[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
93-963 PDF WASHINGTON : 2015
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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\
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\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.
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\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.
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\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.
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\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\
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\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.
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\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.
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\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.
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\1\ Definition of Waters of the U.S. Under the Clean Water Act, 79
Fed. Reg. 22188 (April 21, 2014).
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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.
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\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.
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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.
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\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\
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\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.
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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.
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\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\
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\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.
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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\
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\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.
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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\
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\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).
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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\
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\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.
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``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\
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\24\ 531 U.S. 159, 174 (2001).
\25\ Id.
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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.
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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\
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\28\ 79 Fed. Reg. 22199.
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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.
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\29\ Id.
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``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\
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\30\ Id.
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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\
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\31\ U.S. Envtl. Prot. Agency, ``What is a Watershed?,'' available
at http://water.epa.gov/type/watersheds/whatis.cfm.
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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\
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\32\ 79 Fed. Reg. 22199.
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Under the rule, adjacent waters include those located in riparian
or floodplain areas.\33\
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\33\ Id.
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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.
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\34\ Id.
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``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.
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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.
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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\
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\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.
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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.
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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.
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\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\
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\1\ The proposed rule is published at 79 Fed. Reg. 22188 (April 21,
2014).
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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\
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\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.
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\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.
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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.*
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* Editor's note: The images displayed during the witnesses'
statement are retained in Committee file.
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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.
---------------------------------------------------------------------------
\3\ U.S. Environmental Protection Agency. ``Ecoregions of New
Mexico.'' Accessed September 26, 2014. http://www.epa.gov/wed/pages/
ecoregions/nm_eco.htm.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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\
---------------------------------------------------------------------------
\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.
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\6\ ``Glossary of Water Terms.'' New Mexico Office of the State
Engineer. http://www.ose.state.nm.us/water_info_glossary.html#C.
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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.
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\7\ United States Geological Survey. ``Water Science Glossary of
Terms.'' April 3, 2014. http://water.usgs.gov/edu/dictionany.html.
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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.
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\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.
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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.
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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.
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\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.
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\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.
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\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/.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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\
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\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.)
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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.
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\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.
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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\
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\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\
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\4\ See http://science.edgeboss.net/sst2014/documents/epa/
national2013.pdf.
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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\
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\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.
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\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).
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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\
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\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).
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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\
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\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
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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\
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\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.
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Stabilizing a river bank (U.S. v. Lambert).
Removing small saplings and grading the deeded access
easement (Catchpole v. Wagner).\21\
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\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\
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\22\ http://www2.epa.gov/sites/production/files/2014-03/documents/
cwa_404_exempt.pdf.
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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.
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\23\ http://areweb.berkeley.edu/ sunding/
Economcs%20of%20Environmental%20Regulation.pdf.
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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.''
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\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\
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\25\ 77 Fed. Reg. 10190 (Feb. 21, 2012).
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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]