodplains defined by the longest interval can be several times 
larger than the smallest; therefore, NMDA requests clarification on 
which interval the Agencies intend to use.
---------------------------------------------------------------------------
    \7\ United States Geological Survey. ``Water Science Glossary of 
Terms.'' April 3, 2014. http://water.usgs.gov/edu/dictionany.html.
---------------------------------------------------------------------------
    Similarly, if the designated boundaries of floodplains or flood 
zones change for any reason, the public should be notified by the 
Agencies how the changes will impact the jurisdictional status of 
waters on or near their property.
Tributary--(u)(5)
          ``Tributary. The term tributary means a water physically 
        characterized by the presence of a bed and banks and ordinary 
        high water mark, as defined at 33 CFR 328.3(e), which 
        contributes flow, either directly or through another water, to 
        a water identified in paragraphs (s)(1) through (4) of this 
        section. In addition, wetlands, lakes, and ponds are 
        tributaries (even if they lack a bed and banks or ordinary high 
        water mark) if they contribute flow, either directly or through 
        another water to a water identified in paragraphs (s)(1) 
        through (3) of this section. A water that otherwise qualifies 
        as a tributary under this definition does not lose its status 
        as a tributary if, for any length, there are one or more man-
        made breaks (such as bridges, culverts, pipes, or dams), or one 
        or more natural breaks (such as wetlands at the head of or 
        along the run of a stream, debris piles, boulder fields, or a 
        stream that flows underground) so long as a bed and banks and 
        an ordinary high water mark can be identified upstream of the 
        break. A tributary, including wetlands, can be a natural, man-
        altered, or man-made water and includes waters such as rivers, 
        streams, lakes, ponds, impoundments, canals, and ditches not 
        excluded in paragraphs (t)(3) or (4) of this section.''

    Previously, paragraph (s)(5) states that EPA will assert 
jurisdiction over ``tributaries of waters identified in paragraphs 
(s)(1) through (4).'' However, this paragraph depicts a much broader 
jurisdictional reach because of the definition of the term tributary in 
(u)(5).
    Due to the qualifier ``or through another water,'' NMDA notes that 
waters may pass through nonjurisdictional waters and still be 
classified as tributaries. This is because the term another water is 
not defined hence may refer to nonjurisdictional water. This is true 
especially when another water is contrasted with a ``water that 
contributes flow directly'' to a jurisdictional water.
    We recommend striking the qualifier ``or through another water,'' 
and leaving the wording, ``The term tributary means a water physically 
characterized by the presence of a bed and banks and ordinary high 
water mark, as defined at 33 CFR 328.3(e), which contributes flow 
directly to a water identified in paragraphs (s)(1) through (4) of this 
section.''
Significant Nexus--(u)(7)
          ``Significant nexus. The term significant nexus means that 
        water, including wetlands, either alone or in combination with 
        other similarly situated waters in the region (i.e., the 
        watershed that drains to the nearest water identified in 
        paragraphs (s)(1) through (3) of this section), significantly 
        affects the chemical, physical, or biological integrity of a 
        water identified in paragraphs (s)(1) through (3) of this 
        section. For an effect to be significant, it must be more than 
        speculative or insubstantial. Other waters, including wetlands, 
        are similarly situated when they perform similar functions and 
        are located sufficiently close together or sufficiently close 
        to a `water of the United States' so that they can be evaluated 
        as a single landscape unit with regard [to] their effect on the 
        chemical, physical, or biological integrity of a water 
        identified in paragraphs (s)(1) through (3) of this section.''

    The rule states that, ``For an effect to be significant, it must be 
more than speculative or insubstantial.'' This broad definition leaves 
much to interpretation and should be clarified. As written, there is 
virtually no limit to the number of waters that could be deemed 
jurisdictional via significant nexus.
    The definition of the term significant nexus includes a broad 
criterion that would allow the Agencies to claim jurisdiction over 
similarly situated waters. A similarly situated water ``perform[s] 
similar functions and are located sufficiently close together or 
sufficiently close to a `water of the United States' so they can be 
evaluated as a single landscape unit with regard to their effect on the 
chemical, physical, or biological integrity of a water identified in 
paragraphs (s)(1) through (3) of this section.'' NMDA requests the 
removal of language allowing for the use of significant nexus 
determinations based on proxy data like ``similarly situated waters.'' 
Thus we recommend striking the qualifier ``either alone or in 
combination with other similarly situated waters in the region'' and 
leaving the wording, ``The term significant nexus means that a water, 
including wetlands, that alone significantly affects the chemical, 
physical, or biological integrity of a water identified in paragraphs 
(s)(1) through (3) of this section.''
Clarity and Consistency
Other Waters
    The Agencies have not been consistent in the predicted changes of 
jurisdiction as a result of this proposed rule. The Agencies have 
variously said that jurisdiction will increase,\8\-\9\ 
decrease \10\ and will not change.\11\ NMDA cites this inconsistency as 
proof of the ambiguity created by the creation of the other waters 
category among other problems with the wording of this proposed rule.
---------------------------------------------------------------------------
    \8\ U.S. Environmental Protection Agency and U.S. Army Corps of 
Engineers. ``Economic Analysis of Proposed Revised Definition of Waters 
of the U.S.,'' March 2014. http://www2.epa.gov/sites/production/files/
2014-03/documents/wus_proposed_rule_economic_analysis.pdf.
    \9\ The Brattle Group. ``Review of 2014 EPA Economic Analysis of 
Proposed Revised Definition of Waters of the U.S.'' May 15, 2014. 
Available at: http://www.brattle.com/news-and-knowledge/publications/
archive/2014.
    \10\ Stoner, Nancy. ``Setting the Record Straight on Waters of the 
U.S.'' EPA Connect, July 7, 2014. http://blog.epa.gov/epaconnect/
author/nancystoner/.
    \11\ U.S. Environmental Protection Agency. ``Clean Water Act 
Exclusions and Exemptions Continue for Agriculture,'' http://
www2.epa.gov/sites/production/files/2014-03/documents/
cwa_ag_exclusions_exemptions.pdf.
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    The source of this confusion is that this category would require a 
prescribed action for every jurisdictional determination (i.e., the 
definition requires determinations to be made on ``a case-specific 
basis.'') Currently, there is no such category that requires as 
extensive attention for every determination. This change would clearly 
result in less consistency and less clarity for waters that would 
belong in the new other waters category. One way to reduce uncertainty 
and increase clarity would be to provide a decision tree tool that 
demonstrates to the regulated public how jurisdictional determinations 
are made so that landowners and businesses can proactively become 
involved in the process.
    Executive Order (E.O.) 13563, signed by President Obama in 2011, 
requires the regulatory system to ``promote predictability and reduce 
uncertainty'' and ``identify and use the best, most innovative, and 
least burdensome tools for achieving regulatory ends.'' \12\ Therefore, 
it is important to increase clarity in actions taken by the Agencies. 
Currently, EPA conducts jurisdictional determinations based on the CWA 
itself, alongside three key Supreme Court precedents, which is 
confusing to the regulated public. The intention of the new definition 
of Waters of the U.S. was to increase clarity by combining the previous 
definition of Waters of the U.S. with these interpretations from the 
Supreme Court.
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    \12\ Executive Order 13563: Improving Regulation and Regulatory 
Review. Signed January 18, 2011. http://www.gpo.gov/fdsys/pkg/FR-2011-
01-21/pdf/2011-1385.pdf.
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    However, the language in the proposed definition, for reasons 
listed in sections above, may, in fact, reduce clarity and cause 
confusion and frustration among regulated stakeholders.
Comprehensive List of Waters
    EPA has been unable to present consistent interpretations of the 
changes in the definitions of Waters of the U.S., in spite of claims 
that the document's purpose is to increase clarity. To this point, the 
U.S. House of Representatives Committee on Science, Space, and 
Technology recently requested maps that show jurisdictional waters 
under the CWA.\13\ In a response letter from EPA, Administrator Gina 
McCarthy states, ``I wish to be clear that EPA is not aware of maps 
prepared by any agency, including the EPA, of waters that are currently 
jurisdictional under the CWA or that would be jurisdictional under the 
proposed rule.'' \14\
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    \13\ Chairman Lamar Smith, U.S. House of Representatives Committee 
on Science, Space, and Technology. Letter to U.S. Environmental 
Protection Agency Administrator Gina McCarthy. Dated August 27, 2014. 
Available at http://science.house.gov/epa-maps-state-2013.
    \14\ Administrator Gina McCarthy, U.S. Environmental Protection 
Agency. Letter to Chairman Lamar Smith, U.S. House of Representatives 
Committee on Science, Space, and Technology. Dated July 28, 2014. 
Available at http://science.house.gov/epa-maps-state-2013.
---------------------------------------------------------------------------
    Because many newly proposed definitional changes rely on waters 
(s)(1) through (4), NMDA requests maps of these waters. From these maps 
stakeholders will be given the opportunity to more easily determine 
waters that may be included in waters (s)(5) through (7) of the 
proposed rule. Providing clear and thorough maps of jurisdictional 
waters will assist in increasing transparency, accountability, and 
clarity in this rulemaking.
Interpretive Rule and Other Guidance Documents
    The Interpretive Rule Regarding Applicability of the Exemption from 
Permitting Under Section 404(f)(1)(A) of the CWA to Certain 
Agricultural Conservation Practices (Interpretive Rule) attempts to 
define what activities are normal agricultural activities by deferring 
to NRCS guidance. The interpretive rule is just the newest of a 
multitude of guidance documents for permitting under section 404 of the 
CWA. It is difficult, if not impossible, for interested public parties 
to know of the existence of these documents. Therefore, it would 
greatly reduce confusion if all guidance documents were consolidated 
into one document or place. This would allow for agricultural producers 
and other stakeholders to access all relevant information about the 
implementation of this and related rules in one place.
    NRCS guidelines are subject to review, and parties with an interest 
in the CWA may not be aware of these changes or their potential impacts 
on their agricultural operations. NMDA requests the Agencies publish a 
Federal Register notice when NRCS guidelines are up for review. This 
notice should indicate that changes in NRCS guidelines will impact 
agricultural producers due to the applicability of permitting under the 
CWA, which would not have been necessary prior to changes in NRCS 
guidelines. We have requested the same of the NRCS when they make 
changes to their National Handbook of Conservation Practices.\15\
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    \15\ Natural Resources Conservation Service. ``Conservation 
Practices.'' http://www.nrcs.usda.gov/wps/portal/nrcs/detailfull/
national/technical/references/?cid=nrcs143_026849.
---------------------------------------------------------------------------
    Please see our previously submitted comments on the Agricultural 
Interpretive Rule and the NRCS National Handbook of Conservation 
Practices in Appendix B for further concerns regarding this document.
Land Use
    Though the Agencies have assured the public on numerous occasions 
that this rule does not impact land use, it does impact activities that 
can be done near ephemeral water bodies that may not have been 
jurisdictional prior to this rulemaking. This rule will have an impact 
on land use, particularly in areas in the arid West. According to the 
New Mexico Environment Department and the New Mexico Water Quality 
Control Commission, there are 108,649 miles of streams of which 99,332 
miles are intermittent or ephemeral. That means that over 91 percent of 
all streams in New Mexico have the potential to be determined Waters of 
the U.S. despite the fact that they are dry most of the year.\16\ 
Therefore, NMDA requests analysis of the effects this proposed rule 
could have on land use compared to the previous definition of Waters of 
the U.S.
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    \16\ New Mexico Environment Department. ``WQCC Draft 2014-2016 
State of New Mexico CWA Section 303(d)/305(b) Integrated Report.'' 
September 9, 2014. Available at: http://www.nmenv.state.nm.us/swqb/
303d-305b/2014-2016/.
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Public Involvement
Outreach
    EPA has claimed extensive outreach to state and local agencies 
before the development of the proposed rule.\17\ For instance, the 
Federal Register states, ``. . . EPA held numerous outreach calls with 
state and local government agencies seeking their technical input. More 
than 400 people from a variety of state and local agencies and 
associations, including the Western Governors' Association, the Western 
States Water Council, and the Association of State Wetland Managers 
participated in various calls and meetings'' (79 FR 22221). NMDA has 
been party to conversations with multiple state and local agencies 
throughout the West--including the Wyoming Department of Agriculture, 
Utah Department of Agriculture and Food, Idaho State Department of 
Agriculture, Colorado Department of Agriculture, and New Mexico 
Environment Department--and has been unable to locate even a single one 
indicating outreach from EPA If public records of this outreach exist, 
NMDA requests this information be published.
---------------------------------------------------------------------------
    \17\ U.S. Environmental Protection Agency. ``EPA Summary of the 
Discretional Small Entity Outreach for Planned Proposed Revised 
Definition of `Waters of the U.S.' '' Available at: http://
www2.epa.gov/uswaters/epa-summary-discretionary-small-entity-outreach-
planncd-proposed-revised-definition-waters.
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    During telephone conversations and webinars EPA and the Corps 
hosted after the publication of the proposed rule, EPA has maintained a 
defensive tone.\18\-\19\ Rather than either address concerns 
raised by the public or state that comments would be taken seriously in 
the revision of the proposed rule, the Agencies merely restated that 
the intent of the rule is to increase clarity. NMDA maintains that 
stakeholders with concerns do, in fact, understand the implications of 
this rule and implores that EPA consider the concerns brought up by 
this and other state and local agencies and revise the proposed rule 
accordingly.
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    \18\ University of Nebraska Livestock and Poultry Environmental 
Learning Center. ``Waters of the U.S. Proposed Rule Webinar.'' Hosted 
6/20/14. Archived at: http://www.extension.org/pages/71028/epas-
proposcd-waters-of-the-us-regulations#.VC8F7xYa5F8.
    \19\ U.S. Environmental Protection Agency. ``Waters of the U.S.: 
Clarifying Misconceptions.'' Hosted 7/16/14. http://www.2.epa.gov/
uswaters/waters-united-states-webinar-clarifying-misconceptions.
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Concerns from Congress
    The fact that several United States legislative bills (including S. 
2496: ``Protecting Water and Property Rights Act of 2014,'' \20\ S. 
2613: ``Secret Science Reform Act of 2014,'' \21\ H.R. 5071: 
``Agricultural Conservation Flexibility Act of 2014,'' \22\ and H.R. 
5078: ``Waters of the U.S. Regulatory Overreach Protection Act of 
2014'' \23\) have been filed at the Federal legislative level that 
requests the withdrawal or revision of the proposed rule indicates 
there are major problems with this proposed rulemaking as presented. 
Several bipartisan letters from United States Senators and 
Representatives have also been submitted requesting clarification of 
the proposed rule. This includes a letter signed by 13 Senators who 
have specific concerns about the proposed rule's impact on the 
agricultural community.\24\
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    \20\ Protecting Water and Property Rights Act of 2014, S. 2496, 113 
Cong. Sponsored by Sen. John Barrasso (WY). Introduced June 19, 2014. 
Available at: https://www.congress.gov/bill/113th-congress/senate-bill/
2496/text.
    \21\ Secret Science Reform Act of 2014, S. 2613, 113 Cong. 
Sponsored by Sen. John Barrasso (WY). Introduced July 16, 2014. 
Available at: https://www.congress.gov/bill/113th-congress/senate-bill/
2613.
    \22\ Agricultural Conservation Flexibility Act of 2014, H.R. 5071, 
113 Cong. Sponsored by Rep. Reid Ribble (WI). Introduced July 10, 2014. 
Available at: https://www.congress.gov/bill/113th-congress/house-bill/
5071.
    \23\ Waters of the U.S. Regulatory Overreach Protection Act of 
2014, H.R. 5078, 113 Cong. Sponsored by Rep. Steve Southerland II (FL). 
Introduced July 11, 2014. Available at: https://www.congress.gov/bill/
113th-congress/house-bill/5078.
    \24\ United States Senate. Letter to U.S. Environmental Protection 
Agency Administrator Gina McCarthy, U.S. Department of the Army 
Secretary John McHugh, and U.S. Department of Agriculture Secretary 
Thomas Vilsack. Dated July 31, 2014. Available at: http://
sustainableagriculture.net/blog/senate-wotus-letter/.
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Document Availability
Draft Environmental Assessment (DEA)
    Despite reference to a DEA prepared by the Corps for section 404 
aspects of the proposed rule on page 22222 in the Federal Register 
notice, NMDA has not been able to locate this National Environmental 
Policy Act documentation.
    Such an important document should have been made publicly available 
on the EPA's Waters of the U.S. website. NMDA submitted a Freedom of 
Information Act (FOIA) request on October 27, 2014, for these 
documents. This FOIA request can be found in Appendix B.
Connectivity Report
    The EPA's Office of Research and Development's report entitled, 
``Connectivity of Streams and Wetlands: A Review and Synthesis of the 
Scientific Evidence (Connectivity Report),'' the document, upon which 
all of these definitional changes are based, was not complete at the 
time of publication of the proposed definitional changes. The Agencies 
state throughout the Federal Register notice for this proposed rule 
that the final rule for the definition of Waters of the U.S. will not 
be finalized until the Connectivity Report is finalized (79 FR 22188-
22274).
    Meanwhile, the EPA's Scientific Advisory Board (SAB) was tasked 
with reviewing the Connectivity Report for the ``clarity and technical 
accuracy of the report, whether it includes the most relevant peer-
reviewed literature; whether the literature has been correctly 
summarized; and whether the findings and conclusions are supported by 
the available science.'' \25\ The SAB completed their review of the 
Connectivity Report on October 17, 2014, and had substantial 
recommendations for improvement and further scientific analysis.
---------------------------------------------------------------------------
    \25\ U.S. Environmental Protection Agency Office of the 
Administrator Scientific Advisory Board. ``SAB Review of the Draft EPA 
Report Connectivity of Streams and Wetlands to Downstream Waters: A 
Review and Synthesis of the Scientific Evidence.'' October 17, 2014. 
Available at: http://yosemite.epa.gov/sab/sabproduct.nsf/
fedrgstr_activites/Watershedperecnt20
Connectivitypercent20Report!OpenDocument&TableRow=2.3#2.
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    For instance, the SAB report notes technical inaccuracies in the 
underlying science upon which this proposed rule is based:

   ``The Report often refers to connectivity as though it is a 
        binary property rather than as a gradient. In order to make the 
        Report more technically accurate, the SAB recommends that the 
        interpretation of connectivity be revised to reflect a gradient 
        approach . . .''

   ``The SAB recommends that the EPA consider expanding the 
        brief overview of approaches to measuring connectivity.''

   ``The SAB recommends that the Report more explicitly address 
        the scientific literature on cumulative and aggregate effects 
        of streams, groundwater systems, and wetlands on downstream 
        waters.''

    These technical limitations affect the final outcome of 
jurisdictional determinations for all of the categories of Waters of 
the U.S.
    EPA has the responsibility to provide finalized and complete 
documentation to the public, especially when other important Federal 
actions hinge on the outcome of that documentation. Any changes in the 
Connectivity Report, which is still not finalized, could seriously 
hamper and even invalidate the language proposed in this rule by 
effectively barring public participation. Further, the scientific 
reasoning for the definitional changes to Waters of the U.S. needs 
improvement. NMDA requests the agencies withdraw this proposed rule and 
reinitiate a comment period at the time the Connectivity Report is 
finalized.
    Stakeholders and the public in general have the right to understand 
the full implications that regulatory changes will have on their 
operations before Federal regulations are proposed. Please see our 
previously submitted comments on this rule pertaining to deadline 
incongruence resulting from the Connectivity Report still being in 
draft form. These comments can be found in Appendix B for further 
concerns regarding this document.
Second Draft of the Proposed Rule
    Because of the sheer quantity of requests for public input in the 
Federal Register notice for this proposed rule, a single draft for this 
proposed rule will not be sufficient. The Agencies have requested too 
much information from the public, and the potential for unintended 
consequences is high when taking into consideration every potential 
change to the rule resulting from public comments.
    If the proposed rule is not withdrawn entirely, NMDA supports the 
publication of a second draft, listing the comments received and 
detailing EPA's responses to them. This will greatly increase 
transparency of the rulemaking process.
Economic Analysis
Analytical Errors
    The Agencies prepared a report entitled, ``Economic Analysis of 
Proposed Revised Definition of Waters of the U.S. (Economic 
Analysis).'' The Economic Analysis describes the costs and benefits of 
the proposed rule; however, the Agencies make several economic benefit 
claims that are based on data that is not available to the public. The 
benefit claims are based on the previous Waters of the U.S. definition, 
which are not the same as those in the proposed rule.
    Also, using 2009-2010 as the baseline, economic study year could be 
unrepresentative of a long-term economic comparison due to the overall 
national economic downturn during that time.\26\ Similarly, drawing 
major conclusions from information in 1 year is not reflective of long-
term implications this rulemaking may have. The Agencies have claimed 
the proposed rule does not affect areas that were previously excluded 
from jurisdiction, that the proposed rule does not regulate new types 
of waters.\27\ If this is the case, why are there several new 
definitions and an Agency estimated 2.7 percent increase in acreage? 
\28\
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    \26\ U.S. Environmental Protection Agency & U.S. Army Corps of 
Engineers. ``Economic Analysis of Proposed Revised Definition of Waters 
of the U.S.'' March 2014. Available at: http://www2.epa.gov/uswaters/
documents-related-proposed-definition-waters-united-states-under-clean-
water-act.
    \27\ U.S. Environmental Protection Agency. ``Fact Sheet: How the 
Proposed Waters of the U.S. Rule Benefits Agriculture.'' Available at: 
http://www2.epa.gov/uswaters/fact-sheet-how-proposed-waters-us-rule-
benefits-agriculture.
    \28\ U.S. Environmental Protection Agency and U.S. Army Corps of 
Engineers. ``Economic Analysis of Proposed Revised Definition of Waters 
of the U.S.,'' March 2014. http://www2.epa.gov/sites/production/files/
2014-03/documents/wus_proposed_rule_economic_analysis.pdf.
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    The Brattle Group, an independent economic, regulatory, and 
financial consulting firm, prepared a report for the Waters Advocacy 
Coalition entitled, ``Review of 2014 EPA Economic Analysis of Proposed 
Revised Definition of Waters of the U.S. (Brattle Group Report).'' \29\ 
The Waters Advocacy Coalition ``is an inter-industry coalition 
representing the nation's construction, real estate, mining, 
agriculture, forestry, manufacturing, energy sectors, and wildlife 
conservation interests.'' \30\ The Brattle Group Report is a very 
detailed analysis of the Agencies' Economic Analysis and identifies 
numerous errors including ``flawed methodology for estimating the 
extent of newly jurisdictional waters that systematically 
underestimates the impact of the definition changes . . .'' \31\ The 
report suggests that the Agencies ``should withdraw the economic 
analysis and prepare an adequate study of this major change in the 
implementation of the CWA.'' \32\
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    \29\ The Brattle Group. ``Review of 2014 EPA Economic Analysis of 
Proposed Revised Definition of Waters of the U.S.'' May 15, 2014. 
Available at: http://www.brattle.com/news-and-knowledge/publications/
archive/2014.
    \30\ U.S. Chamber of Commerce. ``Waters Advocacy Coalition (WAC) 
Letter on Definition of Waters of the U.S.'' June 10, 2014. https://
www.uschamber.com/letter/waters-advocacy-coalition-wac-letter-
definition-waters-us.
    \31\ The Brattle Group. ``Review of 2014 EPA Economic Analysis of 
Proposed Revised Definition of Waters of the U.S.'' Page 2. May 15, 
2014. Available at: http://www.brattle.com/news-and-knowledge/
publications/archive/2014.
    \32\ The Brattle Group. ``Review of 2014 EPA Economic Analysis of 
Proposed Revised Definition of Waters of the U.S.'' Page 2. May 15, 
2014. Available at: http://www.brattle.com/news-and-knowledge/
publications/archive/2014.
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    Due to the analytical errors described above and the issues 
identified in the ``Benefits,'' ``Costs,'' and ``Barriers to Entry'' 
sections below, NMDA requests a more accurate and complete analysis of 
the economic implications of this proposed rulemaking.
Benefits
    EPA's claims that benefits resulting from this proposed rule 
outweigh the costs are not entirely relevant. Agriculture and industry 
bear the huge majority of costs, whereas the benefits listed by EPA are 
mostly nonhuman and environmental.\33\ These environmental benefits, 
termed ecosystem services, are purported to improve water quantity even 
though the primary concern of the CWA is water quality. One of NMDA's 
concerns is that the conflation between water quality and quantity in 
this regard has led to an overestimation of the benefits and that costs 
to the agricultural community have been minimized.
---------------------------------------------------------------------------
    \33\ U.S. Environmental Protection Agency. ``Ditch the Myth.'' 
September 26, 2014. http://www2.epa.gov/uswaters/ditch-myth.
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    The ecosystem services taken from the Economic Analysis include: 
``flood storage & conveyance, support for commercial fisheries, water 
input and land productivity for agriculture and commercial & industrial 
production, municipal and water supply, recreation & aesthetics, 
sediment and contaminant filtering, nutrient cycling, groundwater 
recharge, shoreline stabilization and erosion prevention, biodiversity, 
wildlife habitat (emphasis added).'' NMDA requests an explanation of 
the benefits listed above, especially those related to water quantity 
benefits.
Costs
    EPA does not take into consideration the costs on agricultural 
sectors that do not qualify for the Agricultural 404(f)(1)(A) 
Exemption. An increase in jurisdiction would likely entail an increase 
in requirements for National Pollutant Discharge Elimination System 
(NPDES) permitting. Agriculture-related permits primarily affected by 
this potential permitting increase would be Concentrated Animal Feeding 
Operations (such as dairies) and Pesticide General Permits.\34\ Again, 
NMDA requests a thorough analysis on the costs this rule will have on 
various regulated industries.
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    \34\ New Mexico Environment Department, Surface Water Quality 
Bureau. ``NPDES Permits in New Mexico.'' http://www.nmenv.state.nm.us/
swqb/Permits/.
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Barriers to Entry
    As previously detailed, the NRCS defines prior converted cropland 
as farmland that was ``cropped prior to December 23, 1985, with an 
agricultural commodity (an annually tilled crop such as corn); the land 
was cleared, drained, or otherwise manipulated to make it possible to 
plant a crop; the land has continued to be used for agricultural 
purposes (cropping, haying, or grazing); and the land does not flood or 
pond for more than 14 days during the growing season.'' \35\
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    \35\ Natural Resources Conservation Service. ``Wetland Fact Sheet--
Prior Converted Cropland.'' http://www.nrcs.usda.gov/wps/portal/nrcs/
detail/vt/programs/?cid=nrcs142p2_010517.
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    The explicit exclusion for ``prior converted croplands'' will 
create a barrier to entry for agricultural producers due to the NRCS 
cutoff date of 1985. Younger agriculturalists wanting to start their 
own operations will not be afforded the same opportunities as older, 
more established farmers or ranchers. The average age of agricultural 
producers in the United States is 58 years old; \36\ implementing 
arbitrary requirements may prevent new farmers from entering the 
market. This barrier could have profound impacts on rural economies in 
addition to the nation's ability to provide enough agricultural goods 
for a growing population.
---------------------------------------------------------------------------
    \36\ U.S. Department of Agriculture. ``2012 Census of 
Agriculture.'' http://www.agcensus.usda.gov/Publications/2012/
Full_Report/Volume_1._Chapter_1_US/.
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    It is also contrary to many policies of the United States 
Department of Agriculture, which aim to provide incentives to young 
people to get involved in agriculture and could jeopardize the future 
of farming.
    Similarly, in reference to the ``continuous operation'' provision, 
NMDA requests clarification on whether land use restrictions near a 
newly designated Waters of the U.S. will change when agricultural lands 
are either sold or passed from one generation to the next when the use 
for the land is maintained as agricultural. If restrictions are put 
into place or if major permitting would be required with new ownership, 
it would create a barrier to entry for new agricultural producers, 
especially since it is not uncommon for agriculture operations to be 
passed on from one generation to the next.
Federalism (E.O. 13132) and Costs to State and Local Agencies
          ``This action will not have substantial direct effects on the 
        states, on the relationship between the national government and 
        the states, or on the distribution of power and 
        responsibilities among the various levels of government. Thus, 
        Executive Order 13132 does not apply to this action and local 
        agencies should have been done at that level as well (79 FR 
        22220).''

    Since ``[t]he main responsibility for water quality management 
resides with the states in the implementation of water quality 
standards, the administration of the NPDES . . . and the management of 
non-point sources of pollution,'' \37\ any change in jurisdiction will 
necessarily have an impact on the states. E.O. 13132 states that, ``To 
the extent practicable and permitted by law, no agency shall promulgate 
any regulation that has federalism implications, that imposes 
substantial direct compliance costs on state and local governments, and 
that is not required by stat-
ute . . .'' \38\ NMDA concludes that the Agencies' analysis regarding 
E.O. 13132 was done incorrectly.
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    \37\ U.S. Environmental Protection Agency. ``Overview of Impaired 
Waters and Total Maximum Daily Loads Program.'' http://water.epa.gov/
lawsregs/lawsguidance/cwa/tmdl/intro.cfm#
section303.
    \38\ Exec. Order No. 13132--``Federalism.'' Signed August 4, 1999. 
Available at: https://www.federalregister.gov/articles/1999/08/10/99-
20729/federalism.
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    The Economic Analysis states there should be no substantial 
increase in costs to state agencies, in spite of a probable increase in 
jurisdiction. Under the section entitled ``CWA Section 303 and 305,'' 
the document states, ``EPA's position on these costs is that an 
expanded assertion of jurisdiction would not have an effect on annual 
expenditures . . . for state agencies, including those responsible for 
state water quality standards, monitoring and assessment of water 
quality, and development of total maximum daily loads (TMDLs) for 
impaired waters.''
    NMDA does not agree that states will necessarily have capability in 
a form robust enough to comply with the expanded Federal jurisdiction 
as proposed in this rule. Moreover, monitoring and assessing water 
quality on newly jurisdictional water bodies in a very large state such 
as New Mexico would necessarily require additional resources and, 
therefore, cannot possibly come without new costs.
Environmental Justice (E.O. 12898), the Regulatory Flexibility Act 
        (RFA), and Impacts to Small Businesses
    In the Federal Register notice of this proposed rulemaking, EPA 
claims that under the RFA the proposed rule will have no effect on 
small business using the language, ``After considering the economic 
impacts of this proposed rule on small entities, I certify that this 
proposed rule will not have a significant economic impact on a 
substantial number of small entities'' (79 FR 22220). However, language 
pulled directly from the Economic Analysis states, ``As a result of 
this proposed action, costs to regulated entities will likely increase 
for permit application expenses.'' \39\ The same document says, ``This 
proposed rule could result in new indirect costs on regulated entities 
such as the energy, agricultural, and transportation industries; land 
developers, municipalities, industrial operations; and on governments 
administering regulatory programs, at the tribal, state and Federal 
levels.'' \40\ The Federal Register notice and the Economic Analysis 
conclusions clearly contradict each other; and NMDA agrees with the 
latter, that increased permitting will come with increased costs to 
small businesses.
---------------------------------------------------------------------------
    \39\ U.S. Environmental Protection Agency & U.S. Army Corps of 
Engineers. ``Economic Analysis of Proposed Revised Definition of Waters 
of the U.S.'' Page 32. March 2014. Available at: http://www2.epa.gov/
uswaters/documents-related-proposed-definition-waters-united-states-
under-clean-water-act.
    \40\ U.S. Environmental Protection Agency & U.S. Army Corps of 
Engineers. ``Economic Analysis of Proposed Revised Definition of Waters 
of the U.S.'' Page 5. March 2014. Available at: http://www2.epa.gov/
uswaters/documents-related-proposed-definition-waters-united-states-
under-clean-water-act.
---------------------------------------------------------------------------
    NMDA requests that additional analysis be completed to determine 
the true impacts of increased permitting to small businesses--
particularly for the agriculture industries. In the meantime, USDA's 
2012 Census of Agriculture provides economic analyses that show a 
significant amount of agricultural producers can be categorized as 
small businesses thus likely to experience the impact of regulatory 
burden. The 2012 Census of Agriculture classifies approximately 75 
percent of agricultural operations nationwide as being less than 
$50,000 in the ``classification of farms by the sum of market value of 
agricultural products sold and Federal farm program payments.'' \41\ In 
New Mexico the percentage of less than $50,000 producers is 
significantly higher, at nearly 88 percent; therefore, producers in New 
Mexico could be more economically vulnerable to market fluctuations 
caused by regulatory burden. NPDES and other permitting costs may have 
a negative economic impact on small businesses. Therefore, EPA's 
findings under RFA are not only incorrect but they also conflict with 
supporting documents.
---------------------------------------------------------------------------
    \41\ U.S. Department of Agriculture--National Agricultural 
Statistics Service, ``2012 Census of Agriculture.'' 2014. http://
www.agcensus.usda.gov/Publications/2012/.
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    To this same point, the United States Small Business Administration 
recently wrote a comment letter to the Agencies requesting them to 
``withdraw the rule and that the EPA conduct a Small Business Advocacy 
Review panel before proceeding any further with this rulemaking.'' \42\
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    \42\ U.S. Small Business Administration, Comments on the Definition 
of ``Waters of the U.S.'' Under the Clean Water Act. Submitted 10/1/14. 
http://www.sba.gov/advocacy/1012014-definition-waters-united-states-
under-clean-water-act.
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Conclusion
    For reasons stated throughout our comments, NMDA requests the 
withdrawal of this proposed rule since the rule will create an undue 
burden on small businesses--including agricultural operations, unclear 
and inconsistent definitional changes, inadequate provision of 
supporting documentation, and poor outreach and communications prior to 
and during this comment period with the regulated community and state 
agencies.
    Thank you for the opportunity to comment on the Proposed Rule for 
Definition of Waters of the U.S. Under the Clean Water Act. We request 
the opportunity to be involved in any revisions of the proposed rule 
and other involvement opportunities. NMDA also requests to be included 
in any updates or mailing lists associated with this Proposed Rule.
    If clarification of any comments is needed, please contact Mr. Ryan 
Ward at (575) 646-2670 or Ms. Lacy Levine at (575) 646-8024.
            Sincerely,
            
            
Hon. Jeff M. Witte.
Appendix A: NMDA Comments_Reader's Guide
    Throughout this document, NMDA has requested information from the 
Agencies to either provide additional clarity or documentation on 
certain issues. The following is a list of the questions and requests 
for information excerpted from our comments. This list does not reflect 
the full scope of our comments, rather it is meant to serve as a 
reference for addressing specific questions and concerns. We request 
the Agencies review the entirety of our comments and use the following 
highlights from our comments as a guide.
Tributaries (s)(5), Ditches *
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    * Editor's note: The document as originally submitted contained 
page references for each section; however, they are omitted in this 
typeset reprinting.
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   NMDA would support an additional paragraph in the 
        definitions section clarifying EPA's intentions regarding 
        jurisdictional determinations over ditches separate from the 
        language pertaining to tributaries.

   NMDA requests clarification on how perenniality will be 
        determined. Specifically, we would like to know if the public 
        will be given the opportunity to be involved in the 
        determination process and how conflicting determinations will 
        be mediated.
Other Waters (s)(7)
    NMDA suggests the removal of the catch-all category--other waters. 
If the Agencies retain the other waters category, we request 
clarification on the points described below.

   NMDA recommends using the existing ecoregions as a more 
        robust and descriptive starting point in better categorizing 
        the other waters definition.

   In a second draft of this rulemaking, EPA should specify 
        areas where changes may occur in order to assist the regulated 
        community in identifying ways this proposed rule may change in 
        the future.

   In addition to the duration of the process, stakeholders are 
        unclear of the steps involved in the jurisdictional 
        determination and still have many questions. Will the Corps be 
        the sole agency responsible for making determinations or will 
        they consult with external experts? Will the process take into 
        consideration economic activity that could be disrupted? How 
        will stakeholders be notified if their operations occur on or 
        near a jurisdictional water? Will stakeholders have the right 
        to request an appeal?

   NMDA requests written guidance for agricultural producers 
        that would clarify how to proactively determine if they may 
        have jurisdictional waters on or near their owned or leased 
        property.

   ``New tools and resources that have the potential to improve 
        precision of desk based jurisdictional determinations'' should 
        be provided to the regulated community to assist in 
        independently assessing if water bodies on their land will be 
        jurisdictional and to begin taking appropriate action to 
        maintain compliance with Agency standards.
Exclusions from Waters of the U.S. (t)
Prior Converted Cropland (t)(2)
   NMDA requests that all agricultural land be excluded due to 
        the fact that these lands are managed to provide food, fiber, 
        and other necessary products--regardless of whether the 
        agricultural operation was established before or after 1985.

   ``Will being enrolled in conservation programs such as 
        NRCS's CRP bar agricultural producers from this exemption 
        because the land in question has not ``continued to be used for 
        agricultural production''?

   Providing a clear, Agency-endorsed definition of prior 
        converted cropland would assist in offering consistency for the 
        regulated public in determining if their land will be 
        considered prior converted cropland thus excluded from being 
        jurisdictional.
Upland Ditches (t)(3)
   NMDA requests the term uplands be defined in the Waters of 
        the U.S. rule.

   How will agricultural producers know when ditches are 
        excluded given the confusing nature of this exclusion? To 
        provide consistency and clarity, NMDA requests a visual tool, 
        perhaps in the form of a decision tree, to simplify what 
        ditches are and are not jurisdictional.
Disconnected Ditches (t)(4)
   Waters may pass from a ditch through nonjurisdictional 
        waters and still be jurisdictional according to the proposed 
        rule's language. NMDA requests the removal of language that 
        would allow for ephemeral ditches to be claimed as 
        jurisdictional and striking the qualifier ``or through another 
        water.''
Gullies, Rills, and Non-Wetland Swales (t)(5)(vii)
   NMDA requests that arroyos be added to this exclusion 
        category.

   Aside from gullies, rills, and non-wetland swales, how do 
        the Agencies plan on differentiating other erosional features 
        not specifically excluded from the definition of Waters of the 
        U.S.?
Closed Basins
   NMDA requests the addition of waters within ``closed 
        basins'' to the list of exclusions presented in this proposed 
        rule, as they cannot satisfy any criteria required for a water 
        to be jurisdictional.

   Will playa lakes be excluded due to their hydrologic 
        disconnect from major waterways or are they assumed to be 
        included under one of the new Waters of the U.S. categories?
New Definitions
Adjacent (u)(1)
   The qualifying separations between Waters of the U.S. and 
        adjacent waters, including ``man-made dikes or barriers, 
        natural river berms, beach dunes, and the like,'' are clear. 
        However, without guidance on the size and extent of the 
        separations, the term adjacent is still unclear.
Neighboring (u)(2)
   EPA has no jurisdiction over groundwater thus no 
        jurisdiction over ``shallow subsurface'' water. We request 
        striking the second half of the sentence, ``or waters with a 
        shallow subsurface hydrologic connection or confined surface 
        hydrologic connection to such a jurisdictional water.'' 
        Further, the term shallow in this definition is subjective and 
        undefined by the Agencies.

   If the floodplain is larger than a water's riparian area, 
        will the floodplain be used as the guiding jurisdiction 
        criteria?
Riparian Area (u)(3)
   We recommend striking the qualifier ``or subsurface'' due to 
        the fact that groundwater is not jurisdictional.
Floodplain (u)(4)
   Flood intervals can range from 10 to 500 years yet the 
        proposed definition does not include information about which 
        flood interval the Agencies plan to use.
Tributary (u)(5)
   Due to the qualifier ``or through another water,'' NMDA 
        notes that waters may pass through nonjurisdictional waters and 
        still be classified as tributaries. This qualifier should be 
        removed from the definition.
Significant Nexus (u)(7)
   The rule states that, ``For an effect to be significant, it 
        must be more than speculative or insubstantial.'' This broad 
        definition leaves much to interpretation and should be 
        clarified.

   NMDA requests the removal of language allowing for the use 
        of significant nexus determinations based on proxy data like 
        ``similarly situated waters.'' Please remove the phrase 
        ``similarly situated waters'' from the definition.
Clarity and Consistency
Other Waters
   Including the category ``Other Waters'' does not increase 
        clarity for the regulated public. One way to reduce uncertainty 
        and increase clarity would be to provide a decision tree tool 
        that demonstrates to the regulated public how jurisdictional 
        determinations are made so that landowners and businesses can 
        proactively become involved in the process.
Comprehensive List of Waters
   Because many newly proposed definitional changes rely on 
        waters (s)(1) through (4), NMDA requests maps of these waters. 
        From these maps stakeholders will be given the opportunity to 
        more easily determine waters that may be included in waters 
        (s)(5) through (7) of the proposed rule.
Interpretive Rule and Other Guidance Documents
   It would greatly reduce confusion if all guidance documents 
        were consolidated into one document or place. This would allow 
        for agricultural producers and other stakeholders to access all 
        relevant information about the implementation of this and 
        related rules in one place.

   NMDA requests the Agencies publish a Federal Register notice 
        when NRCS guidelines are up for review due to the fact that 
        changes in the NRCS guidelines will affect compliance with the 
        Clean Water Act for certain agricultural practices.
Land Use
   Due to the fact that over 91 percent of all streams in New 
        Mexico have the potential to be determined Waters of the U.S. 
        despite the fact that they are dry most of the year, NMDA 
        requests analysis of the effects this proposed rule could have 
        on land use compared to the previous definition of Waters of 
        the U.S.
Public Involvement
Outreach
   NMDA requests that a thorough description of the claimed 
        outreach activities to stakeholders be published.
Document Availability
   The DEA prepared by the Corps for section 404 aspects of the 
        proposed rule should be published on the EPA's website due to 
        its importance in the rulemaking process.

   The SAB completed their review of the Connectivity Report on 
        October 17, 2014, and had substantial recommendations for 
        improvement and further scientific analysis. These 
        recommendations should be incorporated into the Connectivity 
        Report and resulting changes to the definition of Waters of the 
        U.S. should be made available for public comment in the form of 
        a second draft of the proposed rule.

   If the proposed rule is not withdrawn entirely, NMDA 
        requests the publication of a second draft listing the comments 
        received and detailing EPA's responses to them.
Economic Analysis
Analytical Errors
   NMDA requests a more accurate and complete analysis of the 
        economic implications of this proposed rulemaking for the 
        following reasons: the Agencies make several economic benefit 
        claims that are based on data that is not available to the 
        public; the benefit claims are based on the previous Waters of 
        the U.S. definition, which are not the same as those in the 
        proposed rule; and using 2009-2010 as the baseline economic 
        study year could be unrepresentative of a long-term economic 
        comparison.
Benefits
   NMDA requests an explanation of the economic benefits, 
        especially those related to the improvement of water quantity 
        even though the primary concern of the CWA is water quality.
Costs
   NMDA requests a thorough analysis on the costs this rule 
        will have on various regulated industries, especially those 
        related to agricultural sectors that do not qualify for the 
        Agricultural 404(f)(1)(A) Exemption.
Barriers to Entry
   The explicit exclusion for ``prior converted croplands'' 
        will create a barrier to entry for agricultural producers due 
        to the NRCS cutoff date of 1985. Younger agriculturalists 
        wanting to start their own operations will not be afforded the 
        same opportunities as older, more established farmers or 
        ranchers.

   In reference to the ``continuous operation'' provision, NMDA 
        requests clarification on whether land use restrictions near a 
        newly designated Waters of the U.S. will change when 
        agricultural lands are either sold or passed from one 
        generation to the next when the use for the land is maintained 
        as agricultural.
Federalism (E.O. 13132) and Costs to State and Local Agencies
   NMDA does not agree that states will necessarily have 
        capability in a form robust enough to comply with the expanded 
        Federal jurisdiction as proposed in this rule. Moreover, 
        monitoring and assessing water quality on newly jurisdictional 
        water bodies in a very large state such as New Mexico would 
        necessarily require additional resources and, therefore, cannot 
        possibly come without new costs.
Environmental Justice (E.O. 12898), the Regulatory Flexibility Act 
        (RFA), and Impacts to Small Businesses
   The Federal Register notice and the Economic Analysis 
        conclusions clearly contradict each other; and NMDA agrees with 
        the latter, that increased permitting will come with increased 
        costs to small businesses. NMDA requests that additional 
        analysis be completed to determine the true impacts of 
        increased permitting to small businesses--particularly for the 
        agriculture industries.
Appendix B: Previously Submitted Comments
Extension of the Deadline for the Proposed Rule for Definition of 
        ``Waters of the U.S.'' Under the Clean Water Act
May 7, 2014

  Donna Downing, Environmental Protection Agency,
  Stacey Jensen, U.S. Army Corps of Engineers,
  Environmental Protection Agency,
  Washington, D.C.

ATTN: Docket ID No. EPA-HQ-OW-2011-0880
RE: Proposed Rule--Definition of ``Waters of the U.S.'' Under the Clean 
            Water Act [Docket EPA-HQ-OW-2011-0880]

    Dear Ms. Downing and Ms. Jensen:

    New Mexico Department of Agriculture (NMDA) submits the following 
initial comments in response to the U.S. Army Corps of Engineers 
(Corps) and Environmental Protection Agency's (EPA) (collectively ``the 
Agencies'') Proposed Rule for Definition of ``Waters of the U.S.'' 
Under the Clean Water Act (79 FR 22188-22274) [Docket EPA-HQ-OW-2011-
0880].
    One part of NMDA's role is to provide proactive advocacy and 
promotion of New Mexico's agricultural industries. Agriculture 
contributed $4 billion in cash receipts to New Mexico's economy in 2012 
(New Mexico Agricultural Statistics, 2012). NMDA maintains a strategic 
goal to promote responsible and effective use and management of natural 
resources in support of agriculture.
Peer-Reviewed Literature
    The proposed rule will substantially impact the agricultural 
community and their practices. Our preliminary concern is that the rule 
continually references a report (Report) that is not yet finalized, 
entitled ``Connectivity of Streams and Wetlands to Downstream Waters: A 
Review and Synthesis of the Scientific Evidence.''
    The draft rule states: ``The Report is under review by EPA's 
Science Advisory Board, and the rule will not be finalized until that 
review and the final Report are complete.'' While we agree the rule 
should not be finalized until the Report is complete, we do not agree 
that the draft rule should reference the Report in its current 
iteration--especially because of the explicit warning printed on every 
page ``DRAFT--DO NOT CITE OR QUOTE.''
    Our recommendation is that the peer-reviewed literature be 
finalized by addressing and incorporating public comments before the 
EPA uses it to endorse other Federal actions. Any major changes to the 
Proposed Rule as a result of findings from the Report should be 
addressed in a second draft of the Proposed Rule (argued further 
below).
Additional Commenting Opportunity
    Within the proposed rule, the agencies provide opportunity to the 
public to comment on options for aspects of the proposed rule--
especially with regard to choosing how to address other waters. NMDA 
requests agencies make a second draft of the Proposed Rule available to 
the public to comment after final regulatory decisions on other waters 
and any other water categories are made. With so many decisions still 
unclear, the public deserves the right to comment on the proposed rule 
once the different options are narrowed.
Extending Comment Period
    NMDA recommends the EPA suspend the current comment period and 
reopen it when the Report is finalized, giving 90 days for input from 
that point. This would afford stakeholders the opportunity to review 
documents in their finalized forms and in chronological order of 
dependence.
Conclusion
    Thank you for the opportunity to comment on the Proposed Rule for 
Definition of ``Waters of the U.S.'' Under the Clean Water Act. NMDA 
requests to be included in any updates or mailing lists associated with 
this Proposed Rule. If clarification of any comments is needed, please 
contact Mr. Ryan Ward at (575) 646-2670 or Ms. Lacy Levine at (575) 
646-8024.
            Sincerely,
            
            
Hon. Jeff M. Witte.
Exemption from Permitting Under Section 404(f)(1)(A) of the Clean Water 
        Act to Certain Agricultural Conservation Practices
July 2, 2014

  Damaris Christensen,
  Office of Water,
  Environmental Protection Agency,
  Washington, D.C.;

  Stacey Jensen,
  Regulatory Community of Practice,
  U.S. Army Corps of Engineers,
  Washington, D.C.;

  Chip Smith,
  Office of the Deputy Assistant Secretary of the Army,
  Department of the Army,
  Washington, D.C.

RE: Notice of Availability Regarding the Exemption From Permitting 
            Under Section 404(f)(1)(A) of the Clean Water Act to 
            Certain Agricultural Conservation Practices [Docket EPA-HQ-
            OW-2013-0820; 9908-97-OW]

    Dear Ms. Christensen, Ms. Jensen, and Mr. Smith:

    New Mexico Department of Agriculture (NMDA) submits the following 
comments in response to the United States Army Corps of Engineers 
(Corps), Department of the Army (DOA), and Environmental Protection 
Agency's (EPA) (collectively ``the Agencies'') Notice of Availability 
(NOA) Regarding the Exemption From Permitting Under Section 
404(f)(1)(A) of the Clean Water Act (CWA) to Certain Agricultural 
Conservation Practices (79 FR 22276) [Docket EPA-HQ-OW-2013-0820; 9908-
97-OW].
    One part of NMDA's role is to provide proactive advocacy and 
promotion of New Mexico's agricultural industries. Agriculture 
contributed $4 billion in cash receipts to New Mexico's economy in 2012 
(New Mexico Agricultural Statistics, 2012). NMDA maintains a strategic 
goal to promote responsible and effective use and management of natural 
resources in support of agriculture.
    Although the interpretative rule was enacted without prior public 
comment, NMDA has reviewed the rule and has several concerns about its 
impact on the future of agriculture in the United States and New Mexico 
in particular. NMDA has concerns that this rule will be a detriment to 
agriculture when it is considered in conjunction with the expanded 
definition of ``waters of the U.S.'' currently open for public comment.
    The interpretative rule states that a farmer enacting one of the 
conservation practices approved under the interpretive rule does not 
have to have prior approval from the Corps nor the EPA, but the farmer 
must comply with National Resources Conservation Service (NRCS) 
technical standards. The rule does not make it clear which agency will 
ensure that farming practices are in compliance nor what would happen 
if a farmer unknowingly is not in compliance. NMDA has strong concerns 
that farmers and ranchers would be open to citizen lawsuits under the 
Clean Water Act if they are unknowingly not in compliance with the NRCS 
standard. The interpretative rule seems to leave farmers and ranchers 
open to more regulatory uncertainty.
    If this interpretative rule intends to make NRCS the enforcers of 
compliance, we fear an erosion of a strong and beneficial relationship 
between farmers and NRCS. Currently, NRCS provides technical guidance 
on a wide range of farming practices. As was stated by NRCS field 
personnel at a recent meeting in New Mexico, their job is to assist 
farmers. NRCS field personnel have not traditionally had a regulatory 
or policing role, rather they have helped farmers solve technical 
problems, improve farming practices, and access resources of the United 
States Department of Agriculture (USDA). All of this provides benefits 
to farmers, the natural resources upon which farming and the nation 
depend. Most importantly, the nation's food security depends on a 
continued supply of safe and fresh foods.
    We are also concerned that NRCS will no longer be in sole control 
of the conservation practices they develop. The last paragraph of the 
interpretative rule seems to indicate that EPA and the Corps will have 
significant input, and perhaps veto power, over the conservation 
practices. NRCS has a long history of on-the-ground work with farmers 
and ranchers. They understand the challenges and practices of farming 
and ranching. The business of NRCS is helping farmers and ranchers with 
the implementation of on-the-ground conservation practices. We are 
concerned that two agencies (EPA and Corps) that do not have 
agronomists, horticulturists, nor range scientists on staff will be 
directing how farming and ranching activities are done. Development and 
modification of conservation practices should remain within the purview 
of the experts at NRCS.
    Additionally, the interpretative rule states that exempted 
conservation practices will be reviewed on an annual basis. The 
implementation of conservation practices involves multi-year projects; 
and NMDA is concerned that a farmer who has enacted or is in the 
process of enacting a practice will suddenly be left in a state of 
regulatory uncertainty if that practice is removed from the approved 
list. A process for dealing with this situation should be added to the 
rule. Ideally, this farmer would be grandfathered into the exemption 
from permitting.
    Last, the increasing average age of farmers and ranchers in the 
country and the lack of recruitment of younger individuals into farming 
is a looming concern of both the USDA and NMDA. The interpretative rule 
states that only practices performed on an ``established (i.e., 
ongoing) farming, silviculture, or ranching operation'' are eligible 
for exemption. This is contrary to many policies of the USDA, which aim 
to provide incentives to young people to get involved in agriculture, 
and could jeopardize the future of farming.
    Farming and ranching operations in New Mexico are almost entirely 
small, family-owned businesses. We request that EPA, Corps, and NRCS 
reevaluate the interpretative rule and the agricultural exemptions 
under the Clean Water Act to ensure that farming and ranching have a 
future in New Mexico and the United States. As the world population 
continues to grow and the number of people who face food security 
challenges increases in this country and elsewhere, the United States 
must ensure that agriculture continues to have the ability to produce a 
food supply that can meet these mounting demands.
    Thank you for the opportunity to comment on this NOA Regarding the 
Exemption from Permitting under Section 404(f)(1)(A) of the Clean Water 
Act (CWA) to Certain Agricultural Conservation Practices. NMDA requests 
to be included in any updates or mailing lists associated with the 
Exemption From Permitting Under Section 404(f)(1)(A) of the Clean Water 
Act (CWA) to Certain Agricultural Conservation Practices.
    If clarification of any comments is needed, contact Ms. Angela 
Brannigan at (575) 646-8025 or Ms. Lacy Levine at (575) 646-8024.
            Sincerely,
            
            
Hon. Jeff M. Witte.
Works Cited
    New Mexico Agricultural Statistics--2012. Available at: http://
www.nass.usda.gov/Statistics_by_State/New_Mexico/Publications/Annual_
Statistical_Bulletin/bulletin_12.asp.
Notice of Proposed Changes to the National Handbook of Conservation 
        Practices for the Natural Resources Conservation Service
August 28, 2014

ATTN: Regulatory and Agency Policy Team

  Wayne Bogovich,
  Strategic Planning and Accountability,
  Natural Resources Conservation Service,
  Beltsville, MD.

RE: Notice of Availability: Notice of Proposed Changes to the National 
            Handbook of Conservation Practices for the Natural 
            Resources Conservation Service (Docket No. NRCS-2014-0009; 
            79 FR 48723-48725)

    Dear Mr. Bogovich:

    New Mexico Department of Agriculture (NMDA) submits the following 
comments in response to the Natural Resources Conservation Service's 
(NRCS) Notice of Availability of Proposed Changes to the National 
Handbook of Conservation Practices (Handbook) (Docket No. NRCS-2014-
0009; 79 FR 48723-48725).
    One part of NMDA's role is to provide proactive advocacy and 
promotion of New Mexico's agricultural industries as well as to analyze 
those actions by Federal and state agencies that may affect its 
viability. Agriculture contributed $4 billion in cash receipts to New 
Mexico's economy in 2012 (New Mexico Agricultural Statistics, 2012). 
NMDA maintains a strategic goal to promote responsible and effective 
use and management of natural resources in support of agriculture.
    NMDA has no comments regarding the specific proposed changes to the 
Handbook except that many of them are well received and appreciated. 
However, we have a few comments regarding any future proposed changes 
to the Handbook.
    First, several of the Conservation Practice Standards that NRCS is 
proposing changes to are also Agricultural Conservation Practice 
Standards, which are exempt from 404(f)(1)(A) permitting under the 
Environmental Protection Agency's Clean Water Act (CWA) (79 FR 22276). 
In the future, it would be helpful to agricultural producers to include 
some reference to the CWA's Agricultural Conservation Practice 
Standards within any proposed changes to the Handbook--especially now 
that NRCS is heavily involved in the implementation of the CWA's 
Agricultural Conservation Practice Standards. Mentioning the CWA would 
remind agricultural producers that the conservation practices they 
employ in order to avoid any violation of the CWA may need to change in 
accordance with the proposed changes to the Handbook.
    Also, NMDA requests that a summary statement of why each change to 
the Handbook is being made be provided to enhance the agricultural 
community's understanding of the changes.
    Thank you for the opportunity to comment on these proposed changes 
to the National Handbook of Conservation Practices. NMDA requests to be 
included in any updates or mailing lists associated with this rule.
    Please contact Lacy Levine at (575) 646-8024 with any questions 
regarding these comments.
            Sincerely,
            
            
Hon. Jeff M. Witte.
Works Cited
    New Mexico Agricultural Statistics--2012. Available at http://
www.nass.usda.gov/Statistics_by_State/New_Mexico/Publications/Annual_
Statistical_Bulletin/bulletin_12.asp.
    Environmental Protection Agency and U.S. Army Corps of Engineers, 
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 FR 22276)--April 21, 2014. Available at 
https://www.federalregister.gov/articles/2014/04/21/2014-07131/notice-
of-availability-regarding-the-exemption-from-permitting-under-section-
404f1a-of-the-clean.
Freedom of Information Act Request to the U.S. Army Corps of Engineers
October 27, 2014

  Humphreys Eng Center.
  CEHEC-OC,
  Alexandria, VA,
  [email protected].

Re: Freedom of Information Act Request

    To Whom It May Concern:

    This is a request under the Freedom of Information Act (5 U.S.C. 
552). This request is in regards to the U.S. Army Corps of Engineers 
and U.S. Environmental Protection Agency's Proposed Rule for the 
Definition of ``Waters of the U.S.'' Under the Clean Water Act (79 FR 
22188-22274) published April 21, 2014 under Dockets EPA-HQ-OW-2011-0880 
and FRL-9901-47-OW.
    The first sentence of Paragraph K--Environmental Documentation on 
79 FR 22222 states:

          ``The U.S. Army Corps of Engineers has prepared a draft 
        environmental assessment in accordance with the National 
        Environmental Policy Act (NEPA). The Corps has made a 
        preliminary determination that the section 404 aspects of 
        today's proposed rule do not constitute a major Federal action 
        significantly affecting the quality of the human environment, 
        and thus preparation of an Environmental Impact Statement (EIS) 
        will not be required.''

    The described Environmental Assessment and supporting documents 
cannot be found online. We request that a copy of the (1) Draft 
Environmental Assessment, (2) Final Environmental Assessment, and (3) 
Finding of No Significant Impact documents identified in 79 FR 22222 be 
provided to the New Mexico Department of Agriculture.
    Please deliver the three documents via e-mail to Mr. Ryan Ward at 
[email protected], or by physical delivery to:

  Ryan Ward,
  Agricultural Programs and Resources,
  New Mexico State University,
  Las Cruces, NM.

    If any clarification is needed, contact Mr. Ryan Ward at 575-646-
2670 or Ms. Lacy Levine at 575-646-8024.
            Sincerely,
            
            
Anthony J. Parra,
Custodian of Public Records.
                                 ______
                                 
    Submitted Letter by Dr. Ron Prestage, President, National Pork 
                           Producers Council
March 25, 2015

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

  Hon. Michelle Lujan Grisham,
  Ranking Minority Member,
  Subcommittee on Conservation and Forestry,
  House Committee on Agriculture,
  Washington, D.C.;

Subject: NPPC Statement for the Record on the U.S. Environmental 
            Protection Agency's proposed rulemaking on defining 
            ``Waters of the United States.''

    Dear Chairman Thompson and Ranking Member Lujan Grisham:

    The National Pork Producers Council (NPPC) thanks you for holding 
your hearing March 17, 2015, to review the proposed U.S. Environmental 
Protection Agency rulemaking on defining ``Waters of the United 
States'' (WOTUS) and its impact on rural America.
    NPPC is proud to represent and work on behalf of pork producers 
committed to protecting water, air and other environmental resources 
that are in their care or potentially affected by their operations. 
NPPC has previously submitted detailed comments on this proposed rule, 
and we attach a copy of those comments to this statement and will refer 
to them in the following. We offer you these observations and ask that 
they be included in the hearing record.
            Sincerely,
            
            
Dr. Ron Prestage,
President,
National Pork Producers Council.
                               Attachment
Written Testimony of National Pork Producers Council
Introduction
    The National Pork Producers Council (NPPC) is an association of 43 
state pork producer organizations that serves as the global voice for 
the nation's pork producers. The U.S. pork industry represents a 
significant value-added activity in the agriculture economy and the 
overall U.S. economy. Nationwide, more than 68,000 pork producers 
marketed more than 111 million hogs in 2013, and those animals provided 
total gross receipts of more than $20 billion. Overall, an estimated 
$21.8 billion of personal income and $35 billion of gross national 
product are supported by the U.S. hog industry. Economists Daniel Otto, 
Lee Schulz and Mark Imerman at Iowa State University estimate that the 
U.S. pork industry is directly responsible for the creation of nearly 
35,000 full-time equivalent pork producing jobs and generates about 
128,000 jobs in the rest of agriculture. It is responsible for 
approximately 111,000 jobs in the manufacturing sector, mostly in the 
packing industry, and 65,000 jobs in professional services such as 
veterinarians, real estate agents and bankers. All told, the U.S. pork 
industry is responsible for more than 550,000 mostly rural jobs in the 
United States.
U.S. Pork Producers Work To Protect Water Resources
    NPPC is proud to represent and work on behalf of pork producers 
committed to protecting water, air and other environmental resources 
that are in their care or potentially affected by their operations. 
NPPC has previously submitted detailed comments on the proposed 
``Waters of the United States'' rule. (A copy of those comments are 
attached to this statement.) NPPC offers the following observations and 
ask that they be included in the hearing record.
    In recent remarks, U.S. EPA Administrator Gina McCarthy told a 
group of farmers that she wishes EPA had named the WOTUS rule the 
``Clean Water Rule'' and that from this point forward that is what she 
is going to call it. NPPC welcomes this thinking and agrees with the 
Administrator, not because merely renaming the WOTUS rule will solve 
its numerous fundamental flaws that have caused so much concern for 
pork producers and all of agriculture. We don't think the Administrator 
means this either, for she understands nearly as well as the nation's 
hog farmers the folly of trying to make a silk purse out of a sow's 
ear. Instead, we agree with the Administrator because we sincerely 
believe that changing its name to the Clean Water Rule is an important 
first step toward finding our collective way out of today's 
jurisdictional policy maze that has trapped us all. Rather, focusing on 
the underlying concrete objectives of a newly-named Clean Water Rule is 
the way out. To pork producers, and anyone else with a deep 
understanding and appreciation of what it means to be a good steward of 
the lands and waters that feed and hydrate us, this means we should be 
talking about what it means to restore and protect water quality and 
water resources in both the aspirational and practical manners provided 
for in the Clean Water Act.
    Congress has set the structure and authorities of the Clean Water 
Act, and much of the law about this is quite clear. Within this system, 
we believe the point and non-point source tools that EPA currently has 
for working with the states, counties, cities and people such as pork 
producers are more than adequate for them to continue to maintain and 
improve water quality. There are, undoubtedly, vexing Clean Water Act 
jurisdictional questions under the law and applicable court decisions. 
We all need and want more jurisdictional clarity, and we understand the 
need for a rule that addresses this. But starting from the question 
``what is jurisdictional'' is functionally backward. The goal is clean 
water, not the forever-expansive growth of Federal jurisdiction over 
every drop of water and all land features and activities that affect 
that water, merely for the sake of jurisdiction.
    For the previous 6 years, pork producers and others in agriculture 
have wanted the opportunity to participate in a serious discussion 
about the state of the nation's water quality and what farmers can do 
to help improve it. Unfortunately, under former Administrator Lisa 
Jackson, EPA often sought to hold those conversations without any 
representative voices from agriculture. Since becoming Administrator, 
Gina McCarthy has worked hard to change that dynamic and repair the 
relationship with agriculture. Hopefully, her desire to rename the 
proposed rule and change its focus will continue to further that 
progress and enable all stakeholders to engage in a meaningful 
discussion about the concrete goals of the CWA and allow us to focus on 
what water features merit designation as WOTUS subject to direct 
Federal controls under the Clean Water Act. The CWA has an aspirational 
goal of making federally jurisdictional waters suitable for fishing and 
swimming, or other forms of recreation and habitat that involve 
relatively higher quality water conditions. For pork producers, these 
are the rivers and tributaries with substantial flows of water most of 
the time, lakes and the wetlands that are directly associated with 
them. We look at these and see the potential for broad agreement on the 
goals of the Clean Water Act applying.
    The same is not true, however, for a large proportion of the water 
features that are upstream from these aspirational waters. Either 
because of a lack of water flow, or their construction and use in 
industry and agriculture, such upstream features are not and will never 
be part of that set of waters that could be fishable and swimmable or 
otherwise capable of supporting the more high quality uses aspired to 
under the Clean Water Act. Farmers look at these upstream features, 
such as the ephemeral drainage ways in their fields, the former 
ephemeral streams next to their fields that now serve a drainage 
functions and low lying wetter portions of the fields that lay next to 
these other features, and ask why the Federal Government would want to 
make these things subject to the full Federal force and control that 
comes with the Clean Water Act? To them, it makes no sense.
    See, for example, the erosional feature captured in the photo in 
Figure A on page 9 of our attached comments. This is a photo from a 
farm field in Tennessee. We can show you photos in other farm fields 
with comparable erosional features. In these instances, public 
officials have told farmers these are now jurisdictional tributaries 
under the Clean Water Act. Given the proposed rule's definition of 
tributary, we agree. We wholeheartedly welcome Administrator McCarthy's 
commitment that EPA has heard loud and clear this problem and that the 
agency will amend the definition of tributary to exclude such features. 
We want her to know that farmers' concerns about calling many other 
upstream features WOTUS doesn't end with this type of erosional 
feature.
    For example, see Figures C & D (pages 14-15) and Figure E (page 17) 
in our attached comments to the proposed WOTUS rulemaking. Figure C is 
an aerial view of farm land in northeastern Iowa with tributary 
features mapped using the National Hydrography Database (NHD) that EPA 
developed with USGS for use in part in EPA's online ``MyWaters'' mapper 
program. Figure D is a closer view of one of the ``streams'' that the 
NHD identifies at this location. Visible in this image is what appears 
to be a distinct channel in a portion of the NHD's ephemeral stream. 
Figure E is a comparable image, from the same data source, of such 
streams in a prominent agricultural area of Michigan. It is fair to 
believe that the features in both Figures D and E are jurisdictional 
tributaries under the proposed rule. As NPPC has discussed in its 
comments, analysis by EPA and others of the NHD data set indicate that 
there are millions of miles of such ephemeral features in the country.
Regulations Already Exist To Control Nutrient Runoff
    We want the Committee, EPA and the public to know that pork 
producers wholeheartedly embrace their responsibility to make sure they 
are properly managing their manure to protect the water quality of the 
downstream water features that might be impaired because of nutrients 
moving through these upstream features. Not only are they committed to 
this, but they are required to do so as ``point sources'' under the 
Clean Water Act. The Clean Water Act is directly involved in pork 
operations through the Concentrated Animal Feeding Operation (CAFO) 
rule, which regulates how pork producers store, manage, handle and use 
manure in crop production. The standards they must meet are clear and 
unequivocal, spelled out in black and white in the CAFO rule.
    This means that even if remote water features would not themselves 
be jurisdictional, producers have obligations under the law to address 
pollutant losses that might move through them into downstream 
jurisdictional waters. The U.S. pork industry is committed to managing 
manure to prevent direct spills into drainage ditches or ephemeral 
drainage features or small streams that may not be jurisdictional. 
Producers are committed, in the rare case of such a spill happening, to 
stopping the movement of that spill downstream so as to protect 
downstream water quality. And they are committed to using sound 
agronomic and conservation practices and keeping the associated records 
when land applying manure so that the applicable CAFO rule standard is 
met.
    There is no need to make those remote or intermediate water 
features subject to Federal jurisdiction to have producers work on the 
movement or manure nutrients through them. The Clean Water Act already 
does that.
    These same protections from point source discharges that may reach 
jurisdictional waters indirectly, through nonjurisdictional waters, 
reach far beyond the U.S. pork industry; they encompass every point 
source discharger, as defined in the Clean Water Act. The Clean Water 
Act is unequivocal in providing that discharges are still point source 
discharges subject to NPDES permitting even if they reach a 
jurisdictional water indirectly, through a nonjurisdictional feature. 
Making those remote features WOTUS will not create any new or different 
permitting controls to impose on all of these other point sources, 
industrial, municipal or otherwise that may be discharging into the 
remote features.
    Similar considerations and circumstances apply to row crop 
agriculture and its non-point source discharges that might reach 
downstream jurisdictional waters through upstream water features. 
Farmers everywhere are adopting and updating practices to prevent or 
minimize stormwater discharges. Not only are farmers doing this on 
their own as part of caring for their fields and seeking to conduct 
efficient operations, the Clean Water Act has a program expressly for 
this purpose--section 319. Furthermore, this Committee has jurisdiction 
over several USDA conservation programs that spend billions of dollars 
every year to reduce sediment and nutrient losses from farm and ranch 
lands. Lastly, under ``Swampbuster,'' farmers are subject to severe 
penalties in the form of loss of crop insurance subsidies or other farm 
program payments if they drain, dredge, fill or level an agricultural 
wetland for the purpose of producing a commodity.
Upstream Features Shouldn't Be `Jurisdictional'
    Administrator McCarthy, in the aforementioned speech to farmers, 
firmly reiterated what the agency has said many times before: They do 
not intend to impose through this rulemaking any new restrictions on 
activities that now qualify for the Clean Water Act's exemptions from 
permitting as agricultural non-point source discharges. We take them at 
their word. Our question is: If that is the case, what is gained by 
making these upstream features jurisdictional when they have no real 
place, in and of themselves, in the Clean Water Act's aspirational 
scheme?
    If this rule will not impose new regulatory measures on row crop 
agriculture, the work to reduce or minimize sediment and nutrient 
losses to surface water will continue to be voluntary, under our 
voluntary Clean Water Act and farm bill programs and through 
Swampbuster. Making upstream features with little or no resemblance to 
the types of waters that fit with the Clean Water Act's aspirational 
goals adds no water quality value to the downstream waters that we all 
want to protect.
    EPA has basically argued through this rulemaking process that it 
wants to protect these upstream, more remote waters because of their 
importance to downstream waters. Our point is, all the protections and 
tools EPA needs to achieve this goal are in place under the Clean Water 
Act, without making these remote water features categorically 
jurisdictional. Yes, upstream drainage features have hydrological 
connections to downstream waters. Water does move with gravity. We 
agree. But if, as EPA has said, the goal is to protect those downstream 
waters, let's do that. Let's not make the upstream water features, 
which never will be fishable or swimmable, jurisdictional. At least, 
let's not do it categorically for the millions of miles of such 
features in the agricultural landscape across the country. If there are 
high quality upstream features that fit within the Clean Water Act's 
aspirational goals, EPA can make that call on a case-by-case basis. 
Otherwise, pork producers want to focus their time and effort on the 
work of managing sediments and nutrients to keep them out of waterways.
                               attachment
  Hon. Gina McCarthy,
  Administrator,
  U.S. Environmental Protection Agency
  Washington, D.C.;

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

RE: Environmental Protection Agency and U.S. Army Corps of Engineers 
            Proposed Rule to Define ``Waters of the United States'' 
            Under the Clean Water Act EPA-HQ-OW-2011-0880

    Dear Administrator McCarthy and Assistant Secretary Darcy:

    The National Pork Producers Council (NPPC) offers below comments on 
the Environmental Protection Agency and the U.S. Army Corps of 
Engineers (``Agencies'') proposed rule to define ``waters of the United 
States'' (WOTUS) under the Clean Water Act (CWA). These comments are 
being submitted, in addition to comments also submitted by NPPC as part 
of a coalition of farm and agricultural stakeholders together with the 
American Farm Bureau Federation, the Waters Advocacy Coalition, as well 
as the comments of the U.S. Chamber of Commerce. As stated in this set 
of comments, as well as in those other coalition comments, we believe 
there are numerous and substantial flaws with the proposed rule, 
including serious questions about the legal basis for the Agencies' 
approach to this proposal and several of the policies choices that the 
Agencies have made within the proposal, especially with regard to their 
impacts on agriculture. As a result, because of the numerous critical 
changes that must be made before this proposal, or its successor 
version, can be issued in final form, we believe the Agencies need to 
withdraw the entire proposal, rethink their underlying approach to the 
issue and better engage affected stakeholders throughout the process. 
Alternatively, if the Agencies are unwilling to withdraw the proposal 
entirely, we strongly urge that, following the close of the comment 
period and redrafting the proposal in response to the comments 
received, the Agencies re-propose the rule prior to issuing a final 
rule.
    Still, we recognize the tremendous amount of work that has gone 
into the preparation and issuance of this proposed rule and the 
commitment that work represents to the important and valuable goals of 
the CWA. Despite sometimes heated public rhetoric, we believe that the 
intent of the Agencies to minimize the impacts on agriculture of the 
proposal was clear, and we appreciate the effort that was made to 
address the unique challenges that face pork producers and all of 
agriculture as a result of the WOTUS proposal. We share a commitment to 
those goals and are thankful for this opportunity to provide you with 
these comments. We offer them in the hope that we can continue to work 
with you and other stakeholders on a sound final rule that will guide 
CWA jurisdictional decisions for many years to come.
1. Statement of Interest
    The National Pork Producers Council (NPPC) is an association of 43 
state pork producer organizations and the voice in Washington, D.C., 
for the nation's pork producers. The U.S. pork industry represents a 
significant value-added activity in the agricultural economy and the 
overall U.S. economy. Nationwide, more than 67,000 pork producers 
marketed more than 112 million hogs in 2013, and those animals provided 
total gross farm cash receipts of over $23 billion accounting for U.S. 
retail pork sales of over $54 billion.
    NPPC is proud of the reputation it and its members have earned for 
initiating innovative environmental improvement programs. NPPC and its 
producer members take an active role in advocacy at both the Federal 
and state levels for clean water environmental initiatives. 
Accordingly, the U.S. pork industry continues to treat as its top goal 
meeting worldwide consumer demand while simultaneously protecting 
water, air and other environmental resources that are in our care or 
potentially affected by our operations. Pork producers support the 
efforts of the Agencies to protect the health of children and the 
environment and understand the concerns is the Agencies are striving to 
address through this proposed risk mitigation decision. However, the 
swine industry has two general concerns with the approach the Agencies 
have taken so far.
2. General Comments
    The nation's pork producers are firm supporters of the CWA's goals 
and are committed to responsibly and wisely managing the manure 
produced by their animals to protect and restore water quality. Meeting 
the zero-discharge requirements of the CWA's Concentrated Animal 
Feeding Operations (CAFO) rule is a daily top priority for pork 
producers. Their animal housing and manure storage facilities are 
designed to contain 100 percent of the manure and wastes produced by 
the animals and to facilitate its safe, effective and efficient use as 
a crop fertilizer in farm fields. All of these activities are covered 
by specific requirements in the CAFO rule, and pork producers have 
embraced the required measures. Furthermore, nearly every major pork-
producing state has its own extensive regulatory and permitting 
requirements, equal to or in many cases beyond the Federal CAFO rule.
    Our producers' commitment to protecting water quality through the 
responsible and sound management of their animals' manure can be 
observed in farm fields wherever hogs are produced. This manure 
generally is used as a major source of nutrients to support crop 
production, adding to soil fertility and soil health. Pork producers 
know that manure management efforts are important to restoring and 
protecting the health and vitality of downstream, more-permanently 
flowing waters or traditional navigable waters (TNW). Pork producers' 
efforts to protect these waters, which are clearly jurisdictional under 
the CWA, start at the top of watersheds, commonly remote and a great 
distance from the TNWs, where their farms are found. They start on 
their own farms, in crop fields with drainage features, ditches and 
associated small streams that do not flow continuously.
    Protecting water quality, both locally in the upper reaches of 
watersheds and downstream in the TNW, is the goal of the CWA. Pork 
producers are committed to continuing to work toward that goal even 
though local drainage features, ditches and small waterways may not be 
WOTUS categorically. They may not be WOTUS because many such features 
commonly, but not necessarily always, lack the substantial, non-
speculative hydrological relationship to downstream TNWs. This 
relationship is not simply about chemical, physical or biological 
effects of the former on the latter. Establishing jurisdiction does 
entail taking into account the goals of the CWA. But the CWA also 
explicitly references navigability as a determinant of jurisdiction, 
and any effort to interpret jurisdiction must give sufficient meaning 
to this term. There must be sufficient hydrology moving through these 
upper watershed drainage features, ditches or small waterways to make 
it clear they are significant contributors to the navigability 
characteristic of a TNW. Only once such a relationship is established, 
case by case, is it proper for a determination to be made that such 
drainage features could be a WOTUS. Furthermore, only after 
establishing such a nexus can it be possible for a wetland adjacent to 
that feature to also be a WOTUS.
    Like others in agriculture, pork producers are greatly concerned 
that under this proposed rule at least 5 million miles of remote 
drainage features, ditches and remote, ephemeral waterways and millions 
of acres of wet spots or farmed wetlands in fields are going to become 
jurisdictional. We find this result is not only inconsistent with the 
Supreme Court's direction to the agency but that it is also highly 
counterproductive and will drastically undermine the ongoing successful 
efforts to prevent nutrients and sediments from reaching local 
waterways and the TNWs.
3. Summary of the Proposed Rule
    Key elements of the Agencies' definition for WOTUS are largely 
unchanged from previous rulemakings and are part of the settled law on 
this subject; traditionally navigable waters (TNW), interstate waters 
and territorial seas, as well as impoundments of such waters, are all 
clearly WOTUS under the law and as addressed in the proposed rule. 
Furthermore, also jurisdictional are wetlands that abut these features.
    Most of the other major features identified in the proposed rule as 
WOTUS reflect the application of a relatively new and still 
insufficiently defined concept in CWA jurisdiction: ``significant 
nexus.'' Under the proposed rule, all ``tributaries,'' all 
``impoundments'' of all tributaries and all wetlands and wet areas 
``adjacent'' to these tributaries are categorically defined as WOTUS. 
Ditches, with two exceptions, are considered tributaries and, 
therefore, categorically WOTUS, regardless of the quantity, duration or 
frequency of the flow in them. Beyond these ``categorically'' WOTUS 
tributaries and adjacent waters, the proposed rule provides for finding 
``other,'' more remote waters or wetlands to be WOTUS on a case-by-case 
basis.
    The proposed rule's reliance on or use of the significant nexus 
concept, as well as the rule's treatment of tributaries (including 
ditches), waters or wetlands defined as adjacent to these tributaries 
and the ``other'' isolated waters or wetlands, are discussed in more 
detail below.
A. Significant Nexus, Categorical and Case-by-Case WOTUS
    The proposed rule states that ``significant nexus means that a 
water, including wetlands, either alone or in combination with other 
similarly situated waters in the region (i.e., the watershed that 
drains to the nearest water identified in paragraphs (1)(i) through 
(iii) of this definition), significantly affects the chemical, 
physical, or biological integrity of a water identified in paragraphs 
(1)(i) through (iii) of this definition. For an effect to be 
significant, it must be more than speculative or insubstantial. Other 
waters, including wetlands, are similarly situated when they perform 
similar functions and are located sufficiently close together or 
sufficiently close to a `water of the United States' so that they can 
be evaluated as a single landscape unit with regard to their effect on 
the chemical, physical, or biological integrity of a water identified 
in paragraphs (1)(i) through (iii) of this definition.'' (See 79 FR 
22263, April 21, 2014).
    In attempting to assess what this nexus might be, the Agencies 
conducted an in-depth review of the science on the nature of 
connections between upstream waters or wetlands and the downstream TNW 
(see the Connectivity Report). The Connectivity Report discusses in 
numerous instances connections and effects of certain types of waters 
on downstream waters. However, the Connectivity Report does not 
distinguish in any scientific or quantifiable manner the relative 
strengths of these effects, nor does it quantify or identify the 
gradient of effects that may exist. While that report does make mention 
of the existence of a ``gradient'' or degree of such connections and 
their effects, and the Agencies make mention of that minimal discussion 
of a gradient in the proposed rule's preamble (See page 22193), the 
Agencies did not craft any indicators or measures of the degree of 
these effects. Instead, the Agencies considered the Connectivity 
Report's findings that tributaries and adjacent waters have some 
connection to downstream waters; that they have some chemical, physical 
or biological effects on those TNW; and that these effects are 
``significant'' ``in light of the law and science'' and constitute a 
significant nexus categorically. (See pages 22195-22196).
    This same definition of ``significant nexus'' is, in turn, to be 
used under the proposed rule in the case-by-case determinations of what 
are WOTUS in the instances of the (a)(7) ``other'' waters that are 
remote and not considered ``adjacent'' to tributaries. In deciding to 
use this significant nexus definition, the Agencies explicitly discuss 
the decision not to develop objective measures to determine 
significance in the case of these ``other'' waters, saying that to do 
so would restrict the necessary flexibility needed to make site-
specific decisions case by case.\1\
---------------------------------------------------------------------------
    \1\ ``The Agencies do not propose absolute standards such as flow 
rates, surface acres or a minimum number of functions for `other 
waters' to establish a significant nexus. A determination of the 
relationship of `other waters' to traditional navigable waters, 
interstate waters or territorial seas and, consequently, the 
significance to these waters requires sufficient flexibility to account 
for the variability of conditions across the country and the varied 
functions that different waters provide.'' (22198.)
---------------------------------------------------------------------------
B. Tributaries and Ditches
    The proposed rule defines for the first time how the Agencies 
understand the term ``tributaries,'' then uses the ``significant 
nexus'' finding (as discussed immediately above) to make all such 
tributaries WOTUS. Tributaries are defined as waters physically 
characterized by the presence of a bed and bank and ordinary high water 
mark (OHWM) and that contributes flow to a TNW and other waters. Any 
feature with those characteristics will be a tributary and, therefore, 
WOTUS no matter the quantity or duration of the flow. Tributaries with 
water flowing perennially (year round), intermittently (only in a 
season or part of a season or seasons, no matter how short the 
duration) or ephemerally (when rain falls and there is surface runoff) 
are categorically WOTUS.
    Former ephemeral or intermittent streams that have been improved 
(e.g., straightening, channeling, widening) to serve some other purpose 
(e.g., drainage or water transport) are still a tributary and, 
therefore, WOTUS. The proposal states that a water that otherwise 
qualifies as a tributary under this definition does not lose its status 
as a tributary if, for any length, there are one or more man-made 
breaks so long as a bed and banks and an ordinary high water mark can 
be identified upstream of the break. In the Agencies' view, tributaries 
in a watershed are similarly situated and have a significant nexus 
alone or in combination with other tributaries because they 
significantly affect the chemical, physical or biological integrity of 
TNW and other jurisdictional waters.
    Ditches, having a bed, bank and an OHWM, are considered to be 
tributaries and, therefore, categorically WOTUS, with two exceptions. 
The ditches that are WOTUS may have water in them ephemerally, 
intermittently or perennially. The classes of excluded ditches are (1) 
those excavated wholly in uplands, drain only uplands and that have 
flowing water in them less than permanently, and (2) those that do not 
contribute flow, either directly or indirectly, to a downstream WOTUS. 
Relative to the first exclusion, the term upland is not defined in the 
rule.
C. Adjacent Waters
    All waters adjacent to TNW, tributaries, waters used in commerce, 
territorial seas and impoundments are WOTUS. The term ``adjacent'' 
means bordering, contiguous or neighboring. Waters, including wetlands 
separated from other WOTUS by man-made dikes or barriers, natural river 
berms, beach dunes and the like, are adjacent waters. The term 
neighboring includes waters located with the riparian area or 
floodplain of a TNW or tributary or other similar water and waters with 
a shallow subsurface hydrologic connection or confined surface 
hydrologic connection to such waters.
    Where a particular water body is outside of the floodplain and 
riparian area of a tributary but is connected by a shallow subsurface 
hydrologic connection with such tributary, the Agencies will assess the 
distance between the water body and tributary in determining whether or 
not the water body is ``adjacent.'' The size of a floodplain will also 
vary and require the professional judgment of the Agencies to determine 
which flood interval to use to determine whether a water is in the 
floodplain and, therefore, adjacent to a jurisdictional water and a 
WOTUS for the purpose of this rule.
D. Other, Isolated Waters
    ``Other waters'' are simply all other waters that have not already 
been defined to be jurisdictional or that are not otherwise excluded. 
The definition of ``other waters'' makes clear they are not 
jurisdictional as a category of waters. Rather, they are jurisdictional 
provided they are found on a case-by-case basis to have a significant 
nexus to TNW. Other waters will be evaluated either individually or as 
a group of waters, where they are determined to be similarly situated 
in the region. Waters are similarly situated where they perform similar 
functions and are located sufficiently close together or when they are 
sufficiently close to a jurisdictional water. For other waters that 
perform similar functions, their landscape position within the 
watershed relative to each other or to a jurisdictional water is 
generally what determines how they are aggregated in a significant 
waters analysis.
4. Physical & Practical Implications of the Proposed Rule
A. WOTUS Tributaries and Drainage Features in Farming Regions
    The Agencies have defined in the proposed rule, for the first time, 
what they believe a tributary is. In doing so as part of a notice and 
comment rulemaking, it is now possible to more effectively evaluate the 
scope and extent of what the Agencies understand to be CWA jurisdiction 
in terms of tributaries and wetlands or waters that may be adjacent to 
them. The Agencies' decision to treat all tributaries, no matter the 
amount of water flow involved, as WOTUS is overbroad and inconsistent 
with the direction and intent of the Supreme Court's holding. Aside 
from this basic issue of the rule's lawfulness, the potential scope and 
reach of making all ephemeral and intermittent tributaries 
jurisdictional are simply extraordinary. In practice, simply relying on 
the plain English meanings of the proposed rule, literally millions of 
miles of drainage features in every part of every farming region of the 
country will exhibit to some extent or another bed, bank and ordinary 
high water mark characteristics. In many cases those exhibited 
characteristics will be sufficient to make them tributaries under the 
rule.\2\ In most other cases, they will be sufficient enough to make 
these features an attractive physical foundation for activist 
litigation against farmers.
---------------------------------------------------------------------------
    \2\ Indeed, regardless of whether the Agencies affirmatively 
delineate any specific tributary or drainage as jurisdiction in the 
future, the strong likelihood that they will be deemed so based on a 
plain reading of the rule will trigger significant changes in the 
relationship between landowners and other third parties.
    For instance, as detailed in comments submitted by members of the 
agricultural banking, agricultural lending and agricultural credit 
industries, the potential that these features are jurisdictional--and 
the fact that they appear within the USGS National Hydrography Database 
as well as EPA's own internal mapping analysis--will be enough for a 
lender to assume they are. This in turn will result in lenders seeking 
to mitigate any risk, either from activist litigation or potential 
government enforcement action, by directly raising the cost to access 
the capital necessary to operate a farm, from buying seeds for spring 
planting to building grain storage or barns for housing livestock, and 
to impose various additional requirements on farmers' operations as a 
predicate to obtaining capital.
    Needless to say, the Agencies' calculation of the economic impacts 
of the proposed rule failed to account in any manner for these types of 
direct impacts on stakeholders or the overall economy.
---------------------------------------------------------------------------
    The image in Figure A below was taken this past spring in a 
Tennessee farm field. The Corps of Engineers determined in the case of 
this field that the drainage feature running through it is a WOTUS. As 
a result, the owner of this property now needs a CWA Section 404 permit 
to begin developing the property, and such a permit would require that 
the lost ``functions and values'' from this so-called stream would need 
to be mitigated. The cost of this permit and associated mitigation 
efforts would be in excess of $500,000, and the time involved would 
easily take 1 to 2 years, possibly more.
    This is not an accident, nor does it appear to be the result of 
unusually aggressive Corps field staff. Figure B is a picture from the 
Army Corps of Engineers' guidance for field staff on how to determine 
what is a tributary through the identification of a bed, bank and an 
ordinary high water mark. The ``stream'' identified here is non-
perennial and is characterized as having ``gradual (weak) breaks in 
slope'' and, while it is lacking ``evidence of strong vegetation 
changes,'' the sediment characteristics allow the channel to be 
identified. This depiction of the feature in Figure B could easily 
apply to that in Figure A. The fact is, this type of farm drainage 
feature is ubiquitous in farming areas. Such features simply do not 
merit designation as waters of the United States subject to Federal 
jurisdiction and control.\3\
---------------------------------------------------------------------------
    \3\ ``A Guide to Ordinary High Water Mark (OHWM) Delineation for 
Non-Perennial Streams in the Western Mountains, Valleys, and Coast 
Region of the United States,'' ERDC/CRREL TR-14-13, August 2014. Page 
23.
---------------------------------------------------------------------------
Figure A: WOTUS Tributary in TN Farm Field as Determined by the Corps 
        Earlier This Year
        
        
Figure B: Drainage Feature Considered To Have Bed, Bank and Ordinary 
        High Water Mark Under Recent Army Corps Guidance on This 
        Subject
        
        
    Miles of Likely Jurisdictional Features--Table A-1 in Appendix One 
presents the calculated number of miles for many but not all of the 
perennial, intermittent and ephemeral streams in 20 states, as captured 
in the USGS National Hydrography Database (NHD). Using the 1:100,000 
medium resolution dataset, which roughly approximates the perennial and 
intermittent streams, we estimate there are slightly more than 
approximately 1.6 million miles of such streams in these 20 states 
alone. Using the 1:24,000 NHD dataset, which roughly approximates the 
perennial and intermittent streams plus about 35 percent of the 
ephemeral streams on average, we calculate that in these 20 states the 
number of stream miles jumps to approximately 3.5 million. That 1.9 
million mile increase in streams between the medium resolution and high 
resolution estimates is because of, in large extent, the addition of 
the 35 percent of ephemeral streams to the calculation. The increase in 
stream miles would certainly be significantly higher if 100 percent of 
the ephemeral streams were included in the calculation.
    EPA has conducted a similar mapping analysis of stream miles, and 
the results of that effort are posted on the U.S. House of 
Representatives Science Committee's website. The national analysis 
presented there indicates that there are 7,339,124 miles of linear 
streams in the United States (including Puerto Rico). Of these, 77 
percent or 5,661,337 miles are intermittent or ephemeral streams.\4\
---------------------------------------------------------------------------
    \4\ See http://science.edgeboss.net/sst2014/documents/epa/
national2013.pdf.
---------------------------------------------------------------------------
    Ditches and Farmed Wetlands--``Farmed wetland'' is a formal term 
developed through rulemaking under the Swampbuster authorities 
contained in Title XII of the 1985 Food Security Act (as amended in 
every farm bill since 1985). Farmed wetlands are generally determined 
to be wetlands under the wetlands manual used by the Army Corps of 
Engineers. As wetlands, any farm drainage ditch associated with water 
drainage from them would not qualify for the upland ditch exclusion. 
Drainage from these farmed wetlands is common. Farmed wetlands drain 
through overland flows under certain circumstances, or through field 
drainage systems. The area is still a wetland since it retains enough 
hydrology. Despite the drainage, the soils are nevertheless hydric and, 
under ``normal'' conditions as defined by the Food Security Act of 
1985, hydrophytic vegetation would be present.
    The most recent assessment that we are aware of concerning the 
number of farmed wetlands found in cropland and similar agricultural 
wetlands found in pasture of range lands was conducted by the USDA 
Economic Research Service (ERS) in 1998. USDA ERS estimated at that 
time that there were approximately 10.5 million acres of ``farmed 
wetlands'' in cropland and almost 8 million acres of wetlands in 
pasture areas and 8 million in range areas--more than 26 million acres 
in total.\5\
---------------------------------------------------------------------------
    \5\ Wetlands and Agriculture: Private Interests and Public 
Benefits, by Ralph Heimlich, Keith Wiebe, Roger Claassen, Dwight 
Gadsby, and Robert House, Agricultural Economic Report No. AER-765, 
September 1998, Table 3, page 22 (see http://www.ers.usda.gov/
publications/aer-agricultural-economic-report/aer765.aspx).
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B. Adjacent Waters in Agriculture
    The proposed rule makes categorically WOTUS all wetlands and waters 
that are adjacent to TNW, tributaries, waters used in commerce, 
territorial seas and impoundments. New to this definition is the 
addition of the term ``waters'' (as in ``wetlands and waters'') to 
features that can be considered adjacent and, therefore, WOTUS. This is 
a significant expansion of the scope of the rule, as discussed below.
    The term adjacent means bordering, contiguous or neighboring. 
Waters, including wetlands separated from other WOTUS by man-made dikes 
or barriers, natural river berms, beach dunes and the like are adjacent 
waters. The term neighboring includes waters located within a river's 
or a tributary's biologically active riparian area or in its 
floodplain. Wetlands with a shallow subsurface hydrologic connection or 
confined surface hydrologic connection to rivers or their tributaries 
also are WOTUS.
    Where a particular water body is outside of the floodplain and 
riparian area of a tributary but is connected by a shallow subsurface 
hydrologic connection with such tributary, the Agencies will assess the 
distance between the water body and tributary in determining whether or 
not the water body is adjacent. The size of a floodplain will also vary 
and require the professional judgment of the Agencies to determine 
which flood interval to use to determine whether a water is in the 
floodplain and, therefore, adjacent to a jurisdictional water and a 
WOTUS for the purpose of this rule.
    The number of acres of land within which wetlands or waters could 
be found to be adjacent to a WOTUS and, therefore, categorically WOTUS 
is exceedingly large. The analysis that NPPC and several other 
agricultural groups conducted this summer, as discussed earlier and in 
Appendix One, used conservative assumptions about the possible size of 
the floodplains in 20 states and found that they encompassed 114 
million acres of land. We used the Federal Emergency Management 
Agency's (FEMA) 100 year floodplains in these 20 states, plus the land 
in 70 wide buffers around the smaller tributaries for which a FEMA 
floodplain is not available. As in the case for the estimates of the 
number of ephemeral stream miles from the USGS National Hydrography 
Database (NHD), this 114 million acre, 20 state figure is likely a 
significant underestimate since the NHD reflects on average 
approximately only 35 percent of the ephemeral streams in these states. 
The acres in floodplains around 100 percent of these streams would 
certainly be significantly higher than 114 million acres.
    Floodplain areas of this size would certainly encompass large 
quantities of agricultural acres and could lead to a significant number 
of wet areas or farmed wetlands to be found ``adjacent'' to a tributary 
and, therefore, WOTUS. Figure 5 below is an aerial image of an example 
of this from a farm in the southern United States. This farm field has 
a small depressional area (see circled area) in a corner of a field on 
three sides that includes a small tributary, which is mapped in the NHD 
dataset.
    A small depression in a farm field can have standing water in it 
for a few days. Such depressions commonly do not have water in them for 
long periods of time and do not have the type of vegetation that would 
constitute making them wetlands, but that occurs as well. Yet if the 
drainage feature to which this water feature is adjacent is a WOTUS (as 
a former ephemeral stream, for example, improved for drainage 
purposes), this water feature could easily be considered a ``water'' 
under the proposed definition of adjacency and, therefore, 
categorically WOTUS. As such, when this area is cropped in dry years, 
it would be subject to the same section 402 liabilities discussed above 
in the case of tributaries in farm fields. As an adjacent water and, 
therefore, a WOTUS, this depressional area would also be subject to 
section 404 dredge and fill permitting requirements and liabilities as 
well.
    NPPC does not have estimates of the number of such small, 
occasionally flooded low spots in farm fields across the country. But 
it is fair to expect that any farm field of any size in a farming area 
with modestly rolling typography will have at least one of these, 
meaning the number of these small depressional wet areas runs well into 
the millions. These occasionally wet or ponded areas in farm fields 
should not be categorically WOTUS as an ``adjacent'' water.
C. Mapping and Photo Imagery of Likely Jurisdictional Features
    What does this look like in practice? Figure C below is an image 
from the mapping analysis for northeast Iowa. What is evident from this 
image is that there is hardly a farm field in view that is not crossed 
by or intersected with one of these mapped streams. It is likely that 
the vast majority of the features depicted here have water in them only 
ephemerally, only after a rainfall.
    It is also critical to realize that for those streams that are 
tributaries under the rule, including those that have drainage water in 
them only after a rainfall, any field-side or roadside drainage ditch 
they flow to will also be WOTUS (under the proposed rule any ditch 
draining a WOTUS is also a WOTUS). If all of these mapped streams are 
WOTUS, it is highly likely that every drainage ditch in this 
102 mile area is a WOTUS even if it has water in it less 
than permanently.
Figure C: USGS ``NHD Plus'' Mapped Ephemeral and Intermittent Streams 
        and Wetlands in Northeast Iowa Farming Region. Upper Image Is 
        With Aerial Photography. Bottom Is Same Location With Gray 
        Background
        
        
          Geosyntec Consultants.
          Source: Esrl. DigitalGlobe, GeoEye, i-cubes, Earthstar 
        Geographics.

    Will all of the mapped features, including the numerous ones that 
are ephemeral, be found to be a tributary as defined in the proposed 
rule through a formal determination? Every farm depicted here has to 
worry about that since using USGS NHD data and even EPA's online ``My 
Waters Mapper,'' labels features such as these streams or ditches.
    See, for example, the image in Figure D below, which is a detail 
from Figure C in northeast Iowa. Visible in this image is what appears 
to be a distinct channel in a portion of the NHD's ephemeral stream. It 
is a fair working assumption that this feature is a jurisdictional 
tributary under the proposed rule, since a tributary does not have to 
have the channel throughout its length, as specified in the rule. 
Anyone farming this very typical Iowa farmland faces a host of serious 
and negative consequences. This is because this ephemeral feature, 
clearly managed for purposes of draining farm fields, will likely be 
jurisdictional under the proposed rule. As discussed elsewhere in these 
comments, analysis by EPA and others of the NHD data set indicate that 
there are millions of miles of such ephemeral features in the country.
Figure D: Detail View From Figure C. Note the Visible ``Channel'' in 
        Some Portions of the Ephemeral Stream
        
        
    For example, the imagery in Figure E is from the ``thumb'' region 
of Michigan. The upper image has the NHD-Plus mapped features. States 
can vary in the labels they give to USGS as part of the NHD data 
collection process, and in Michigan's case in this part of the state 
these features, some of them with obvious stream-like characteristics, 
are labeled as ``canal/ditch.'' The upper image covers multiple fields, 
and the lower image is cut from one of the fields with the NHD line 
turned ``off.'' Again, clearly visible is an actual physical channel 
and the characteristic streamlike morphology for the drainage area that 
lies under the mapped flowlines.
Figure E: Stream-like NHD ``Canal/Ditch'' Features in Michigan Thumb, 
        With Detail View of Visible Channel
        
        
    NPPC encourages the Agencies, before finalizing this rulemaking, to 
conduct a thorough and accurate field review of this class of features 
across the country and to provide NPPC and the rest of agriculture with 
their assessment of the likely jurisdictional consequences for these 
features.
    Lacking such an assessment, the Agencies have undertaken this 
rulemaking in the absence of critical and important information to help 
them and the public assess the practical effects of the policies being 
advanced in the proposed rule.
D. Practical Consequences of the Proposed Rule
    Uncertainty and Confusion--In the proposed rule, as well as 
throughout the rulemaking process, the Agencies have made it extremely 
clear that one of the primary goals for the proposed rule is to create 
certainty for the regulated community. Unfortunately, for pork 
producers and others in agriculture, the rule fails to do that. Rather, 
in fact and practice, the exact opposite will occur. The farm drainage 
features depicted here, many with visible channels even at this 
elevation and visible in farm fields in nearly every farming region in 
the country, appear to be WOTUS. While the Agencies continue to stress 
in their public statements that many of these features won't be WOTUS, 
the plain language of the rule leads farmers to a different conclusion. 
While the Agencies claim that any formal determination of a drainage 
feature as a WOTUS will only occur following the outcome of a formal 
determination, the inability to know what the outcome of that process 
will be is a source of tremendous uncertainty for farmers. Not only is 
there uncertainty created by the definition of tributary as it might be 
interpreted in the field, every farmer knows that that field judgments 
will have their own uncertain outcome, depending on the subjective and 
different judgment calls made by different agency personnel.
    There also are the uncertainty and liability farmers potentially 
face from citizen suits alleging on the basis of these apparent facts 
that these are in fact tributaries. Those suits will claim, following 
the logic of the proposed rule, that these features (and the fields 
they drain) have a ``significant nexus'' to a WOTUS and a TNW and are, 
therefore, critical to the ``chemical, physical and biological 
integrity'' of the nation's jurisdictional waters. Further, following 
the logic of the proposed rule and the structure of the CWA, these 
suits will also claim that such drainage features require their own CWA 
``water quality standards,'' that they must be ``assessed'' as to 
whether they are ``attaining'' their ``designated use'' and, if 
``impaired,'' that they must have a ``TMDL'' applied to them.
    Citizen Suits and New Permitting Liabilities Created by the 
Proposal--Beyond these concerns, and even more fundamentally important, 
are the concerns for what will happen as a result of agency action or 
activist litigation if these farm drainage features are made WOTUS and 
subject to permitting under section 404 and section 402 of the CWA.
    The Agencies rightly point out that this rulemaking has not changed 
the application of the section 404 exemptions for ``normal farming 
activities'' or the application of the ``agricultural stormwater 
exemption'' from section 402 permitting. We agree. But there is far 
more and far more troubling consequences of making these drainage 
features WOTUS.
    In making these farm drainage features WOTUS, the Agencies are 
inviting an ever-increasing wave of activist lawsuits, many of which 
are designed not to protect the environment or water quality but to 
advance issues such as veganism, animal welfare and opposition to 
modern science and to restrict farmers ability to decide what crops 
they grow and prevent them from utilizing modern scientific 
advancements that make food and crop production more efficient and 
reliable.
    As an initial matter, the Agencies must expect that this wave of 
lawsuits will challenge the application of fertilizers and pesticides 
onto, over, into or near these drainage features, arguing that the 
fertilizer or pesticide applicator is a point source and that a section 
402 National Pollution Discharge Elimination System (NPDES) permit is 
required to farm the land. This was the logic adopted by the Cotton 
Council decision, which held that aquatic pesticides applied from a 
nozzle onto, over, into or near WOTUS require a CWA NPDES permit. The 
court reached this conclusion even though the pesticides are only 
allowed to be used under separate, longstanding Federal pesticide law, 
following a mandated rigorous and expensive scientific study, review 
and labeling process.
    The lawsuits challenging farmers' use of terrestrial pesticides 
under the agricultural stormwater exemption, even though used under a 
label and requirements created in the Federal process, would 
effectively result in the Federal NPDES permitting of the use of 
pesticides in the entire farm field or the establishment of mandatory, 
large buffers around these features in which agricultural production 
would not occur. The same is true for the use of any fertilizer 
(whether manure or synthetic) near or in these drainage features. This 
could occur despite the fact that society is dependent on the ability 
of farmers to fertilizer agricultural fields to provide the food and 
nutrition necessary to sustain life.
    What's more, these suits will actually decrease water quality. It 
is universally recognized as appropriate and necessary, including under 
Federal conservation practice standards, to fertilize the grass stands 
in and immediately adjacent to these drainage features to ensure a 
healthy, erosion-controlling and soil-stabilizing stand. The anti-
agriculture activist lawsuits that EPA is inviting through this 
rulemaking will simply be able to ignore the long-standing agricultural 
stormwater exemption, which was essential to Congress's passage of the 
Clean Water Act in the first place, and to create a system that 
provides a significant disincentive for farmers to appropriately manage 
their drainage and install conservation measures.
    In the case of the section 404 dredge and fill permitting program, 
it is pork producers' experience that if the drainage features such as 
those depicted in Figures 1 and 2 are made WOTUS, or could possibly be 
WOTUS, farmers in many parts of the country will invariably face 
stepped up section 404 obligations, costs and liabilities. This will be 
despite the ``normal farming exemption'' in section 404(f)(1). At a 
basic level this will be for the simple reason that there will be an 
exponential increase in the number of instances farmers will need to 
seek from the Corps the normal farming exemption. Time and costs will 
be involved in those requests in nearly every instance. Furthermore, 
the Corps in many of its districts has a long history of being very 
reluctant to grant the normal farming exemption (claiming a recapture 
of the activities under section 404(f)(2)) or of being able to impose 
certain constraints on activities in granting the normal farming 
exemption.
    The issues under section 404 do not stop there. The section 
404(f)(1) normal farming exemption does not include many activities, 
such as land shaping, that may occur in these drainage systems to 
facilitate the creation or management of more effective farm 
drainageways. Making these ephemeral and intermittent drainage features 
WOTUS will invariable result in more section 404 permitting in farm 
country. All of these section 404 concerns could result from either the 
Corps' own implementation of its program in light of the rulemaking or 
as a result of activists' lawsuits under the CWA, forcing the Corps, or 
farmers, to do so.
    This rulemaking cannot and must not be conducted without taking 
into full account the long history of the CWA, with several recent 
examples during the past 6 years, where activist groups have pursued 
legal challenges to the Agencies' policies and the private sectors' 
actions. These suits were made possible by the ``creative'' or 
``imaginative'' interpretations of the Agencies' authority under the 
CWA. The suits themselves take that logic further and expand the 
authorities beyond even those in the red letter versions of rules and 
guidance. No one should be naive enough to think that such litigation 
will not follow this rulemaking if finalized in its proposed form or 
close to it. Indeed, if this rule is finalized, EPA, the Army Corp of 
Engineers and the U.S. Department of Agriculture should expect activist 
challenge to pesticide or fertilizer application and efforts to force 
permits on farmers for things as basic as planting seeds (especially if 
that seed has benefited from the advances of modern science). The fact 
that in the recent past there is an overwhelming abundance of evidence 
showing the Agencies deliberately formulated policy in rulemaking, 
guidance or out-of-court settlements to facilitate this kind of 
destructive follow-on activist litigation makes NPPC and the rest of 
agriculture exceedingly cautious about this proposed rule and its 
implications.
    The bottom line is that EPA's own mapping analysis discussed above 
estimated that for the nation there are more than 5 million miles of 
ephemeral and intermittent streams. All of these certainly do not lie 
in farm country. But it is reasonable to assume that since farming and 
ranching are the most common land use in states, most of these 5 
million miles of streams are in farming and ranching country. Each of 
those likely millions of stream miles overnight would become for 
farmers, with the simple stroke of a pen, a potential and very serious 
regulatory or legal liability that did not exist before this rulemaking 
if it is finalized in its proposed form.
5. The Proposed Rule & the Law
    NPPC is a member of the Waters Advocacy Coalition (WAC), and we 
endorse and support the comments that the WAC has submitted on the 
proposed rule. We draw your attention to the detailed comments on the 
lawfulness of critical elements of the proposed rule and ask that you 
consider these carefully. Below we restate some of these same views, 
offering our own perspective on the nature and implications of these 
matters.
    The proposed rule struggles with a difficult issue: Which of the 
non-navigable tributaries, waters adjacent to tributaries and 
impoundments of them and other more remote and isolated waters are 
properly considered subject to Federal CWA jurisdiction (``non-
navigable waters''). The statute, as it has come to be understood 
through three Supreme Court decisions, does not solely encompass 
navigable waters. Congress signaled an intent to make jurisdictional at 
least some of the non-navigable waters. The factual subject matter of 
this dispute between us and the Agencies as it has played out in the 
three cases before the Supreme Court has involved wetlands and when 
these non-navigable waters should be jurisdictional. The Agencies had 
adopted a broad view of their jurisdiction in the case of wetlands, and 
the Court addressed those. We were not aware that the Agencies had also 
adopted a similarly broad and extensive view of their jurisdiction over 
non-navigable tributaries since this has never before been developed or 
discussed in a meaningful way in any rulemaking. But these Supreme 
Court decisions, particularly the last two, have brought matters 
involving both wetlands and tributaries to a head, and for the first 
time the Agencies have defined in rulemaking what they mean by 
tributary, the extent of Federal jurisdiction over these features and 
what that also means for wetlands and other waters.
    We are of the view that the Supreme Court decisions provide 
sufficient guidance to the Agencies on these non-navigable waters 
questions, not only for wetlands but also for the tributaries to which 
those wetlands may be either associated with or remote from. As the 
Agencies have worked over the last 40 years to understand the scope of 
the CWA's jurisdiction beyond the navigable waters, it is fair to say 
that agriculture and many other private interests have uniformly found 
the Agencies' interpretations of this scope to be far too broad. This 
remains the case in the instance of this proposed rule, in light of 
these Supreme Court decisions, as we discuss below.
    The foundational concept out of the two most recent decisions comes 
back to the question of navigability and that jurisdictional decisions 
must give meaning to the term navigable as it is used in the statute to 
define jurisdiction. As difficult, complicated and highly imperfect a 
job it is to find a way to give meaning to that term, it must be done. 
The bottom line in our view is that non-navigable waters can be 
jurisdictional under the CWA where there is a substantial hydrological 
contribution to navigable waters. That substantial contribution must be 
sufficient to allow these non-navigable waters to be considered a 
significant part of a system of waters whose defining feature is 
navigability. This is the case notwithstanding the fact that the 
significance of chemical, physical or biological effects on TNW can 
also be taken into account. In our view, though, these latter effects 
are not necessary and certainly not sufficient to establish 
jurisdiction. These chemical, physical, and biological effects are, of 
course, central to the goals of the CWA, which is about restoring the 
chemical, physical and biological integrity of the nation's waters. We 
wholeheartedly embrace and support this goal. The goal informs and 
guides work all of us, including pork producers, must be doing around 
and in the nonjurisdictional waters. But the goal does not define 
jurisdiction and where the full weight and regulatory mechanisms of the 
CWA come into play. Navigability does.
    The Supreme Court decisions have lead the Agencies to try to answer 
this question of which non-navigable waters are jurisdictional in terms 
of a ``significant nexus.'' That is appropriate in light of those 
decisions. We believe, though, that the Agencies have failed to define 
``significant nexus'' in a meaningful, non-arbitrary manner. The 
Agencies are given deference on matters of judgment and science if they 
have gone through a reasoned process to arrive at their position, even 
if contrary views are possible. The definition offered for significant 
nexus, though, fails such a test since it says, in essence, that a 
significant nexus is a nexus that is significant and substantial. Not 
only have the Agencies failed to define significant or substantial in 
meaningful terms, the definition's application in the field will 
necessarily be highly subjective and arbitrary. As result, substantial 
work on and changes to this definition will be necessary before a final 
rule can be issued.
6. Suggested Changes to the Proposed Rule
A. Significant Nexus
    We strongly encourage the Agencies to take time to work through the 
science record to develop some concrete, quantitative measures of the 
degree of effects between non-navigable and navigable waters. This is 
the case whether the Agencies accept our view that those effects must 
be grounded in the concept of navigability or rely on the broader 
chemical, physical or biological effects investigated in the 
Connectivity Report. We note that the Science Advisory Board's comments 
to the Agencies on the Connectivity Report took direct note of the fact 
that clear gradients of effects do exist, and it encouraged the 
Agencies to develop that science and thinking further. We could not 
concur more.
B. Defining Upland
    As discussed above, a host of problems with the proposed rule stem 
from the term ``upland'' not being defined. We recommend that upland be 
defined as the parts of the landscape from which water moves off 
predominately in the aftermath of wet weather. This water can move 
either as sheet flow or as concentrated flow through conveyances of 
some type. The key is that the water is flowing because of specific 
weather events. The water can flow ephemerally or seasonally as a 
result of weather. We fully support the proposed exclusion from 
jurisdiction of any upland ditch that flows less than permanently.
C. Farm Drainage Features
    We recommend that upland drainage features be excluded from being 
treated as WOTUS, though the Agencies can retain the ability to deem a 
feature WOTUS on an individual case-by-case basis, following on-farm 
visits and review of relevant data using the improved version of 
significant nexus as discussed above. In doing so, there should be a 
clear regulatory presumption that the drainage feature is excluded. If 
an individualized delineation determines that the farm drainage feature 
is indeed WOTUS, there should be no reach back to penalize actions and 
activities with regard to the drainage that were otherwise reasonable 
and undertaken prior to a delineation as WOTUS.
D. Farmed Wetlands and Wet Areas
    If upland and farmed drainage features are dealt with as above, the 
issue of possible farmed wetlands and wet areas in fields being WOTUS 
via adjacency is addressed.
E. Adjacency
    We strongly recommend that only wetlands be considered possibly 
adjacent WOTUS and that the arbitrary and subjective concept of 
``waters'' not be included. What does waters mean in this instance? How 
much or how little water needs be present, and for how long, for it to 
be one of these ``waters''? It is possible to be quite specific when 
referring to ``tributaries'' (as evidenced in the definition in the 
proposed rule). Similarly, impoundments of tributaries are relatively 
easily understood, as are wetlands given the extensive history of 
wetland determinations by the Agencies. This is not the case for 
``waters,'' and we strongly encourage the Agencies not to introduce 
confusion, uncertainty and lack of clarity to this situation by now 
adding ``waters.''
F. Defining ``Floodplain'' as an Aspect of ``Neighboring''
    In the case of the use of a floodplain to determine adjacency, we 
suggest that the relationship between the wetland and tributary in 
question must be relatively persistent, common and significant. The 
direct hydrological interaction must be more common than not, and as a 
result we suggest the extent of the floodplain be defined by the reach 
of flood waters as a result of a 5 year, 24 hour rainfall flooding 
event.
G. Prior Converted Cropland
    We strongly recommend that the Agencies spell out what they believe 
prior-converted cropland is and how they work with USDA in using the 
USDA PCC determinations. In particular, we believe a discussion in the 
preamble of the final rule that details the long relationship and 
history of coordination between the Agencies and USDA on the issue of 
PCC determinations would help address any uncertainty pork producers or 
others in agriculture have regarding the potential treatment of PCC 
under the proposed rule. In particular, there should be a clear 
discussion of the number of occasions an NRCS PCC determination has 
been overturned by the Agencies and the circumstances that existed when 
that occurred. Additionally, in furtherance of the stated goal of 
providing clarity and certainty to farmers, we strongly urge the 
Agencies to expressly define what they consider PCC by simple reference 
to the current regulatory standards implementing the provisions of the 
1985 Food Security Act, set forth at Title 7, Part 12 of the Code of 
Federal Regulations.
7. Summary & Conclusion
    Thank you for the opportunity to submit these comments on this 
important issue to the nation's pork producers. As we've previously 
stated, we appreciate the efforts the Agencies went through to prevent 
this rule from imposing significant impacts on farming and traditional 
agricultural practices. Unfortunately, because of the enormous 
complexities involved, they have failed to do that. NPPC urges the 
Agencies to withdraw the proposed rule and to convene a process with 
significant input from states, local governments and regulated 
stakeholders and landowners to redraft the rule to ensure its 
suitability and effectiveness. If that is not practical, we strongly 
encourage the Agencies to consider, after reviewing the numerous 
comments they receive and adjusting the proposal accordingly, to issue 
a second proposed rule to allow affected stakeholders an opportunity to 
ensure that the Agencies understood the comments and incorporated them 
into a rule that will work for all of American agriculture.
    We would welcome the opportunity to discuss these comments in more 
detail or otherwise assist the Agencies as they go forward with 
reviewing and revising the proposed rule. If you need additional 
information, or to reach us, please feel free to contact Michael 
Formica, Chief Environmental Counsel, at NPPC's Washington, D.C., 
office at 202-347-3600
            Sincerely

Howard Hill,
President, National Pork Producers Council.
 appendix 1: results from agricultures' wotus mapping initiative (awmi)
    NPPC worked this summer with several agricultural groups to map 
streams and their floodplains in 20 states to help visualize what the 
proposed rule means for farmers and to calculate the affected stream 
miles and the acreage in floodplains that may be associated with these 
streams (these latter estimates are discussed in section 4 that 
addresses ``adjacency''). This effort was carried out to help visualize 
proposed jurisdictional tributaries and adjacent areas and to calculate 
certain statistics about these proposed jurisdictional features.
    The streams data used in the mapping analysis are from the publicly 
available U.S. Geological Survey's National Hydrography Database (NHD), 
which is the same data that EPA's Office of Water uses in its online 
mapping utility, My Waters Mapper. Two sets of streams data were 
mapped: the 1:100,000 (medium resolution) dataset, which is roughly an 
approximation of perennial and intermittent streams (depicted as blue 
lines); and the 1:24,000 (high resolution) dataset, which is roughly an 
approximation of perennial and intermittent streams plus on average 
about 35 percent of the ephemeral streams (depicted as red lines).
    Floodplain estimates are from two sources. The Federal Emergency 
Management Agency (FEMA) has estimated 100 year floodplains for many of 
the country's major rivers in publicly available datasets, and these 
were used. The many streams for which no FEMA floodplain data are 
available were overlain with 35 buffers on either side to approximate 
their floodplains or possible areas of adjacency.
    Table A-1 below presents the calculated number of stream miles in 
20 states for both the medium- and high-resolution datasets, and the 
number of acres in the FEMA 100 year floodplains and the 35 buffers 
for the streams for which no FEMA data were available.
    The results of the AWMI efforts can be seen on a publicly available 
website that NPPC and the other agricultural groups have sponsored at 
www.tinyurl.com/EPAwaters [http://geosyntec-can.maps.arcgis.com/apps/
OnePane/basicviewer/index.html?appid=9952781243db4c069d0556d04d7d8339]. 
Note in this website that in zooming in to the surface the AWMI 
switches from the NHD streams data discussed above to the USGS NHD-Plus 
dataset, which depicts streams, canals, ditches, related waters and the 
wetlands identified in the Department of the Interior's National 
Wetlands Inventory. These NHD-Plus data are available for all 50 
states, not just the original 19 states mapped in the AWMI. The legend 
to the left of the screen indicates the depicted features.
    The mapped features in the AWMI are not formal CWA jurisdictional 
determinations. But they are river, stream, canal and ditch features as 
collected by USGS, in cooperation with EPA and others. The proposed 
WOTUS rule references agency personnel using such mapping utilities in 
assisting them in making jurisdictional determinations. While it is not 
likely that each and every one of the stream and ditch features 
depicted in the NHD is a jurisdictional water, there is likely quite a 
strong correspondence between the depicted stream features and what the 
proposed rule considers to be tributaries. Certainly, even if some of 
these features do not prove to have the stream morphology that would 
make them tributaries as defined in the proposed rule, their inclusion 
in Federal USGS datasets as streams and their depiction as such in 
mapping utilities like the EPA's MY Waters Mapper certainly leads to 
the working presumption by agency personnel and the public that they 
are WOTUS.

                                Table A-1
------------------------------------------------------------------------
                             Acres in                        Acres in
           Stream Miles,    Floodplains    Stream Miles,    Floodplains
  State       Medium       and Buffers,        High        and Buffers,
            Resolution        Medium        Resolution         High
                            Resolution                      Resolution
------------------------------------------------------------------------
Alaska           200,000       3,890,000         792,000      11,340,000
Arkansas          88,300       5,581,000         137,000       5,899,000
Colorado         104,000       5,787,000         277,000       7,090,000
Florida           55,700      12,944,000          99,500      13,139,000
Iowa              71,900       2,799,000         114,000       3,110,000
Louisian          57,000       6,873,000         109,000       7,189,000
 a
Michigan          57,900       1,477,000          81,000       1,621,000
Minnesot          77,400       1,529,000         105,000       1,759,000
 a
Missouri         104,000       4,652,000         184,000       5,160,000
Montana          180,000      18,600,000         390,000      20,040,000
N.                10,700         136,300          18,600         189,500
 Hampshi
 re
North             65,000       5,648,000         130,000       6,128,000
 Carolin
 a
Ohio              58,900       1,995,000          91,200       2,234,000
Pennsylv          63,900       1,387,000          86,000       1,603,000
 ania
South            101,000       6,430,000         164,000       6,860,000
 Dakota
Virginia          54,600       2,375,000         106,000       2,766,000
Indiana           31,900       1,399,000         131,000       2,178,000
Mississi          83,200       6,517,000         155,000       6,958,000
 ppi
Illinois          72,400       3,810,000         120,000       4,160,000
Washingt          76,400       3,023,000         236,000       4,310,000
 on
         ---------------------------------------------------------------
  Total        1,614,200      96,852,300       3,526,300     113,733,500
------------------------------------------------------------------------

                                 ______
                                 
  Submitted Statement by National Association of REALTORS'
Introduction
    On April 21, 2014, the Environmental Protection Agency (EPA) and 
the Army Corps of Engineers (Corps) proposed to reduce the amount of 
scientific analysis needed in order to declare a ``water of the U.S.'' 
including wetlands on private property across the country. On behalf of 
one million members involved in all aspects of commercial and 
residential real estate, the National Association of 
REALTORS' (NAR) thanks you for holding this oversight 
hearing and for the opportunity to submit these written comments for 
the record. If enacted, this rule could force many across rural America 
to obtain a Federal construction permit for the first time which could 
have significant multiplier effect on home sales, values as well as the 
communities' tax base. We urge the Congress to take immediate action to 
reign in and prevent this EPA overreach of Congressional authority.
    Currently before declaring a water of the U.S., the agencies must 
first conduct a ``significant nexus'' analysis for each stream or 
wetland to determine that regulation could prevent significant 
pollution from reaching an ocean, lake or river that is ``navigable,'' 
the focus of the Clean Water Act. Because, in the agency's view, a 
full-blown scientific analysis for each water or wetland is ``so time 
consuming and costly,'' the agencies are proposing instead to satisfy 
this requirement with a more generic and less resource intensive 
``synthesis'' of academic research showing ``connectivity'' between 
streams, wetlands and downstream water bodies. On this basis, the 
agencies believe that they can waive the full analysis before 
regulating most of streams and wetlands, and reduce the analysis for 
any ``other water'' that has more than a ``speculative or 
insubstantial'' impact. We disagree.
    NAR opposes this vague and misguided ``waters of the U.S.'' 
proposed regulation. While perhaps an administrative inconvenience, 
site-specific data and analysis forces the agencies to justify their 
decision to issue wetland determinations on private property and focus 
on significant impacts to navigable water. By removing the analytical 
requirement for regulation, the agencies will make it easier not only 
to issue more determinations but also force these property owners to go 
through a lengthy Federal negotiation and broken permit process to make 
certain improvements to their land.
    At the same time, the proposal does not (1) delineate which 
improvements require a Federal permit, (2) offer any reforms or 
improvements to bring clarity or consistency to these permit 
requirements, or (3) define any kind of a process for property owners 
to appeal U.S. water determinations based on ``insubstantial'' or 
``speculative'' impacts. The resulting lack of certainty and 
consistency for permits, or how to appeal ``wetland determinations,'' 
will likely complicate real estate transactions such that buyers will 
walk away from the closing table or demand price reductions to 
compensate for the hassle and possible transaction costs associated 
with these permits. We urge Congress to stop these agencies from moving 
forward with this proposal until they provide a sound scientific basis 
for the regulatory changes and also streamline the permitting process 
to bring certainty to home- and small-business owners where wetlands 
are declared.
Proposed Rule Eliminates the Sound Science Basis for U.S. Water 
        Determinations
    Today, the EPA and Army Corps may not regulate most ``waters of the 
U.S.,'' including wetlands, without first showing a significant nexus 
to an ocean, lake or river that is navigable, the focus of the Clean 
Water Act. ``Significant nexus'' is a policy and legal determination 
based on a scientific site-specific investigation, data collection and 
analysis of factors including soil, plants, and hydrology.
    The agencies point to this significant nexus analysis as the reason 
they are not able to enforce the Clean Water Act in more places like 
Arizona and Georgia.\1\ On its website, EPA supplies these 
``representative cases'' where it's currently ``so time consuming and 
costly to prove the Clean Water Act protects these rivers.'' EPA also 
documents the ``enforcement savings'' from the proposal in its economic 
analysis.\2\ None of these major-polluter examples involve home or 
small business owners, which typically do not own significant acreage 
(the typical lot size is a \1/4\ acre),\3\ let alone disturb that 
amount of wetland with a typical home project.
---------------------------------------------------------------------------
    \1\ http://www2.epa.gov/uswaters--for links to the examples, click 
``Enforcement of the law has been challenging.''
    \2\ http://www2.epa.gov/sites/production/files/2014-03/documents/
wus_proposed_rule_
economic_analysis.pdf.
    \3\ American Housing Survey, 2009.

    Under this proposal, the agencies would waive the site-specific, 
data-based analysis before regulating land use on or near most streams 
---------------------------------------------------------------------------
and wetlands in the United States (see Table 1). The proposal:

   Creates two new categories of water--i.e., ``all 
        tributaries'' and ``adjacent waters.''

   Adds most streams, ponds, lakes, and wetlands to these 
        categories. ``Tributary'' is anything with a bed, bank and 
        ``ordinary high water mark,'' including some ``ditches.'' 
        ``Adjacent'' means within the ``floodplain'' of the tributary, 
        but the details of what constitutes a floodplain, like how 
        large an area (e.g., the 5 year or 500 year floodplain), are 
        left to the unspecified ``best professional judgment'' and 
        discretion of agency permit writers.

   Moves both categories from column B (analysis required for 
        regulation) to column A (regulated without site specific data 
        and analysis).

     Table 1. Proposed changes to ``Waters of the U.S.'' regulatory
                               definition
------------------------------------------------------------------------
    Column A (Regulated without        Column B (Analysis required for
             analysis)                           regulation)
------------------------------------------------------------------------
Navigable or Interstate
 
     The Ocean
     Most Lakes
     Most Rivers
 
Non-Navigable and Intrastate         Non-Navigable and Intrastate
 
     All Some Tributaries         Rest of the
   (Streams,                            Tributaries
     Lakes, Ponds)                        Ephemeral
     Perennial                            Rest of Wetlands
     Seasonal                             Adjacent to tributary
     Ephemeral                   j        Not adjacent
     Most Some Wetlands           Any other water
     Adjacent to navigable water          Adjacent to navigable water
     Adjacent to Directly Abutting        Adjacent to tributaries
     covered stream                       Not-adjacent
------------------------------------------------------------------------

    For any remaining or ``other water,'' the agencies would continue 
regulating case-by-case using a significant nexus analysis. However, 
the amount of analysis is dramatically reduced. Under this proposal, 
all agency staff would have to show is more than a ``speculative or 
insubstantial'' impact to navigable water. If, for instance, there were 
many wetlands within the watershed of a major river, no further 
analysis would be required to categorically regulate land use within 
any particular wetland with that river's watershed. Also, the data and 
analysis from already regulated water bodies could be used to justify 
jurisdiction over any other ``similarly situated'' water without first 
having to visit the site and collect some scientific data.
    Contrary to agency assertions, this proposal does not narrow the 
current definition of ``waters of the U.S.''

   While technically not adding ``playa lakes,'' ``prairie 
        potholes,'' or ``mudflats'' to the definition, the proposal 
        does remove the analytical barrier which, according to EPA, is 
        preventing both agencies from issuing U.S. waters 
        determinations on private property in more places including 
        Arizona and Georgia.

   Codifying longstanding exemptions (prior converted crop land 
        and waste treatment) does not reduce the current scope of 
        definition; it simply writes into regulation what the agencies 
        have already been excluding for many years.

   Giving up jurisdiction over ``ornamental'' (bird baths), 
        ``reflecting or swimming pools'' is not a meaningful gesture, 
        as it's doubtful that any court would have let them regulate 
        these, anyway.

   It is not clear that many ditches would meet ALL of the 
        following conditions--i.e., wholly excavated in uplands AND 
        drains only uplands AND flows less than year-round--or never 
        ever connects to any navigable water or a tributary in order to 
        qualify for the variance. Also, the term ``uplands'' is not 
        defined in the proposal so what's ``in or out'' is likely to be 
        litigated in court, which does not provide certainty to the 
        regulated community.
Literature Review and Synthesis Does Not Support the Proposed Rule
    In lieu of site-specific, data-based analysis, the EPA and the 
Corps are proposing to satisfy the significant nexus requirement with a 
less resource intensive ``synthesis'' of academic studies. The agencies 
believe these studies show ``connectivity'' between wetlands, streams 
and downstream water bodies, and that's sufficient in their view to 
justify and waive the full analysis for land-use regulations on or 
within the floodplain of one of these waters.
    However, this synthesis is nothing more than a glorified literature 
review.\4\ EPA merely compiles, summarizes and categorizes other 
studies, and labels them a ``synthesis.'' EPA conducts no new or 
original science to support or link these studies to its regulatory 
decisions. Three quarters of the citations included were published 
before the Supreme Court's decision in Rapanos v. U.S. (2006), and the 
rest appear to be more of the same. It breaks no new ground. The 
Supreme Court did not find this body of research to be a compelling 
basis for prior regulatory decisions, either in Rapanos or SWANCC v. 
the Army Corp (2001). Putting a new spin on old science does not amount 
to new science.
---------------------------------------------------------------------------
    \4\ For EPA's synthesis: http://cfpub.epa.gov/ncea/cfm/
recordisplay.cfm?deid=238345.
---------------------------------------------------------------------------
    In addition, scientists with GEI Consultants \5\ reviewed the 
literature synthesis and concluded that these studies do not even 
attempt to measure, let alone support a significant nexus finding. 
According to GEI,
---------------------------------------------------------------------------
    \5\ For GEI's credentials, see: http://www.geiconsultants.com/
about-gei-1.

          ``Most of the science on connectivity . . . has been focused 
        on measuring the flow of resources (matter and energy) from 
        upstream to downstream . . . [T]hese studies have not focused 
        on quantifying the ecological significance of the input of 
        specific tributaries or headwaters, alone or in the aggregate, 
        and ultimately whether such effects could be linked directly 
        and causally to impairment of downstream waters.'' \6\
---------------------------------------------------------------------------
    \6\ For NAR's summary and link to GEI's comments: http://
www.realtor.org/articles/nar-submits-comments-on-draft-water-report.

    Knowing how many rocks downstream came from upstream won't tell you 
what the Supreme Court determined needs to be known, which is how many 
times rocks can be added before downstream water becomes ``impaired'' 
under the Clean Water Act. Asking the Science Advisory Board if the 
synthesis supports the first conclusion (i.e., some rocks come from 
upstream) doesn't answer the second (how many times can rocks be added 
downstream before significantly impacting the water's integrity?). EPA 
---------------------------------------------------------------------------
is asking entirely the wrong set of policy questions. As GEI puts it,

          ``The Science Advisory Board (SAB) charge questions were of 
        such limited scope that they will do little to direct the 
        Synthesis Report toward a more useful exploration of the 
        science needed to inform policy . . . The questions will not 
        provide the SAB panel with needed directive to require 
        substantive revisions to the report such that it . . . 
        inform(s) policy with regard to Clean Water Act jurisdiction.'' 
        \7\
---------------------------------------------------------------------------
    \7\ For NAR's summary and link to GEI's comments: http://
www.realtor.org/articles/nar-submits-comments-on-draft-water-report.
---------------------------------------------------------------------------
There Is No Substitute for Site-Specific Data & Analysis To Determine 
        U.S. Waters
    Here's how EPA's synthesis of generic studies stacks up against a 
more targeted study specific to and based on data for each stream or 
wetland.

  Table 2. EPA Synthesis of Research Versus Significant Nexus Analysis
------------------------------------------------------------------------
          Significant Nexus                  Synthesis of Research
------------------------------------------------------------------------
Proves that regulation of a stream    Shows presence of a connection
 or wetland will prevent pollution     between streams, wetlands, and
 to an ocean, lake or river            downstream, and not significance
------------------------------------------------------------------------
Shows how much matter/energy can be   Shows how much of the matter/
 added to a tributary or wetland       energy moved from upstream to
 before the Act applies                downstream
------------------------------------------------------------------------
Based on site specific data and       Dependent upon whatever data and
 analysis of soil, plants,             analysis academics have used for
 hydrology, and other relevant         their connectivity study
 factors
------------------------------------------------------------------------
Requires an original scientific       Includes no new or original
 investigation, data and analysis      science by agencies; it's a
 for each water body to be regulated   literature review
------------------------------------------------------------------------
Relies on timely and water-body-      Relies on substantially the same
 specific facts, data and analysis     body of research which the
                                       Supreme Court didn't find
                                       compelling
------------------------------------------------------------------------

    The EPA may not want to ``walk the nexus'' and collect data on 
soil, plants and hydrology, but it's forced the Agency to justify their 
regulatory decisions, according to the staffs' own interviews with the 
Inspector General: \8\
---------------------------------------------------------------------------
    \8\ Congressionally Requested Report on Comments Related to Effects 
of Jurisdictional Uncertainty on Clean Water Act Implementation, Report 
No. 09-N-0149 (April 30, 2009). For a link: http://www.epa.gov/oig/
reports/reportsByTopic/Enforcement_Reports.html.

---------------------------------------------------------------------------
   ``Rapanos has raised the bar on establishing jurisdiction.''

   ``. . . lost one case . . . because no one walked the 
        property.''

   ``. . . have to assemble a considerable amount of data to 
        prove significant nexus.''

   ``. . . many streams have no U.S. Geological Survey gauging 
        data.''

   ``. . . need several years of biotic observations . . . .''

   ``. . . there is currently no standard stream flow 
        assessment methodology.''

   ``. . . biggest impact is out in the arid West, where it is 
        comparably difficult to prove significant nexus.''

    As a result, many U.S. water determinations (which would not 
previously have been questioned) are now being reviewed and are not 
holding up to either EPA or Justice Department scrutiny. Again, from 
the EPA interviews:

   ``Of the 654 jurisdictional determinations [in EPA region 5] 
        . . . 449 were found to be nonjurisdictional.''

   ``An estimated total of 489 enforcement cases . [were] not 
        pursued . . . case priority was lowered . . . or lack of 
        jurisdiction was asserted as an affirmative defense . . .''

   ``In the past, everyone just assumed that these areas are 
        jurisdictional'' (emphasis added).

    ``Walking the nexus'' may be an administrative inconvenience, but 
the data don't support an approach based on `just assuming.' The main 
reason for the site-specific, data-based analysis is that it provides a 
sound scientific basis for agency regulatory decisions. Analysis also 
raises the cost of unjustified U.S. water determinations. It forces the 
agencies to do what Congress intended, which is to focus on waters 
which are either (a) in fact navigable or (b) significantly impact 
navigable water. It also prevents agencies from regulating small 
businesses or homeowners that are not major contributors to navigable 
water quality impairment.
Proposed Rule Will Overcomplicate Already Complex Real Estate 
        Transactions
    Small-business and homeowners are not the problem. Few own enough 
property to be able to disturb a \1/2\ acre of wetland, which is how 
the Nationwide 404 Permit Program defines de minimis impact to the 
environment. The typical lot size is a \1/4\ acre with \3/4\ having 
less than an acre.\9\ None of the big polluter examples EPA presents 
involves a homeowner or small business. Yet, by removing the analytical 
barrier to regulation, agencies will be able to issue more U.S. water 
determinations on private properties in more places like Arizona, 
Georgia or wherever else it's now ``too time consuming and costly to 
prove the Clean Water Act protect these rivers,'' according to the 
EPA.\10\
---------------------------------------------------------------------------
    \9\ American Housing Survey, 2009.
    \10\ http://www2.epa.gov/uswaters--for the examples, click on 
``Enforcement of the law has been challenging''.
---------------------------------------------------------------------------
    The home buying process \11\ will not work unless there is 
sufficient property information to make informed decisions. This is why 
buyers are provided with good faith estimates and disclosures about 
material defects and environmental hazards. It is why they are entitled 
to request a home inspection by a professional before making decisions. 
It is also why there's such a thing as owner's title insurance. 
Contracts and legal documents have to be signed to ensure that buyers 
receive full information and understand it. Later, you can sue if the 
property isn't as advertised or there are misrepresentations.
---------------------------------------------------------------------------
    \11\ In previous comments, the International Council of Shopping 
Centers, National Association of Homebuilders, NAR and others have 
thoroughly documented the commercial and homebuilding impacts of the 
U.S. waters proposed rule. In this statement, NAR focuses on the impact 
to existing homeowners which have not been documented.

    The ``waters of the U.S.'' proposal introduces yet another 
variable--letters declaring wetlands on private property--into an 
already complicated home buying process. By removing the analytical 
requirement before issuing one of these letters, the agencies will make 
it easier to issue more of them and in more places. The problem is each 
letter requires the property owner to get a Federal permit in order to 
make certain improvements to their land. But they don't know which 
improvements require a permit. Those aren't delineated anywhere in the 
proposal. If on the other hand, they take their chances and don't 
initiate a potentially lengthy Federal negotiation as part of a broken 
permit process, they could face civil fines amounting to tens of 
thousands of dollars each day and possibly even criminal penalties.
    Also, what's required can vary widely across permits--even within 
the same district of the Corps. No one will inform you where the goal 
posts are; just that it's up to you and they'll let you know when you 
get there. Often, applicants will go through this year-long negotiation 
only to submit the permit application, find that staff has turned over 
and they have to start over with a new staffer who has completely 
different ideas about how to rewrite the permit.

    While more U.S. waters letters could be issued under this proposal, 
the agencies do not provide the detailed information needed for 
citizens to make informed decisions about these letters. The letter 
could state for instance: ``the parcel is a matrix of streams, 
wetlands, and uplands'' and ``when you plan to develop the lot, a more 
comprehensive delineation would be recommended.'' Real estate agents 
will work with sellers to disclose this information, but buyers won't 
know which portion of the lot can be developed, what types of 
developments are regulated, or how to obtain the permit. They may 
consult an attorney about this but will most likely be advised to hire 
an engineer to ``delineate'' the wetlands without being told what that 
means. And even if this step is taken, there is no assurance that this 
analysis will be accepted by the agency or that a permit will ever be 
issued.
    The potential for land-use restrictions and the need for costly 
permits will increase the cost of home ownership and make regulated 
properties less attractive to buyers. Of two homes, all else equal (lot 
size, number of rooms, etc.), the one with fewer restrictions should 
have higher property value.\12\
---------------------------------------------------------------------------
    \12\ There is strong empirical data to support this proposition, 
although economists may disagree. For instance:

       E.L. Glaeser, and B.A. Ward, The Causes and Consequences 
of Land Use Regulation: Evi-
      dence from Greater Boston. Journal of Urban Economics 65 (2009) 
265-278.

       K.R. Ihlanfeldt, The Effect of Land Use Regulation on 
Housing and Land Prices. Journal
      of Urban Economics 61 (2007) 420-435.
---------------------------------------------------------------------------
    However, before buying, the buyer will want to know in exactly 
which ways the property could be restricted as well as how much those 
restrictions could cost (time, effort, money). They will need this 
information when weighing whether to come to the closing table and 
deciding how much to ask in reducing listing price in order to 
compensate for the hassle of a potential Federal negotiation for each 
unspecified improvement on the property they're considering purchasing.
    To illustrate the point, after Congress revised the flood insurance 
law, many buyers refused to consider floodplain properties not due to 
the actual insurance cost but because they read in a newspaper about 
$30,000 flood insurance premiums. Others negotiated reduced sales 
prices because they feared the property was ``grandfathered'', and they 
could potentially see their rates skyrocket, even when, in fact, the 
home was not grandfathered and the provision of concern had not taken 
effect and would not for several years. While it may be entirely true 
that the proposed rule will not cover all homes in a floodplain (only 
those where a U.S. water is filled) nor regulate such normal home 
projects as mowing grass and planting flower beds, the takeaway from 
the flood insurance experience is that buyers make decisions based on 
fear and uncertainty, both real and imagined.
    In the case of wetlands, buyers have legitimate reason for concern. 
Many will have heard the horror story of the Sacketts in Priest Lake, 
Idaho, who were denied their day in court when they questioned a 
wetlands determination.\13\ Others just south of here in Hampton Roads, 
Virginia, will read the cautionary tales of buyers suing sellers over 
lack of wetlands disclosures \14\ or neighbor-on-neighbor water wars 
for mowing grass or planting seedlings.\15\ Some might even have a 
neighbor to two who've been sued over the years for tree removals or 
grading (e.g., Catchpole v. Wagner).\16\ This all reinforces the need 
for the EPA and the Corps to provide more information rather than less 
about the rule, what it does and does not do, and provide as much 
detail as possible all upfront.
---------------------------------------------------------------------------
    \13\ For the chilling facts of case, see: http://
www.pacificlegal.org/Sackett.
    \14\ http://hamptonroads.com/2010/05/cautionary-tale-wetlands-
violations-will-cost-you.
    \15\ http://hamptonroads.com/2012/05/newport-news-gets-swamped-
wetlands-dispute.
    \16\ 210 U.S. Dist LEXIS 53729, at *1 (W.D. Wash. 2010).
---------------------------------------------------------------------------
    So far the agencies have responded by breaking up the rulemaking 
process into two parts, and putting forward only the first. This 
proposal, which clarifies ``waters of the U.S.,'' determines ``who is 
regulated.'' The issue here is whether site-specific data and analysis 
is required before a wetlands letter is issued. ``What is regulated'' 
is not a part of this proposal. Nor does the proposal lay out the full 
range of home projects that trigger a permit. The wetland permitting 
process itself is an entirely separate rulemaking. The issue there is 
what exactly I must do when I get one of these letters and how to 
appeal it.
    Based on a report by the Environmental Law Institute (ELI),\17\ 
that permitting process is broken and needs reform and streamlining to 
provide some consistency, timeliness, and predictability. But any 
comments or suggestions about this have been deemed non-germane and 
will not be considered by the agencies in the context of a ``waters of 
the U.S.'' proposal. Because the agencies have decided to play a 
regulatory shell game with the ``who'' vs. the ``what,'' property 
owners have been put in an untenable position of commenting on a 
regulation without knowing its full impact. Those who own a small 
business will be denied the opportunity under another law to offer 
significant alternatives that could clarify or minimize the proposed 
``waters of U.S.'' impact while still achieving the Clean Water Act's 
objectives.\18\
---------------------------------------------------------------------------
    \17\ http://www.eli.org/research-report/wetland-avoidance-and-
minimization-action-perspectives-experience.
    \18\ For EPA's justification against conducting a small business 
review panel under the Regulatory Flexibility Act, see: 79 Fed. Reg. 
22220 (April 21, 2014).
---------------------------------------------------------------------------
    These are some property buyer questions which are not answered by 
the immediate proposed rule:

   What is the full range of projects that will require a 
        Federal permit?

   What can I do on my property without first having to get a 
        permit?

   What do I have to do to get one of these permits?

   What's involved in the Federal application process?

   What information do I have to provide and when?

   How long will the permit application take?

   How will my project and application be evaluated?

   What are the yardsticks for avoiding or minimizing wetlands 
        loss?

   What are the full set of permit requirements and conditions?

   Are there changes I can make in advance to my project and 
        increase my chances of approval?

   Can I be forced to redesign my home project?

   What kinds of redesigns could be considered?

   What if I disagree with the agency's decision, can I appeal?

   What exactly is involved in that appeal?

   What do I have to prove in order to win?

   Will I need an attorney? An engineer? Who do I consult?

   And how much will all this cost me (time, efforts, money)?

    The ``Waters of the U.S.'' proposal creates these uncertainties 
into the property buying process.
    Uncertainty No. 1: The ``waters of the U.S.'' proposal does not 
tell me what I can and cannot do on my own property without a Federal 
permit.
    Not all property owners in the floodplain will be regulated, only 
those who conduct regulated activities. Again, that information is not 
found in the ``waters of the U.S.'' proposal, and there is not much 
more in the decision documents from the previous regulation for the 
``nationwide'' (general) permit program (2012). The general permit for 
commercial real estate (No. 39) is separate from residential (No. 29), 
but both include a similarly vague and uber-general statement about 
what's regulated:

          ``Discharges of dredged or fill material into non-tidal 
        waters of the United States for the construction or expansion 
        of a single residence, a multiple unit residential development, 
        or a residential subdivision. This NWP authorizes the 
        construction of building foundations and building pads and 
        attendant features that are necessary for the use of the 
        residence or residential development. Attendant features may 
        include but are not limited to roads, parking lots, garages, 
        yards, utility lines, stormwater management facilities, septic 
        fields, and recreation facilities such as playgrounds, playing 
        fields, and golf courses (provided the golf course is an 
        integral part of the residential development).'' \19\
---------------------------------------------------------------------------
    \19\ http://www.usace.army.mil/Portals/2/docs/civilworks/nwp/2012/
NWP_29_2012.pdf.

    However, construction projects are not the only ones that may 
require a permit. For example, home owners have been sued for not 
---------------------------------------------------------------------------
obtaining one to perform these activities:

   Landscaping a backyard (Remington v. Matheson [neighbor on 
        neighbor]).

   Use of an ``outdated'' septic system (Grine v. Coombs).

   Grooming a private beach (U.S. v. Marion L. Kincaid Trust).

   Building a dam in a creek (U.S. v. Brink).

   Cleaning up debris and tires (U.S. v. Fabian).

   Building a fruit stand (U.S. v. Donovan).\20\
---------------------------------------------------------------------------
    \20\ Note: The defendant lost because he couldn't finance an expert 
witness to refute the Corps' wetlands determination; under this 
proposed rule, the Corps would no longer have to provide any data and 
analysis at all to support its future determinations; the burden would 
be entirely on the property owner to come up with that data and 
analysis on their own.

---------------------------------------------------------------------------
   Stabilizing a river bank (U.S. v. Lambert).

   Removing small saplings and grading the deeded access 
        easement (Catchpole v. Wagner).\21\
---------------------------------------------------------------------------
    \21\ There is an extended history between Catchpole and Wagner over 
activity on this easement, and the Corps has been repeatedly drawn into 
the dispute. In one instance the Sheriff was called, and the Corps had 
to step in and referee that ``normal mowing activity'' was not a 
violation that the Corps would pursue under the Clean Water Act. NAR 
would expect more of these kinds of disputes to arise, should the 
proposed rule be finalized.

    Also, the proposal includes exemptions for specific activities 
performed by farmers and ranchers, but not homeowners or small 
businesses. The agencies would not have exempted these activities from 
permits unless they believed these activities could trigger them. Yet, 
none of these ``normal farming'' practices appear to be uniquely 
agricultural, opening up the non-farmers to regulation. Here are a 
couple of the listed exemptions but the full set can be found on EPA's 
website.\22\
---------------------------------------------------------------------------
    \22\ http://www2.epa.gov/sites/production/files/2014-03/documents/
cwa_404_exempt.pdf.

---------------------------------------------------------------------------
   Fencing (USDA practice No. 383).

   Brush removal (No. 314).

   Weed removal (No. 315).

   Stream crossing (No. 578).

   Mulching (No. 484).

   Tree/Shrub Planting (No. 422).

   Tree Pruning No. 666).

    While the proposal could open up more properties to wetlands 
letters, permits and lawsuits, it does not in any way limit who can sue 
over which kinds of activities for lack of permits. It does, on the 
other hand, reduce the amount of data and analysis the Corps or EPA 
need in order to declare U.S. waters on these properties, and shifts 
the entire burden to the property owner to prove one these waters do 
not exist on their property before they can win or get a frivolous case 
dismissed.
    Uncertainty No. 2: The proposal doesn't tell me how to get a 
permit, what's required and how long it will take.
    Again, the permitting process is not a part of the `waters of the 
U.S.' proposal, denying home owners and small businesses an opportunity 
to comment on the proposed rule's full impact or offer reasonable 
alternatives that could minimize the impact while protecting navigable 
and significant nexus waters. EPA's economic analysis on page 16 does 
provide an estimate of the average cost for a general permit ($13,000 
each).
    Costs go up from there. The estimate of $13,000 is only for a 
general permit and for the application alone; it doesn't include re-
designing a project to obtain permit approval or the conditions and 
requirements which can vary widely across permits. While not providing 
an estimate of the time it takes to get one of these permit, U.C. 
Berkeley Professor David Sunding found based on a survey that the 
``[general] permits in our sample took an average of 313 days to 
obtain.'' \23\ Individual permits can take even longer and be 
significantly more expensive.
---------------------------------------------------------------------------
    \23\ http://areweb.berkeley.edu/sunding/
Economcs%20of%20Environmental%20Regulation.pdf.
---------------------------------------------------------------------------
    The reason that general permits have the lowest price tag is 
because they are intended to reduce the amount of paper work and time 
to start minor home construction projects that ``result in minimal 
adverse environmental effects, individually or cumulatively.'' One of 
the conditions for the permit is a project may not disturb more than a 
\1/2\ acre of wetlands or 300 linear feet of streambed, the Corp's 
definition of de minimis. However, transaction costs and requirements 
may vary.
    The Environmental Law Institute studied the process, and found very 
little consistency, predictability or timeliness across permits.\24\ 
The process begins with a letter from the agency declaring U.S. water 
on the property. Home owners may be given a copy of the law, told to 
submit any ``plans to develop the lot'', and be reminded that the 
burden of proof is entirely on them. No examples of how to comply are 
offered. There might be a check list (which is widely frowned upon) but 
there is no single definition or yard stick or practical guidance of 
any sort for the key compliance terms ``avoidance,'' ``minimization'' 
and ``practicable.''
---------------------------------------------------------------------------
    \24\ For ELI's report, http://www.eli.org/research-report/wetland-
avoidance-and-minimization-action-perspectives-experience.
---------------------------------------------------------------------------
    If you ask ``which part of my property can I develop?'', the answer 
is ``hire an engineer and delineate it.'' ``What if I make these 
changes to my project before applying?'', the answer may be ``I'll know 
it when we see it.'' There is no standard approach that the Corps 
follows to evaluate the project. According to the ELI's interviews, it 
is common for applicants to go through an entire negotiation and upon 
submitting an application, find staff turned over and the new 
individual has a completely different concept of what's most important 
to avoid and the best way to minimize.
    The following are more actual quotes by regulators documented in 
the ELI report:

   ``The question is, how much is enough? It's all judgment. It 
        depends on the person's mood and is extremely variable.''

   ``We ask them to document plans and show how they get to 
        where they are. If I think you can do more, I'm going to show 
        you. The burden is on the applicant to show me where they've 
        been in the journey.''

   ``I like to be a rule maker with regard to work I've done, 
        but the more I standardize, the more I restrict myself with 
        regard to find possible solutions.''

   ``[B]ecause judgments on which impacts are more avoidable or 
        more important exists in a grey area, a lot of the decision 
        making within the Corps depends on professional judgment, 
        causing a lot of variability.''

   ``There are times when the agency will pressure the 
        applicant to do more avoidance or minimization during the 
        permitting process.''

   ``There are times when they won't sign off because they want 
        a certain thing. That's the subjective aspect and I think that 
        is the way it ought to work.''

    Permit decisions appear completely subjective, iterative and not 
uniform across individual applicants. It seems that whatever the agency 
assumes is necessary to avoid or minimize wetlands loss, goes. If you 
refuse to provide a single piece of information or don't go along 100% 
with a proposed design modification, your permit is summarily denied. 
In at least one example (Schmidt v. the Corps), the agency denied the 
permit to build a single family home on a lot in part because the Corps 
identified other lots the land owner owned and his neighbors didn't 
seem to be objecting to construction on those lots (yet).
    For these reasons, the ELI recommended several reforms to the 
wetlands permit process, including developing guidelines identifying 
common approaches and quantifiable standards. But at this time, the 
agencies don't appear interested in sensible recommendations like 
these, even if it brings some consistency, certainty or reduces the 
burden on small business or homeowners while still protecting the 
environment. ``Nationwide permits do not assert jurisdiction over 
waters and wetlands . . . Likewise, identifying navigable waters . . . 
is a different process than the NWP authorization process,'' according 
to the Corps.\25\
---------------------------------------------------------------------------
    \25\ 77 Fed. Reg. 10190 (Feb. 21, 2012).
---------------------------------------------------------------------------
    Uncertainty No. 3: The proposal doesn't tell me what to do if I 
disagree with an agency decision, or how to prove the Clean Water Act 
does not apply to my property.
    The proposal asserts jurisdiction over any U.S. water or wetland 
with more than a ``speculative or insubstantial'' impact on navigable 
water. Yet, nowhere does this proposal define those terms or a process 
for how a homeowner may appeal a U.S. water determination based on 
``insubstantial or speculative'' impacts.
    The proposal will eliminate the need for agencies to collect data 
and perform analysis to justify regulation for most water bodies. 
Before, it was up to the agencies to prove the Clean Water Act applies, 
but under this proposal, the burden would shift 100% to the property 
owners to prove the reverse. And the cost will be higher for property 
owners because (1) they don't have the expertise needed, (2) there is 
no guidance for delineating ``insubstantial/speculative'' impacts, and 
(3) they have not been learning-by-doing these analyses as the agencies 
have for decades.
    Ironically, the rationale for the proposed rule is these agencies 
cannot justify the taxpayer expense of site specific data and analysis, 
yet the proposal is forcing individual taxpayers to hire an engineer 
and pay for the very same analysis themselves or else go through a 
broken permit process.
    Administrative inconvenience is not a good excuse. If it's too hard 
for the Federal Government to do some site visits, data collection and 
analysis in order to justify their regulations, then perhaps it's 
simply not worth doing.
Conclusion
    Based on the forgoing, NAR respectfully requests that Congress step 
in and stop these agencies from moving forward with a proposed rule 
that removes the scientific basis for ``waters of U.S.'' regulatory 
decisions. It does not provide certainty to taxpayers who own the 
impacted properties and will complicate property and home sales upon 
which the economy depends.
    Thank you for the opportunity to submit these comments. NAR looks 
forward to working with Committee Members and the rest of Congress to 
find workable solutions that protect navigable water quality while 
minimizing unnecessary cost and uncertainty for the nation's property 
owners and buyers.

                                  [all]