[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
A REVIEW OF THE INTERPRETIVE RULE
REGARDING THE APPLICABILITY OF CLEAN WATER ACT AGRICULTURAL EXEMPTIONS
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CONSERVATION, ENERGY,
AND FORESTRY
OF THE
COMMITTEE ON AGRICULTURE
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
JUNE 19, 2014
__________
Serial No. 113-14
Printed for the use of the Committee on Agriculture
agriculture.house.gov
______
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COMMITTEE ON AGRICULTURE
FRANK D. LUCAS, Oklahoma, Chairman
BOB GOODLATTE, Virginia, COLLIN C. PETERSON, Minnesota,
Vice Chairman Ranking Minority Member
STEVE KING, Iowa MIKE McINTYRE, North Carolina
RANDY NEUGEBAUER, Texas DAVID SCOTT, Georgia
MIKE ROGERS, Alabama JIM COSTA, California
K. MICHAEL CONAWAY, Texas TIMOTHY J. WALZ, Minnesota
GLENN THOMPSON, Pennsylvania KURT SCHRADER, Oregon
BOB GIBBS, Ohio MARCIA L. FUDGE, Ohio
AUSTIN SCOTT, Georgia JAMES P. McGOVERN, Massachusetts
SCOTT R. TIPTON, Colorado SUZAN K. DelBENE, Washington
ERIC A. ``RICK'' CRAWFORD, Arkansas GLORIA NEGRETE McLEOD, California
SCOTT DesJARLAIS, Tennessee FILEMON VELA, Texas
CHRISTOPHER P. GIBSON, New York MICHELLE LUJAN GRISHAM, New Mexico
VICKY HARTZLER, Missouri ANN M. KUSTER, New Hampshire
REID J. RIBBLE, Wisconsin RICHARD M. NOLAN, Minnesota
KRISTI L. NOEM, South Dakota PETE P. GALLEGO, Texas
DAN BENISHEK, Michigan WILLIAM L. ENYART, Illinois
JEFF DENHAM, California JUAN VARGAS, California
STEPHEN LEE FINCHER, Tennessee CHERI BUSTOS, Illinois
DOUG LaMALFA, California SEAN PATRICK MALONEY, New York
RICHARD HUDSON, North Carolina JOE COURTNEY, Connecticut
RODNEY DAVIS, Illinois JOHN GARAMENDI, California
CHRIS COLLINS, New York
TED S. YOHO, Florida
VANCE M. McALLISTER, Louisiana
______
Nicole Scott, Staff Director
Kevin J. Kramp, Chief Counsel
Tamara Hinton, Communications Director
Robert L. Larew, Minority Staff Director
______
Subcommittee on Conservation, Energy, and Forestry
GLENN THOMPSON, Pennsylvania, Chairman
MIKE ROGERS, Alabama TIMOTHY J. WALZ, Minnesota,
BOB GIBBS, Ohio Ranking Minority Member
SCOTT R. TIPTON, Colorado GLORIA NEGRETE McLEOD, California
ERIC A. ``RICK'' CRAWFORD, Arkansas ANN M. KUSTER, New Hampshire
REID J. RIBBLE, Wisconsin RICHARD M. NOLAN, Minnesota
KRISTI L. NOEM, South Dakota MIKE McINTYRE, North Carolina
DAN BENISHEK, Michigan KURT SCHRADER, Oregon
VANCE M. McALLISTER, Louisiana SUZAN K. DelBENE, Washington
(ii)
C O N T E N T S
----------
Page
Peterson, Hon. Collin C., a Representative in Congress from
Minnesota, submitted information............................... 103
Thompson, Hon. Glenn, a Representative in Congress from
Pennsylvania, opening statement................................ 1
Prepared statement........................................... 3
Submitted material:
Letter from Agribusiness Association of Iowa, et al...... 85
382A--Fence (standard wire).............................. 87
AL Job Sheet No. AL382-1................................. 94
Walz, Hon. Timothy J., a Representative in Congress from
Minnesota...................................................... 4
Submitted letter............................................. 108
Witnesses
Bonnie, Robert, Under Secretary for Natural Resources and
Environment, U.S. Department of Agriculture, Washington, D.C... 6
Prepared statement........................................... 7
Parrish, Don, Senior Director, Regulatory Relations, American
Farm Bureau Federation, Washington, D.C........................ 32
Prepared statement........................................... 33
Fabin, Andy, Producer, Fabin Bros. Farms, Indiana, PA; on behalf
of National Cattlemen's Beef Association; Pennsylvania
Cattlemen's Association........................................ 55
Prepared statement........................................... 57
Bowling, Chip, First Vice President, National Corn Growers
Association, Newburg, MD....................................... 62
Prepared statement........................................... 63
Kovarovics, Scott, Executive Director, Izaak Walton League of
America, Inc., Gaithersburg, MD................................ 68
Prepared statement........................................... 70
Submitted Material
Moyer, Steve, Vice President of Government Affairs, Trout
Unlimited, submitted letter.................................... 109
Wenger, Paul, President, California Farm Bureau Federation,
submitted statement............................................ 111
A REVIEW OF THE INTERPRETIVE RULE
REGARDING THE APPLICABILITY OF CLEAN WATER ACT AGRICULTURAL EXEMPTIONS
----------
THURSDAY, JUNE 19, 2014
House of Representatives,
Subcommittee on Conservation, Energy, and Forestry,
Committee on Agriculture,
Washington, D.C.
The Subcommittee met, pursuant to call, at 10:05 a.m., in
Room 1300 of the Longworth House Office Building, Hon. Glenn
Thompson [Chairman of the Subcommittee] presiding.
Members present: Representatives Thompson, Gibbs, Tipton,
Crawford, Ribble, Noem, Benishek, Walz, Negrete McLeod, Kuster,
Nolan, McIntyre, Schrader, DelBene, and Peterson (ex officio).
Staff present: Brent Blevins, John Goldberg, Josh Maxwell,
Nicole Scott, Patricia Straughn, Skylar Sowder, Anne Simmons,
Keith Jones, Liz Friedlander, Mary Knigge, John Konya, and
Riley Pagett.
OPENING STATEMENT OF HON. GLENN THOMPSON, A REPRESENTATIVE IN
CONGRESS FROM PENNSYLVANIA
The Chairman. Good morning, everybody. This hearing of the
Subcommittee on Conservation, Energy, and Forestry entitled, A
Review of the Interpretive Rule Regarding the Applicability of
the Clean Water Act Agricultural Exemptions, will come to
order.
I want to welcome everyone this morning. Good morning.
Welcome to today's Conservation, Energy, and Forestry
Subcommittee hearing. One of the foremost issues facing
agriculture today is newly proposed rules released by the
Environmental Protection Agency and the U.S. Corps of Engineers
concerning the Clean Water Act's definition of the waters of
the United States. Now, we have heard much publicly from the
Obama Administration about their perceived need for this rule,
and there have also been many strong concerns voiced from
stakeholders and Members of Congress, including myself and
several Members of this Subcommittee. Many experts have
suggested that upon closer review, the specifics of the new
rule appear to be nothing more than a power grab meant to
expand the jurisdiction of these two agencies into areas the
Federal Government does not currently have a foothold.
However, an important related issue that has not received
as much attention is the new Interpretive Rule known as the IR,
and the Memorandum of Understanding between the EPA, the Army
Corps and the USDA. This document was released concurrently
with the Waters of the U.S. proposed rule. Now, the
Interpretive Rule, which was enacted immediately, presumes to
offer farmers a dredge-and-fill permit exemption for normal
farming, ranching and silvicultural activities under section
404 of the Clean Water Act if, and only if, those farmers
comply with conservation guidelines that until this time have
historically been voluntary.
Now, this agreement identifies 56 conservation practice
standards established by the National Resources Conservation
Service and will automatically meet the agriculture exemption
for normal farming activities conducted in the waters of the
United States unless you are receiving government assistance.
The NRCS standards have always been a voluntary guideline for a
farmer or rancher in jurisdictional waters. But under this
enacted rule, a producer must now meet a federally mandated
standard. Failure to do so would create a situation where
farmers must obtain permits under the Clean Water Act if the
EPA or the Army Corps agree to authorize them or face stiff
penalties. In fact, the enforcement actions under the Clean
Water Act could cost upwards of $37,000 per day.
Until this point, the NRCS has always had sole authority to
design and amend conservation practice guidelines. However,
under the new Memorandum of Understanding, the EPA and the Army
Corps of Engineers are free at any time to amend the list of
conservation practices that would qualify for these limited
exemptions.
It is beyond my comprehension why these agencies have not
chosen to include their list of 56 practices in the regulation.
Doing so would guarantee regulatory transparency and provide
producers input if or when the agencies chose to restrict the
list of practices that would qualify for an exemption.
The Obama Administration has said that the Interpretive
Rule is intended to clarify what normal farming practices can
be exempt from dredge-and-fill permits on a water of the United
States under the Clean Water Act. The Administration has been
very adamant to point out that they do not intend for this to
be a power grab or expansion of authority but merely a way to
eliminate ambiguity for producers and landowners. However, we
will hear from farmers and other experts today that this list
of practices maybe unnecessary. Many producers believe that
listing these approved conservation practices provides nothing
that the producers don't already have and only invites more
Federal regulations. And while the Obama Administration has
created this list of supposed exemptions under the dredge-and-
fill permitting, farmers still have no protection under this
proposal from the numerous other mandates of the Clean Water
Act including pesticide application permits under section 402.
Under the Clean Water Act proposal, more farmers and
ranchers will be captured under the Federal Government's
jurisdiction. The new exemptions agreed to by the EPA, the Army
Corps of Engineers and USDA have only created a new set of
government regulatory standards that farmers and ranchers must
now meet.
I hope today's testimony may shed light on the reasoning
for the Administration's Interpretive Rule and for the
Memorandum of Understanding and will allow our witnesses to
voice their concerns on this issue.
Last week the Administration announced an extension on the
comment period for both the waters of the United States
proposed rule and the Interpretive Rule. It is my hope that
public comment combined with this hearing and other
Congressional action will persuade the Administration to
withdraw the current proposed waters of the United States and
Interpretive Rules and start from scratch.
Now, I thank each of our witnesses for being here today and
I look forward to hearing your testimony.
[The prepared statement of Mr. Thompson follows:]
Prepared Statement of Hon. Glenn Thompson, a Representative in Congress
from Pennsylvania
Good morning. I want to welcome everyone to today's Conservation,
Energy, and Forestry Subcommittee hearing.
One of the foremost issues facing agriculture today is the newly
proposed rules released by the Environmental Protection Agency (EPA)
and the U.S. Army Corps of Engineers concerning the Clean Water Act's
definition of the waters of the United States.
We have heard much publicly from the Obama Administration about
their perceived need for this rule.
There have also been many strong concerns voiced from stakeholders
and Members of Congress, including myself and several Members of this
Subcommittee.
Many experts have suggested that, upon closer review, the specifics
of the new rule appear to be nothing more than a power grab meant to
expand the jurisdiction of these two agencies into areas the Federal
Government does not currently have a foothold.
However, an important related issue that has not received as much
attention is the new Interpretive Rule--known as the ``IR''--and the
Memorandum of Understanding (MOU) between EPA, the Army Corps, and the
USDA.
This document was released concurrently with the Waters of the U.S.
proposed rule.
The Interpretive Rule, which was enacted immediately, presumes to
offer farmers a ``dredge and fill'' permit exemption for normal
farming, ranching, and silvicultural activities under section 404 of
the Clean Water Act, if--and only if--those farmers comply with
conservation guidelines that until this time have historically been
voluntary.
This agreement identifies 56 conservation practice standards
established by the Natural Resources Conservation Service (NRCS) that
would automatically meet the agriculture exemption for normal farming
activities conducted in waters of the U.S.
Unless you are receiving government assistance, the NRCS standards
have always been a voluntary guideline for a farmer or rancher in
jurisdictional waters.
But under this enacted rule, a producer must now meet a federally
mandated standard.
Failure to do so, would create a situation where farmers must
obtain permits under the Clean Water Act--if the EPA or Corps agree to
authorize them--or face stiff penalties.
In fact, the enforcement actions under the Clean Water Act could
cost upwards of $37,000 per day.
Until this point, the NRCS has always had sole authority to design
and amend conservation practice guidelines.
However, under the new Memorandum of Understanding, EPA and the
Corps are free at any time to amend the list of conservation practices
that would qualify for these limited exemptions.
It is beyond my comprehension why these agencies have not chosen to
include their list of 56 practices in regulation.
Doing so would guarantee regulatory transparency, and provide
producers' input, if or when the agencies choose to restrict the list
of practices that would qualify for an exemption.
The Obama Administration has said the Interpretive Rule is intended
to clarify what normal farming practices can be exempt from dredge and
fill permits on a water of the U.S. under the Clean Water Act.
The Administration has been very adamant to point out that they do
not intend for this to be a power grab or expansion of authority, but
merely a way to eliminate ambiguity for producers and landowners.
However, we will hear from farmers and other experts today that
this list of practices may be unnecessary.
Many producer groups believe that listing these approved
conservation practices provides nothing that producers don't already
have, and only invites more Federal regulation.
And while the Obama Administration has created this list of
supposed exemptions under dredge and fill permitting, farmers still
have no protection under this proposal from the numerous other mandates
of the Clean Water Act--including pesticide application permits under
section 402.
Under the Clean Water Act proposal, more farmers and ranchers will
be captured under the Federal Government's jurisdiction.
The new exemptions agreed to by EPA, the Corps and USDA have only
created a new set of government regulatory standards that farmers and
ranchers must meet.
I hope today's testimony may shed light on the reasoning for the
Administration's Interpretive Rule and the MOU and allow our witnesses
to voice their concerns on this issue.
Last week the Administration announced an extension on the comment
period for both the Waters of the U.S. proposed rule and the
Interpretive Rule.
It is my hope that public comments, combined with this hearing and
other Congressional action, will persuade the Administration to
withdraw the current proposed Waters of the U.S. and Interpretive Rules
and start from scratch.
I thank each of our witnesses for being here today and I look
forward to hearing your testimony.
I now recognize the Ranking Member for his opening statement.
The Chairman. I now recognize my good friend, the Ranking
Member, for his opening statement.
OPENING STATEMENT OF HON. TIMOTHY J. WALZ, A REPRESENTATIVE IN
CONGRESS FROM MINNESOTA
Mr. Walz. Well, thank you, Chairman Thompson. I want to
thank my friend also for giving us this opportunity to discuss
the issue of clean water, the impact on agriculture and
conservation and our rural communities. Thank you also,
Chairman, for putting together a very strong panel. I am
appreciative. Under Secretary Bonnie, thank you for being here
and helping give your input and your perspective on this, and
to the witnesses who are here. It is a strong panel
representing producers as well as the conservation communities,
and for that, I am grateful.
We are here today to review the Interpretive Rule, NRCS's
role and the applicability of the Clean Water Act agricultural
exemptions. The premise of the Interpretive Rule is
conservation practices which benefit water quality and remain
consistent with NRCS technical standards should be exempt from
Clean Water Act 404(a) permitting. I think the central question
for us in this discussion will be whether or not the
Interpretive Rule incentivizes conservation practices and
whether those practices actually enhance water quality while at
the same time providing clarity to producers who deserve
certainty.
We all know that this is a business where there are lots of
uncertainties. As we speak now, much of my district is
underwater, and in one county alone, we have lost 100,000 acres
of soybean and corn crops, and so those uncertainties and the
impacts of water, lack thereof, too much and how those
producers are able to farm their land is critical.
Conservation is this Subcommittee's bread and butter too.
Members of our staff worked tirelessly throughout the farm bill
process to craft policies that incentivize conservation,
promotes sustainable practices and protect our watersheds. We
have proven that we don't have to fall victim to the false
dichotomy of conservation over agriculture. We found solid
conservation practices can and do lead to stronger economic
conditions. We have discussed the environmental and economic
benefits of conservation practices to farmers many times here.
Oftentimes it is the family farmer who is the best
conservationist and have to be because their most valuable
asset is the land.
Sportsmen and farmers have had a very close relationship,
and we have witnessed this throughout the farm bill process.
Many farmers are sportsmen, and many sportsmen hunt on private
land owned by farmers. Hunting and fishing and general outdoor
recreation is a prime example and one of the reasons we invited
representatives from the Izaak Walton League here. Forty-seven
million Americans hunt and fish. Outdoor recreation is a nearly
$700 billion industry and supports well over a million jobs.
This industry relies on clean water and productive wetlands,
but it also relies on a collaborative working relationship with
the agricultural sector and private landowners.
I don't have to look any further than my own district to
see the significance of this relationship. I have farmers in
southeast Minnesota who use NRCS technical assistance and
leverage EQIP dollars to improve management practices, increase
overall productivity on their lands, clean up streams and open
those streams to trout fishermen. Now those very streams are
some of the best in the upper Midwest, and sportsmen flock from
surrounding states to fish those streams as well as the
producer producing more off the land. Everyone is a winner when
we craft good policy which incentivizes conservation practices.
The sportsmen and agriculture sector have worked together in
the past to achieve significant victories for both conservation
and production agriculture. I am optimistic that in the spirit
of pragmatism that both groups demonstrated throughout the farm
bill debate will continue to guide future policy discussions.
I look forward to discussing the issue of the Interpretive
Rule, the impact it is going to have on both producers and
conservation in a good-faith effort to make sure that
conservation is incentivized and disagreements are resolved.
With that, I yield back, Mr. Chairman.
The Chairman. I thank the gentleman.
The chair would request that other Members submit their
opening statements for the record so the witnesses may begin
their testimony to ensure there is ample time for questions.
I would like to welcome our first witness to the table, Mr.
Robert Bonnie. Mr. Under Secretary, thank you for being here.
Mr. Bonnie serves as the Under Secretary for Natural Resources
and Environment with the USDA.
Mr. Bonnie, please begin when you are ready.
STATEMENT OF ROBERT BONNIE, UNDER SECRETARY FOR NATURAL
RESOURCES AND ENVIRONMENT, U.S.
DEPARTMENT OF AGRICULTURE, WASHINGTON, D.C.
Mr. Bonnie. Good morning, Mr. Chairman and Ranking Member
Walz. I appreciate the opportunity to be here today.
Thank you for the opportunity to be here today to discuss
the Interpretive Rule, which expands the number of agricultural
exemptions from permitting under the Clean Water Act.
The Interpretive Rule was released by the Environmental
Protection Agency at the same time that the proposed rule on
jurisdiction of the Clean Water Act was released for public
comment. Today I would like to describe the Interpretive Rule
for the Subcommittee, USDA's role in helping to shape it, and
the anticipated benefits for agriculture, conservation and the
nation's waters.
The Interpretive Rule is EPA's interpretation of the
existing exemption for normal farming, ranching and
silvicultural practices under the Clean Water Act related to
discharges of dredged and fill material. Under current law,
normal farming activities are exempt when they are part of an
established farming operation and do not change the reach or
use of waters. Normal farming includes things like plowing,
cultivating, minor drainage, harvesting, and upland soil and
water conservation practices. The Interpretive Rule does not
affect any of those existing agricultural exemptions. Indeed,
it adds to them, making even more room for agriculture. This is
an important point because there has been some criticism that
the Interpretive Rule might narrow the exemptions for
agriculture. It doesn't, and the Interpretive Rule itself is
crystal clear on this point. The rule text says that the rule
``does not affect in any manner the scope of agriculture,
silviculture and ranching activities currently exempt from
permitting.''
With the Interpretive Rule, now an additional 56
conservation practices from stream crossings to wetland
enhancement carried out in waters of the United States are no
longer subject to permitting requirements. Producers can follow
the conservation practice standard and implement practices on
their own. They don't need to notify the Army Corps or the EPA.
They don't need to ask for review or certification of the
exempt practice from NRCS or anyone else, and they don't need
to apply for a permit. Producers may want to get technical help
from NRCS if they have questions about a conservation practice
but it is not a requirement. And use of the exemption is
entirely voluntary.
In addition, the Interpretive Rule is based on
implementation of NRCS's conservation practices, which have
proven to be very popular with producers as evidenced by the
strong interest in USDA farm bill conservation programs, all of
which are tied to implementation of those conservation
practices. The Interpretive Rule is about increasing options
and promoting voluntary conservation to benefit agriculture and
water quality.
Let me tell you a little bit about USDA's role in the
development of the Interpretive Rule. USDA worked closely with
EPA and the Army Corps to find new opportunities and
flexibility for agriculture that fit with producers'
operational objectives and also provide water quality benefits.
USDA reviewed its over 160 NRCS conservation practices and
evaluated whether, first, those conservation practices might be
carried out in waters of the United States, and second, the
conservation practice is designed to enhance and protect water
quality. USDA also entered into a Memorandum of Understanding
with EPA and the Army to guide how the agencies will work
together to manage the list of exempted conservation practices.
At a minimum, the agencies will review the risk annually to see
how the exemptions are working and if changes are needed. The
MOU also clarifies the role and responsibilities of each
agency.
NRCS's role remains the same as it has been for over 75
years. We work with farmers, ranchers and other land managers
to assist with the voluntary efforts to plan and install
conservation practices that meet their needs and objectives.
NRCS has sole responsibility for developing, reviewing and
revising its conservation practice standards to guide that work
with producers.
We are already seeing positive examples such as in North
Carolina where a stream channel restoration project is now
moving forward. There, landowners who are following NRCS
practice standards to implement the stream channel restoration
project are now able to move forward without notifying the Army
Corps or obtaining a permit. As a result, the producers more
quickly restore the channel while foregoing the costs of a
permit. Further, NRCS staff time is freed up to provide direct
technical assistance to other producers.
The Interpretive Rule signals a new opportunity for
recognizing the value of producers' conservation efforts. There
is no sector of the economy that cares more about water than
agriculture. America's farm and ranch families make decisions
every day that help to improve and secure our water resources.
The Interpretive Rule will make those decisions and actions a
little easier and produce a substantial benefit for farms and
ranches, their communities and the nation as a whole.
Mr. Chairman, this concludes my statement. Thank you again
for the opportunity to be here today. I am happy to answer any
questions.
[The prepared statement of Mr. Bonnie follows:]
Prepared Statement of Robert Bonnie, Under Secretary for Natural
Resources and Environment, U.S. Department of Agriculture, Washington,
D.C.
Good morning, Chairman Thompson, Ranking Member Walz, and Members
of the Subcommittee. Thank you for the opportunity to be here today to
discuss the Interpretive Rule (IR) regarding the applicability of
certain agricultural exemptions from section 404 permitting under the
Clean Water Act (CWA).
The IR was released by the U.S. Environmental Protection Agency
(EPA) and the U.S. Department of the Army, Civil Works (Army) at the
same time that the agencies released their proposed rule on the
jurisdiction of the CWA. While the IR stands on its own, it has been
viewed in the context of the CWA proposed rule, resulting in widely
divergent perspectives on the impact and role of the IR. Today, I would
like to describe the IR, USDA's role in helping to shape the IR, and
the benefits USDA anticipates for agriculture, conservation, and the
nation's waters.
The Interpretive Rule
When a Federal agency provides a statement of how it interprets a
statute, that statement is called an interpretive rule. The IR relates
to the existing exemption for normal farming, ranching, and
silvicultural practices under section 404(f)(1)(A) of the CWA regarding
discharges of dredged and fill material into waters of the United
States. With the IR, EPA and Army are recognizing shifts in agriculture
since the 1970s when the CWA came into effect, and clarifying that
certain conservation activities in waters of the U.S. following Natural
Resources Conservation Service (NRCS) conservation practice standards
are also exempt from CWA section 404 dredge and fill permitting
requirements as ``normal farming'' activities.
The CWA exempts normal farming, ranching, and silvicultural
activities, such as plowing, cultivating, minor drainage, and
harvesting for the production of food, fiber, and forest products, and
upland soil and water conservation practices when they are part of an
established farming operation and do not change use of waters, and
where the flow or circulation of those waters may not be impaired or
the reach reduced. The IR clarifies that this existing exemption also
includes 56 conservation practices, from stream crossings to wetland
enhancement, which can occur in waters of the U.S. To be exempt, these
practices must be implemented in accordance with the applicable NRCS
conservation standards.
Specifically, the IR provides that: ``Normal farming necessarily
includes conservation and protection of soil, water, and related
resources in order to sustain agricultural productivity along with
other benefits to environmental quality and continued economic
development. `Upland soil and water conservation practices' are
explicitly identified in the statute as `normal' farming activities,
and conservation activities within the waters of the U.S. that includes
discharges in waters of the U.S. and that are designed to protect and
enhance the waters of the U.S. have been determined to be of
essentially the same character.'' [emphasis added] Just to be clear,
the IR clarifies that the 56 additional agriculture conservation
practices fall under the statutory exemption and do not require a
section 404 permit.
The IR exemption is ``self-implementing'' meaning that producers do
not need to notify the regulatory agencies or seek review or
certification. This means that producers can follow the conservation
practice standard and implement practices on their own, without NRCS
involvement, and not be required to seek a 404 permit. Producers may
choose to seek technical advice or assistance from NRCS, conservation
districts, technical service providers, or others with agricultural
conservation expertise to implement covered practices, but they are not
required to do so. Further, there is no requirement that a producer
choose to exercise the exemption. They may consult with the Army
regarding how the CWA applies to their activities if that is their
preference. The benefit of the IR is that it provides clarity for
agricultural producers, promotes conservation, and benefits agriculture
and water resources.
USDA Role in the IR
USDA worked closely with EPA and Army to evaluate opportunities to
clarify the type of practices that occur in waters of the U.S. that may
involve a discharge of dredge or fill material and result in water
quality benefits, so that producers can more easily implement
conservation measures that achieve their operational objectives.
USDA assisted EPA and Army by identifying NRCS conservation
practices to be considered as exemptions through the IR. NRCS has over
160 conservation practices, which are designed and developed to assist
producers in their voluntary conservation efforts to address their
natural resource and operational objectives. NRCS conservation practice
standards are science-based--drawing upon research, academic, and
agricultural expertise. The standards are reviewed and updated on a
scheduled basis, and are subject to public notice and comment to ensure
wide opportunity for input. Final standards reflect public input and
the best science--basic and applied--at the time.
In recommending specific practices to be exempt through the IR,
NRCS evaluated if:
The conservation practice could be applied in waters of the
United States (i.e., it is not entirely an upland-located
conservation practice); and
The conservation practice is designed to enhance and protect
water quality.The resulting list of practices complements the
previously recognized exemptions for normal farming and
ranching activities and upland soil and water conservation
practices and provides new flexibility for agriculture.
A Memorandum of Understanding (MOU) signed by EPA, Army, and USDA
outlines how the three agencies will collaborate on maintaining and
managing the list of conservation practices exempted under the IR. The
cooperating agencies will convene on at least an annual basis to review
the practice list and decide on any modifications to the list to ensure
the rule continues to provide additional clarity to the agriculture
community while achieving water quality benefits.
The MOU also clarifies the roles and responsibilities of each
agency to ensure that there is a clear distinction between the
regulatory and technical assistance responsibilities. NRCS
responsibilities outlined in the MOU focus on working with farmers,
ranchers, and other land managers to assist with their voluntary
efforts to plan and install conservation practices that meet their
needs and objectives. The development, review, and revision of the NRCS
conservation practice standards themselves are the sole responsibility
of NRCS. Finally, I want to make clear that the IR and the MOU in no
way affect the voluntary nature of NRCS work with producers in
implementing conservation practices and programs.
Benefits for Agriculture
The IR signals a new opportunity for recognizing the value of
producers' conservation efforts across the nation. We know that
voluntary conservation works and that it is delivering benefits for
agriculture and natural resources. USDA's Conservation Effects
Assessment Project (CEAP) provides ample evidence of the water quality
benefits of conservation practices. These scientific assessments are
borne out by evidence on the ground. Consider the recent Southwest Farm
Press report that highlights:
``Voluntary conservation practices place Oklahoma among the
water quality elite for another year. Farmers, ranchers and
other landowners have helped remove nine more streams from
Oklahoma's 303(d) list of impaired streams.''
The April 3rd IR streamlines the regulatory landscape. For example,
landowners who are following NRCS practice standards to implement a
stream channel restoration project in North Carolina are able to move
forward without going through a notification or permitting process. The
benefit--they can move more quickly to restore the channel and deliver
intended water quality benefits, and technical staff time is freed up
to provide direct technical assistance to other producers.
Conclusion
Thank you again for this opportunity to discuss the Interpretive
Rule, which recognizes the value of agricultural conservation efforts
in benefitting water resources and brings additional flexibility for
producers. The list of successes will grow as the agencies and
producers gain more understanding of the opportunity provided by the
IR. There is no sector of the economy that cares more about water than
agriculture. America's farm and ranch families make decisions every day
that help to protect and ensure our water resources. The IR will make
those decisions and actions a little easier and produce a benefit for
farms and ranches, their communities, and the nation as a whole. USDA
looks forward to continuing to work with EPA and Army to achieve
positive outcomes for agriculture, conservation, and the nation's
waters.
Mr. Chairman, this concludes my statement. Thank you again for the
opportunity to be here today and I will be happy to answer any
questions you may have.
The Chairman. Well, thank you, Mr. Bonnie.
The chair would like to remind Members that they will be
recognized for questioning in the order of seniority for
Members who were present at the start of the hearing. After
that, Members will be recognized in order of their arrival, and
I appreciate the Members' understanding. I now take the liberty
of recognizing myself for 5 minutes of questioning.
Once again, Mr. Bonnie, thank you for being here today.
There is quite a bit of concern and uncertainty among the
industry with this issue, and we are hoping to achieve some
level of clarity today.
The EPA has issued the Interpretive Rule to clarify that a
long list of conservation practices are exempt from dredge-and-
fill permit requirements under the Clean Water Act section 404
exemption for normal farming and ranching activities so long as
the practices comply with NRCS's standards. So as I understand
it, a farmer only qualifies for any one of these exemptions if
the farmer follows NRCS's standards. Is that correct?
Mr. Bonnie. That is correct.
The Chairman. Now, how does that compare to the current
law?
Mr. Bonnie. Under current law, there is no presumption that
not following those standards is somehow a violation of the
Clean Water Act. What we have tried to do is provide clarity
that these 56 practices are exempt so that landowners have
certainty that they can move forward with those under the Clean
Water Act without having to seek a permit.
The Chairman. So must a farmer currently meet NRCS
standards to qualify for normal activities that are exempt
under section 404? Do they have to meet those standards in
order to qualify for----
Mr. Bonnie. For this particular--under the Interpretive
Rule for this particular--for the Interpretive Rule, yes, they
have to meet those standards.
The Chairman. So we have actually gone from voluntary to
compulsory?
Mr. Bonnie. The Interpretive Rule is entirely voluntary. It
doesn't require any landowner to undertake any of these
activities. If they want to undertake these activities, we have
given them an exemption, clarity that there is an exemption for
doing that.
The Chairman. So if we don't want them to experience a
world of hurt, then they will have to comply?
Mr. Bonnie. Well, I am not sure I would say that our
conservation practices are a world of hurt.
The Chairman. Well, if they don't want to be facing the
consequences of the Clean Water Act and all of its--up to
$37,000 fines a day, the presence on the farm, the interruption
of farming activities, interruption of providing affordable,
high-quality and safe food for the nation, if they don't want
to, it really is compulsory to--what was voluntary is now
mandatory.
Mr. Bonnie. I disagree, with all due respect, with the
characterization. I think what we have done is provide a menu
of activities that they can undertake and have clarity that
they won't be in violation of the Act.
The Chairman. I think that is going to be the topic of
today's discussion, so we will get into it more.
I have a little bit of time left. Is it true that any or
all of these exemptions can be changed, curtailed or even
eliminated by NRCS without written notice to the public or
without public input?
Mr. Bonnie. So our plan and the MOU lays this out, to
review these exemptions annually with EPA and the Corps. We
take this MOU very seriously. We didn't enter into it lightly,
and we are going to do the best we can to not only maintain the
56 exemptions that are in there but look for opportunities to
add to it.
The Chairman. So what you are telling me is, you are going
to take the complexities of three major players--your agency,
the Army Corps of Engineers, the Environmental Protection
Agency--and they are going to subject to changing this thing on
at least an annual basis. Is there a--can you tell the
Committee or submit for the record the process by which the
NRCS establishes these standards, what input farmers have in
their development and what happens if farmers disagree with
NRCS?
Mr. Bonnie. So we have, over the last several years, have
heard a lot of input from agriculture on this issue, and one of
the things we have heard is about the importance of certainty
and looking for ways to expand exemptions. As we met with the
EPA and the Corps to discuss the Clean Water Act, that was one
of our primary concerns, and in working with those two
agencies, we looked at practices that we thought both are
practices that can be done in waters of the United States and
that provided water quality benefits.
The Chairman. Well, I find myself in an unusual situation
because I am a fan of NRCS. I was just with a large group of
your employees yesterday talking to them. But I find today that
in this situation--I think you are sincere when you say you
take farmers' interests, because you put boots on the ground.
But with this Interpretive Rule, there was no public comment
period, to the best of my knowledge, and there wasn't even
notice. It went into effect immediately upon its publishing and
so somehow we have veered away from the NRCS that I am
accustomed to.
My time has expired. We are going to try to stay within the
limit so we can give everybody lots of time for questions, and
I am pleased to yield to my good friend, the Ranking Member--
oh, I am sorry. I am going to yield to the Ranking Member of
the full Committee, Mr. Peterson from Minnesota.
Mr. Peterson. Thank you, Mr. Chairman. I appreciate it. I
appreciate your holding this hearing.
Mr. Bonnie, it has been told to me that nothing is going to
change here and that we are going to include all of the
practices that are currently being done. So apparently under
this deal, the practice no. 554 water drainage management is
not listed as a practice, it is something that currently is
being done. Why was that left off?
Mr. Bonnie. As I responded earlier, we looked at two
criteria for these, whether they were water quality benefits
and as well if they are done in waters of the United States. We
tried to choose practices that did that. Our hope is that we
may be able to provide additional practices, going forward.
Mr. Peterson. But that is going backwards from what we are
doing now, how do you say that you are covering everything? It
is not true.
And my experience out there, since this has come out, is
the Corps of Engineers has gone off the reservation, and there
was one meeting where they stood up and said we are going to go
from navigable waters to all waters in the Prairie Pothole
Region because we are going to restore all the wetlands. One of
their people said that. The NRCS has a MOU with the Corps that
they are going to follow the NRCS determination.
I have another situation where a guy wants to build a dairy
farm, and NRCS is willing to permit it and has a mitigation
situation, which he wants to comply with, and the Corps is
standing in the way.
So I don't get this that you say that nothing is going to
change. In my experience in what is going on out there, that is
not the case at all, and are things like dikes and levees on
WRP and wetland easement programs, are they subject to section
404 permits? How about tiling? I mean, that is what you are
saying, that they will still be subject to section 404----
Mr. Bonnie. Not in the----
Mr. Peterson.--now we are not doing that?
Mr. Bonnie.--Interpretive Rule but in the proposed rule,
there is now an exemption for till drainage related to
groundwater.
Mr. Peterson. There is?
Mr. Bonnie. Yes.
Mr. Peterson. So what is the difference between the
Interpretive Rule and the----
Mr. Bonnie. So the Interpretive Rule interprets normal
farming and ranching and provides clarity that these 56
practices don't require a permit under section 404.
Mr. Peterson. Why were these others left off then? Why were
they left off there and put in this other place?
Mr. Bonnie. Well, as I mentioned earlier, we followed two
criteria for which exemptions made the list, and with respect
to the Corps, as it affects the Interpretive Rule, we are
committed to having conversations and have already started that
process with the EPA and the Corps to ensure that they
understand that there is consistency across the country in how
we look at the Interpretive Rule.
Mr. Peterson. Well, I wouldn't hold my breath because the
Corps in Omaha has a whole different perspective than the Corps
in St. Paul, and that is something I run into all the time as
well. What about the dirt piles that are left after you till?
You know, when you till you get a little bit of dirt on the top
of the ground. Apparently they are saying that that is
requiring a permit, the section 404 permit?
Mr. Bonnie. I don't know the answer to that question. It is
probably a more suitable question for EPA or the Corps. We
were--in our conversations around the proposed rule itself,
again, our emphasis is looking for ways that we could expand
some of the exemptions for agriculture.
Mr. Peterson. Well, it seems to me you have left some of
these things off and we need to--the other thing that concerns
me is, we had a letter in one situation where out there the
Corps is telling people that they can't get to this for 8 to 12
months, and so they are going out there trying to grab more
jurisdiction and they can't even do the work they have now and
somehow or another I am going to go explain to people that this
is better? That dog doesn't hunt, and I just don't see where we
are getting with this.
Mr. Bonnie. The commitment I make to you, sir, is that we
are going to do our best to make sure there is consistency as
it relates to the Interpretive Rule with how the three agencies
view it. NRCS is in charge of its own standards. As I noted, no
landowner has to go get certification or otherwise check in
with any of the three agencies.
Mr. Peterson. Well, are you going to guarantee me that we
are not going to go backwards from all the progress we have
made in Minnesota with NRCS working with these other agencies
that what is going on here is not going to move us backwards?
Mr. Bonnie. I am going to commit to you that we are going
to do our level best to make sure that is the case.
Mr. Peterson. And that is what seems like is going on now,
and that would be a bad outcome.
Thank you. I yield back.
The Chairman. The gentleman yields back. I now recognize
the gentleman from Ohio, Mr. Gibbs, for 5 minutes.
Mr. Gibbs. Thank you, Mr. Chairman. Thank you for holding
this important hearing.
Last week in my Subcommittee, Water Resources under
Transportation and Infrastructure, we had the Deputy
Administrator of the EPA, Robert Perciasepe, and Jo-Ellen
Darcy, the Assistant Secretary for the Army Corps, as well as
other stakeholders on the panel, and after several rounds of
questions and two panels, it is safe to say we didn't get our
questions answered, and it is troubling for farmers and
ranchers and home builders, everybody. There is a lot of
uncertainty out there. Also on the proposed rule, it is clear
that no state EPA has come out in support of it.
But the Interpretive Rule we are discussing today that was
effective in March is concerning, and I am concerned about how
this Interpretive Rule may discourage producers from
participating in conservation practices due to a mandatory and
expensive permitting process and lack of clarity.
I want to follow up on the Chairman's question a little
bit, and as you stated, Mr. Bonnie, if you are doing a
conservation practice, one of these 56, and you are in
compliance working with NRCS, you are exempt. I am looking
through the list here. Is it safe to say that if a farmer/
producer goes out and is doing a practice like structure of a
water control or building a fence and has not worked with the
NRCS or maybe he is just doing it himself, he would not be
exempt? Is that true?
Mr. Bonnie. No, they do not have to work with NRCS. As long
as they follow the practice standard, they are exempt. There is
no required certification from NRCS or any other agency.
Mr. Gibbs. Who is the enforcement mechanism?
Mr. Bonnie. There is no requirement for any landowner to
check with any Federal agency. All they have to do is follow
the standard.
Mr. Gibbs. Well, my concern is with the proposed underlying
rule, the expansion of waters in the United States, EPA could
come in and you could say exempt and they could challenge if
that farmer is not in compliance with NRCS, so that is going to
be----
Mr. Bonnie. It doesn't change any of the--anything as it
relates to the proposed rule but what we would argue is that we
have provided additional certainty to these 56 practices and
the landowner will be better off because of that.
Mr. Gibbs. Well, I guess time will tell, but it is a very
concerning issue.
Also, those exemptions, even if you are in compliance with
NRCS, only exempts you from section 404 permitting. I have a
bill, H.R. 935, Reducing Regulatory Burdens Act of 2013, about
NPDES permitting under section 402. My question in there is if
a farmer is exempt from doing structure or water control on
this 56 exemption list, exempt under section 404, if they
expand the waters in the United States, wouldn't they be liable
under section 402 for permitting and also be liable for
possible lawsuits?
Mr. Bonnie. So this doesn't change anything related to
section 402. As you point out, it is only for section 404. The
existing exemptions for storm water runoff or irrigation return
flow still apply for section 402.
Mr. Gibbs. Especially with the expansion of waters of the
United States, because currently under the Clean Water Act,
agriculture had a blanket exemption from the sections 402, 404
permits but under the rule if they expand jurisdiction, which
you will hear in the next panel that they are--we heard that
last week in my committee--then they would be opened up to more
regulatory burden and possible citizens' lawsuits. Would you
agree?
Mr. Bonnie. Potentially, yes.
Mr. Gibbs. So that is a real concern.
Also in the rule, in the underlying rule, there is a lot of
ambiguity and vagueness, and it seems to me that things are
really stacked on the regulatory side. It gives them the
flexibility because what I would document as proof, they stated
in my committee that they would look at things on a case-by-
case basis and gives them the flexibility if they want to
enforce this or not enforce this, and I could see the attempt
by USDA here to say we are doing these 56 exemptions but I
think that there is enough ambiguity in the vagueness in the
underlying rule that these exemptions don't maybe go to the
root of what you are trying to do. I really have concerns to
that, and I think that is an issue that--and I would concur
with the Chairman that this rule ought to be laid on the table,
the underlying rule, the proposed rule and the Interpretive
Rule because I don't think it is helpful. I think we can look
forward to having less conservation activities on farms because
of fear of doing anything opens up the door to litigation and
permitting and delays in getting those permits if they are
required to get those permits.
I yield back my time.
The Chairman. I thank the gentleman and now recognize the
Ranking Member for 5 minutes.
Mr. Walz. I would yield some of my time to the full
Committee Ranking Member.
Mr. Peterson. I thank the gentleman.
I have a list here of the conservation practices from NRCS,
and over \1/2\ of them are not listed. The ones circled in red
are listed, the others aren't. So I would like to submit this
to Mr. Bonnie and have him explain to us why these ones that
aren't included, why they weren't included.
[The information referred to is located on p. 103.]
Mr. Walz. I thank the Ranking Member.
Thank you, Mr. Bonnie. I think what you are hearing is--and
again, you have good actors trying to get this right. I can
tell you that what is being conveyed by my colleagues is what I
am hearing also, that there is great uncertainty, and these are
by folks that have lived a lifetime of trying to incorporate
conservation practices to the best of their ability while still
trying to produce on the land. I think you are hearing this. I
hope you are hearing from folks that want to get this right but
there is little doubt there is confusion, and we need to get to
the heart of why that is.
One of the questions, and it kind of got hit on--and I am
certainly in full disclosure, I am biased to Article I of the
Constitution that it is our job to do it. I am always curious
when an agency goes out and sets a rule how much input did the
stakeholders have. Because I am hearing from some of my folks
that they felt pretty blind-sided by this. They felt like there
wasn't collaboration. Could you kind of explain a little bit to
me of what type of outreach was done to get the input of those
stakeholders?
Mr. Bonnie. As you know, for the Administration, this is a
rule, waters of the United States. There has been earlier draft
guidance that was put out. There has been ongoing conversations
with USDA and agriculture around this issue broadly as it
applies to waters of the United States over the last 5 years.
We have had a number of conversations with folks in agriculture
about their concerns, and one of the concerns we continued to
hear was the need for certainty, the need to broaden
exemptions. We viewed the Interpretive Rule as a way to be
responsive to those concerns. We have a public comment period
right now on the Interpretive Rule that will close in July but
that is not going to be the end. We hope we will have an
ongoing conversation with agriculture on this to improve its
implementation. If there are opportunities to add additional
practices, we want to hear that as well.
The other thing we will do is as much outreach as we can,
both to agencies and agriculture, to inform them about how the
Interpretive Rule is to work.
Mr. Walz. Did you anticipate there would be this type of, I
guess, concern and level of concern? Did it surprise you when
you heard this or were you prepared for that?
Mr. Bonnie. Well, on the one hand, I would say it is
obviously clear that this issue, waters of the United States,
broadly has always been of deep concern to agriculture and
forestry as well. We understand that. We understand that doing
things around this can be controversial. We do think that what
we have done here is increased the number of exemptions through
a voluntary basis using conservation practices that are very
popular with landowners so that we hope that this will be
something that will be accepted as the opportunity that we
think it is.
Mr. Walz. I do worry, and the gentleman from Ohio brought
up a great point, that we have to be very careful in doing this
so that we don't disincentivize people that want to do this
right, because our goal is to get this conservation right. The
goal is to--and I want to be clear--regulations that are smart,
that clean our waters, that allow for other industries to
thrive aren't burdensome. Those are smart. But if they do get
to that point of being burdensome or they become a lack of
clarity or they become, it is easier not to do it, I think that
is a concern. I hear this from folks that I can absolutely tell
you, Mr. Under Secretary, are committed to getting this right--
feel that confusion.
When I hear this, just as an example, now, how do I go
out--and you have heard this from someone--just something as
simple as this: someone wants to do fencing. What kind of--what
happens there? What changes for them if they were doing fencing
2 years ago and they want to do fencing under this Interpretive
Rule? What is different and why would someone, these folks be
confused about this?
Mr. Bonnie. Well, the fencing standard by NRCS is pretty
short and it is very broad. If a landowner basically builds a
fence that is in keeping with that, and I would submit to you
that standard, I would submit to you that is going to be a
fairly easy standard to meet, they are going to have a clear
exemption under the Act. They can either do that themselves by
getting the standards off the website, for example. They can
reach out to NRCS if they want to do that. NRCS may be willing
to cost-share that action. They can reach out to a technical
service provider or others, purely voluntary, don't have to
reach out to the Federal Government if they don't want to, any
of the agencies. It is just an option, a voluntary option that
they can take if they want.
Mr. Walz. Your interpretation, your understanding and you
are telling me for clarity on this, nothing changed for those
people? They are not open for any more lawsuits?
Mr. Bonnie. All we have done is provided an additional
option for someone that wants to seek some clarity about an
exemption under the Act.
Mr. Walz. Okay. With that, I yield back, Mr. Chairman.
The Chairman. I thank the gentleman and now recognize the
gentleman from Arkansas for 5 minutes.
Mr. Crawford. I thank the Chairman.
I am a little concerned about the 56 practices too, and so
I want to also associate myself with the Ranking Member as
well.
Also, the other thing that the Chairman mentioned is the
relationship the NRCS has had up to this point with farmers. I
think it has been certainly consistent in my district as well
that the NRCS has been looked at as a source of technical
expertise with respect to things like surface water retention
and things of this nature. But as my friend from Ohio pointed
out in our Subcommittee hearing last week, it seems like the
NRCS has been sort of caught up in this issue with the EPA and
the Corps of Engineers to become now somewhat of a regulatory
body. I never got an answer last week so I will try it with
you. One of the interpretations in the Clean Water Act from the
Supreme Court is significant nexus. So when we talk about a
section 402 permit as an example and somebody has some drift in
that waterway then is in contact with a regulated waterway,
does that constitute significant nexus and who makes that
interpretation?
Mr. Bonnie. I will do the best I can. It is probably a
better question for EPA or the Corps. I believe spray drift is
not regulated. I believe that if you apply a pesticide directly
to a water, that that can be subject to regulation, and I
believe if you follow the recommendations of the specific
pesticide that you are in compliance with section 402.
Mr. Crawford. My other concern, among others--I have 5
minutes, I could never enumerate the concerns I have about this
but I will do my best in the time that I am given. As an
example, so we talk about spray drift, some of these things.
What about a cattleman? If you have ever been around cattle,
they are going to eliminate where they please. So your cow
walks into a stock pond that may be draining into a ditch that
flows into a regulated waterway and eliminates. Who is going to
address that issue? Is the cattleman now subject to a lawsuit?
Mr. Bonnie. Again, probably a better issue for EPA or the
Corps but I would say it very much strikes me as a normal
farming and ranching activity. I would say that in the
Interpretive Rule, we have added a practice for livestock
crossing if there are concerns there.
Mr. Crawford. And then this was alluded to, fence building.
Obviously--and I go back to my comments about the technical
resources available that are provided by NRCS which up to this
point have been--particularly in my district, there have been
some great projects as a result of interaction and
collaboration with NRCS, and we would like to keep it that way.
Is the NRCS now going to--their core competency up to this
point has never been fence building. But it sounds like now
there is going to be a standard set prescribed by the NRCS as
an option, and we hear that repeated, but it doesn't sound like
we are giving our producers really any options to avoid being
caught up in regulatory regime here.
Mr. Bonnie. So we have long had a standard for fences. I
would be happy to provide it to your staff. As someone who has
grown up on a horse and cow farm, I have been around a lot of
fences. I think most producers would meet the standard fairly
easily.
With respect to NRCS becoming a regulatory agency, again,
there is no requirement that any landowner seek NRCS's
certification for any of these practices.
Mr. Crawford. Okay. Let me ask you this, and again, I
didn't get this answer from the EPA or the Corps. Who actually
makes the determination on significant nexus? Is this something
that the three agencies are going to get together and say,
``Yes, that is a significant nexus and we are going to go
forward and regulate?''
Mr. Bonnie. USDA is not involved in regulation of that
aspect of the Clean Water Act or any aspect of the Clean Water
Act.
Mr. Crawford. And the other issue I have is if a farmer is
not following an NRCS standard, is that by interpretation, does
that mean they are in violation of the Clean Water Act? Are
they subject to a $37,500 fine?
Mr. Bonnie. Absolutely not. There is no presumption that
not following NRCS practices somehow violates the Clean Water
Act.
Mr. Crawford. Well, I appreciate your testimony today, and
again, I share the concerns that the Chairman has. I think we
have--our producers have enjoyed a very productive relationship
with the NRCS up to this point, and my concern is that what has
happened now in regards to the Clean Water Act could compromise
that relationship and foment distrust among producers with
respect to the NRCS, and with that, I yield back.
The Chairman. I thank the gentleman for yielding back. I
just want to point out, in terms of the exchange on the
pesticide spraying, I mean, just a little clarification to kind
of contrast what you said. The EPA currently regulates
pesticide spraying and they have, to the best of my knowledge,
two additional restrictions pending that they are considering.
Mr. Bonnie. That is right, and I didn't mean to suggest
otherwise if I did.
The Chairman. Okay. Now I am pleased to recognize the
gentleman from North Carolina, Mr. McIntyre, for 5 minutes.
Mr. McIntyre. Thank you. Thank you very much, and thank you
for being here today.
I have two or three questions I would like to get answered
so I will just go right through them. First of all, in North
Carolina, several state agencies have standards for many of
these activities that differ from the NRCS standards. Will
these activities be exempt from section 404 permits only if
they adhere to the NRCS standards?
Mr. Bonnie. Yes.
Mr. McIntyre. Even though they otherwise meet all the
necessary state regulations?
Mr. Bonnie. Yes.
Mr. McIntyre. Okay. So this is adding a layer of additional
standards now that they are going to have to meet?
Mr. Bonnie. Entirely voluntary.
Mr. McIntyre. Then if they are--I guess that raises the
question, you did say earlier and you just repeated, they are
entirely voluntary. You said earlier no landowner has to get
certification. You said earlier this is just meant to provide
additional certainty. Yet now you are saying even though they
are already meeting the requirements of the state and even
though they already have done everything necessary for this
section 404, they have to meet these NRCS standards.
Mr. Bonnie. No. If they are meeting the requirements of
section 404, then they are fine. The Interpretive Rule doesn't
do anything to change the exemptions already existing.
Mr. McIntyre. All right. Well, I guess we have an old
saying in the South, ``If it ain't broke, don't fix it,'' and
if it is entirely voluntary, as you have just said, and no
landowner is required to get certification, several of our
stakeholders, some of whom are in the audience and that we will
be hearing from on the second panel, have asked to withdraw the
Interpretive Rule. What would be the consequences then of
withdrawing it if it is entirely voluntary?
Mr. Bonnie. Well, in my opening testimony, I talked about a
landowner in North Carolina who has utilized this and foregone
both the expense and the delay in a permit. We think we can
save both time and money through this exemption like we have in
that example I used in North Carolina. We think we are
providing additional options, voluntary options, for producers
if they want to use it, and we think over the long term that
will be of great value to agriculture.
Mr. McIntyre. Okay. And I respect the fact that that is an
opinion because you have said three times there that we think.
Obviously there are other thoughts that are occurring, and we
appreciate you coming to answer our questions. So I would hope
that you would think about withdrawing the Interpretive Rule
because if it is not adding anything of additional quality and
if the requirements can legally otherwise be met, then this is
indeed adding another layer that has to be considered. For
instance, the Interpretive Rule and the regulations that cover
the existing Clean Water Act exemptions for agriculture say
that an activity must be part of an established or ongoing
practice to qualify as not needing a dredge-and-fill permit.
What is meant by established or ongoing? And some have
suggested activities on a farm that took place in 1977 are not
established but those that took place after 1977 are ongoing.
Is that correct, and is 1977 a magic date or is there some
other specified date?
Mr. Bonnie. I am not aware of the issue related to the year
1977. I think the established and ongoing applies to the normal
farming and ranching exemption. I think the most important
thing, as I understand it--again, probably a better question
for EPA and the Corps--the most important thing is that there
not be a change in the use of a water of the United States, and
I think that is the most important piece about this exemption.
Mr. McIntyre. Okay. It was in 1977 that Congress amended
the Clean Water Act by exempting routine farming, silviculture
and ranching activities, 33 U.S. Code 1344. So that is where
that date comes from, and that would be again a practical
application question of this. So as we consider these concerns,
the listing of these additional practices and if they are
indeed supposed to provide additional certainty, it sounds
clearly from the questions being asked and the concerns being
raised today that actually it is providing additional
uncertainty. I would encourage, if that is truly the intent of
the rule, which you have said it is, is to provide additional
certainty, then it needs to be revisited before it is
implemented.
And so we appreciate your coming before us today to hear
our concerns. We appreciate the hearing. That is the reason for
the public input, and if July sounds like it is too soon of a
time to implement this, we would ask it be tabled until there
can be more certainty.
And with that, I yield back. Thank you, Mr. Chairman.
The Chairman. I thank the gentleman from North Carolina and
now recognize the gentleman from Michigan, Mr. Benishek, for 5
minutes.
Mr. Benishek. Thank you, Mr. Chairman.
Mr. Bonnie, I am curious as to who you consulted with
before putting out this Interpretive Rule because we have a lot
of people here that say they weren't consulted. So you said you
consulted with people in agriculture. Who exactly was that?
Mr. Bonnie. Let me be clear about what I meant by that. I
didn't mean to suggest that we consulted with folks on the
specifics related to the Interpretive Rule. We have had ongoing
conversations with agriculture for a long time about the Clean
Water Act, how it applies to agriculture, and we have had
ongoing conversations with folks in agriculture about the need
for broadening those exemptions.
Mr. Benishek. Who are those people that you consulted with?
Mr. Bonnie. We hear regularly from livestock groups, from
other groups that have concerns about the need for further
clarity and exemptions in the Clean Water Act.
Mr. Benishek. Have any groups here in the audience been
consulted about this?
Mr. Bonnie. Well, again, I----
Mr. Benishek. Raise your hand.
Mr. Bonnie. Don Parrish and I have had lot of conversations
about the Clean Water Act. He would say, as would I, that we
never had a conversation about the specifics of the
Interpretive Rule.
Mr. Benishek. Well, I have another question, the difference
between a legislative rule and an interpretive rule. My
understanding is that an interpretive rule sort of defines the
rule of law. A legislative rule actually makes the law. It
seems to me that this Interpretive Rule actually is a
legislative rule and that would require a comment period
because it actually defines 56 things that weren't previously
defined as the law but now it is. So how is this not, what you
call an Interpretive Rule, how is this not a legislative rule,
which would require a comment period?
Mr. Bonnie. We do have a comment period. It is up until
July. What the Interpretive Rule does, it interprets what
normal farming and ranching activities are, and defines that as
including conservation practices and particularly the 56
conservation practices that we have laid out.
Mr. Benishek. I guess this is not my understanding of what
the difference is because my understanding is that the
interpretive actually interprets what the law says and then
your rule seems to define it, which is the definition of a
legislative rule, and I don't understand why the comment period
wouldn't take place before you do a rule rather than after you
do the rule. What is the reason for that?
Mr. Bonnie. We wanted to include conservation in normal
farming and ranching activities. We wanted to expand the number
of exemptions. Our hope is that we have reflected what we have
heard from agriculture and can continue to do that as this goes
forward and we hear both concerns and praise about how this
thing rolls out.
Mr. Benishek. But as I understand it, this comment period
is about the underlying rule, not the Interpretive Rule.
Mr. Bonnie. There are two comment periods. The comment
period for the proposed Clean Water Act Waters of the U.S. rule
is open until October. We have a comment period for the
Interpretive Rule open until July 7th.
Mr. Benishek. Why is it that we have to be changing this
rule every year?
Mr. Bonnie. Well, our hope is that with conversations with
EPA and the Corps, that there may be opportunities to add
additional practices, look at this Interpretive Rule as it is
played out.
Mr. Benishek. Isn't that really hard on people that
actually have to comply with these rules that they are subject
to having it changed every single year?
Mr. Bonnie. Well, what I would say is that I think this is
again entirely voluntary. We think we have provided additional
options for conservation and for landowners to undertake
conservation activities. So we hope that this will be seen as
an opportunity for agriculture.
Mr. Benishek. I will yield back the remainder of my time.
The Chairman. I just want to say, Secretary Bonnie, I am
starting to lose track of how many times on agriculture
questions you are deferring to the Army Corps of Engineers and
the EPA, which is a big part of my concern. I trust the USDA
when it comes to agricultural practices. And I yield back, and
the gentleman yields back.
It is my pleasure to introduce the gentlelady from New
Hampshire, Ms. Kuster, for 5 minutes.
Ms. Kuster. Thank you very much, Mr. Chairman, and thank
you, Mr. Bonnie, for appearing before us today. We are
bipartisan in our concerns that have been expressed certainly
from agricultural producers in New Hampshire and many states
across the country.
I agree with the opening comments, that the farmers in my
district do care a great deal about the environment and about
the land including mitigating runoff from streams and wetlands
and ensuring that their animals have access to clean water, et
cetera. The concerns that you are hearing are related to the
level of engagement in the process by the agricultural
community, and I share the concerns that have been expressed
here on both sides of the aisle that the stakeholders in my
district did not feel included in this process. With that being
said, I guess the question at this point is, what are the plans
that NRCS has moving forward on outreach and education because
it may come as a surprise to some people that these are
voluntary, given the context of the rulemaking that is going
forward at the EPA, which nobody interprets that to be
voluntary. I mean, there is a great deal of concern, and
already this is nothing new to you but we are venturing into a
volatile area when the topic is navigable waters and you end up
talking about ditches and not even streams. In our region,
these are seasonal. There is nothing navigable about these
waters. So I just would ask if you could spend some time on how
the Department of Agriculture and the NRCS can move forward to
educate farmers who are trying to do the right thing but in my
district, these are small farms. These are not big corporate
farms. They don't have lawyers. They don't have the ability.
They don't even have the time to contend with a whole new set
of rules.
Mr. Bonnie. So with respect to the Interpretive Rule, we
are trying to do the best job we can at educating our own staff
that interact with a lot of your producers and others with
respect to the Interpretive Rule, so we will do the best job we
can there. We are also having conversations with EPA and Army
Corps so they understand this as well. We have done other
pieces of outreach. For example, we have put a Q&A up on our
website that explains what the Interpretive Rule is and what it
isn't. We are going to continue to do those efforts, and again
emphasize that this is entirely voluntary, that it provides
options for landowners if they want to use them and we think
can be helpful to them in putting conservation practices into
place on their land.
Ms. Kuster. Might I suggest that we have a built-in
process, and I am a new Member of Congress and new to the
Agriculture Committee but one of the things that I have been so
impressed by is the network of organizations and people all
across this country who are very, very involved in--they rely
on these organizations to keep them abreast. As I say, they
don't have time themselves. Is there any plan for outreach to
these organizations, many of them are represented in this room,
and if not, could you incorporate that into your planning?
One of the things about government regulation generally and
in this particular case, you are familiar with the concept of
the Interpretive Rule. I think it is pretty clear that others
are not, and frankly, I am an attorney, the idea that this was
intended to provide clarity, I can't see that that has been
effective. Could you consider reaching out to these
organizations to help engage the dialogue, engage the farmers
and the producers in the dialogue? I think you would have a
much better outcome and frankly a much better understanding--
they would have a better understanding of what your intentions
are.
Mr. Bonnie. Absolutely. We will continue to do that.
Ms. Kuster. Thank you. I will yield back. Thank you.
The Chairman. I thank the gentlelady. I now recognize the
gentleman from Colorado, Mr. Tipton, for 5 minutes.
Mr. Tipton. Thank you, Mr. Chairman.
Mr. Bonnie, thanks for being here. I would like to follow
up a little bit on some of Mr. Benishek's questions. You
referenced Don Parrish, who I assume is in the building here
today. Has it been your experience that the ag community is
coming in and saying regulate us more?
Mr. Bonnie. Of course not.
Mr. Tipton. Of course not. So when we are talking about
actually hearing--this is a classic example of the cart before
the horse, putting out an Interpretive Rule to begin with and
then we are going to gather comments afterward. Explain to me,
help me understand the sense of that.
Mr. Bonnie. As I said before, we have heard for the last
several years a lot of comments of concern of the Clean Water
Act itself, the need for additional exemptions. In response to
that, we believe the Interpretive Rule----
Mr. Tipton. Additional exemptions, so what people are
saying is, we are regulated too much.
Mr. Bonnie. Well, our----
Mr. Tipton. Is that what you are hearing?
Mr. Bonnie. We are hearing a lot of concerns about the
comments of concern from agricultural producers, absolutely,
and our response to that was to put together with EPA and the
Corps an Interpretive Rule that we think will provide some
options there for increased exemptions.
Mr. Tipton. Can you understand how disconcerting this has
to be to our farm and ranch community and other segments of our
economy when we are saying, hey, that is probably a better
question for the EPA or for the Corps?
Mr. Bonnie. Well, when it comes to the proposed rule
itself, I don't want to speak on behalf of the Corps or the
EPA. I can provide some insight there, but my job today is to
talk to you about the Interpretive Rule and how it can address
some of the concerns of agriculture.
Mr. Tipton. But when that is put together collectively,
effectively what we are doing and what we are seeing is not
creating certainty but more confusion, more frustration
effectively coming out of the Federal Government that says hey,
we are here to help, and the shiver runs up the spine of every
independent producer that is out there.
Mr. Bonnie. Well, I would say NRCS has a strong record of
working with our producers who have developed a lot of trust
over the years. We think this provides additional options if
producers want to seek out NRCS. As I said before, they don't
have to. And so we hope this adds to the tools that producers
have to comply with the Clean Water Act.
Mr. Tipton. Can you give me a little bit of clarity?
Because as you were going through your testimony, you were
saying that it applies to established farming areas. What if
there is an adjacent field that hasn't been farmed? A farmer/
rancher buys that. Does it then apply, different rules apply to
that land that they purchased?
Mr. Bonnie. If it is not a water of the United States, they
are free to farm and ranch.
Mr. Tipton. I have to tell you, I don't know what is not
going to be applicable to the waters of the United States. You
know, this is the biggest water grab in American history coming
out of the EPA trying to be able to control water and impacts
that that is going to be.
Mr. Bonnie, the USDA has stated that the Interpretive Rule
only applies to adjacent neighboring waters, and it has also
been said when USDA is able to show a hydrologic underground
connection however tenuous, you will regulate those waters,
even though they fall outside your stated application of the
rule. Can you explain to me how those two statements don't
conflict?
Mr. Bonnie. I don't understand the question.
Mr. Tipton. When you are saying you aren't going to
regulate it, there are going to be applicable rules, we had a
directive coming out of the Forest Service that is certainly
going to be applicable to the farm and ranch community in terms
of underground water, but you aren't going to be regulating it,
how is this not a conflict?
Mr. Bonnie. Groundwater in the proposed Clean Water Act
rule is not regulated. I think it is an exemption that----
Mr. Tipton. You need to get ahold of the Forest Service.
They are just putting out a directive.
Mr. Bonnie. The Forest Service has put out a directive that
will clarify and provide some consistency across the way we
address groundwater as part of resource management plans,
projects and other things. The purpose of that directive is to
provide greater consistency across the Forest Service. It
doesn't provide any new authorities to regulate groundwater. It
is purely about consistency.
Mr. Tipton. Actually, if you read through that, my
interpretation of it and apparently we have all got the freedom
to be able to look at this is, farmer-rancher could divert
legally out of a stream to be able to fill a stock pond, to be
able to irrigate a field, they are going to be in violation.
Mr. Bonnie. Stock ponds are specifically exempt under the
Clean Water Act.
Mr. Tipton. Not if you are looking at that groundwater rule
that is going to be--this again, it actually just points to the
government coming in. We have added 174,000+ pages of
regulations. Four thousand new regs are coming down the
pipeline right now. And when you are talking about an annual
review coming up, what kind of certainty is that going to give?
I think several Members have spoken of that.
Mr. Bonnie. Yes. The purpose of the annual review is to
look at the practices, see if there are additional ones that we
can add to this and to see how the Interpretive Rule is being
carried out.
Mr. Tipton. My time has expired. Thank you, Mr. Chairman.
Thank you, Mr. Bonnie.
The Chairman. I thank the gentleman. His time has expired.
I now recognize the gentlelady from California for 5 minutes.
Mrs. Negrete McLeod. Thank you, Mr. Chairman. I have no
questions.
The Chairman. The gentlelady yields back. I now recognize
the gentlelady from South Dakota, Mrs. Noem, for 5 minutes.
Mrs. Noem. Thank you, Mr. Chairman, and Mr. Under
Secretary, in South Dakota we have had ongoing problems with
NRCS with inconsistent policy from county to county, a backlog
of problems, some producers waiting months, if not years, for
determinations, so it hasn't always been a good experience.
Some counties are very good; some are not. And these
determinations impact how a producer is able to participate in
programs, and you say you want producers to participate in
programs because it is better for our water quality and
conservation practices but NRCS is making it very difficult for
producers to participate. Now while they are working to address
this backlog of determinations, what issues surrounding wetland
determinations need to be resolved to provide producers with
certainty so that they can farm without being worried about
being out of compliance?
Mr. Bonnie. We do have a backlog on wetland determinations,
not only in your state but in the Upper Great Plains. We have
reduced the backlog. We have put additional resources. We
announced earlier this year even additional resources on top of
what we have already put there to reduce the backlog. We are
also working to improve consistency across the wetland
determinations because, as you point out, there has been some
inconsistency.
Mrs. Noem. Also, I have a question. If the Army Corps of
Engineers comes to you and asks if a private landowner's
practice is in compliance or out of compliance with NRCS
standards or someone calls the NRCS and tells them someone is
not following the standards, will NRCS have to look into it?
Mr. Bonnie. We have no regulatory requirements or
responsibilities under the Clean Water Act.
Mrs. Noem. You have absolutely no requirement if somebody
comes to you and says a producer is out of determination,
including the Army Corps of Engineers, to look into it or to--
--
Mr. Bonnie. No, and as I understand, in the farm bill,
there are requirements that we respect landowners' privacy in
terms of what they are doing on the ground. So----
Mrs. Noem. Who would look into that situation?
Mr. Bonnie. Well, the Interpretive Rule doesn't change
anything about the----
Mrs. Noem. You are not quite sure if somebody is concerned
or the Army Corps of Engineers wants a determination? You won't
provide it and you don't know who will?
Mr. Bonnie. No, we provide compliance determinations
related to wetlands, yes, but that----
Mrs. Noem. The Army Corps of Engineers----
Mr. Bonnie.--relates to our USDA programs, not to the Clean
Water Act.
Mrs. Noem. Which adds to the backlog and the workload that
you have to deal with.
Mr. Bonnie. We do have a backlog and, as I said, we are
working to reduce it.
Mrs. Noem. Well, under this proposed Interpretive Rule,
some activities are exempt if they follow NRCS standards. So do
the standards ever change?
Mr. Bonnie. Every 5 years we review standards on a rolling
basis for all our conservation practices.
Mrs. Noem. So it looks to me that in 2015, do you know how
many of those exemptions are up for review?
Mr. Bonnie. I don't.
Mrs. Noem. It looks like about 30 of them, to me, are up
for review, and potentially we could see farmers who are in
compliance today but in 2015 if NRCS decides to update them,
they could be out of compliance. Is that correct?
Mr. Bonnie. I don't believe that will be the case because
these conservation practices, the Clean Water Act, the
exemption is from dredge and fill, so the concern is when the
practices are being put in place. So I believe the practices
being put in place, I don't think there will be a problem here.
Mrs. Noem. So they are grandfathered if they have done the
practice prior to 2015? It is when somebody does a new project
in 2015 and forward is when the new standard is going to apply?
Mr. Bonnie. Yes.
Mrs. Noem. Okay. And the producers will be notified of
those changes and that will therefore because we have 30 of
these 56 exemptions, going forward, you believe that will
provide them with more certainty?
Mr. Bonnie. We hope it will.
Mrs. Noem. Okay. Well, if this rule provides that kind of
certainty for the agriculture industry, I am baffled because
none of the agriculture industry wants this. Nobody is in favor
of it. So that is what I am struggling with today is that you
are here and you are telling us this is necessary, that it is
needed for certainty, for confidence of these practices, yet
nobody in agriculture wants this. How do you reconcile that?
Mr. Bonnie. As I said before, we have tried to be
responsive to concerns related to the broader Clean Water Act
as part of this. We think we have provided additional certainty
as it relates to these 56 practices. Our expectation over time
is that producers will see that as they utilize this and that
they will see this as an opportunity. Again, it is entirely
voluntary.
Mrs. Noem. Yes, you have been saying that over and over but
thing is, is that if we want people to participate in
conservation programs and we want them to do activities on
their land that improves our water quality, then we want to
make it easy for them to participate and we want to make it so
that they want to be involved and they can see the improvements
on their land and we don't want them to have to worry about
falling out of compliance all the time, and that is the thing
that is making this so difficult to reconcile. Obviously the
agriculture industry has weighed in here and said this makes it
much more difficult. They are very concerned about it, and yet
we have no comment period and the NRCS is steamrolling ahead,
and I firmly believe that this activity should be rethought by
your agency, your department and get into consultation with the
agriculture industry.
With that, I will yield back, Mr. Chairman.
The Chairman. The gentlelady yields back.
Just one point of clarification on a question that the
gentlelady had asked. The grandfathering until 2015, is that
grandfathering before 2015? Is that in the EPA and the Army
Corps of Engineers proposed plan?
Mr. Bonnie. No, I am not suggesting--the point I was trying
to make is most of these practices, the exemption against
dredge and fill is against dredge and fill, and so a lot of the
concern is when you put the practice in place, so my suggestion
is that I think when these practices are put in place, that is
when the exemption is most pertinent to the producer. So I am
not sure that the fact that the practices will change over time
will have a significant impact on producers.
The Chairman. So this grandfathering may be okay with NRCS
but we don't know about--we actually don't know whether the
grandfathering is recognized under the proposed rule that EPA
and Corps of Engineers has.
Mr. Bonnie. Well, again, I don't want to introduce--I am
not suggesting that there is grandfathering. What I am
suggesting is the way this plays out on the landscape, I don't
think this will be a substantial problem.
The Chairman. I do too. I am pleased to recognize the
gentleman from Minnesota, Mr. Nolan, for 5 minutes.
Mr. Nolan. Thank you, Mr. Chairman. I want to thank
Chairman Thompson and Ranking Member Walz for conducting this
hearing, and Mr. Bonnie, thank you for being here. I am not
going to take much time.
I do want to associate myself with the remarks of my
colleagues here with regard to the need for clarity, and we
appreciate the fact that you are at least attempting to do that
but the concerns that have been expressed here for agricultural
producers with regard to the Army Corps and their inability to
review permits in a timely manner. That is a serious matter,
the uncertainty that exists out there, the need for more
outreach and for more accurate information here.
I particularly want to associate myself with the comments
from the gentlewoman from South Dakota, Mrs. Noem, when she
says that we are all greatly concerned about conservation, and
whatever it is we do, we want to encourage more conservation.
So there is no one here in my judgment that is against that. On
the contrary, we are very much for that.
So with that in mind, I do want to just ask one question
with regard to that, and that is this: if fewer people fish
because the small streams are polluted and if fewer people hunt
because the wetlands have been drained, then would you expect
that economic activities associated with hunting and fishing
would be greatly diminished?
Mr. Bonnie. Absolutely. Outdoor recreation is an enormous
driver of the economy, so clean water is critical to that.
Mr. Nolan. Well, thank you. I think from time to time we
need to remind ourselves what the purpose is here, but that
doesn't in any way diminish the need for clarity and certainty
and a process that is expeditious and encourages rather than
discourages.
And then just one last question. When are you projecting
that the final rules will be determined and implemented?
Mr. Bonnie. So the Interpretive Rule is being implemented
right now. The interpretation was good when it came out. In
terms of the EPA proposed waters of the United States rule, I
believe the comment period runs through October.
Mr. Nolan. But then when would you expect implemented?
Mr. Bonnie. So implementation of the Interpretive Rule is
going on right now. In terms of the proposed Clean Water Act
rule, certainly towards the end of the year at the earliest but
I don't claim to be an expert on when that rule will be
finalized.
Mr. Nolan. Later this year or early next year?
Mr. Bonnie. I believe that is correct.
Mr. Nolan. Okay. Thank you.
Thank you, Mr. Chairman. I yield back the balance of my
time.
The Chairman. Does the gentleman yield?
Mr. Nolan. Sure.
The Chairman. I appreciate it.
Mr. Bonnie, first of all, there was an exchange. I think it
was with our full Committee Ranking Member about how fencing
was now going to have to be permitted, but in your words, it
was going to be fairly simple. I have some of the regulations,
the diagrams, the complexities of it, and it is all different
by fence type, so we may disagree on the definition of the word
simple.
Mr. Bonnie. I have the fencing standard here, which I am
happy to give to staff as well.
The Chairman. Yes. Excellent. Well, we have it in hand
here, and it is different by each state, and it speaks to the--
I am not sure when it comes to regulations if there is anything
that is really simple.
We have had a lot of discussion about how you talked about
this is normal farming practices, but then in the same breath
you keep talking about additional exemptions. Well, if it is
normal farming practices, it is counterintuitive to say that
you are going to be granting somehow in the future additional
exemptions. It is either normal farming practices or it is not,
and the whole thing of opening this up on a regular basis with
NRCS, the Corps of Engineers, the EPA allowing for revision--
and I know you have alluded to it is going to increase
flexibility but it also equally opens it up to additional
restrictions and more layers and layers of regulations in the
future, as you know, is that true?
Mr. Bonnie. NRCS's goal remains to put conservation on the
ground with producers in partnership with producers. We think
this will help us do that, and as we look----
The Chairman. If that was the case for a greater
flexibility and promoting conservation, why is that not in the
regulation? Why is that not specifically laid out to just take
away the possibility that this will be a mechanism by which the
Corps or the EPA or USDA would make farming almost impossible
to do in the future?
Mr. Bonnie. Well, so EPA has already--the Clean Water Act
already has upland conservation practices that are exempt from
the Clean Water Act section 404. What this does is add
additional practices, clarifies through this Interpretive Rule
that these 56 practices are exempt. So again, we think we have
provided additional certainty.
The Chairman. Would you disagree, though, the way it is
written, it also opens it up that the EPA, the Corps of
Engineers or USDA that work together at least annually, at
least once a year, it opens it up for more burdensome over-
regulation in the future?
Mr. Bonnie. I guess I would disagree with the
characterization because this is voluntary. It doesn't require
oversight by NRCS, EPA or the Corps and makes no presumption
that something isn't on the list that is necessarily a
violation.
The Chairman. The presumption precludes any of those 56 to
be taken away, correct?
Mr. Bonnie. No. I mean, it is possible that some of those
56 could be taken away in the future. Again, as I said earlier,
we entered into this MOU lightly. We think that there are
opportunities to additional practices there.
The Chairman. Well, I would obviously encourage you to
enter into this with more due diligence, not lightly, and I
apologize for violating my own rules. Whoops. I now recognize
Mr. Ribble for 5 minutes.
Mr. Ribble. Thank you, Mr. Chairman. I have a whole list of
questions but actually I am going to divert a little bit, and
the question I really want to ask you is, what are the
takeaways that you have as a result of this hearing and what
specific action items will that translate to when you leave
here?
Mr. Bonnie. Well, clearly we need to continue to focus on
outreach both within our own agency, with the other agencies to
make sure that this is applied consistently and we continue to
do outreach with the agricultural community to explain what
this is.
Mr. Ribble. So basically your takeaway is, you have a
communication problem?
Mr. Bonnie. Yes, we can do a better job of communicating. I
think we continue to believe that this creates opportunities
for agriculture to put conservation on the ground.
Mr. Ribble. I would say with all due respect, Mr. Bonnie,
that it is more of a confusion problem than a communication
problem, and you mentioned a couple times that the standards
are currently voluntary, but in your view, doesn't including
them as specific exemptions from the Clean Water Act convert
those practices from voluntary to regulatory?
Mr. Bonnie. I don't believe that is the case. This is
entirely voluntary. No producer has to use any of these
exemptions.
Mr. Ribble. Okay. In that case, which agency will be
responsible for inspecting farms that claim conservation
exemptions under this Interpretive Rule?
Mr. Bonnie. There is no requirement that there be any
inspection that takes place.
Mr. Ribble. I yield back, Mr. Chairman.
The Chairman. The gentleman yields back. I now recognize
Mr. Schrader for 5 minutes.
Mr. Schrader. Thank you, Mr. Chairman.
With all due respect, Mr. Bonnie, this is a nightmare. It
is probably one of the worst, egregious examples of government
overreach I have ever seen in my lifetime. I have been involved
in public service for way too many years, I guess, but the fact
that NRCS has joined in this illicit grabbing of private
property with EPA and the Corps just doesn't become an agency
that I have had a lot of respect for in the past. I am very
disappointed.
What was wrong with the 100+ conservation practices you had
on your list? Now there are only 56. What was wrong with those?
What were you doing wrong and hurting our environment?
Mr. Bonnie. We weren't doing anything wrong.
Mr. Schrader. So why are those not all on this list?
Mr. Bonnie. Because there are two things that we looked at.
One was, was it a practice that could be done in waters of the
United States. There are----
Mr. Schrader. The agency is the only determiner of what is
an acceptable practice. Do you know the exact correct fencing
standards are going to protect that stream and there is no
other fencing practice that could possibly help that stream?
Mr. Bonnie. No, we wouldn't presume that.
Mr. Schrader. Then why are you dictating in these
regulations specific guidelines for fencing? I am on the Small
Business Committee. We had a hearing. We had a cattleman come
in doing the right thing. The stream is in much better shape
because he did some fencing, kept the cattle out. That fencing
would not meet your standard. I mean, it seems to me it is
crystal clear that you are trying to establish regulatory
guidelines, standards by which a person farms and you have no
business doing so.
Mr. Bonnie. I don't believe we are trying to do that.
Mr. Schrader. That is exactly what you are doing. There are
only 56 ways. I see it. I am reading it right here, man. There
are only 56 ways you can do things.
Mr. Bonnie. It is voluntary.
Mr. Schrader. And it is not voluntary. You keep saying
that. That is wrong. There is nothing voluntary about getting
your butt sued because you didn't do one of these 56 practices.
That is what is going to happen.
Mr. Bonnie. There is no presumption that not doing these
practices----
Mr. Schrader. You need to get out of Washington, D.C., and
get back on the ground. There are farmers and ranchers across
this country that do not want to have this rule in any way,
shape or form. Did you or did you not have a public hearing and
comment period before the Interpretive Rule?
Mr. Bonnie. No, we did not.
Mr. Schrader. No, you did not. Any God-fearing
environmentalist would have your head. Heck, they would be
living in trees around your house, for God's sake, for not
having that. How can you possibly defend what you are doing
here? The Supreme Court clearly says, clearly says, clearly
says, United States, okay, waters of the United States must
refer to relatively permanent, standing or flowing bodies of
water, not occasional, not intermittent, not ephemeral flows,
and your hydrologic connection is not sufficient.
Mr. Bonnie. I think you are referring to----
Mr. Schrader. Other waters--you have a whole rule on other
waters here. Why is a ditch----
Mr. Bonnie. It is not our rule. You are referring to the
proposed Clean Water Act waters of the United States rule. That
is not our rule.
Mr. Schrader. It is part of what is coming down the pike
beyond this egregious Interpretive Rule that you already have.
How can you justify even relating to that when the Supreme
Court case says specifically those waters should not be part of
this discussion?
Mr. Bonnie. Well, again, the waters of the United States
rule is not USDA's rule, it is EPA and the Army Corps. What we
have done here has created----
Mr. Schrader. Do you agree that the other waters, as an
NRCS person, do you agree that other waters should be involved
in this Clean Water Act interpretation, going forward?
Mr. Bonnie. I think other waters is part of the statute, as
I understand it.
Mr. Schrader. No, it isn't. That is the whole point. The
Supreme Court has specifically said you are not supposed to be
dealing with this. I hope you communicate that to our friends
in the EPA and our friends in the Corps.
Mr. Bonnie. One of the things we have encouraged is
increase some of the exemptions under the current rule and into
the proposed rule.
Mr. Schrader. Mr. Chairman, all I have to say is, I have
made my point clear that NRCS unfortunately is giving up its
jurisdiction. It is starting to prescribe what men and women
can and can't do on their own property way beyond what protects
the health, safety and welfare of the navigable rivers related
to navigable rivers, waters of our great country, and it is a
shame that people have the hubris in this community to think
that they can dictate to farmers and ranchers that live, sweat,
take care of the steward where there are stewards of the land
out there, specific practices. It should be about outcomes. It
should be about outcomes, Mr. Bonnie. You are missing the point
here entirely. It is not about prescribing what men and women
can't do or can do on their own private property, and I yield
back.
The Chairman. I thank the gentleman. I am going to yield to
the Ranking Member for a point of clarification.
Mr. Walz. Mr. Bonnie, I just--and I am trying to get this,
and you are hearing the frustration. I am hearing from you. I
am trying to clarify this, and I really think people are trying
to get this right. Tell me this, if I frame it like this, prior
to the Interpretive Rule if a farmer carried out a practice
that is now listed in the rule, did that farmer have to get a
section 404 permit? And if they did, isn't the purpose of the
Interpretive Rule now so they don't have to? Is that what you
are saying?
Mr. Bonnie. In some cases, there will be practices where
there will be a requirement for a section 404 permit. In other
cases----
Mr. Walz. How often did that happen?
Mr. Bonnie. I don't know.
Mr. Walz. But that is your point, so at the heart of this,
what you are saying, if this were interpreted the way you are
seeing it and the way the Interpretive Rule is and the
questions that were valid that there should have been input and
all that aside, if this is working as you would like to see
them work the best, this is what it should alleviate?
Mr. Bonnie. We hope we will reduce the permitting burden
and we expect we will.
Mr. Walz. Okay. Thank you. I yield back.
The Chairman. I thank the gentleman.
I would like to seek unanimous consent to enter into the
record a number of things that we have referenced today, two
things and one thing that has not been referenced. One is the
NRCS 382A, the fence or standard water, the conservation
practice job sheet, with all the specifications, it will be
subject to permitting. A copy of a letter entered into the
record from essentially the Iowa agriculture community, and
from multiple stakeholders in the State of Iowa expressing
their concerns regarding the Clean Water Act jurisdiction and
NRCS technical standards. This is a letter dated June 18, 2014,
to Secretary Vilsack. I request unanimous consent to enter that
into the record. And finally, the document that the full
Committee Ranking Member made reference to, which is the USDA
list of conservation practices, and this document has been
amended with noting the ones that are now exempt but leaves a
significant number of practices that are identified by USDA and
NRCS as conservation practices which will now not be--which are
not exempt. So without objection, those are so entered.
[The documents referred to are located on p. 87.]
The Chairman. I also have a copy that the Ranking Member
had asked me to share with you, Mr. Bonnie, and we will make
sure you get that before you leave, and I want to thank you for
your testimony. I would encourage you if at all possible,
because we have not had a lot of communications and input on
this beforehand, staying around for the second panel. I think
it would be very enlightening for USDA and would certainly
encourage you and hope that you will be able to do that, and
with that, you are excused. I appreciate your being here.
Mr. Bonnie. Thank you for your time today.
The Chairman. Thank you.
We will now take some time to--I want to welcome our second
panel of witnesses to the table, and let us go ahead and get
started with that process.
While we are finishing getting organized here, I would like
to welcome our second panel of witnesses to the table: Mr. Don
Parrish, Senior Director, Regulatory Relations, with the
American Farm Bureau Federation; Mr. Andy Fabin, Producer,
Fabin Bros. Farms, Indiana, Pennsylvania, who is here on behalf
of the National Cattleman's Beef Association; Mr. Chip Bowling,
First Vice President, National Corn Growers Association with a
large operation just south of the capital city in Newburg,
Maryland; and Mr. Scott Kovarovics--how did I do? Excellent. It
is a good day. I really do not like to mess up people's names.
There is only one thing that you come in and out of this world
with, and it is your name, and we all deserve to get it
accurate. So thank you, sir. He is Executive Director of the
Izaak Walton League of America out of Gaithersburg, Maryland.
I want to thank the witnesses, and we will proceed here.
Before you, as you see, we have the light system. We try to
adhere as much as possible. You don't need to stop cold turkey
on red but if you would finish whatever thought you are in the
middle of, bring that to a proper conclusion so we can get
around to hear all the testimony that each of you brings today
and that we value so much and have an opportunity for dialogue
with the questions we have here
So Mr. Parrish, with that, I recognize you for 5 minutes.
STATEMENT OF DON PARRISH, SENIOR DIRECTOR,
REGULATORY RELATIONS, AMERICAN FARM BUREAU
FEDERATION, WASHINGTON, D.C.
Mr. Parrish. Thank you, Mr. Chairman. Thank you, Members of
the Committee, for holding this hearing today. I am Don
Parrish. I am the Senior Director of Regulatory Affairs for the
American Farm Bureau Federation.
I have been dealing with the Clean Water Act for over 20
years. My wife says I talk about it in my sleep. I am here to
share my perspective on the Interpretive Rule.
I would like to begin my testimony, though, with a little
bit of an overview of the Clean Water Act regulatory proposal.
This map that is in front of you corresponds with the current
Code of Federal Regulations. Now, what you see on this map is
47 miles of permanent streams, 96 miles of intermittent
streams. Those are the dotted blue lines. The gray lines are
roads. The roads try to avoid those waters. What is interesting
about this is that this is the current approximation of current
jurisdiction. Go to the Code of Federal Regulations if you
disagree. Look at it. It deserves your examination.
What I want to express to you is that this is the limit of
current jurisdiction. This is not all the waters that are in
this watershed. This is 48 square miles, roughly 30,000 acres,
so it is not that big a map. But note that any waters beyond
this in this map happens to be of an area in Kentucky is
regulated by the State of Kentucky.
EPA in the next slide is changing three definitions: the
term tributary, the term adjacent water, and the term other
waters. This is what the jurisdictional reach looks like after
those changes in definition.
This map turns blue. EPA will control virtually all land
use on this 30,000 acres. Those little blue lines, this is what
they look like. This may look like a stream but this is a heavy
rainfall running across the cornfield, and this land that is
under this storm water is going to be a water of the United
States regardless of whether that water is there or not because
it contains a bed, bank and ordinary high-water mark.
Let me turn my attention to the Interpretive Rule. The
Interpretive Rule establishes binding and enforceable
requirements for farmers. Currently, NRCS technical standards,
NRCS technical assistance and NRCS cost-share programs are, as
Mr. Bonnie says, voluntary, but the Interpretive Rule changes
that.
For 37 years, farmers could conduct normal agricultural
practices on the land but now practices are only going to be
exempt if you follow NRCS's conservation practices. And with
regard to who is going to referee this issue, going forward,
``even where NRCS does not provide technical assistance, the
agency plays an important role in responding to these issues
that arise regarding project-specific conformance with
conservation practice standards,'' and they are going to have
citizen litigation looking over their shoulder to do it.
The Corps of Engineers and EPA are also assuming a role
that the law does not give them, neither the farm bill nor the
Clean Water Act, to adjust these standards. Farmers deserve
better. They deserve direct, they deserve clear understanding
because the Clean Water Act is a strict liability statute and
that carries criminal and civil penalties. NRCS standards are
complicated. They are far too complicated for strict liability
under the Clean Water Act.
I will leave you with three takeaways. Agencies have
confused you, they have confused the media and they have
confused farmers. This IR provides farmers with nothing they
didn't already have.
Second, in Iowa right now, 67 percent of all grass
waterways and 50 percent of all the terraces are funded out of
the farmer's pocket with no USDA or EPA or Corps of Engineers
or NRCS funding. That conservation is going to be under now a
cloud of suspicion. It is under a cloud that is probably going
to be result in that conservation being halted.
And third, and this picture bears it out, normal farming
exemptions are for activities. It does not exclude the land
that is under this storm water from being called a water of the
United States in the future, and that type of proposal, it
invites litigation and it is going to invite EPA right into the
middle of how we farm into the future.
There is only one solution. They have to withdraw it, and
they have to make darn sure that farmers don't have to comply
with NRCS standards to be compliant with the Clean Water Act
normal farming practices.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Parrish follows:]
Prepared Statement of Don Parrish, Senior Director, Regulatory
Relations, American Farm Bureau Federation, Washington, D.C.
Thank you, Mr. Chairman and Members of the Subcommittee, for
holding today's hearing and for inviting me to testify. I am Don
Parrish, senior director of regulatory affairs for the American Farm
Bureau Federation (AFBF). I have been employed at AFBF for more than 20
years, for much of the time focused on issues related to the Clean
Water Act, including the issues involved in the interpretative rule
which is the subject of today's hearing. I am pleased to share my
perspective on that rule and its potential impact on agricultural
producers and I would like to underscore that the views I express are
my own.
The proposal that the Environmental Protection Agency (EPA) and the
U.S. Army Corps of Engineers published in the Federal Register on April
21 ostensibly seeks to ``clarify'' the authority of these two agencies
to regulate ``navigable waters'' which are defined in the Clean Water
Act as the ``waters of the United States.'' The proposal has broad
implications for many sectors of the economy, and in particular for
agriculture. Just last week, the President of the American Farm Bureau
Federation, Bob Stallman, testified before the Water Resources
Committee of the House Transportation and Infrastructure Committee on
the impact this rule would have on growers. I have attached a copy of
Mr. Stallman's testimony to this statement and would like to request
that it be included in the record of this hearing.
The rule proposed by the agencies would affect all Clean Water Act
programs. This assertion of authority is critically important, and
while it goes beyond the subject of today's hearing, I would strongly
encourage the Members to examine its potential impact on all these
programs.
My testimony today, however, will focus on the Interpretive Rule
Regarding the Applicability of Clean Water Act section 404(f)(1)(A)
(IR) and the Memorandum of Understanding (MOU) among EPA, the Corps and
USDA. With respect to these matters, I would like to make two initial
observations:
The interpretative rule is not a proposal: it became
effective immediately upon publication in the Federal Register,
without advance public notice and comment, and it establishes
binding and enforceable requirements for farmers. For these
reasons, the IR, in the view of many legal experts, is
unlawful.
By this action, EPA and the Corps have effectively limited
Congressionally authorized exemptions that have been in place
for 37 years. They have done this in several ways:
b First, for the listed practices, the IR explicitly limits the
exemption to circumstances where the farmer or rancher has
complied with what are otherwise voluntary conservation
standards. Even ``landowners not relying on NRCS for
technical assistance have the responsibility to ensure the
implementation of the conservation practices is in
accordance with the applicable NRCS conservation practice
standard. It is important to emphasize that practices are
exempt only where they meet conservation practice
standards.''
b Second, for practices that are not listed and that also are not
specifically listed in the statute (for example, practice
#378 ponds, #600 terraces and #635 vegetative treatment
areas), the IR creates a new cloud of doubt about the
exempt status of those activities. If clarification was
required as to the exempt status of these practices, one
must wonder why the agencies chose not to clarify the
exempt status of other practices. In addition, since the IR
and the listed practices could be changed by the agencies
any time, farmers and ranchers have no assurances that the
list of 56 practices will not be further curtailed in the
future.
b Third, the agencies have given NRCS an unprecedented role in
Clean Water Act enforcement: ``where NRCS is not providing
technical assistance, the landowner has the responsibility
to ensure that implementation of the conservation practice
is in accordance with the applicable NRCS conservation
practice standard. Even where NRCS is not providing
technical assistance, the agency plays an important role in
helping to respond to issues that may arise regarding
project specific conformance with conservation practice
standards.'' There is nothing in the law granting NRCS this
authority.
b Fourth, NRCS has allowed the Corps and the EPA an unprecedented
role in identifying, reviewing and updating NRCS
agricultural conservation practices and activities. Nothing
in the law justifies that role.
These actions by the agencies create tremendous uncertainty and
risk for farmers and ranchers--especially in light of the proposed
rule's broad expansion of ``navigable waters.'' Congress provided broad
statutory exemptions for normal farming, silviculture and ranching
activities. However, Congress also limited those exemptions, so that
even ``normal'' farming, silvicultural and ranching activities require
a Clean Water Act section 404 permit if the activity may impair the
flow or circulation of navigable waters or reduce the reach of
navigable waters.
The proposed rule would categorically regulate as ``navigable
waters'' countless ephemeral drains, low spots, ditches and other
features across the countryside--features that are wet only when it
rains and features that may be miles from the nearest truly
``navigable'' water. These features intersect and crisscross the land
that farmers and ranchers use to grow food, fiber and fuel. If the
proposed rule is finalized, even otherwise exempt activities such as
plowing or discing--or the 56 listed practices--will require a section
404 permit if the ``flow or circulation'' of these ephemeral features
``may be impaired'' or the reach of these features may be reduced.
I have attached comments on the Interpretive Rule and request that
they be included as part of the hearing record.
Let me, however, lay out concerns that are broadly felt in the
agricultural community:
1. Farmers and ranchers as well as the public deserve direct and
clear communications from the agencies on highly technical and
complex regulatory issues. The Clean Water Act is a strict
liability statute that can carry significant criminal and civil
liabilities and can bring with it citizen lawsuits by activist
organizations.
2. The IR and MOU are insufficient notice to farmers and ranchers
of an enforceable change to the Congressionally authorized
exemptions for ``normal'' agricultural practices. It is clear
from the IR, MOU and fact sheets that the legal obligations to
comply with the IR fall squarely on farmers and ranchers and
not the agencies.
3. Even if farmers and ranchers are able to comply with the
complicated NRCS practice standards, such compliance does not
insulate their land from any section 402 permitting
requirements or other regulatory impacts resulting from the
agencies' proposed broadened definition of ``waters of the
United States.'' In other words, while ``normal farming
exemptions'' exempt certain agricultural activities it does not
exempt or exclude any newly defined water from CWA
jurisdiction.
4. The agencies have confused policymakers, the media, and farmers
and ranchers by claiming that the IR provides additional
exemptions when it actually narrows the ``normal'' farming and
ranching exemption by imposing otherwise voluntary technical
standards and burdensome new requirements for farmers and
ranchers.
5. The agencies' decision to accept comments only after the IR is
fully effective and enforceable precludes any meaningful public
participation and is clearly in conflict with the
Administrative Procedure Act (APA).
6. The IR does not provide farmers and ranchers with additional
permit exemptions beyond what has already been authorized by
Congress. Congress amended the CWA in 1977 to exempt ``normal''
farming, ranching and silviculture activities from section 404
``dredge and fill'' permit requirements.
7. Despite the agencies' characterization, the IR is a legislative
rule and is thus inconsistent with the APA.
The Interpretive Rule is a Legislative Rule that is Subject to APA
Requirements
AFBF does not agree with the agencies' characterization of the
404(f)(1)(A) IR as ``interpretive.'' Despite the agencies'
characterization, the IR is a legislative rule. The APA draws a
distinction between legislative rules, which are subject to notice and
comment requirements, and interpretive rules or IRs, which are not
subject to such requirements. 5 U.S.C. 553(b)(3)(A). Interpretive
rules merely interpret existing law and policies; legislative rules
establish new policies that an agency treats as binding. Actions that
are binding must comply with the APA, regardless of how they are
labeled.
The IR is a regulation that must be promulgated under the APA
because the IR clearly binds farmers and ranchers with new, specific
legal obligations under the Clean Water Act. The IR modifies existing
regulations interpreting the statutory term ``normal farming, ranching
and silviculture.'' 40 CFR 232.3(c)(1)(ii)(A); 33 CFR
323.4(a)(1)(ii). The IR purports to continue existing statutory and
regulatory exemptions, but instead the IR narrows the 404(f)(1)(A)
exemption by identifying 56 activities that will be exempt only if they
are conducted consistent with NRCS conservation practice standards and
as part of an established (i.e., ongoing) farming operation. Under the
IR, previously voluntary NRCS conservation standards are made fully
enforceable as part of the CWA regulatory program. The legal
obligations to comply with the IR fall squarely on farmers and ranchers
and not the agencies.
If a farmer operating an ``established'' farming operation conducts
a farming activity or conservation practice that results in a discharge
of dredge or fill material into a water of the U.S., the IR clearly
states that the activity ``must be implemented in conformance with NRCS
technical standards.'' Failure to comply with the standards results in
an unlawful discharge in violation of the CWA. This could subject the
farmer to CWA penalties. Therefore this so-called interpretive rule is
a legislative rule that imposes binding legal obligations on farmers
and ranchers.
Contrary to the Agencies' Statements, the IR Does Not Provide
Additional Exemptions for Farmers and Ranchers
Contrary to the agencies' statements, the IR does not provide any
additional exemption for farmers and ranchers beyond what Congress
authorized. In fact, as a matter of separation of powers, Members of
Congress should be skeptical that the agency even has the authority to
provide additional or expanded exemptions. Since the publication of the
IR, agency officials and agency websites have claimed that there is no
change to the existing CWA section 404(f)(1) exemption for ``normal''
agricultural activities on ``established'' operations and that somehow
the IR is providing additional protections for agriculture. See Op-Ed
on agriculture by Administrator McCarthy, March 25, 2014 (``But it
doesn't stop there--[the rule] does more for farmers by actually
expanding those exemptions.'') However, the IR does not provide farmers
and ranchers with additional permit exemptions beyond what has already
been authorized by Congress. Congress amended the CWA in 1977 to exempt
``normal'' farming, ranching and silviculture activities from section
404 ``dredge and fill'' permit requirements. 33 U.S.C. 1344(f)(1).
Contrary to the agencies' assertions, the IR has effectively narrowed,
rather than expanded the current exemptions, and NRCS conservation
standards that were previously voluntary are now fully enforceable as
part of the CWA regulatory program. As the MOU notes, ``[d]ischarges in
waters of the U.S. are exempt only when they are conducted in
accordance with NRCS practice standards.'' MOU at 3. Thus, the
agencies' public statements about the IR are not only misleading but
contradict the actual language of the IR documents.
The IR Applies only to the Section 404 Program
It appears that the agencies are overstating the significance of
the ``normal'' farming exemption, which does not apply to discharges
regulated under the CWA National Pollutant Discharge Elimination System
(NPDES) program. Even if the IR would somehow benefit some farmers or
ranchers, it cannot insulate any farm or ranch from any section 402
NPDES permitting requirements that may now result from the expansive
definition of ``waters of the United States'' under the agencies'
proposed rule to redefine the scope of jurisdiction under the CWA. The
exemption is simply inapplicable to that separate permitting program.
Thus, while a farmer may be able to plant cover crops in jurisdictional
waters under the IR without a 404 permit (assuming compliance with NRCS
standards), that same farmer would face CWA liability for applying
fertilizer or pesticide to those same fields without a section 402
NPDES permit.
The IR will Result in More Time-Intensive and More Costly Requirements
for Farmers and Ranchers
Before the IR, farmers and ranchers did not need to satisfy
federally mandated practice standards for ``normal'' agricultural
activities subject to CWA section 404(f)(1)(A) exemptions. Farmers
could engage in ordinary farming activities without the need for a
section 404 permit, a jurisdictional determination as to whether the
discharges were occurring in waters of the United States, or a site-
specific pre-approval. As a result of this IR, it may be more onerous
to qualify for 404(f)(1)(A) exemptions.
The IR Adds Confusion and the Agencies Have Failed to Clarify Key
Issues Regarding the Application of the 404(f)(1)(A) Exemptions
The IR provides little context or explanation regarding how the EPA
and the Corps interpret the 404(f)(1) exemptions--an area already
associated with great confusion within the agricultural community.
The agencies have also failed to provide clarity on the following
important issues:
1. Whether a farmer needs pre-approval for any normal farming
activities not listed;
2. Whether pre-approval is required if the farmer implements one of
the 56 listed practices in ``Waters of the U.S.'' without
complying with NRCS conservation practice standards;
3. Whether the 124 NRCS conservation practices not specifically
listed are also exempt from section 404 permit requirements as
``normal'' farming activities if they incidentally result in a
discharge of dredged or fill material;
4. How the IR will be enforced;
5. Whether and how a farmer should ensure compliance with the NRCS
conservation standards (according to the MOA, if the farmer
does not seek technical assistance from NRCS in identifying and
implementing the conservation standards, the farmer has the
responsibility to ensure that implementation of the
conservation practices is in accordance with the applicable
NRCS standard or the practice will not be exempt);
6. The interplay between the IR and state agricultural programs and
requirements;
7. The interplay between the NRCS (authority for agricultural
programs and technical assistance with implementing the NRCS
standards) and the Corps and EPA (CWA authority); and
8. Whether the regulated community and the public will have any
opportunity for comment on changes to the list of covered
conservation practices as the agencies consider additions or
deletions in the future.
Conclusion
Farmers and ranchers are concerned that the agencies have taken
otherwise voluntary conservation standards and turned them into what
are now Clean Water Act compliance tools. It is also unthinkable to
have NRCS become the ``normal farming police'' or an enforcement agency
for EPA and the Army Corps.
Attachment 1
statement of the american farm bureau federation
before the house transportation and infrastructure committee
subcommittee on water resources and environment
regarding: potential impacts of proposed changes to the clean water act
jurisdiction rule
by bob stallman, president, american farm bureau federation
June 11, 2014
I. Introduction
The American Farm Bureau Federation thanks the Committee for
holding this hearing and welcomes the opportunity to offer its
perspective about the impacts of the Environmental Protection Agency's
and Army Corps of Engineers' ``Waters of the U.S.'' proposed rule. AFBF
has carefully analyzed the proposed rule and has concluded that it
poses a serious threat to farmers, ranchers and any other individual or
business whose livelihood depends on the ability to use the land.
The proposal published April 21, 2014, in the Federal Register
would categorically regulate as ``navigable waters'' countless
ephemeral drains, ditches and other features across the countryside
that are wet only when it rains and may be miles from the nearest truly
``navigable'' water. It would also regulate small, remote
``wetlands''--which may be nothing more than low spots on a farm
field--just because those areas happen to be adjacent to a ditch or
located in a floodplain. EPA says its new rule will reduce uncertainty,
and I suppose that much is true. There will not be much uncertainty if
the Federal Government could regulate every place where water flows or
stands when it rains.
A picture is worth a thousand words, so I would ask that Members of
the Committee look at some of the images EPA has used to publicize the
proposed rule. Compare those images with the types of features commonly
found on agricultural land, which we believe would be swept
inappropriately into Federal jurisdiction.
EPA's Images
Images from Farm Bureau Members
We believe that the proposed categorical regulation of these land
features amounts to an attempted end-run around Congress and two
Supreme Court rulings. The Supreme Court, in separate decisions in 2001
and 2006, ruled that Congress meant what it said in the Clean Water
Act: ``navigable waters'' does not mean all waters. Yet the proposal
will significantly expand the scope of ``navigable waters'' subject to
Clean Water Act jurisdiction by regulating innumerable small and remote
``waters''--many of which are not even ``waters'' under any common
understanding of that word. To farmers, ranchers and other landowners,
these features look like land, and this proposed rule looks like a land
grab.
Contrary to EPA's assurances to farmers and ranchers, this
expansion of Federal regulatory reach would essentially negate several
longstanding statutory exemptions for agriculture. Congress established
these exemptions to prevent Federal permit requirements--and potential
permitting roadblocks--for working the land and growing our nation's
food, fiber, and fuel. Under this rule, farmers and ranchers will have
to get Federal permits for ordinary and essential agricultural
activities, just because those activities may cause dirt, fertilizer or
crop protection products to fall into a dry ditch or a low spot on the
field.
In addition to our concerns about the rule itself, we are concerned
that EPA and the Corps have established a 90 day comment period that
directly coincides with the planting and growing season, when farmers
and ranchers have limited time to learn about the rule and comment on
it. We ask the Committee to support an extension of the comment period.
We also urge Committee Members to vigorously oppose the rule as it is
currently proposed.
II. The Proposed Rule Significantly Expands the Definition of
``Navigable Waters''
The proposed rule adopts three primary definitional changes that
result in a significant expansion of Federal control over land and
water resources across the nation.
First, the proposed rule regulates ``ephemeral streams'' as
tributaries. ``Ephemeral streams'' are just dry land most of
the time. To a farmer, an ``ephemeral stream'' is often simply
a low area across the farm field.
Second, the proposed rule categorically regulates as
``tributaries'' all ditches that ever carry any amount of water
that eventually flows (over any distance and through any number
of other ditches) to a navigable water. Ditches are commonplace
features prevalent across farmland (and the rest of the
nation's landscape).
Third, the proposed rule would regulate all waters deemed
``adjacent'' to other jurisdictional waters (including dry
ditches and ephemerals) plus any ``other waters'' that have a
``significant nexus.'' These categories have the potential to
sweep into Federal jurisdiction vast numbers of small, isolated
wetlands, ponds and similar features on farmlands nationwide.
These changes, described in more detail below, will trigger
substantial new roadblocks and costs for farming, ranching, the
construction of homes, businesses and infrastructure, and innumerable
other activities across the countryside. EPA's public relations
campaign notwithstanding, the proposed rule expands Clean Water Act
jurisdiction beyond its current scope (as properly limited by the
Supreme Court) and far beyond the scope intended by Congress in 1972.
A. Ephemeral Drainages Are ``Tributaries'' Under the Proposed Rule
The American Heritage Dictionary (1982) defines ``tributary'' as
``a stream or river flowing into a larger stream or river.'' This
common understanding of ``tributary'' simply does not include so-called
``ephemerals''--low areas or ditches that carry water only when it
rains.
The proposed rule, however, would define ``tributary'' to include
all areas of dry land where rainwater sometimes flows through an
identifiable path or channel, so long as that path or channel
ultimately leads (directly or through any number of other paths or
channels) to a creek or stream that in turn ultimately flows to
navigable waters. The agencies propose to identify a ``tributary''
based on the presence of a bed, bank, ordinary high water mark (OHWM)
and any minimal amount of flow that eventually reaches navigable
waters.
The terms ``bed'' and ``bank'' simply mean land with lower
elevation in between lands of higher elevation. All but the
flattest terrain will have natural paths of lower elevations
that water--obeying the laws of gravity--will follow.
``Ordinary high water mark'' is an equally broad term that
encompasses any physical sign of water flow, such as changes in
the soil, vegetation or debris. When rainwater flows through
any path on the land, it tends to leave a mark. The agencies
themselves recognize that the definition of OHWM is vague,
ambiguous and inconsistently applied.\1\ In fact, an official
from the Corps' Philadelphia District has observed that, due to
inconsistent interpretations of the OHWM concept, as well as
inconsistent field indicators and delineation practices,
identifying precisely where the OHWM ends is nothing more than
a judgment call.\2\
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\1\ GAO Report ``Waters and Wetlands: Corps of Engineers Needs to
Evaluate Its District Office Practices in Determining Jurisdiction,''
Feb. 2004.
\2\ Presentation by Matthew K. Mersel, USACE, ``Development of
National OHWM Delineation Technical Guidance,'' March 4, 2014.
The agencies make no bones about their view that the
frequency, duration and volume of flow will no longer have any
relevance to determining whether a feature, like the low spot
on a farmer's field, is jurisdictional. Low areas where
rainwater channels will be ``navigable waters'' if they carry
any rainwater that eventually reaches an actual navigable
---------------------------------------------------------------------------
water.
We all know that water flows downhill, and, at some point, much of
that water eventually finds its way into a creek, stream or river. Yet
based on nothing more than the flow of rainwater along a natural
pathway across the land, the agencies propose to categorize vast areas
of otherwise dry land as ``tributaries'' and therefore ``navigable
waters.'' These are areas that the average person would not recognize
as a stream, let alone ``navigable waters'' appropriate for regulation
by two Federal agencies. It would be funny if it were not so
frightening.
The following photos show a farm field in central Michigan over the
course of 2 weeks. The path where rainwater flowed on April 14, 2014,
was almost completely dry by April 25. However, demarcations in the
vegetation show that water flowed there. If the water that flowed
through this field eventually found its way to a creek, stream or ditch
that in turn eventually flowed to navigable waters, then this farmer's
field could be ``navigable water'' under the proposed rule.
A bed, bank and OHWM are common features on lands that are
perfectly dry, except when it rains. Indeed, in Rapanos, Justice
Kennedy expressed deep concern that the physical indicators of a bed,
bank and OHWM are so broad that they could be used to assert
jurisdiction over waters that have no significant nexus to
traditionally navigable waters. (547 U.S. at 781-82.) That is precisely
what the agencies have done. Rather than asserting jurisdiction only
where specific features are found to have a significant effect on
navigable waters (accounting for the volume of flow, proximity, etc.),
the agencies classify all ephemeral features as jurisdictional waters
if any flow can reach a traditional navigable water. Such a broad
assertion of Federal jurisdiction takes ``waters of the U.S.'' far
beyond what Congress intended in 1972--and far beyond what this body
and the American public should tolerate.
B. Nearly Every Ditch Across the Country Could Be Regulated as a
Tributary Under the Proposed Rule
In its public outreach on the proposal, EPA repeatedly insists the
rule ``does not expand jurisdiction over ditches.'' This is simply
false.
The proposed rule would categorically regulate as ``tributaries''
virtually all ditches that ever carry any amount of water that
eventually flows (over any distance and through any number of other
ditches) to a navigable water.
The only excluded ditches would be a narrowly defined (one might
say mythical) category of ditches ``excavated wholly in uplands,''
draining only uplands, and with less than perennial flow.\3\ The
preamble explains that this exclusion applies only to those ditches
that are excavated in uplands (the term uplands is not defined in the
proposed rule, but presumably means not waters or wetlands) at all
points ``along their entire length.'' 79 Fed. Reg. at 22,203.
---------------------------------------------------------------------------
\3\ The rule would articulate an additional ``exclusion'' for
ditches that ``do not contribute flow'' of any amount to actual
navigable waters. However, such ditches would not meet the expansive
``tributary'' definition anyway. Further, such ditches are presumably
quite rare, as the primary purpose of most (if not all) ditches is to
carry water.
---------------------------------------------------------------------------
The exception is essentially meaningless. One would be hard pressed
to find a ditch that at no point along its entire length includes
waters or wetlands.
First, over the last several decades, the agencies have
expanded their regulatory footprint by broadening the criteria
for classifying land as ``wetland'' (e.g., expanding the list
of wetland vegetation). In many cases, low spots on the
landscape that were not considered wetlands in the 1970s and
1980s would certainly be considered wetlands today. Since the
purpose of ditches is to carry water, many ditches will tend to
develop ``wetland'' characteristics and therefore not be
``wholly in uplands.''
Second, because the purpose of a ditch is to carry water,
few ditches are excavated along the tops of ridges. The most
logical places to dig storm water ditches are at natural low
points on the landscape. Clearly, most ditches will have some
section that was excavated in a natural ephemeral drain or a
low area with wetland characteristics. Such ditches will not
qualify for the proposed exclusion for ``wholly upland''
ditches.
Third, the ``less than perennial flow'' requirement will
likely disqualify many irrigation ditches from the exclusion.
Irrigation ditches do not just carry storm water; they carry
flowing water to fields throughout the growing season as
farmers and ranchers open and close irrigation gates to allow
the water to reach particular fields. These irrigation ditches
are typically close to larger sources of water, irrigation
canals or actual navigable waters that are the source of
irrigation water--and they channel return flows to those source
waters. In arid sections of the nation, these irrigation
ditches, and the valuable surface water that flows through
them, are highly regulated by state authorities that
appropriate water based on vested water rights and permit
systems. Under the proposed rule, such irrigation ditches will
also be federally regulated as ``tributaries.''
Given the expansive definition of ``tributary'' and the extremely
limited exclusion, the vast majority of ditches in the U.S. will be
categorically regulated as ``navigable waters'' under the proposed
rule. The results could be startling. For example, the typical suburban
homeowner would likely be surprised to find that EPA and the Corps view
the roadside ditch at the edge of her lawn as ``navigable water''
worthy of the full weight of Clean Water Act protections. She would
also likely be surprised to find that landscaping, insect control or
even mowing the grass in that ditch are violations of the Clean Water
Act. Yet that will be the result of the proposed rule.
Will EPA seek enforcement against a homeowner mowing the lawn?
Probably not. But the fact that it could illustrates the ridiculous
implications of the proposed rule. In addition, if the agencies will
have to pick and choose which discharges they actually regulate, then
the rule hardly provides the certainty that the agencies claim.
C. Virtually Every Other Water Feature Can Be Regulated Under the
Proposed Rule as Either an ``Adjacent Water'' or ``Other
Waters''
The proposed rule would regulate all waters deemed ``adjacent'' to
other ``waters of the U.S.''--including ``tributaries'' (ditches and
ephemerals). The agencies broadly define ``adjacent'' as
``neighboring,'' which includes features located in the ``riparian
area'' \4\ or floodplain of any other jurisdictional water, or features
with a ``shallow subsurface . . . or confined surface hydrologic
connection.'' \5\ Whether any of these characteristics exist will be
determined in the agency's ``best professional judgment.'' 79 Fed. Reg.
at 22208. Thus, the exact scope of ``adjacent'' waters is left to the
vagaries of inconsistent regulators.
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\4\ ``Riparian areas'' are defined in terms useful only to a
hydrologist: ``an area bordering a water where surface or subsurface
hydrology directly influence the ecological processes and plant and
animal community structure in that area.''
\5\ The preamble explains that wetlands or ponds that ``fill and
spill'' to ditches or other ephemeral features during intense rainfall
would be viewed as having a confined surface hydrologic connection to
those features. 79 Fed. Reg. at 22208. Such wetlands or ponds would
therefore be ``navigable waters,'' no matter how small or remote they
are from true navigable waters.
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Long, linear features, such as ditches, will have floodplain and
riparian areas around them--and will often have ``hydrologic
connections'' to nearby wetlands or ponds. For this reason, the
inclusion of small, isolated wetlands, ponds and similar features that
are ``adjacent'' to ditches would sweep into Federal jurisdiction
countless small and otherwise remote wetlands and ponds that dot the
nation's farmlands.
The following image shows the 100 year and 500 year floodplain of
Muddy Creek (a true navigable water) superimposed on a farmer's
property in Missouri. Under the proposed rule, EPA and the Corps could
determine any ``water'' within the shaded areas to be ``adjacent'' to
Muddy Creek. Of course, more ``waters'' still could be swept in as
``adjacent'' to the ditches and ephemerals that flow toward Muddy
Creek.
Source: FEMA Floodplain Maps.
For those ``other waters'' that do not fall within the broad
categories of ``tributary'' or ``adjacent'' waters (e.g., even more
isolated wetlands, ponds and the like), the proposed rule establishes
jurisdiction where those waters have a ``significant nexus'' to another
``water of the U.S.'' ``Significant nexus'' means ``more than
speculative or insubstantial effect'' that a water, alone or in
combination with other similarly situated waters in the region, has on
the ``chemical, physical or biological integrity'' of a navigable
water. The same ``region'' would be interpreted as the ``watershed that
drains to the nearest traditional navigable water, interstate water or
the territorial seas . . .'' 79 Fed. Reg. at 22212. The preamble
provides page after page of potential scientific indicators of
physical, biological and chemical connections. See 79 Fed. Reg. at
22213-14. The possibilities are so numerous and broad that regulators
will have no difficulty finding a significant nexus for even the most
minor features when combined with all similar features in the
watershed.\6\
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\6\ For example, ``[f]unctions of waters that might demonstrate a
significant nexus include sediment trapping, nutrient recycling,
pollutant trapping and filtering, retention or attenuation of flood
waters, runoff storage, export of organic matter, export of food
resources, and provision of aquatic habitat.'' 79 Fed. Reg. at 22213.
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D. EPA's Public Statements Regarding the Proposed Rule are Misleading
The proposed rule and EPA's public statements in support of it are
misleading to the public and regulated communities. The proposal is
cloaked in scientific-sounding jargon and words that evoke images of
rivers, streams and swamps--images that bear no resemblance to the land
features the rule would regulate. For example:
``Waters'' (as used in the rule) can be ditches or low spots
on a field that are dry except when it rains.
``Bed, bank and ordinary high water mark'' includes land
with only subtle changes in elevation--any land where rainwater
naturally channels as it flows downhill.
``Wetland'' has come to mean areas where water-tolerant
vegetation can be found, even if the land isn't particularly
``wet'' most of the time.
To the general public, such terms may conjure images of flowing
waters or swamps appropriate for Clean Water Act protection and
regulation. In reality, they are being used to regulate land as if it
were water--and ``navigable water'' at that.
EPA has claimed repeatedly that the proposed rule would not assert
jurisdiction over ``new types of waters'' or beyond waters that were
``historically covered'' and would ``not expand jurisdiction over
ditches.'' These statements are misleading, at best--and the last one
is simply false.
First, the text and preamble of the current regulations
(promulgated in 1986 by the Corps and in 1988 by EPA) contain no
reference to ``ephemeral'' streams or drains. Likewise, the regulations
say nothing to suggest that ditches can be ``tributaries.'' EPA and the
Corps have asserted in guidance and in enforcement actions that certain
ditches and ``ephemeral streams'' are subject to CWA jurisdiction as
``tributaries,'' but that is ad hoc ``regulatory creep,'' not proper
notice-and-comment rulemaking. In other words, the fact that EPA and
the Corps have at times asserted jurisdiction over these ``types'' of
features does not make it right--and does not make it lawful to
categorically regulate virtually all ditches and ephemerals.
Second, ``historically''--i.e., before the Supreme Court's ruling
in SWANCC--there was no real limit to the scope of CWA jurisdiction as
interpreted by EPA and the Corps. The agencies unlawfully asserted
jurisdiction over any waters to the full reach of the interstate
commerce clause. That interpretation was resoundingly rejected by the
Supreme Court in SWANCC. Since 2007, however, agency guidance has
asserted jurisdiction over ``non-navigable tributaries'' only after a
case-by-case analysis of whether a particular feature has a
``significant nexus'' to true navigable waters. Key to that analysis is
the volume, duration and frequency of flow, as well as proximity to
downstream navigable waters. Under the proposed rule, the volume,
duration and frequency of flow--as well as distance to navigable
waters--are deemed irrelevant. See 79 Fed. Reg. at 22206 (``tributaries
that are small, flow infrequently, or are a substantial distance from
the nearest [navigable water] are essential components of the tributary
network.''). All such ditches and ephemeral drains will be
categorically deemed to be ``navigable waters'' if they carry any flow
that ever reaches navigable waters. That--whether EPA says so or not--
is a substantial expansion of Federal jurisdiction.
EPA makes much of the fact that the proposed rule ``preserves''
existing Clean Water Act exemptions and exclusions for agricultural
activities. But under the proposed rule, ordinary farming and ranching
activities will require a Clean Water Act permit despite Congress'
clear intent to exempt those activities.
According to Administrator McCarthy's March 25 op-ed aimed
specifically at the agricultural community:
The rule keeps intact existing Clean Water Act exemptions for
agricultural activities that farmers count on. But it doesn't
stop there--it does more for farmers by actually expanding
those exemptions. We worked with USDA's Natural Resources
Conservation Service and USACE to exempt [56] additional
conservation practices.
As explained below, these assurances also are misleading--another
attempt to cloak the true impact of this rule.
III. Statutory Exemptions Intended to Prevent Federal Permit
Requirements for Common Farming and Ranching Activities Will Be
Rendered Almost Meaningless Under the Proposed Rule
When it adopted the Clean Water Act, Congress specifically included
several critical statutory exemptions for agriculture, each of which is
severely undermined by the proposed rule.
Section 404 exemption for ``normal'' farming and ranching
activities
Section 404 exemption for construction of farm or stock
ponds
Agricultural storm water discharges
These exemptions demonstrate a clear and consistent determination
by Congress NOT to impose Clean Water Act permit requirements on
ordinary farming and ranching activities--weather-dependent and time-
sensitive activities that are necessary for the production of our
nation's food, fiber and fuel. However, the proposed rule's assertion
of jurisdiction over ditches and low spots on farm fields will render
those exemptions almost meaningless.
A. Section 404(f) Exemption for ``Normal'' Farming and Ranching
Activities
In the mid-1970s, when the Corps began to define ``navigable
waters'' to include certain wetlands--so as to make farming, ranching
and forestry practices within those wetlands potentially subject to
Clean Water Act regulation--Congress amended the Act to specifically
exempt ``normal'' farming, ranching and forestry from section 404
``dredge and fill'' permit requirements. 33 U.S.C. 1344(f)(1). Thus,
``normal farming, silviculture, and ranching activities such as
plowing, seeding, cultivating, minor drainage, harvesting for the
production of food, fiber, and forest products, or upland soil and
water conservation practices'' are generally exempt from section 404
permitting requirements. 33 U.S.C. 1344(f)(1)(A). Only if the
activity's purpose is to convert an area of navigable water into a use
to which it was not previously subject, or where the reach of navigable
waters may be reduced, (e.g., to convert wetland to non-wetland) will
the activity require a 404 permit. 33 U.S.C. 1344(f)(2) (the so-
called ``recapture'' provision).
On March 25, 2014, the agencies issued an immediately effective
``interpretive rule'' concerning the application of ``normal'' farming
exemptions to 56 listed conservation practices. Although EPA claims to
have ``expanded'' agriculture's Clean Water Act exemptions through this
interpretive rule, that is not true. Rather, as described below, the
interpretive rule provides no meaningful protection from the harmful
implications of the expansion of ``navigable waters'' and, in fact,
further narrows the already limited ``normal'' farming exemption.
1. The Normal Farming Exemption Only Applies to Section 404 ``Dredge
and Fill'' Permitting, Not NPDES Permitting or Other Clean
Water Act Requirements
The normal farming exemption only applies to the section 404
``dredge and fill'' permit program. It provides no protection from
potential liability and requirements of any other part of the Clean
Water Act, including section 402 National Pollutant Discharge
Elimination System (NPDES) permit requirements for discharges of other
``pollutants.'' The agencies' proposed expansion of jurisdiction means
that everyday weed control, fertilizer applications and any number of
other commonplace and essential farming activities may trigger Clean
Water Act liability and section 402 permit requirements if even small
amounts of dust, nutrients or chemicals fall into dry ditches,
ephemerals or low spots (small ``wetlands'') located beside, between or
within farm fields.
The normal farming exemption also will not protect farmers from new
restrictions (or prohibitions) on farming practices that arise from the
establishment of water quality standards and ``total maximum daily
loads'' under Clean Water Act section 303 for the ditches, ephemerals
and other features EPA now plans to sweep into Federal jurisdiction.
These requirements apply to all ``navigable waters'' under the Act, and
thus they will apply to dry ditches, ephemerals and low spots on
fields, too, if those features are defined as jurisdictional waters.
2. The Normal Farming Exemption Only Applies to Farming or Ranching
Ongoing Since the 1970s
Since 1977, the agencies have narrowly interpreted the ``normal''
farming, ranching and silviculture exemption to apply only to
``established'' operations ``ongoing'' since 1977 (when the exemption
was enacted and the Corps' implementing regulations were adopted). See,
e.g., U.S. v. Cumberland Farms of Connecticut, Inc., 647 F. Supp. 1166
(D. Mass. 1986), affirmed 826 F.2d 1151 (1st Cir. 1987), cert. denied,
484 U.S. 1061 (1988). Newer farms, or farms where farming ceased since
1977 and later resumed, or sometimes even farms that have switched from
one crop to another since 1977, will all fall outside of the exemption.
See, e.g., Borden Ranch P'ship v. U.S. Army Corps of Eng'rs, 261 F.3d
810, 815 (9th Cir. 2001), aff'd 537 U.S. 99 (2002) (finding that
conversion of ranch lands to orchards and vineyards falls outside
normal farming exemption). Therefore, if the new interpretive rule
provides any benefit for any farmers and ranchers, it will only be for
those who have been farming or ranching continuously at the same
location since 1977. See Interpretive Rule at 2.
Reading the preamble to the proposed rule closely, one can see how
regulating ephemeral drains as ``waters of the U.S.'' would render the
normal farming exemption meaningless. The reason lies in the so-called
``recapture'' provision of section 404(f)(2). This provision negates
the exemption where farming impairs the flow or reduces the reach of
navigable waters. In the context of discussing ephemeral
``tributaries'' in the proposed rule, the agencies reveal that if
plowing or discing the soil on farmland eliminates what would otherwise
be an identifiable bed, bank and OHWM, that farming requires a section
404 permit because it has reduced the reach of jurisdictional waters.
See 79 Fed. Reg. at 22204, fn. 8, and accompanying text. Of course,
this means that any plowing that has already eliminated a bed, bank or
OHWM of an ephemeral drain in a farm field without a 404 permit was (in
the view of the agencies) a violation of the Act.
3. The Agencies Have Further Narrowed the Normal Farming Exemption By
Making It Contingent on Compliance With NRCS Standards
To the extent a farmer or rancher has a long-standing operation
that would qualify as ``normal'' farming and ranching, the new
interpretive rule further narrows the existing exemption by requiring
compliance with NRCS technical standards for the 56 listed conservation
practices. Many of the listed ``conservation practices'' are extremely
common farming and ranching practices--such as fencing, brush
management and pruning shrubs and trees--which we believe are already
exempt.
The agencies claim to be ``clarifying'' the exemption for 56 listed
activities, but, at the same time, the interpretive rule requires
compliance with specific NRCS standards--something that was never
required before to qualify for the ``normal'' farming and ranching
exemption. Therefore, the practical effect of the interpretive rule is
to narrow the existing exemptions, rather than broaden them as EPA
claims. The rule explicitly states that farmers who deviate from NRCS
standards will not benefit from the exemption.\7\ Farmers who could
previously undertake these activities (which, again, include things as
commonplace as fencing) as part of their ``normal'' farming or ranching
now must comply with NRCS standards or risk Clean Water Act
enforcement.
---------------------------------------------------------------------------
\7\ See Interpretive Rule at page 2 (``To qualify for this
exemption, the activities must be part of an `established (i.e.,
ongoing) farming, silviculture, or ranching operation,' consistent with
the statute and regulations. The activities must also be implemented in
conformance with NRCS technical standards.'').
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The interpretive rule does not clarify which regulatory agency has
final authority on compliance with NRCS standards--but the answer
appears to be EPA. The rule states that a farmer not enrolled in a USDA
cost share program is responsible for ensuring the practice meets all
NRCS criteria, and NRCS is responsible for ensuring the practice meets
the criteria where there is a USDA contract. Ultimately, however, EPA
has reserved its Clean Water Act authority to make all final
determinations. Even if a farmer and NRCS believe that the practice
meets the appropriate standards, EPA presumably could veto that
determination.
The new rule also raises questions about the status of other
practices for which NRCS has developed standards, but that are not
included in the list of 56 conservation practices. Examples include ``
`Residue and Tillage Management, Reduced Tillage' (practice #345), pond
(practice #378), and cover crop (practice #340).'' The implication of
not listing these practices is that they will require a section 404
permit if any incidental discharge of ``dredged or fill'' material
occurs. This could have a chilling effect on the implementation of
conservation practices on farms and ranches.
Further, EPA and the Corps could alter or retract the interpretive
rule at any time. Even for those farmers who may perceive value in the
``assurances'' offered by this new guidance, the fact that it could be
changed or eliminated at any time, without advance public notice, robs
them of that so-called assurance. For that matter, the standards to
which the exemption is now tied can be unilaterally changed by NRCS at
any time without rulemaking. We see little value or certainty for
farmers under these circumstances.
B. Section 404 Exemption for Construction or Maintenance of Farm Ponds
Another agriculture-related exemption in section 404 of the Act is
the exemption for ``construction or maintenance of farm or stock ponds
or irrigation ditches.'' 33 U.S.C. 1344(f)(1)(C). This provision
exempts from 404 ``dredge and fill'' permit requirements any discharge
of dredge or fill materials into waters of the U.S. for the purpose of
construction or maintenance of farm or stock ponds or irrigation
ditches.
Through guidance and enforcement actions, the Corps has interpreted
the farm pond exemption narrowly and applied the so-called
``recapture'' provision broadly. If construction or maintenance of the
pond results in earth-moving activities that reduce the reach or change
the hydrology of a water of the U.S., the Corps takes the position that
the ``recapture'' provision applies and the discharge is unlawful
without a permit. In the Corps' view, impounding a jurisdictional
feature is an unlawful ``dredge and fill'' discharge, and the resulting
impoundment is itself ``waters of the U.S.'' 77 Fed. Reg. 22188, 22201
(Apr. 21, 2014). In the experience of many farmers, where wetlands or
non-navigable ``tributaries'' are involved in farm or stock pond
construction, the recapture provision essentially swallows the
exemption. Farmers have been ensnarled in litigation and enforcement
due to the creation of ponds that impound small ephemeral streams. See,
e.g., http://agfax.com/2014/03/21/epa-vs-rancher-clean-water-act-
battle-dtn/ (EPA asserting jurisdiction over rancher's stock pond used
to support ongoing farming activities).
The proposed rule will further limit farmers' and ranchers' ability
to build and maintain farm ponds. As explained above, the proposed rule
will establish jurisdiction over virtually every ephemeral drain as a
``tributary.'' Thus, any impoundment of those drainage features will be
an unlawful discharge absent a section 404 permit, and the resulting
farm pond itself will become ``waters of the U.S.'' In addition, any
construction of a farm pond in a small low spot (``wetland'') swept
into Clean Water Act jurisdiction under the ``adjacent'' or ``other
waters'' provisions of the proposed rule (discussed above) will also
require a section 404 permit and will result in a pond that is itself
waters of the U.S.
This aspect of the rule will affect countless (maybe most) farm and
stock ponds. By expanding jurisdiction to include common ephemeral
drains and isolated wetlands, the rule will prohibit the impoundment of
these natural drainage or depressional areas that are often the only
rational way to construct a farm or stock pond. Farm or stock ponds are
typically constructed at natural low spots on the farm or ranch
property, to capture storm water that enters the pond through sheet
flow and ephemeral drains. Depending on the topography, pond
construction may be infeasible without diking a natural drainage path
on a hillside.
The proposal includes an exclusion from the definition of waters of
the U.S. for ``artificial lakes or ponds created by excavating and/or
diking dry land and used exclusively for such purposes as stock
watering, irrigation, settling basins, or rice growing.'' This
exclusion is almost meaningless because, as discussed above, ``dry
land'' is interpreted to exclude anything that qualifies as a wetland
or any ephemeral feature where storm water naturally channels. This
leaves little ``dry'' land available for the construction of farm
ponds. Put simply, farm and stock ponds are not excavated on hill tops
and ridges, they are excavated at low spots where water naturally flows
and collects. Thus, the proposed farm pond exclusion will be
meaningless for most farmers and ranchers.
C. Exemption for Agricultural Stormwater and Irrigation Return Flows
Another key agricultural exemption in the Clean Water Act applies
to ``agricultural storm water discharges'' and ``irrigation return
flows.'' Under this exemption, precipitation runoff and irrigation
water from farms and ranches is specifically excluded from regulation
as a ``point source'' discharge. The exemption applies even if the
storm water or irrigation water contains ``pollutants'' and is
channeled through a ditch or other conveyance that might otherwise
qualify as a ``point source'' subject to Clean Water Act section 402
NPDES permit requirements. The exemption shows Congress' clear intent
to exclude farmers and ranchers from Clean Water Act liability and
permitting for activities on farm and ranch lands that may result in
``pollutants'' being carried by precipitation or irrigation flows into
navigable waters.
The proposed rule would severely undermine this exemption by
regulating as ``waters of the U.S.'' the very ditches and drains that
carry storm water and irrigation water from farms. As drafted, the
statutory exemption applies to pollutants discharged to navigable
waters carried by storm water or irrigation water, which would
typically flow through ditches or ephemeral drains. However, the
exemption arguably does not cover the direct addition of pollutants
into ``navigable waters'' by other means (such as materials that fall
into or are sprayed into navigable waters).
Because storm water and irrigation ditches and ephemeral drains are
ubiquitous on farm and ranch lands--running alongside and even within
farm fields and pastures--the proposed rule will make it impossible for
many farmers to apply fertilizer or crop protection products to those
fields without triggering potential Clean Water Act liability and
permit requirements. A Clean Water Act pollutant discharge to navigable
waters arguably will be deemed to occur each time even a molecule of
fertilizer, pesticide or dust falls into the jurisdictional ditch,
ephemeral or low spot--even if the feature is dry at the time of the
purported ``discharge.'' \8\ Thus, farmers will have no choice but to
``farm around'' these features--allowing wide buffers to avoid
activities that might result in a discharge--or else obtain an NPDES
permit for farming. Technically, cattle or horses would need to be
fenced out of ephemerals and low spots to avoid a direct ``discharge''
of manure. This is contrary to Congressional intent and would present a
substantial additional hurdle for farmers to conduct essential
practices to grow and protect their crops and livestock.
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\8\ Courts have long held that there is no de minimis defense to
Clean Water Act discharge liability.
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IV. Practical Implications for Farmers and Ranchers
Farming is a water-dependent enterprise. Whether they are growing
plants or animals, farmers and ranchers need water. For this reason,
farming and ranching tend to occur where there is either plentiful
rainfall or adequate water available for irrigation (via ditches). Not
surprisingly, America's farm and ranch lands are an intricate maze of
ditches and ephemeral drains. As explained above, under the proposed
rule, virtually all of these features would be categorically regulated
as ``navigable waters.''
If the drains and ditches that cross between, among and within farm
fields and pastures are regulated as ``navigable waters,'' the
implications for farmers and ranchers will be disastrous. Except for
the very narrow section 404 exemptions discussed above, regulating
these features as jurisdictional ``waters'' would mean that any
discharge of a pollutant (e.g., soil, dust, ``biological material'')
into those ditches and drains is unlawful, absent a Clean Water Act
permit. Typical farming activities, such as plowing, planting, discing,
insect and disease control, and fence building in or near ephemeral
drains, ditches or low spots could be a violation of the Clean Water
Act, subject to civil penalties of up to $37,500 per violation per
day--or even higher criminal penalties--unless a permit is obtained.
V. The Proposed Rule Suffers from Several Procedural Flaws
The agencies' economic, technical and small business analyses are
severely flawed. First, according to an expert review by Dr. David
Sunding, the agencies' economic analysis contains numerous glaring and
problematic errors that ``are so severe as to render [the economic
analysis] virtually meaningless.'' \9\ Second, the proposed rule relies
on the draft Connectivity Synthesis Report that is still undergoing
vetting and peer review by the Science Advisory Board (SAB). Rather
than wait for the final SAB report before drafting a proposed rule that
purports to rely on the science contained in that report, the agencies
plowed forward with a proposed rule that relies on a draft. It is clear
that the agencies are not properly taking the science into account and
that the outcomes have been pre-determined. Finally, the agencies have
refused to meaningfully comply with the Regulatory Flexibility Act
(RFA). The agencies erroneously certified that the proposed rule would
not have a significant economic impact on a substantial number of small
entities. This certification flies in the face of the undeniably
``significant'' impacts the proposed rule will have on small
businesses.
---------------------------------------------------------------------------
\9\ Report by Dr. David Sunding, ``Review of 2014 EPA Economic
Analysis of Proposed Revised Definition of Waters of the United
States'', May 15, 2014. Prof. Sunding holds the Thomas J. Graff Chair
of Natural Resource Economics at the University of California,
Berkeley. He is the founding director of the Berkeley Water Center and
currently serves as the chair of his department. He has won numerous
awards for his research, including grants from the National Science
Foundation, the U.S. Environmental Protection Agency and private
foundations.
---------------------------------------------------------------------------
A. The Economic Analysis Significantly Underestimates the Increase in
Jurisdiction
The Sunding Report concludes that ``the EPA analysis relies on a
flawed methodology for estimating the extent of newly-jurisdictional
waters that systematically underestimates the impact of the definition
change.''
A threshold problem with EPA's economic analysis is that it
analyzes the implications of only one category of Clean Water Act
jurisdiction under the new proposed rule, ``other waters.'' As
discussed above, the proposed rule includes broad new definitions
(e.g., ``tributary'' and ``neighboring'') that will categorically sweep
into Clean Water Act jurisdiction countless features currently subject
to only case-by-case regulation based on a significant nexus analysis.
However, the economic analysis focuses solely on how jurisdiction might
change for ``isolated waters'' that are not jurisdictional under the
current Clean Water Act framework, but that are likely to become
jurisdictional under an expanded definition of ``other waters.''
As Dr. Sunding found, the database EPA used to estimate economic
implications for incremental expansion of jurisdiction does not track
information on these new terms and categories of jurisdiction. For
example, EPA's economic analysis recognizes that the ``isolated
waters'' category does not take into account the rule's new aggregation
principle, and explains that EPA could not assess the potential impacts
of aggregation of other waters within a watershed without ``actual
field experience.'' Indeed, EPA's analysis also acknowledges that there
will be additional costs to the Corps to update the system to ``reflect
needed data elements'' as a result of the rule's new jurisdictional
categories. EPA does not alter its analysis to account for this major
deficiency. As a result, numbers extrapolated from the records, which
do not marry up with the draft rule's categories of jurisdiction, are
not useful for approximating the economic implications of the
percentage of increase in jurisdiction or the increase in
jurisdictional acreage.
Second, the analysis relies on FY 2009/2010 as the baseline year
for estimating impacts. FY 2009/2010 was a period of significant
contraction in the nation's economy, and the housing market
specifically, due to the financial crisis. As a result of this
contraction, there were fewer construction projects and significantly
smaller projects than in periods of normal economic activity. In
statistical terms, this is an issue of sample selection, where due to
exogenous events the sample selected for the analysis is not
representative of the overall population. Because the report bases its
findings on this period of extremely low construction activity, the
result is artificially low numbers of applications and affected acres.
By using the number of permits issued in 2010 as a baseline, EPA
significantly underestimates the affected acreage. It's hard to imagine
that only 1,300 acres would be affected, as EPA claims, when more than
106 million acres of wetlands are currently being used for agricultural
purposes.\10\
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\10\ USDA National Resources Inventory.
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Third, EPA's economic analysis only considers permitting data from
section 404 to estimate the potential additional percentage of acres
that would come under jurisdiction. EPA then assumes that every other
section of the Clean Water Act would be affected the exact same way as
section 404, applying the estimated increase in percentage of acres
impacted to all other relevant sections of the Clean Water Act. There
is no reason to believe that this is a valid approach given significant
differences in location and in permitting requirements for different
economic activities. EPA recognizes this limitation,\11\ but does
nothing to address it.
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\11\ EPA 2011. Draft Guidance on Identifying Waters Protected by
the Clean Water Act, p. 3.
---------------------------------------------------------------------------
B. The Economic Analysis Significantly Underestimates the Cost of the
Proposed Rule
EPA's economic analysis is further flawed because it underestimates
the cost of the proposed rule by relying on section 404 permitting cost
data that are nearly 20 years old. To make matters worse, these costs
are not adjusted for inflation or any other changes in the permit
system. Moreover, EPA's analysis omits the costs of avoidance and
delay, which are likely the largest out-of-pocket expenses for anyone
seeking a Corps permit. While estimations of these costs are included
in the report cited by EPA, they are inexplicably absent from EPA's
``review and synthesis.'' According to the report EPA cites, individual
section 404 permit application costs were measured as $43,687 plus
$11,797 per acre of impacts to ``waters of the U.S.'' For nationwide
permits, costs were measured as $16,869 plus $9,285 per acre of
``waters of the U.S.'' impacted.\12\ If those figures were updated to
2014 dollars in order to account for inflation the application costs
are even more astounding. In 2014 dollars, individual section 404
permit application costs would be $62,166 plus $16,787 per acre of
impacts to ``waters of the U.S.'' For nationwide permits, costs would
be $24,004 plus $13,212 per acre of ``waters of the U.S.'' impacted.
(See Sunding Report at 17.)
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\12\ Sunding and Zilberman, The Economics of Environmental
Regulation by Licensing: An Assessment of Recent Changes to the Wetland
Permitting Process, Natural Resources Journal, Vol., 42, p. 74.
---------------------------------------------------------------------------
EPA's analysis further underestimates costs for some programs, like
section 303 (state water quality standards, ``total maximum daily
loads'' and implementation plans) and section 402, by assuming them to
be ``cost-neutral or minimal'' without providing any analysis to
support this assumption. The effects of expanded jurisdiction are
likely to vary significantly from program to program; however, careful
assessment of program-specific effects is omitted in lieu of
simplistic, generalized estimations.
EPA acknowledges that additional permit applications may require
increased consultation with other agencies, which would drive up the
price tag of a definitional change. EPA, however, omits these costs
from its analysis.
C. The Economic Analysis Significantly Overestimates Benefits of the
Proposed Rule
EPA's analysis is also flawed for reasons of overestimation.
Relying on third-party, outdated studies, EPA overestimates an average
willingness to pay for wetland mitigation. These studies are highly
problematic because they are old--nine of the ten studies EPA used are
more than a decade old (the oldest is nearly 30 years old)--and do not
provide accurate estimates of benefits. Many were not published in
peer-reviewed journals.
EPA calculates benefits based on an unstated and improbable
assumption that all of the incremental wetlands affected by the
definitional change would be completely destroyed if Federal
jurisdiction were not expanded. EPA then (1) presumes that benefits
calculated for a specific geography and time can be readily applied
elsewhere, forcing a comparison between different types of wetlands
being considered, and (2) makes the assumption that the public would be
willing to pay the same amount to protect an isolated low spot or pond
as they would a high-value wetland. This significantly biases EPA's
analysis. Even the studies cited by EPA show highly localized impacts
that are not broadly applicable beyond the study site.
EPA makes little effort to account for changes in economic trends,
recreational patterns and state preferences over time. Finally, EPA
suggests there may be ``across the board'' savings in program
enforcement related to increased clarity in the Clean Water Act
program.
Taking these underestimates and overestimates into account, Dr.
Sunding concludes that EPA's analysis suffers from a lack of
transparency and that the methodology, errors and omissions render it
virtually meaningless.
D. The Agencies' Rulemaking Does Not Take Into Account Scientific and
Technical Underpinnings
The agencies' proposed rule relies on a draft review of the
scientific literature on ``connectivity'' currently under review by an
SAB. The agencies have drafted the proposed rule in reliance on the
draft Connectivity Synthesis Report, without waiting for the SAB's
final report. Sending a proposed rule to OMB for interagency review
before the SAB completes its peer review demonstrates that the agencies
are not properly taking the science into account and that the outcomes
have been pre-determined. Any proper rulemaking should begin with an
agency collecting, developing and then appropriately evaluating all of
the relevant science. The agency should seek to validate or correct its
understanding of the science through conducting independent scientific
peer review. Finally, the agency should use what is learned through a
vetting process to inform any policy or regulatory decisions.
Instead, EPA has asked the SAB to engage in a post hoc review of a
severely limited portion of the science that will be used to justify a
rule that has already been written. EPA's decision to develop a rule
based on a scientific report that has not undergone external scientific
peer review calls into question the legitimacy of the rulemaking
process. EPA should allow the SAB to complete its review. The agencies
should extend the comment period on the proposed rule until after this
process is complete and the report is thoroughly vetted to ensure that
any final rule is based on the final, peer-reviewed connectivity
report.
E. The Impacts to Small Business Are Staggering
On April 23, the House Small Business Committee added the proposed
rule to its website alerting small businesses to burdensome Federal
regulations. According to Committee Chairman Sam Graves (R-Mo.), the
``EPA and Corps are proposing to expand the jurisdiction of the Clean
Water Act to include nearly every damp patch of land in the United
States.'' Graves termed the proposed rule a ``regulatory overreach,''
saying:
[This] means small businesses and landowners may need costly
permits and face lengthy delays for ordinary activities on
private property. Projects may need to be redesigned or
relocated to satisfy Federal regulators. Worse, permit
applications may be denied. This extraordinary intrusion into
the lives of many farmers, ranchers and small business owners
has the likely potential to be economically devastating and
must be stopped.
The agencies have not properly complied with the procedural
requirements of RFA. The agencies try to dodge the RFA by claiming that
the ``scope of regulatory jurisdiction in this proposed rule is
narrower than that under the existing regulations.'' 79 Fed. Reg. at
22220. Therefore, ``because fewer waters will be subject to the Clean
Water Act under the proposed rule than are subject to regulation under
the existing regulations, this action will not affect small entities to
a greater degree than the existing regulations . . . [and] will not
have a significant adverse impact on a substantial number of small
entities.'' Id. The agencies thus erroneously conclude that no RFA
analysis is required.
But there can be no question that the proposed rule has direct
effects not only on regulated entities, but also on the entire nation.
The scope of Clean Water Act jurisdiction has implications that
permeate all sections and programs under the Act, such as section 303
water quality standards and total maximum daily loads, section 311 oil
spill prevention control and countermeasures, section 401 water quality
certifications, the section 402 NPDES program and the section 404
dredge and fill permit program. These programs regulate countless
diverse small business activities across the nation, from farming and
roadside produce stands, to home building, to manufacturing and energy
development. The agencies' proposal expands these Clean Water Act
programs geographically to cover more areas across the landscape
including ditches, dry washes and desert drainages. When public or
private property is deemed ``waters of the United States'' by the
agencies, there are numerous impacts that flow from that determination,
including the reduced value of land, the need to hire consultants to
prepare permits, delays, restrictions on land use and the cost of
complying with permitting requirements, including mitigation--not to
mention the potential for permit denial or the cost of forgoing a
project entirely rather than take on the bureaucracy. These widespread
impacts are felt acutely by small businesses.
In Florida, for example, it is estimated that 40 percent of the
value of farmland is directly attributable to its future development
potential.\13\ Thus, when Clean Water Act regulatory jurisdiction or
permitting requirements are expanded over farmland, the value of that
land decreases significantly because of the associated regulatory
burdens. For farmers and ranchers, their land is typically their
principal asset and frequently provides collateral for loans and other
capital purchases needed to operate their farm or ranch. The agencies'
determination that Clean Water Act jurisdiction exists over ditches and
other features on farmland may affect small farmers' ability to obtain
loans.
---------------------------------------------------------------------------
\13\ Plaintiga, A.J., Lubowski, R.N., and R.N., Stavins, The
Effects of Potential Land Development on Agricultural Land Prices, 52
J. of Urban Economics 561, 581 (2002).
---------------------------------------------------------------------------
As another example, agricultural insect, weed and disease control
will increasingly be subject to NPDES requirements under EPA's new
permit program for pesticides.\14\ Some small business owners have
estimated that it will cost an additional $50,000 per year to comply
with the new paperwork burden imposed by the pesticide permit program
alone.\15\ These burdensome NPDES requirements place severe limitations
on the location and operation of many activities undertaken by small
entities. Expanding the scope of waters that are regulated as ``waters
of the United States'' to ditches and other ephemeral features only
adds to the ``waters'' at issue in the pesticide general permit and
thus exacerbates the complexities and costs of implementing this
program.
---------------------------------------------------------------------------
\14\ It is estimated that under the new NPDES permit program for
pesticides, 365,000 new sources will be required to obtain NPDES
permits, but this estimate was made prior to, and does not account for,
the expansion of jurisdiction proposed in the Draft Guidance. See EPA,
``Background information on EPA's Pesticide General Permit,'' http://
cfpub.epa.gov/npdes/pesticides/aquaticpesticides.cfm (viewed Jun. 26,
2011).
\15\ See Responsible Industry for a Sound Environment, ``Comments
in Response to Draft National Pollutant Discharge Elimination System
(NPDES) Pesticide General Permit for Point Source Discharge from the
Application of Pesticides,'' Docket No. EPA-HQ-OW-2010-0257, http://
www.regulations.gov/#!documentDetail;D=EPA-HQ-OW-2010-0257-0490 (Jul.
19, 2010).
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The bottom line is that the expansion of the waters regulated under
the Clean Water Act has enormous implications for small business
entities that the agencies have not considered, much less explained.
VI. Conclusion
Farmers, ranchers and other landowners will face a tremendous new
roadblock to ordinary land use because of this proposed rule. The rule
will make it more difficult to farm and ranch, build homes, develop
energy resources and otherwise use the land. Farm Bureau believes the
proposed rule will have a detrimental effect on existing farmers, on
encouraging new and beginning farmers to enter the profession and
potentially on landowners' willingness to undertake conservation
practices.
The agencies have obscured rather than explained the rule's impacts
on farmers, ranchers and others.
We need Congress' help to fight this rule.
Thank you for the opportunity to explain our opposition to the
Waters of the U.S. proposed rule. We would be glad to provide any
further information the Committee may need.
Attachment 2
June 6, 2014
Damaris Christensen,
Office of Water (4502-T),
Environmental Protection Agency,
Washington, D.C.;
Chip Smith,
Office of the Deputy Assistant Secretary of the Army (Policy and
Legislation),
Washington, D.C.;
Stacey Jensen,
Regulatory Community of Practice (CECW-CO-R),
U.S. Army Corps of Engineers,
Washington, D.C.
Re: [EPA-HQ-OW-2013-0820; 9908-97-OW]
To Whom It May Concern:
These comments are submitted for the record on the EPA and Corps of
Engineers (Corps) ``Notice of Availability Regarding the Exemption From
Permitting Under section 404(f)(1)(A) of the Clean Water Act to Certain
Agricultural Conservation Practices,'' 79 Fed. Reg. 22276 (April 21,
2014). Our comments address the two documents (referred to as Guidance)
associated with the Federal Register notice, the ``Interpretive Rule
Regarding the Applicability of Clean Water Act section 404(f)(1)(A)''
(IR) and the ``Memorandum of Understanding'' (MOU) among EPA, the Corps
and USDA.
The American Farm Bureau Federation (AFBF) has significant concerns
with the both the substance and process by which EPA, the Corps and the
Natural Resources Conservation Service (NRCS) (together, the agencies)
developed this Guidance. AFBF recommends that the agencies withdraw the
Guidance immediately and ensure that any future changes to the normal
farming exemptions comply with the Administrative Procedure Act (APA).
Given the short comment deadline and the agencies' refusal to grant
an extension of time, AFBF is providing comments by June 5, 2014.
However, AFBF is scheduled to meet with the agencies on June 13. If
that meeting generates clarification or additional information that
warrants further comment, AFBF will submit additional comments to the
record.
I. The 404(f)(1)(A) Is a Legislative Rule That Is Subject to APA
Requirements
AFBF does not agree with the agencies' characterization of the
404(f)(1)(A) Interpretive Rule (IR) as ``interpretive.'' Despite the
agencies' characterization, the IR is a legislative rule. The APA draws
a distinction between legislative rules, which are subject to notice
and comment requirements, and interpretive rules or guidance, which are
not subject to such requirements. 5 U.S.C. 553(b)(3)(A). Legislative
rules, which do not merely interpret existing law or propose policies,
but which establish new policies that an agency treats as binding, must
comply with the APA, regardless of how they are labeled.\1\
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\1\ See, e.g., Appalachian Power Co. v. EPA, 208 F.3d 1015 (D.C.
Cir. 2000) (striking down emissions monitoring guidance as legislative
rule); Natural Res. Def. Council v. EPA, 643 F.3d 311 (D.C. Cir. 2011)
(vacating guidance that allowed states to propose alternatives to
statutorily required fees for ozone non-attainment areas as legislative
rule that required notice and comment); National Mining Ass'n v.
Jackson, 856 F. Supp. 2d 150 (D.D.C. 2011) (finding challenge to EPA
guidance and process memoranda met criteria of final agency action
because, among other things, they `` `reflect[] an obvious change' . .
. in the permitting regime set forth in section 404 of the Clean Water
Act and in the regulations implementing that provision''); New Hope
Power Co. v. U.S. Army Corps of Eng'rs, 746 F. Supp. 2d 1272, 1283-84
(S.D. Fla. 2010) (striking Corps guidance purporting to amend the prior
converted croplands exclusion because it amounted to new legislative
and substantive rules that created a binding norm and the Corps failed
to comply with the APA).
---------------------------------------------------------------------------
The IR is a regulation that must be promulgated under the APA
because it binds farmers and ranchers with new, specific legal
obligations under the Clean Water Act (CWA). The IR modifies existing
regulations interpreting the statutory term ``normal farming, ranching
and silviculture.'' 40 CFR 232.3(c)(1)(ii)(A); 33 CFR
323.4(a)(1)(ii). The IR purports to continue existing statutory and
regulatory exemptions, but instead the IR narrows the 404(f)(1)(A)
exemption by identifying 56 activities that will be exempt only if they
are conducted consistent with NRCS conservation practice standards and
as part of an established (i.e., ongoing) farming operation. Under the
IR, previously voluntary NRCS conservation standards are made fully
enforceable as part of the CWA regulatory program. The legal
obligations to comply with the IR fall squarely on farmers and ranchers
and not the agencies.
Both the IR and the conservation standards inventoried in the IR
are written in mandatory terms, using the words ``shall'' and ``must''
to describe exactly how a farmer must comply with the 56 NRCS technical
standards, often to exacting detail. If a farmer operating an
``established'' farming operation conducts a farming activity or
conservation practice that results in a discharge of dredge or fill
material into a water of the U.S., the IR clearly states that the
activity ``must be implemented in conformance with NRCS technical
standards.'' Failure to comply with the standards results in an
unlawful discharge in violation the CWA, subjecting the farmer to CWA
penalties. As a result, on its face, this so-called ``interpretive''
rule is a ``legislative'' rule that imposes binding legal obligations
on the public.
The agencies' decision to accept ``comments'' only after the
guidance is fully effective and enforceable precludes any meaningful
public participation and is in clear violation of the APA. Contrary to
the agencies' public statements, the agencies conducted no significant
public outreach during the development of the Guidance. Nonetheless,
the Guidance has been in effect and enforceable against farmers since
its publication in the Federal Register on April 21, 2014. In light of
the agencies' total failure to conduct outreach to the agricultural
community and the resulting confusion, the entities that purportedly
``benefit'' from the Guidance did not have the opportunity to express
their concerns that they will face serious enforcement consequences if
they conduct their farming, ranching and silvicultural activities as
they have in the past. For all these reasons, we strongly recommend
that the agencies withdraw the Guidance immediately and ensure that any
future changes to the normal farming exemptions comply with the APA.
II. AFBF Has Several Major Substantive Concerns With the Guidance
With such a short comment period and the agencies' refusal to grant
an extension of the comment deadline, the public has not been given
adequate time to analyze the Guidance and provide meaningful comments.
Based on a preliminary review, however, AFBF has several major concerns
that we urge the agencies to address.
A. Contrary to the Agencies' Statements, the Guidance Does Not Provide
Additional Exemptions for Farmers and Ranchers
Since the publication of the IR, agency officials and agency
websites have claimed that there is no change to the existing CWA
section 404(f)(1) exemption for ``normal'' agricultural activities on
``established'' operations and that somehow the Guidance is providing
additional protections for agriculture. See Op-Ed on agriculture by
Administrator McCarthy, March 25, 2014 (``But it doesn't stop there--
[the rule] does more for farmers by actually expanding those
exemptions.'') However, the IR does not provide farmers and ranchers
with additional permit exemptions beyond what has already been
authorized by Congress. Congress amended the CWA in 1977 to exempt
``normal'' farming, ranching and silviculture activities from section
404 ``dredge and fill'' permit requirements. 33 U.S.C. 1344(f)(1). We
therefore dispute the agencies' assertions that farmers need 404
permits to conduct any of the 56 practices listed in the agencies' IR
if those practices are conducted as part of an established operation,
because those activities already qualify as ``normal'' farming,
ranching and silviculture activities. The agencies' new interpretation
does not provide additional protections for agriculture. Contrary to
the agencies' assertions, the Guidance has effectively narrowed, rather
than expanded the current exemptions, and NRCS conservation standards
that were previously voluntary are now fully enforceable as part of the
CWA regulatory program. As the MOU notes, ``[d]ischarges in waters of
the U.S. are exempt only when they are conducted in accordance with
NRCS practice standards.'' MOU at 3. Thus, the agencies' public
statements about the Guidance are not only misleading but contradict
the actual language of the guidance documents.
Moreover, the IR and MOU are insufficient notice to farmers of an
enforceable change to the Congressionally authorized exemptions for
``normal'' agricultural practices.
B. The Guidance Applies Only to the Section 404 Program
It appears that the agencies are overstating the significance of
the ``normal'' farming exemption, which does not apply to discharges
regulated under the CWA National Pollutant Discharge Elimination System
(NPDES) program. While the Guidance states the exemption for ``normal
farming'' activities is applicable to the 404 program regulating
discharges of dredge and fill materials, there is significant confusion
in the farming community about the applicability to other parts of the
CWA. EPA has exacerbated that confusion through its statements such as
the following in EPA's ``fact sheet on benefits for agriculture'':
``The proposed rule will: Preserve current agricultural exemptions for
Clean Water Act permitting, including: Normal farming, silviculture,
and ranching practices.''
Even if the IR would somehow benefit some farmers or ranchers, it
cannot insulate any farm or ranch from any section 402 NPDES permitting
requirements that may now result from the expansive definition of
``waters of the United States'' under the agencies' proposed rule to
define the scope of jurisdiction under the CWA. The exemption is simply
inapplicable to that separate permitting program. Thus, while a farmer
may be able to plant cover crops in jurisdictional waters under the IR
without a 404 permit (assuming compliance with NRCS standards), that
same farmer would face CWA liability for applying fertilizer or
pesticide to those same fields without a section 402 NPDES permit. The
public deserves more direct and clear communications from the agencies
on these highly technical and complex regulatory issues.
C. The Guidance will Result in More Time-Intensive and More Costly
Requirements for Farmers and Ranchers
Before the IR, farmers and ranchers did not need to satisfy
federally mandated practice standards for ``normal'' agricultural
activities subject to CWA section 404(f)(1)(A) exemptions. Farmers
could engage in ordinary farming activities without the need for a
section 404 permit, a jurisdictional determination whether the
discharges were occurring in waters of the United States, or a site-
specific pre-approval. As a result of this IR, it may be more onerous
to qualify for 404(f)(1)(A) exemptions.
The 56 listed NRCS conservation practice standards include typical
farming activities, such as ``irrigation canal or lateral,''
``irrigation field ditch,'' ``mulching,'' and ``fence,'' all of which
were already exempt from regulation under section 404(f)(1)(A) if
conducted as part of an established farm or ranch operation. The NRCS
conservation practices are detailed,\2\ and may be more time-intensive
and expensive to implement than the methods currently used by farmers
and ranchers. Under the Guidance, however, farmers and ranchers are not
provided any flexibility in how they conduct normal farming activities
on their land. Now, in order to qualify for section 404 exemptions that
previously would not have required NRCS standards compliance, ranchers
and farmers must now comply with the onerous NRCS practice standards.
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\2\ For example, for fences (practice code 382), the NRCS
conservation practice standards require (among other things): (1)
fencing materials, type and design to be of a high quality and
durability; (2) fences shall be designed, located and installed to meet
appropriate local wildlife and land management needs and requirements;
(3) when appropriate, natural barriers should be utilized instead of
fencing; (4) the fence design and location should consider erosion,
flooding potential, and stream crossings; (5) fences across gullies,
canyons, or streams may require special bracing, design, or approaches;
and (6) regular inspection of fences as part of an ongoing maintenance
program, including a schedule for inspections after storms, repair or
replacement of loose materials, removal of trees/limbs, replacement of
water gaps, repair of eroded areas, and repair or replacement of
markers or other safety and control features. See http://
www.nrcs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb1144464.pdf.
As another example, for field borders (practice code 386), the NRCS
conservation practice standards require (among other things): (1)
minimum field border widths based on local design criteria, but at a
minimum 30 feet with a vegetation stem density/retardance of moderate
to high; (2) utilization of plants with physical characteristics
necessary to control wind and water erosion to tolerable levels (no
plant listed by the state as a noxious or invasive species shall be
established in the field border); (3) elimination of ephemeral gullies
and rills present in the planned border area; (4) select species that
provide adequate habitat, food source, and/or cover for the wildlife
species of interest; (5) establish plant species that will produce
adequate above--and below--ground biomass for the site to increase
carbon storage and plant species that improve air quality; and (6)
planned operation and maintenance, including removing sediment from
above, within, and along the leading edge of the field border and
avoiding vehicle traffic when soil moisture conditions are saturated.
See http://www.nrcs.usda.gov/Internet/FSE_DOCUMENTS/
stelprdb1241318.pdf.
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Moreover, as discussed above, even if farmers and ranchers are able
to comply with the complicated NRCS practice standards, such compliance
does not insulate their land from any section 402 permitting
requirements now resulting from the agencies' proposed broadened
definition of ``waters of the United States.''
D. The Guidance Adds Confusion and the Agencies Have Failed To Clarify
Key Issues Regarding the Application of the 404(f)(1)(A)
Exemptions
The Guidance provides little context or explanation regarding how
the EPA and the Corps interpret the 404(f)(1) exemptions--an area
already associated with great confusion within the agricultural
community. In addition, the agencies have refused to provide even the
most basic information in the IR or answer clarifying questions.
For example, the agencies have failed to clarify what constitutes
``established/ongoing'' farming, even though our research indicates
that only farming ``ongoing'' since 1977 would qualify. See, e.g., U.S.
v. Cumberland Farms of Connecticut, Inc., 647 F. Supp. 1166 (D. Mass.
1986), affirmed 826 F.2d 1151 (1st Cir. 1987), cert. denied, 484 U.S.
1061 (1988). This is a key fact that should be clarified to the public
if the agencies are purporting to invite farmers and ranchers to engage
in these practices within waters of the U.S. without fear of CWA
liability. The agencies also have failed to clarify whether the listed
practices must always comply with NRCS standards to qualify for the
exemption--or only when the practices (e.g., fence building) are
undertaken for the purpose of conservation (as opposed to other
purposes). The agencies might reasonably make a policy choice to make
NRCS standards ``mandatory'' as a condition of obtaining Federal
conservation funds to implement the conservation practices. However,
under no circumstances should the agencies be able to impose CWA
liability (loss of a statutory exemption) as a consequence of a
farmer's failure to comply with NRCS standards.
The agencies have also failed to provide clarity on the following
important issues:
Whether a farmer needs pre-approval for any normal farming
activities not listed;
Whether pre-approval is required if the farmer implements
one of the 56 listed practices in Waters of the U.S. without
complying with NRCS conservation practice standards;
Whether the 124 NRCS conservation practices not specifically
listed are also exempt from section 404 permit requirements as
``normal farming activities'' if they incidentally result in a
discharge of dredged or fill material;
How the IR will be enforced;
Whether and how a farmer should ensure compliance with the
NRCS conservation standards (according to the MOA, if the
farmer does not seek ``technical assistance'' from NRCS in
identifying and implementing the conservation standards, the
farmer has the responsibility to ensure that implementation of
the conservation practices is in accordance with the applicable
NRCS standard or the practice will not be exempt);
The interplay between the IR and state agricultural programs
and requirements;
The interplay between the NRCS (authority for agricultural
programs and ``technical assistance'' with implementing the
NRCS standards) and the Corps and EPA (CWA authority); and
Whether the regulated community and the public will have any
opportunity for comment on changes to the list of covered
conservation practices as the agencies consider additions or
deletions in the future.
III. Conclusion
In sum, the Guidance raises more questions than it answers. Most
importantly, as stated above, the agencies have violated the APA in
finalizing this Guidance without complying with the rulemaking process.
Moreover, the agencies have mislead the public by claiming that the
Guidance provides additional exemptions when it actually narrows the
``normal'' farming and ranching exemption by imposing burdensome new
requirements for farmers and ranchers.
For all these reasons, AFBF urges the agencies to withdraw the
Guidance immediately and ensure that any future changes to the normal
farming exemptions comply with the APA.
Sincerely,
Dale W. Moore,
Executive Director, Public Policy.
The Chairman. Thank you, Mr. Parrish. I appreciate it.
Mr. Fabin, you are now recognized for 5 minutes.
STATEMENT OF ANDY FABIN, PRODUCER, FABIN BROS. FARMS, INDIANA,
PA, ON BEHALF OF THE NATIONAL CATTLEMEN'S BEEF ASSOCIATION;
PENNSYLVANIA
CATTLEMEN'S ASSOCIATION
Mr. Fabin. Thank you. Good morning. My name is Andy Fabin.
I raise cattle and row crops in Indiana, Pennsylvania. I am
testifying before you today as a member of the National
Cattleman's Beef Association and the Pennsylvania Cattlemen's
Association. Thank you to the Chairman and Ranking Member for
allowing me to testify today on the impacts of the
Environmental Protection Agency and the U.S. Corps of Engineers
Interpretive Rule on the normal farming and ranching exemption
under section 404 of the Clean Water Act.
I am extremely concerned about the devastating impacts this
Interpretive Rule could have on conservation practices being
implemented on the ground, especially if you couple that with
the increased liability from the expansion of the waters of the
United States definition that is also currently taking place.
As a farmer, my willingness to implement voluntary
conservation practices has been greatly diminished, despite my
desire to improve and protect the waters on my farm. I am not
alone in my thinking, which means that if this Interpretive
Rule remains in place, farmers and ranchers across the country
will slow their adoption of conservation practices. Therefore,
NCBA is requesting the agencies withdraw the Interpretive Rule
and begin a dialogue with farmers and ranchers in order to
provide actual clarity that will encourage conservation
implementation.
As you can see on the screen, on my operation we run 60
cows and have 3,500 acres of corn, soybeans, wheat, and rye.
Also, we operate a soybean extrusion plant in which we process
in excess of 1.3 million bushels of beans into high-protein
soymeal and soy oil. I have ephemeral streams running through
my pastures and fields, as well as ponds and ditches. Many of
these features would become Federal water under the proposal
with most not falling into any of the vague and unclear
exclusions that EPA and the Corps have included in the proposed
definition. EPA, the Corps and NRCS would have me believe that
despite the expanded definition all the activities that take
place on my farm are exempted. Unfortunately, not all ag
activities are exempted under the Clean Water Act, and this
Interpretive Rule would expand the number of farming activities
that will need permits.
The Interpretive Rule has narrowed the scope of the normal
farming and ranching exemption under section 404 of the Clean
Water Act. Since the 1930s, Congress has encouraged
conservation activities, making them integral or normal parts
of farming operations long before passage of the Clean Water
Act. We believe they have always been included under the
exemption.
Additionally, I am confused about the agencies' intent. If
the Corps and EPA intended to clarify that the exemption covers
conservation activities, why didn't they just say conservation
activities are exempted as normal farming and ranching
activities? They have made these voluntary standards mandatory
because if you tell a farmer that he has to either comply with
an NRCS standard or face the permitting requirements or
violations of the Clean Water Act and its fines of $37,500 per
day, he hasn't been given any real choice at all. The only real
choice is whether to do it the NRCS way or not at all. I am
afraid that most farmers and ranchers will pick the latter.
NRCS was created to help farmers on a voluntary basis. Many
producers like myself have a great relationship with our local
NRCS agent. The Interpretive Rule states the activity must also
be implemented in conformance with NRCS technical standards.
There is no way to get around that this requirement makes NRCS
a Clean Water Act compliance agency. Farmers and ranchers are
going to allow NRCS field agents on their property knowing they
are now an extended arm of the EPA and the Corps for Clean
Water Act enforcement.
I do not have an NRCS-certified grazing plan for my cattle.
I am concerned that the Interpretive Rule has unintentionally
made grazing cattle without an approved grazing plan a
violation of the Clean Water Act if they walk through a wetland
on my pasture. I can't give you a better example of a normal
farming and ranching activity than grazing cattle on a pasture,
but apparently now that exemption doesn't consider grazing
normal.
Now that the Interpretive Rule is in effect and my
conservation practices are being scrutinized by the Corps and
NRCS, my willingness to work with them has been significantly
diminished. I am worried local NRCS personnel are going to have
to spend their entire time checking compliance of voluntary
conservation activities instead of assisting farmers and
ranchers in continuing to improve the waters around their
properties. The model of voluntary conservation that has been
the pinnacle of farmers' and ranchers' protection of our
natural resources is going to be upended.
Not only should the EPA and the Corps withdraw their
overreaching definitions of waters of the United States but
they should also immediately withdraw the Interpretive Rule
because ultimately the only effect it will have is to decrease
beneficial conservation activities.
Thank you, and I would be happy to answer any questions
Members of the Subcommittee have.
[The prepared statement of Mr. Fabin follows:]
Prepared Statement of Andy Fabin, Producer, Fabin Bros. Farms, Indiana,
PA; on Behalf of National Cattlemen's Beef Association; Pennsylvania
Cattlemen's Association
Good morning, my name is Andy Fabin. I raise cattle and row crops
in Indiana, Pennsylvania. I am testifying before you today as a member
of the National Cattlemen's Beef Association and the Pennsylvania
Cattlemen's Association. Thank you to the Chairman and Ranking Member
for allowing me to testify today on the impacts of the Environmental
Protection Agency and the U.S. Army Corps of Engineers' interpretive
rule on the Normal Farming and Ranching exemption under Sec. 404 of the
Clean Water Act.
I am extremely concerned about the devastating impacts this
interpretive rule could have on conservation practices being
implemented on the ground, especially if you couple that with increased
liability from the expansion of the ``waters of the U.S.'' definition
that is also currently taking place. As a farmer my willingness to
implement voluntary conservation practices has been greatly diminished,
despite my desire to improve and protect the waters on my farm. I'm not
alone in my thinking, which means that if this Interpretive Rule
remains in place, farmers and ranchers across the country will slow
their adoption of conservation practices. Because of this negative
consequence NCBA is requesting the agencies withdraw the Interpretive
Rule and begin a dialogue with farmers and ranchers in order to provide
actual clarity that will encourage instead of discourage conservation
implementation.
On my operation we run 60 cows and have 3500 acres of corn,
soybeans, wheat, and rye. Also, we operate a soybean extrusion plant in
which we process in excess of 1.3 million bushels of beans into high
protein soymeal and soy oil. I have ephemeral streams running through
my pastures and fields, as well as ponds and ditches. It appears to me
that many of these features would become Federal waters, with most not
falling into any of the vague and unclear exclusions that EPA and the
Corps have included in the proposed definition. If they ARE `waters of
the U.S.' I will need a 404 or 402 permit to conduct many activities
near those waters, that is unless those activities are exempted. EPA,
the Corps and now even the Natural Resource Conservation Service would
have me believe that despite the expanded definition all the activities
that take place on my farm are exempted. This is, at a minimum, a
negligent mischaracterization, and more likely, an intentionally
deceptive tactic being used to pacify the agricultural community. Not
all agricultural activities are exempted under the Clean Water Act, and
this proposal would expand the number of farming activities that will
need permits, requiring many farmers like myself to seek 402 NPDES
permits or 404 Dredge and Fill permits.
Specifically, the Interpretive Rule put out on the same day as the
proposed definition has narrowed the scope of the Normal Farming and
Ranching Exemption under Sec. 404 of the Clean Water Act. While the
agencies claim that the Interpretive Rule has expanded the exemption to
include a new set of 56 NRCS practices, I'm confused as to why those 56
were not considered ``normal farming'' practices in the first place. Is
it NRCS' position that I have been violating the Clean Water Act since
I have not asked for a 404 permit to implement any of my conservation
practices thus far. It can be assumed that if those 56 practices are
only now exempted through the Interpretive Rule, then they were not
before, making all conservation practices that touched water a
violation of the Clean Water Act. I don't believe this was the intent
of Congress. Since the 1930s, Congress has encouraged conservation
activities, making them an integral, or ``normal,'' part of all farming
operations long before passage of the Clean Water Act.
Additionally, I am confused about the agencies' intent. If the
Corps and EPA intended to clarify that the exemption covers
conservation activities, why didn't they just say just? They should
have said ``conservation practices and activities, because they are
designed and implemented to protect the environment, are exempted as
`normal farming and ranching' activities.'' Perhaps the agencies knew
they were narrowing the exemption to these 56 NRCS practices in an
effort to make those practices mandatory for farmers and ranchers. I
believe they have made these voluntary standards mandatory because if
you tell a farmer that he has to either comply with an NRCS standard or
face the permitting requirements or violations of the Clean Water Act
and its fines of $37,500 per day, he hasn't been given any real choice
at all. He or she must implement an NRCS standard. The only real choice
is whether to do it the NRCS way or not at all. I'm afraid that most
farmers and ranchers will pick the latter. If that happens, what have
we accomplished? Conservation practices will decrease and overall water
quality will decrease.
NRCS was created to help farmers on a voluntary basis. Many
producers like myself have a great relationship with our local NRCS
agent. The Interpretive Rule states that when conducting one of the 56
chosen conservation practices, ``[t]he activities must also be
implemented in conformance with NRCS technical standards,'' despite
whether it is a cost-shared practice or voluntary. There is no way to
get around that this requirement makes NRCS a Clean Water Act
Compliance agency if this Interpretive Rule is left in place. You can
imagine how many farmers and ranchers are going to allow NRCS field
agents on their property knowing they are now an extended arm of the
EPA and the Corps for Clean Water Act Enforcement. Making NRCS a Clean
Water Act compliance agency is not the way to work with farmers and
ranchers. And hiding mandatory compliance with NRCS standards through
the guise of an exemption is deplorable.
Not only do other NRCS practices now fall outside the scope of the
``normal farming'' exemption such as nutrient management and terracing,
so do any voluntary practices that do not meet NRCS specifications. I
have participated in many NRCS cost-shared conservation practices, but
I do not have an NRCS certified grazing plan for my cattle. EPA and the
Corps, along with NRCS chose these 56 practices because they have the
potential to discharge if they are done in a water. Prescribed Grazing
is one of those 56 standards. This makes grazing a discharge activity,
and for any farmer or rancher with cattle, unless you have an approved
grazing plan your cattle that walk through a wetland on your pasture
are now a violation of the Clean Water Act. I can't give you a better
example of a ``normal farming and ranching'' activity than grazing
cattle on a pasture, but, apparently now that exemption doesn't
consider grazing ``normal,'' and I will need a Sec. 404 permit to graze
my cattle because inevitably in Pennsylvania, they will wonder through
a wetland or ephemeral stream, which is now a ``water of the U.S.'' We
believe that grazing cattle was already a ``normal ranching'' activity,
and EPA and the Corps' Interpretive Rule has not given farmers and
ranchers anything they didn't have before, but in fact, has taken that
exemption away from many of us.
Now that the Interpretive Rule is in effect, and my conservation
practices are being scrutinized by the Corps and NRCS, my willingness
to work with them has been significantly diminished. I'm worried local
NRCS personnel are going to have to spend their entire time checking
compliance of voluntary conservation activities instead of assisting
farmers and ranchers in continuing to improve the waters around their
properties. The model of voluntary conservation that has been the
pinnacle of farmers and ranchers protection of our natural resources is
going to be upended.
Not only should the EPA and the Corps withdraw their overreaching
definition of ``waters of the U.S.,'' but they should also immediately
withdraw the Interpretive Rule because ultimately the only affect it
will have is to decrease beneficial conservation activities. Thank you
and I would happy to answer any questions Members of the Subcommittee
may have.
Attachment
The Chairman. Thank you, Mr. Fabin.
I now recognize Mr. Bowling for 5 minutes.
STATEMENT OF CHIP BOWLING, FIRST VICE PRESIDENT, NATIONAL CORN
GROWERS ASSOCIATION, NEWBURG, MD
Mr. Bowling. Thank you. Chairman Thompson, Ranking Member
Walz, and Members of the House Agriculture Subcommittee on
Conservation, Energy, and Forestry, on behalf of National Corn
Growers Association, I appreciate the opportunity to share with
you our views on the EPA's Interpretive Rule regarding
agriculture exemptions to the Clean Water Act.
My name is Chip Bowling. I am a third-generation farmer in
Newburg, Maryland, about 45 miles due south of here. I raise
corn, soybeans, wheat and grain sorghum on about 1,700 acres,
and I currently serve as First Vice President of the National
Corn Growers Association.
The Interpretive Rule recently issued by the EPA and the
Army Corps of Engineers specifies what farmers must do to
qualify for Clean Water Act's normal farming exceptions from
dredge-and-fill permitting. While the policy may have been
intended to be relatively limited in effect and to be of
assistance to farmers by making the exception process more
efficient, in practice, something very different will happen.
Even if applied in the most practical and flexible manner
possible, the fact remains that we are dealing with the Clean
Water Act, a law that desperately needs clarification that can
only be done by amendments to the statute by Congress.
In the case of the Interpretive Rule, we see the potential
that farmers engaged in normal farming activities will face far
greater constraints than they had before to qualify those
activities for the Clean Water Act exemptions. Producers will
also face a far greater Federal regulatory liability, either
through the policy's implementation by the agencies in the
field or from citizen enforcement suits against farmers. The
Interpretive Rule establishes how the exemptions from section
404 permitting will apply to certain agricultural practices
carried out under NRCS conservation practice standards. To
date, some 56 practices have been identified for this purpose.
NCGA is concerned that the rule will in effect require
producers to follow NRCS conservation practice standards even
though many of the covered activities are a long-used normal
farming practice. The current list of covered practices
includes many routine farming activities such as brush
management, weed control, fencing and grass waterways. These
practices have always been and will continue to be regularly
carried out on farms for purposes unrelated to benefiting
waters of the United States simply because building a fence,
managing brush or weeds and trimming trees are required to
manage and operate a farm.
The question is, will the consequence of the rule be
through its interpretation in the field or as a result of legal
actions that farmers must closely follow the relevant NRCS
standard any time they are engaged in one of these activities.
If so, this is major cause for concern. Not only is this
permit-like requirement for what should be an exemption
activity, the everyday use of these standards is simply
impractical.
For example, the standards for brush management is four
pages long and requires a farmer to develop a very specific
plan that is ecologically sound and defensible. I am not a big
farmer. I am the entire compliance department of Bowling Farms.
I find it hard to conceive how I could possibly have a written
or recorded plan for each of the roughly 150 fields that I farm
in my operation.
If the activities being carried out as part of an NRCS
conservation program where Federal funds are being utilized to
help a farmer achieve a specific conservation purpose, meeting
such a standard can be sensible and good policy, but NCGA
believes that requiring farmers to meet such standards as part
of an everyday farming operation is unreasonable and bad
policy.
In reviewing the covered practices, we find several that
create this same kind of impossible compliance situation. Grass
waterways are a good example. Most landowners and farmers had
them on their farms. I have them on mine. And most were
developed and installed without any assistance from NRCS. The
NRCS standard in this instance is three pages long with very
specific design criteria and engineering standards. It requires
a detailed written plan and has limitation on how the waterway
can be used. Portions of this standard are good practice and
frankly common sense. However, if a farmer must now develop a
plan for all these and meet NRCS requirements or face possible
litigation under the Clean Water Act, the expense and time and
money will be enormous.
The two examples that I have outlined are the type of
concerns we believe to be serious and important enough to
require this Interpretive Rule be withdrawn. In withdrawing the
rule, it is imperative that it be made absolutely clear that
this policy was meant to address only those circumstances where
a practice was being adopted for conservation purposes to
achieve a specific water quality goal. That notice of
withdrawal must also specify such normal farming practices when
carrying out as a part of the ongoing operation will qualify
for section 404 for exception.
Once again, we thank you for the opportunity to provide you
this testimony and your decision to hold this hearing so that
these important policy matters can be thoroughly reviewed and
discussed. Corn growers will continue their efforts to conserve
soil, water and nutrient resources and protect water quality.
We look forward to working with you and the Administration and
support your good work. Thank you.
[The prepared of Mr. Bowling follows:]
Prepared Statement of Chip Bowling, First Vice President, National Corn
Growers Association, Newburg, MD
Chairman Thompson, Ranking Member Walz, and Members of the House
Agriculture Subcommittee on Conservation, Forestry and Energy, on
behalf the National Corn Growers Association (NCGA), I appreciate the
opportunity to share with you our views on the U.S. Environmental
Protection Agency's Interpretive Rule regarding the applicability of
Clean Water Act agricultural exemptions. My name is Chip Bowling. I am
the third generation on our family farm in Newburg, Maryland about 45
miles south of Washington, D.C. where we raise corn, soybeans, wheat
and grain sorghum on 1700 acres. I currently serve as the First Vice
President for NCGA.
The National Corn Growers Association represents more than 37,000
corn farmers from 48 states. NCGA also represents more than 300,000
corn growers who contribute to check off programs and 27 affiliated
state corn organizations across the nation for the purpose of creating
new opportunities and markets for corn growers.
The Interpretive Rule recently issued by the U.S. Environmental
Protection Agency and the U.S. Army Corps of Engineers (``Agencies'')
specifies what farmers must do to qualify for the Clean Water Act's
normal farming exemptions from dredge and fill (section 404) permitting
under certain wide ranging circumstances. While the policy may have
been intended to be relatively limited in effect and to be of
assistance to farmers by making the exemption's process more efficient,
in practice something very different will happen. Even if implemented
in the most practical and flexible manner possible, the fact remains
that we are dealing with the Clean Water Act and its citizen
enforcement provisions that encourage legal actions against
individuals. Tens of thousands of dollars a day in penalties are
possible under the Clean Water Act, hundreds of thousands of dollars or
even far more in total. These citizen suits commonly hinge on
technical, paper violations of the Clean Water Act, and persons seeking
to stop a business activity can use technical and even imaginary
violations as pretexts for lawsuits that can cripple a business. We
have seen this very recently with one of my Maryland neighbors, a
broiler farm. Fortunately, in this specific case the courts ruled in
favor of the farmer, but at tremendous expense to the defendant which
nearly resulted in bankruptcy. Legal liabilities such as these are
always possible when dealing with the mandatory provisions of the Clean
Water Act. In the case of the Interpretive Rule we see large potential
for this same type of risk. This policy creates the real possibility
that farmers engaged in numerous otherwise normal farming activities
will face far greater constraints than before to qualify those
activities for the section 404 exemptions. Producers will also face far
greater Federal regulatory liabilities, either through the policy's
errant implementation by the Agencies in the field, or as the result of
Clean Water Act citizen enforcement suits against farmers. For these
reasons as well as others that are explained in this testimony we
appreciate that you have called for this hearing and for allowing us
the opportunity to provide you with our views and suggested actions
that the Agencies could take to rectify these problems.
Corn Growers' Conservation Accomplishments
Corn growers are proud of their soil, water and nutrient
conservation efforts and the substantial benefits of that work. Between
1980 and 2011 soil erosion was reduced by 67 percent per bushel of corn
produced and by 43 percent per acre of corn planted.\1\ Excess sediment
lost to waterways from farmland is one of the nation's top water
quality concerns, and corn producers have reduced these losses by 147
tons per year in 2011 relative to 1980. Phosphorous loss from farm land
often is directly related to sediment losses, and corn growers' erosion
reduction accomplishments translate directly into less phosphorus in
runoff reaching surface waters.
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\1\ Field to Market (2012 V2). Environmental and Socioeconomic
Indicators for Measuring Outcomes of On-Farm Agricultural Production in
the United States: Second Report, (Version 2), December 2012. Available
at: www.fieldtomarket.org. See pages 41-50 for the results for corn.
---------------------------------------------------------------------------
Corn yields per acre over this period have gone up by more than 60
percent, about 60 bushels of corn per acre. Yet at the same time the
rates at which the primary corn nutrients (nitrogen, phosphorous, and
potassium) have been applied per acre have declined. U.S. corn farmers
produced 6.64 billion bushels of corn in 1980 and used 3.2 pounds of
primary nutrients per bushel. By 2010 we produced 12.45 billion bushels
of corn, but used only 1.6 pounds of nutrients per bushel. This equates
to an 87 percent increase in nutrient use efficiency and translates
directly into far greater quantity of nutrients being removed from the
land in the form of corn grain than was the case in 1980. The net
effect of this is fewer nutrients in the soil profile that might move
into surface water.\2\
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\2\ See The Fertilizer Institute, U.S. Fertilizer Consumption Table
and U.S. Consumption of Primary Plant Nutrients. Derived from USDA NASS
data (2011). Available at: http://www.tfi.org/statistics/fertilizer-
use.
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These data clearly show the practical, extensive benefits of corn
growers' commitment to practicing sound soil, water and nutrient
conservation on their farms. Farmers recognize that in important ways
their partnerships with Federal and state agencies like USDA's Natural
Resources Conservation Service (NRCS) and the Farm Service Agency, as
well as their local soil and water conservation districts, has helped
make these accomplishments possible. But without question it is the
farmers themselves that are the single most important factor that makes
these good things happen. Farmers, working as innovative and diligent
business people, are the foundation for agricultures' conservation
accomplishments on private land.
These gains are possible because of farmers' overall success. This
necessarily means carrying out a host of normal farm and land
management activities that are not in and of themselves conservation
practices. Conservation on farms is simply not possible without farmers
having the flexibility and latitude to carry out all of these other
critical farming practices without unnecessary impediments. This is the
perspective that we bring to this Interpretive Rule. A successful
farmer must have the latitude to carry out all of their normal farming
practices alongside and in coordination with, but not always directly
related to, their strong conservation activities.
Farming in the Chesapeake Bay
As a farmer in Maryland, I know what it means to be regulated.
There are very few actions that I take as a farmer where I do no first
consider how they relate to my state's regulatory requirements. As I
work to maintain a profitable and productive farming operation, I view
my farm as a system that must incorporate mandatory measures dealing
with erosion control, buffer establishment and maintenance, and
nutrient management. These requirements are simply realities for
farmers in Maryland. We hope, given the level of effort and the cost
they entail, that these practices are benefitting water quality in the
Chesapeake Bay. Recent science has made it clear that there can be
decades' long lag times between what we do on the land and nutrients
entering the Bay. Those lags make it difficult to determine if water
quality benefits are occurring; but what we do know is that regulatory
requirements, implemented inflexibly and without due consideration to
farming practicalities, add undue cost and burden and will lead to some
farmers just leaving the business.
Waters of the U.S. Rulemaking
Our evaluation of the Interpretive Rule is taking place against a
backdrop of great policy uncertainty. The proposed rule on what are CWA
Waters of the U.S. (``WOTUS'') makes it extremely challenging for us to
determine with precision how the Interpretive Rule will apply to us on
the ground. Even when the WOTUS rulemaking is done, we will still face
great uncertainty as in innumerable instances a formal determination
from the Agencies will be necessary for us to know the drainage
features, wet areas or other characteristic on our farms are
jurisdictional waters to which this Interpretive Rule applies. We
believe that the scope of the WOTUS rule will be quite broad, given its
classification of all ephemeral streams, many ditches, and wet areas in
the floodplain, as jurisdictional and possibly even isolated waters
that lie further upland. We offer you these views with examples from my
farm, applying our best judgment as to what might be WOTUS on the land
I farm.
The Interpretive Rule
The Interpretive Rule establishes how the exemptions from section
404 permitting will apply to certain agricultural practices carried out
under NRCS conservation practice standards. Specific agricultural
practices, identified by the EPA, the Army, and USDA-NRCS, that could
include the discharge of dredged or fill material in a WOTUS are deemed
to be exempt ``normal farming'' activities if the activities are part
of an ``established (i.e., ongoing) farming, silviculture, or ranching
operation'' and implemented in conformance with NRCS technical
standards. The Agencies and USDA have entered into a Memorandum of
Agreement (MOA) to develop and implement a process for identifying,
reviewing and updating NRCS agricultural conservation practices and
activities that could qualify for the exemption. To date some 56
practices have been identified for this purpose.
NCGA is concerned that the Rule will, in effect, require producers
to follow USDA-NRCS conservation practice standards when they carry out
certain activities even though many of the covered activities are long-
used, normal farming practices commonly conducted for reasons unrelated
to conservation and water quality goals. The current list of covered
practices includes the following activities:
Brush Management
Herbaceous Weed control
Prescribed Burning
Stream Crossing
Windbreak/Shelterbelt
Fencing
Fuel Break
Field Border
Firebreak
Grassed Waterway
Hedgerow Planting
Hillside Ditch
Land Clearing
Mulching
Tree Site Preparation
Forage Management
Forage Planting
Prescribed Grazing
Grazing Land Treatment
Range Planting
Tree/Shrub Establishment
Windbreak/Shelterbelt Renovation
Tree Pruning
Forest Stand Improvement
These practices have always been, and will need to continue to be,
regularly carried out on farms and ranches for purposes that are
unrelated to ``benefitting'' WOTUS. Not that they are being carried out
to the detriment of a WOTUS, but simply because building a fence, or
managing brush or weeds, planting or trimming trees, planting and
managing forage and all of these other farming activities are just what
are required to manage and operate a farm. The question is, will the
practical consequence of the Rule be, either through its interpretation
in the field or as a result of legal actions, that farmers must follow
closely the applicable NRCS technical standard anytime they are engaged
in one of these activities?
If so, this is major cause for concern. Not only is this
essentially a permit-like requirement for what should be an exempt
activity, the everyday use of these standards is simply impractical.
NRCS conservation practice standards for each of these practices are
highly detailed, rely heavily on extensive planning involving highly
specific processes, and they often cross reference each other. Not only
is this unlawful policy relative to the stated purpose of exempting
from permitting these normal activities, the possibilities for simple
paper, technical violations are immense and lead directly to legal
liabilities.
For example, the standard for ``brush management'' (# 314) is four
pages long and requires the practitioner, among other things, to
``(u)se applicable Ecological Site Description (ESD) State and
Transition models, to develop specifications that are ecologically
sound and defensible. Treatments must be congruent with dynamics of the
ecological site(s) and keyed to state and plant community phases that
have the potential and capability to support the desired plant
community. If an ESD is not available, base specifications on the best
approximation of the desired plant community composition, structure,
and function.'' Furthermore, this standard calls for plans and
specifications to be clearly spelled out and recorded for each field
being treated. The plans must contain at a minimum ``Clearly stated
goals and objec-
tives . . . The pre-treatment cover or density of the target plant(s)
and the planned post-treatment cover or density and desired efficacy .
. . Maps, drawings, and/or narratives detailing or identifying areas to
be treated, pattern of treatment (if applicable), and areas that will
not be disturbed . . . A monitoring plan that identifies what should be
measured (including timing and frequency) and that documents the
changes in the plant community (compare with objectives) will be
implemented.'' \3\ Brush management on my farm is a normal practice
that I carry out all year long. We scout our fields at least four to
six times a year around field edges and hedgerows. I find it hard to
conceive of what it would entail for me to have a written or recorded
plan for each of the approximately 150 fields I have under cultivation.
---------------------------------------------------------------------------
\3\ See pages 1 and 2 at ``USDA NRCS CONSERVATION PRACTICE
STANDARD, BRUSH MANAGEMENT, CODE 314,'' September 2009. For links to
all of these standards see http://www.nrcs.usda.gov/wps/portal/nrcs/
detailfull/null/?cid=nrcs143_026849.
---------------------------------------------------------------------------
If these activities are being carried out as part of a USDA NRCS
conservation program where Federal funds and assistance were being
utilized to help the farmer achieve a specific conservation purpose in
the field in question, meeting such a standard is sensible and good
policy. NRCS would be committed to working with the farmer to these
ends, and NRCS field staff would have the usual and customary
flexibility to support the farmer through this process without worry of
third party suits seeking to interrupt that work, often for reasons
that are at best indirectly related to the natural resource issues at
hand. But NCGA believes that requiring farmers to meet such standards
as part of an everyday, farming operation when carrying out normal
farming activity is unreasonable, bad policy, and unlawful.
In reviewing the other covered practices I find several that create
this same kind of impossible compliance situation, or very well could
do so. Grass waterways are a good example. Most landowners and farmers
have grass waterways on their farms, and most of these were developed
and installed without any assistance from NRCS. The NRCS standard in
this instance is three pages long, with very specific design criteria
and engineering standards, planted species requirements, all to be
carried out under a detailed written plan, with limitations on how the
waterway can be used and with detailed operations and maintenance
requirements. Portions of this standard are good practice and frankly,
common sense. However, if I now have to have a plan for all of these
and meet the detailed requirements, or face possible litigation under
the CWA, the expense in time and money will be enormous and
prohibitive.
The same is true for the herbaceous weed control standard. This
section contains a great deal of helpful, practical guidance, but it
also contains a requirement that a farmer prepare a plan for each
field. On a farm such as mine that consists of over 150 fields, this
requirement becomes incredibly burdensome. Perhaps not all of these
fields are WOTUS, but almost all of them have surface drainage systems
with a bed, bank and some kind of channel. Other conservation practice
standards have similar problems. In the case of obstruction removal,
something as simple as removing sticks or vegetation from a drainage
feature could easily become a long and detailed process. Under this new
system, what would otherwise be a 10 minute job would require hours of
paperwork.
The Rule language states it is being applied in those instances
where the conservation practice is being carried out ``for the purposes
of benefitting'' WOTUS. Presumably this means that farmers carrying out
such activities not for the purpose of benefitting a WOTUS but simply
as part of their normal farming operation need not meet the NRCS
technical standard to quality for the exemption. But the referenced MOU
that the Agencies and USDA have entered into in accordance with this
Rule gives the clear, stated indication that the Agencies expect
farmers to meet these standards anytime they are carrying out these
activities in a WOTUS.
For example, the MOU states that ``(D)ischarges in waters of the
U.S. are exempt only when they are conducted in accordance with NRCS
practice standards'' and that (W)here NRCS is not providing technical
assistance, the landowner has the responsibility to ensure that
implementation of the conservation practice is in accordance with the
applicable NRCS conservation practice standard.'' Furthermore, the MOU
states that ``(E)ven where NRCS is not providing technical assistance,
the agency plays an important role in helping to respond to issues that
may arise regarding project specific conformance with conservation
practice standards.'' \4\ The implication is clear; farmers carrying
out these activities in WOTUS must conform to the NRCS practice
standard or be subject to CWA enforcement.
---------------------------------------------------------------------------
\4\ See pages 3 and 4 of ``Memorandum of Understanding Among the
U.S. Department of Agriculture, the U.S. Environmental Protection
Agency, and the U.S. Department of the Army, Concerning Implementation
of the 404(f)(1)(A) Exemption for Certain Agricultural Conservation
Practice Standards.''
---------------------------------------------------------------------------
In innumerable instances, when farmers are carrying out normal
farming activities like brush management they are not doing it for
conservation purposes. They will not be working with NRCS on a
conservation practice to benefit a WOTUS, nor will they be doing this
on their own as a conservation practice. It is simply a normal farming
activity. In those instances, farmers must not be required to meet the
NRCS conservation practice standard or, in reasonably not doing so, be
subject to CWA 404 permitting or enforcement. To require adherence to
the conservation practice standard in such instances is well outside
anything contemplated by Congress when the section 404(f) exemption was
created.
Conclusion
In summary, the reasons for our serious concerns are as follows:
1. The Rule encompasses a host of practices with a long history of
being an ordinary part of a normal, ongoing farming operation
and that are sensible and absolutely lawful for farmers to use
for reasons not related to conservation and water quality
goals;
2. The Rule will result in producers possibly being subject to CWA
enforcement anytime they do not follow NRCS standards when they
carry out in a WOTUS these specific practices as long-used,
normal farming activities commonly conducted for reasons
unrelated to conservation and water quality goals;
3. The Rule creates the logical policy presumption that any other
normal farming activity must be conducted in conformance to an
NRCS practice standard, if an applicable one exists, when
carried out in a WOTUS;
4. In effect, the Rule will mean that producers, in order to be
certain they are not operating in violation of the CWA and
liable for the resulting and considerable penalties, must
conduct these practices under some form of NRCS supervision or
accountability, and with a complete and accurate documentary
record that could withstand a serious legal challenge; and
5. In light of the above, it will cause considerable friction
between farmers and USDA-NRCS, given the new mandatory
regulatory role USDA-NRCS would have in overseeing farmer
practices, and the fact that USDA-NRCS conservation practice
standards were devised for use in a voluntary, farmer-driven
context and are ill-suited for use as permit terms and
conditions.
We believe that these concerns are serious and important enough to
require that this Interpretive Rule be withdrawn. There may be some
soil and water conservation practices which are unique enough and
intended solely for conservation benefits for which this policy might
be suited. Should this be possible, we strongly urge the Agencies only
to pursue that policy through normal Administrative Procedures Act
processes involving formal notice and comment so as to afford farmers
the opportunity to protect their interests.
In withdrawing the rule, it is imperative that it be made
absolutely clear that this policy, in its original form, was meant to
address only those circumstances where a practice was being adopted for
conservation purposes to achieve specific water quality objectives.
That notice of withdrawal must also specify that such normal farming
activities, when carried out as part of an ongoing operation, will
qualify for the section 404(f) exemption.
Once again, we thank you for the opportunity to provide you with
this testimony and for your decision to hold this hearing so that these
important policy matters can be thoroughly reviewed and discussed. Corn
growers will continue their efforts to conserve soil, water and
nutrient resources and protect water quality, and we look forward to
working with you and the Administration to support that good work.
The Chairman. Thank you, Mr. Bowling, for your testimony.
Now it is my pleasure to ask Mr. Kovarovics for his
testimony for 5 minutes.
STATEMENT OF SCOTT KOVAROVICS, EXECUTIVE DIRECTOR, IZAAK WALTON
LEAGUE OF AMERICA, INC., GAITHERSBURG, MD
Mr. Kovarovics. Thank you very much, and great job on the
name. It is a huge frustration for my kids, and I have been
telling them, ``Get used to it.''
So I appreciate, Chairman Thompson, Ranking Member Walz,
and Members of the Subcommittee, the opportunity to be here
today to testify concerning the Interpretive Rule. I am the
Executive Director of the Izaak Walton League of America. We
have about 44,000 members across the country and 250 community-
based chapters. These folks are working on the ground to
conserve and restore natural resources and enjoy hunting,
angling, recreational and shooting sports, just about any type
of outdoor activity you can imagine, and I am here to share
their perspective as well as the perspective of a broader
cross-section of the community of Americans who enjoy hunting,
angling and outdoor recreation.
I believe it goes without saying that America's hunters,
anglers and farmers agree that healthy natural resources are
essential to our traditions, our way of life and our economy,
and hunters and anglers know that habitat on private land is
essential to the health of wildlife all across the country.
Moreover, hunting overwhelmingly occurs on private lands, and
78 percent of the days spent afield take place on private
lands. Because we share common goals, hunters and anglers are
partnering with farmers nationwide. We are working together on
restoration projects on the ground and advocating for farm bill
programs and funding that directly support the conservation of
natural resources on private lands.
Ensuring the nation's streams, wetlands and other waters
are healthy is vitally important to the tens of millions of
Americans who hunt and fish, for our communities and for the
outdoor recreation economy. Wetlands and streams provide vital
habitat for fish, ducks and other wildlife. For example, the
Prairie Pothole Wetlands or the Northern Plains in southern
Canada support 50 percent of the North American duck population
an average year and as much as 70 percent of that population
when water and grass is abundant.
The ducks who hatch and grow in these wetlands are
harvested all across America every fall. Headwater and other
small streams provide vital spawning habitat for trout, salmon
and other fish and are essential to these fish throughout their
lifecycles.
However, following the Supreme Court decisions in SWANCC
and Rapanos and subsequent agency guidance, these vital
resources are increasingly at risk today. According to the EPA,
60 percent of the streams in the lower 48 states, streams that
flow to drinking water supplies of 117 million Americans are at
increased risk of pollution. Wetlands are not only at greater
risk; the nation is losing natural wetlands at a growing rate.
In the most current Status and Trends of Wetlands report from
the U.S. Fish and Wildlife Service, the Service concludes
wetlands loss increased by 140 percent between 2004 and 2009
period when compared to the previous assessment period of 1998
to 2004. This is the first documented acceleration of wetland
loss since the Clean Water Act was passed 40 years ago.
Each year, 47 million Americans head into the field to hunt
or fish. These are not simply traditions or hobbies. They are
fundamental components of our nation's economy. The money that
sportsmen spend in pursuit of their passion supports everything
from major manufacturing industries to small businesses in
communities across the country. These expenditures directly and
indirectly support more than 1.5 million jobs and ripple
through the economy to the tune of $200 billion per year.
Since 1977, the Clean Water Act has included an exemption
from the section 404 permit process for normal farming,
silviculture and rancher activities. As has been discussed
today, the purpose and intent of the Interpretive Rule is to
provide more clarity and certainty to farmers and ranchers and
others about specific activities that are covered by the
exemption for normal farming activities, and the Corps and EPA
worked with USDA, as we have heard, to develop this rule and
identify the specific conservation practices which meet this
definition and are therefore exempt from the 404 process.
I think it is also important to note, as Mr. Bonnie did,
that this rule is basically self-implemented. If the standards
are followed, folks don't need to get advance determination
from the NRCS about whether or not a water is water of the
United States or to have pre-approval from the Corps or the EPA
for the activity.
In addition to issuing the Interpretive Rule, as folks
know, the Corps and EPA have taken steps in the separately
proposed waters of the United States rule to more specifically
define the waters that are and are not included in the
regulatory definition. This is the first time that the agencies
have specifically identified types of waters that are excluded
from the regulatory definition, and the waters that are on that
list that are excluded include prior converted cropland,
groundwater including groundwater draining through subsurface
drainage systems, gullies and rills and non-wetland swales. In
issuing the Interpretive Rule, this section of the proposed
waters of the United States rule, the Corps and EPA have taken
additional steps to provide clarity and certainty to farmers
and ranchers nationwide.
Over the past few years, stakeholders from across the
spectrum including sportsmen and agriculture groups as well as
Supreme Court Justices have called on the Corps and EPA to
conduct a formal rulemaking to clarify the specific waters
covered by the Clean Water Act. Issuance of the Interpretive
Rule complements that larger process, and last week the Corps
and EPA announced they are extending the comment period, and
the comment period on the separate rulemaking has now been
extended to be 6 months long.
In closing, the Interpretive Rule provides more clarity and
specificity about a wide range of normal farming activities
that are exempt from the Clean Water Act. Conserving and
protecting streams and wetlands and other waters is vitally
important to Americans who hunt and fish and enjoy a wide array
of outdoor recreation, and these activities are more than
traditions or hobbies. They drive the outdoor recreation
economy in America, which totals hundreds of billions of
dollars and supports millions of jobs.
Again, I appreciate the opportunity to testify today and I
am happy to answer any questions. Thank you.
[The prepared statement of Mr. Kovarovics follows:]
Prepared Statement of Scott Kovarovics, Executive Director, Izaak
Walton League of America, Inc., Gaithersburg, MD
Interpretative Rule Regarding the Exemption from the Dredge and Fill
Permit Process of the Clean Water Act for Normal Farming,
Silviculture and Ranching Activities
Chairman Thompson, Ranking Member Walz, and Members of the
Subcommittee, I greatly appreciate the opportunity to testify today
concerning the Interpretive Rule issued by the Army Corps of Engineers
and Environmental Protection Agency (EPA), in close cooperation with
U.S. Department of Agriculture (USDA), concerning the exemption from
the dredge and fill permit process of the Clean Water Act for normal
farming, silviculture and ranching activities.
I serve as Executive Director of the Izaak Walton League of
America. I am honored to be here today to share not only the
perspective of the League but also the perspective of the much broader
community of Americans who enjoy hunting, angling and outdoor
recreation. The Izaak Walton League was founded more than 90 years ago
by anglers, hunters and others who were concerned about the negative
impacts of water pollution and unlimited development on outdoor
recreation--especially fishing--and the health of fish, wildlife and
other natural resources. The founders of our organization understood
that clean water and healthy wetlands are essential to robust
populations of fish, ducks and other wildlife and, in turn, to
enjoyable and successful days in the field.
Today, the League's more than 44,000 members are leading efforts
locally to conserve and restore habitat and monitor and improve water
quality. Our members and staff actively support farm bill and other
government programs that conserve soil, wetlands and other natural
resources on farms and ranches nationwide. These members also enjoy
hunting, angling, recreational shooting sports, boating and myriad
other outdoor recreation activities. And like League members before
them, they understand that healthy natural resources, including water
and wetlands, provide the foundation for the outdoor traditions they
and tens of millions of other Americans enjoy every year.
I believe it goes without saying that American hunters, anglers,
farmers and ranchers agree that healthy natural resources are essential
to our way of life, our traditions and our economy. Hunters and anglers
know that habitat on private land--especially land used in some form
for agriculture--sustains wildlife nationwide. Moreover, hunting
overwhelmingly occurs on private land. According to the latest National
Survey of Fishing, Hunting and Wildlife-Associated Recreation, 78
percent of all days spent hunting occurred on private land. Because we
share common goals, American hunters and anglers are partnering with
farmers nationwide. We're working together on everything from habitat
restoration projects large and small to advocating for farm bill
programs and funding that directly supports natural resource
conservation on private lands. At the most fundamental level, sportsmen
want our partners in agriculture to succeed.
Healthy Streams and Wetlands Vital to Sportsmen, Communities and the
Outdoor Recreation Economy
Ensuring the nation's streams, wetlands and other waters are
healthy is vitally important to the tens of millions of Americans who
hunt and fish annually, for communities nationwide and for the outdoor
recreation economy.
Wetlands and streams provide vital habitat for fish, ducks and
other wildlife. For example, the prairie potholes wetlands throughout
the northern plains and southern Canada support 50 percent of the North
American duck population in an average year and as much as 70 percent
when water and prairie grasses are abundant. A wide array of duck
species depend on these wetlands for breeding, nesting and rearing
young. Ducks that hatch and grow in these wetlands are harvested
throughout the United States every fall. Headwater and other small
streams are vital to cold water fish. These waters provide essential
spawning habitat for trout, salmon and other fish and are then
essential to supporting these fish throughout their lifecycles.
However, following two confusing U.S. Supreme Court decisions
(SWANCC in 2001 and Rapanos in 2006) and subsequent agency guidance,
these vital resources are increasingly at risk of being polluted or
drained and filled. According to EPA, 60 percent of stream miles in the
United States, which provide drinking water for more than 117 million
Americans, are at increased risk of pollution. Wetlands are not only at
greater risk, the nation is losing natural wetlands at a growing rate.
In the most current Status and Trends of Wetlands report, the U.S. Fish
and Wildlife Service concludes the rate of wetlands loss increased by
140 percent during the 2004-2009 period--the years immediately
following the Supreme Court decisions--compared to the previous
assessment period (1998-2004). This is the first documented
acceleration of wetland loss since the Clean Water Act was enacted more
than 40 years ago.
Each year, 47 million Americans head into the field to hunt or
fish. These are not simply traditions or hobbies--they are fundamental
components of our nation's economy. The money sportsmen spend in
pursuit of their passion supports everything from major manufacturing
industries to small businesses in communities across the country. The
economic benefits of hunting and angling are especially pronounced in
rural areas, where money brought in during the hunting season can be
enough to keep small businesses operational for much of the year. These
expenditures directly and indirectly support more than 1.5 million jobs
in every corner of the country and ripple through the economy to the
tune of $200 billion per year. Many other forms of outdoor recreation
also depend on clean water and a healthy environment. According to the
Outdoor Industry Association, boating, including canoeing and kayaking,
had a total economic impact of $206 billion in 2012, supporting 1.5
million jobs.
The story of these economic benefits plays out in local communities
around the nation. For example, each year more than 125,000 anglers
visit the Driftless Area of Minnesota, Wisconsin, Illinois and Iowa.
Some of the Driftless Area's best streams flow through the district
represented by Ranking Member Walz. Across the Driftless Area, anglers
spend $647 million annually, which goes directly into the local
economy. This spending also produces a ``ripple effect'' of $465
million in indirect and induced benefits as those dollars continue to
circulate through the economy. The direct spending plus that ripple
effect exceeds $1.1 billion per year. Since 2007, more than 75 miles of
stream in this region have been restored, and these restoration
projects are extremely effective, increasing fish populations ten-fold,
e.g., from 350 fish per mile to 3,500 per mile. On one stream, fishing-
related expenditures were less than $200,000 per year prior to
restoration and grew to $1 million per year after restoration.
In addition to providing critical habitat for fish and wildlife and
directly supporting hunting and angling, wetlands also provide a host
of other benefits to people and communities across the country. Natural
wetlands are arguably the most cost-effective protection against
flooding for communities large and small. According to the National
Weather Service, the 30 year average for flood damage is $8.2 billion
annually. Conserving wetlands is an alternative to building higher
levees and concrete storm walls and armoring every stream bank with
rip-rap.
Wetlands provide essential benefits to rural communities and
agriculture. Wetlands help recharge ground water supplies. The National
Ground Water Association (NGWA) estimates that 44 percent of U.S.
population depends on groundwater for drinking water, either from a
public source or a private well. As every Member of this Subcommittee
understands, groundwater is vitally important for irrigation. According
to NGWA, irrigation accounts for the greatest usage of groundwater--
more than 50 billion gallons daily. For example, NGWA reports that more
than 90 percent of the water pumped from the Ogallala aquifer--the
nation's largest, stretching from South Dakota to Texas--is used for
agricultural irrigation. By capturing, storing and slowly releasing
water, wetlands replenish vital groundwater supplies on which the
American people, agriculture and our economy depend every day.
Interpretive Rule Provides More Clarity about Agricultural Exemptions
in the Clean Water Act
Since 1977, the Clean Water Act has included an exemption from the
section 404 dredge and fill permit process for normal farming,
silviculture and ranching activities. Under this provision (section
404(f)(1)(A)), the discharge of dredge or fill material ``from normal
farming, silviculture, and ranching activities such as plowing,
seeding, cultivating, minor drainage, harvesting for the production of
food, fiber, and forest products, or upland soil and water conservation
practices'' is exempt from permitting. Separate provisions exempt
``construction or maintenance of farm or stock ponds or irrigation
ditches, or the maintenance of drainage ditches'' (section
404(f)(1)(C)) and ``construction or maintenance of farm roads or forest
roads . . .'' (section 404(f)(1)(E)). These exemptions do not apply to
activities that would bring waters of the United States into uses for
which they had not previously been used or where the flow or
circulation of such waters would be reduced.
These statutory exemptions can only be modified by Congress--
Federal agencies cannot alter them and are bound by law to follow them.
In issuing the Interpretive Rule, the Corps and EPA make clear that the
farming, silviculture and ranching exemptions remain in full force and
effect. The agencies state, ``It is important to emphasize that this
interpretive rule identifies additional activities considered exempt
from permitting under section 404(f)(1)(A), but does not affect, in any
manner, the scope of agriculture, silviculture, and ranching activities
currently exempt from permitting under section 404(f)(1)(A) including,
for example, plowing, seeding, cultivation, minor drainage, etc.''
The purpose of the Interpretive Rule is to provide more clarity and
certainty to farmers, ranchers and others about specific activities
that are covered by the exemption for ``normal farming activities'' in
section 404(f)(1)(A). The Corps and EPA worked directly with USDA to
develop this rule, which identifies 56 specific agricultural
conservation practices that meet this definition and are therefore
exempt from the 404 permit process. Furthermore, the Interpretive Rule
states, ``So long as these activities are implemented in conformance
with NRCS technical standards, there is no need for a determination of
whether the discharges associated with these activities are in `waters
of the United States' nor is site-specific, pre-approval from either
the Corps or the EPA necessary before implementing these specified
agricultural conservation practices.'' When implementing one of these
practices as part of an established farming or ranching operation,
agricultural producers can move forward with more clarity and
certainty.
In addition, USDA, the Corps and EPA have signed a separate
memorandum of understanding (MOU) that includes a ``process for
identifying, reviewing and updating NRCS agricultural conservation
practices and activities that may include discharges in waters of the
United States that would qualify under the exemption established by
section 404(f)(1)(A).'' Under this process, the three agencies agree to
review the practices at least annually and can identify additional
practices that would be covered by the exemption. It is also possible
that activities on the initial list could be removed if the agencies
conclude they are having a negative, rather than beneficial, impact on
water quality.
Additional Specific Waters Excluded From the Definition of ``Waters of
the United States''
In addition to issuing the Interpretive Rule, the Corps and EPA
have taken steps in the separately proposed ``waters of the United
States'' rule to more specifically define the waters that are and are
not included in the regulatory definition. This is the first time the
agencies have identified specific types of waters that are excluded
from that definition. This action will provide additional clarity for
stakeholders across the spectrum, including farmers and ranchers.
Section (b) of the proposed regulatory definition of ``waters of
the United States'' identifies 11 specific waters or features that are
``not `waters of the United States.' '' The waters or features most
pertinent to agriculture include:
Prior converted cropland
Ditches that are excavated wholly in uplands, drain only
uplands, and have less than perennial flow
Artificially irrigated areas that would revert to upland if
irrigation ceased
Artificial lakes or ponds created by excavating and/or
diking dry land and used exclusively for such purposes as stock
watering, irrigation, settling basins, or rice growing
Groundwater, including groundwater drained through
subsurface drainage systems
Gullies and rills and non-wetland swales
In issuing the Interpretive Rule and this section of the proposed
``waters of the United States'' rule, the Corps and EPA have taken
additional steps to provide clarity and certainty for farmers and
ranchers nationwide.
Public Process Provides Opportunity for Broad-based Participation and
Input
Over the past few years, stakeholders from across the spectrum--
including sportsmen and agricultural groups--as well as Supreme Court
justices have called on the Corps and EPA to conduct a formal
rulemaking to clarify the specific waters covered by the Clean Water
Act. Issuance of the Interpretive Rule is part of that process. Last
week, the Corps and EPA announced they are extending the comment period
on this rule for 30 days through July 7. This extension will give
interested parties additional time to provide input and
recommendations. At the same time, the agencies extended the public
comment period on the proposed ``waters of the United States'' rule
through October 20, 2014--providing a total of 6 months for public
input.
In closing, the Interpretive Rule provides more clarity and
specificity about a wide range of activities that are covered by the
exemption from Clean Water Act dredge and fill permitting for normal
farming and ranching activities. This is an important step within a
larger process designed to provide greater clarity to all stakeholders
about the waters that are--and are not--covered by the Clean Water Act.
Conserving and protecting streams, wetlands and other waters is
vitally important to Americans who hunt, fish and enjoy a wide array of
other outdoor recreation. These activities depend on clean water and
healthy habitat, including wetlands. And these activities are more than
traditions or hobbies--they drive the outdoor recreation economy in
America, which totals hundreds of billions of dollars annually and
supports millions of jobs.
I appreciate the opportunity to testify today and would be happy to
answer any questions.
The Chairman. Thank you, sir. I would like to thank all the
witnesses for your written testimony that was all well prepared
and your oral testimony. I am going to take the liberty of
starting with the first 5 minutes of questioning and I will
start with Mr. Parrish.
The American Farm Bureau Federation and the other producers
on this panel have been very clear about their objections to
the Interpretive Rule and concerns with the Administration's
new waters of the United States proposal. Why do you believe
that your position is so different from that of the National
Farmers Union, who also represents farmers and ranchers?
Mr. Parrish. That is an interesting question. I have asked
President Stallman that exact question, that if he understood
fully why the Farmers Union supported this, and his response
was, and I concur with it, that Farmers Union made a very quick
and snap decision. They had a statement out on this proposal
within an hour of it being released. I don't know of any way
they could have looked at 371 pages of clarity and determined
that there were not problems for farmers and ranchers. I also
don't think that they looked at the issues of EPA regulating
things that have flow in them only during rainfall events.
Most people--and when Congress passed the Clean Water Act,
they looked at the issue of fish-able and swim-able. If you are
asking people as to whether or not EPA can regulate either land
or a feature that looks like land that may only contain water
in it during a rainfall event, they would not believe that. At
least we don't think that is what Congress was looking at in
1972 because they used the term navigable. So we are not sure
exactly why they have come to their position but we clearly
understand there is a huge difference in what is in black and
white in this proposal and what sometimes the agencies say
about it.
The Chairman. Sure, and my inclination was to trust NRCS at
first until I started to really read through this and my
concerns quickly arose.
Mr. Fabin, do you think that conservation will actually
decline if this Interpretive Rule remains in place?
Mr. Fabin. You know, I would hope not, but I fear that it
might. I guess we are more inclined to do the conservation
practices because it is part of our values system as a
producer, and we look to the NRCS for the guidance on the
proper way to do that, and if we are going to start looking to
them as a regulatory body, we will be less likely to invite
them onto the property or properties for that advice. I think
that it will have a negative impact on conservation.
The Chairman. Yes, and I think that NRCS should look to the
experience of other regulatory agencies who don't find a lot of
businesses that freely invite and encourage OSHA to show up.
Mr. Fabin. We have never invited them.
The Chairman. Okay. Enough said.
Mr. Bowling, under the Interpretive Rule, what incentives
will corn growers have to enroll in USDA voluntary conservation
programs?
Mr. Bowling. Well, the incentive will lessen. You know, in
my opinion, they don't become voluntary. As you noticed, I farm
in Maryland. We also deal with a little thing called the
Chesapeake Bay Mandate and after dealing with that, we are
managing to do that. The only thing that I am clear of and that
is certain to me is, I made it through yesterday with no
violations. So almost all the practices that I do on my 27
farms that almost 24 of those 27 are on a river or on a stream,
the only thing that I know mine are voluntary. I do rely on
NRCS for some guidance but I very rarely take part in some of
the programs. I do take part in the EQIP program and the
precision ag programs to maximize my efficiency and to make
sure that the equipment I am using doesn't encroach where I am
not supposed to be. So I will continue to do those things, and
corn growers will continue to do those things around the
country, but as far as again inviting NRCS onto our properties
to take a look, that is going to be in jeopardy.
The Chairman. Thank you.
Mr. Kovarovics, thank you for your organization and what
you do. I am a lifetime hunter and fisherman. I grew up in a
small family sporting goods business, so--in your testimony,
you note that several groups called on the Corps and the EPA to
engage in formal rulemaking on the issue of what waters are
governed by the Clean Water Act. Is the decision by the EPA,
the Corps and NRCS to issue the Interpretive Rule without a
comment period consistent with this process or a concern to
your organization?
Mr. Kovarovics. Well, the Interpretive Rule is guidance, as
I understand it. In some cases, guidance is issued without
public comment. In other cases it is. Sometimes it is after the
fact. I think you heard from Mr. Bonnie today in terms of
learning from this overall process, there is a public process
underway now, which provides that opportunity to participate
and I encourage everyone to participate in that.
The Chairman. Well, this will be a very public process from
this point forward as the sense of the intensity I hear from
the members of this panel. So thank you.
I recognize the Ranking Member for 5 minutes.
Mr. Walz. Thank you, Chairman. Thank you all for your
testimony. It has been very, very helpful, and segueing from
the Chairman that the teacher in me knows that this is an
important piece of this. We are going to have to, and we know
that the folks who feed and clothe this world power the world,
about 1\1/2\ percent of this country. We heard there are 47
million hunters. We need to keep in mind, that leaves about 250
million Americans who we have to educate about this process,
who we have to bring in this so that those snap judgments
aren't made, and I encourage all of you and that we encourage
USDA is, this is going to have to be a collaborative,
transparent matter to get to our common goals, which is clean
water, sustainable agriculture and the ability for people to
make a living as well as enjoy those legacy outdoor activities
and fuel the economy through those. We don't have to make the
false choices. We don't have to pick one over the other. We
don't have to get into that. But we do have to make clear what
those goals are. We do need to make clear as to this
rulemaking. The biggest mistake here was, it does not feel to
me that there was enough of that input. It doesn't feel like we
got enough of that out there. So when I see the picture--and
Mr. Parrish is right. When I see that picture you put up there
this morning, that looks like a picture that could have been
taken this morning in Blue Earth County on Kevin Paap's farm as
they are sending me pictures. That is exactly what it looks
like, and I think that is a concern.
And I also know that there is not that space between us,
and Mr. Kovarovics, you bring this up about how do you--and I
would ask each of you, first and foremost, is the NRCS the
repository of all best practices on conservation? Are they? How
would you respond to that?
Mr. Parrish. I would say, let me give you a practice that
in California is against the law. Farmers in California cannot
deep plow, and what I am talking about, deep plowing, I am
talking about a 6 deep subsoil. Farmers in your neck of the
woods can. Farmers in the Mississippi Delta can. That is the
only agricultural practice that I know of where you can pull a
plow that EPA says that is not a normal farming practice. So I
would argue that there is not anything consistent there and
they are not the only repository because the university system
are always updating what farmers can do on the land, and I
would also say that whether it be the Extension Service or
university systems, our systems evolve over time, and if you
lock people in to certain practices, it is a real problem.
Mr. Walz. That is my point. Is there a fear of that
happening, that instead of going to the extension of the
University of Minnesota or the University of Iowa to get that
information, now you are locked into that?
Mr. Parrish. Here is the way I would explain it. If these
56 practices--and I heard Mr. Bonnie say that the only way to
be in compliance with the Clean Water Act is if you do these 56
practices the way NRCS standards say you have to do them, and
they are very prescriptive. They use a lot of shalls. If a
farmer builds a fence that does not comply with NRCS standards,
the cloud then is that he has violated the Clean Water Act. The
Clean Water Act is not flexible. It is very rigorous, and you
know what? NRCS may not come and check his property or the
Corps of Engineers or EPA may not come, but citizen suits,
citizen activists can come out and challenge that, and if the
neighbor doesn't like where he put that fence or exactly how he
built it, they are going to go out there and then start
measuring to make sure that the post that he built that fence
with is 57" apart.
Mr. Walz. Could I ask Mr. Kovarovics, do you agree? I don't
want to put you on the spot of speaking for an entire industry.
I understand you are speaking for your members and you are
bringing this up, but do you--and this is where we have to be
collaborative. Do you see the concern that Mr. Parrish and
those landowners are speaking about on that, of where their
concern is of how that could be interpreted?
Mr. Kovarovics. Yes.
Mr. Walz. And how do we alleviate that? Because you have
worked closely with landowners before, your organization has.
Can't we do that again in this setting?
Mr. Kovarovics. I think so, and I look at the projects that
we are doing across the country, not only our organization but
so many in the sportsmen community working with landowners on
the ground, putting conservation on the ground. You know, if
standards exist, we are going to be helping to meet those
standards. I mean, you want these projects to be successful in
their outcomes, right? And I have installed fence. I didn't
know there was a standard for doing that necessarily. I do
think it is important to understand here that this applies when
these activities discharge material into water of the United
States. I mean, this isn't putting the fence through the woods
type thing. When it comes to putting these standards in place,
our organization, Trout Unlimited and others that are working
with landowners on the ground, we want to make sure that we are
doing it right and help to do that.
Mr. Walz. Yes, sir?
Mr. Parrish. Just to clarify, do you know what EPA and the
Corps are claiming is a discharge when you build a fence? Have
you ever built a fence with----
Mr. Walz. I have built many miles of it.
Mr. Parrish. But that is the discharge that they say they
can regulate.
Mr. Walz. Now, that is very difficult for me to explain to
my producers in any way possible, and you are not making that
case. Again, we have to stick together on this, those that care
deeply about that, and have us all at the table.
My time is up. We will come back again, maybe for a few
more questions, but I am of the belief that we can get this
right but there are 250 million people that aren't engaged in
this the way you are. We have to educate them.
The Chairman. I thank the gentleman. Now I will recognize
the gentleman from Ohio for 5 minutes.
Mr. Gibbs. Thank you, Mr. Chairman.
I guess just to reiterate what you just built on, Mr. Walz
to Mr. Parrish, we heard about from Mr. Bonnie on the first
panel, it is voluntary, it is voluntary. Well, it seems to me
that this interpretative rule isn't very clarifying because it
requires producers to be in compliance with the NRCS standards,
and if they are not, they are not in compliance and they have
had this blanket exemption--agriculture has--for normal farming
operations, and anything under normal, it is not--they are not
in compliance. You concur with that, right, Mr. Parrish?
Mr. Parrish. I do. The follow-up questions to Mr. Bonnie
should have been then, are they in violation of the Clean Water
Act.
Mr. Gibbs. Yes, I was hoping we were going to have time for
a second round of questions. That needed to be asked, and he
probably would say well, I don't think so, because that is the
answer we received last week from the EPA.
So the follow-up on that, if a farmer deviates from the
standards, they would not benefit from the exemption under the
rule, correct?
Mr. Parrish. That is correct.
Mr. Gibbs. So then the next question is, who is the--what
agency would be the enforcement mechanism to make farmers
comply or fine farmers or if they not--because the exemption is
not going to work now.
Mr. Parrish. Well, two things. First, USDA has agreed to in
their MOU, and I read where it specifically got quoted where
they are going to be at least brought in as part of the
arbiter. I disagree with Mr. Bonnie on his characterization of
that. Second, the Clean Water Act is not self-policing. The
Clean Water Act brings with it citizen suit violations, and
believe me, any citizen activist group that disagrees with what
you are doing or they take exception to the way you are doing
this practice can bring you into court and force you, force you
to dot every ``i'' and cross every ``t'' as to whether or not
you comply with NRCS standards.
Mr. Gibbs. Everyone needs to remember what is creating this
is the underlying proposed rule to extend the jurisdiction of
the EPA on the waters of the United States and that opens up
the Clean Water Act to farmers, landowners, homeowners,
everybody to citizen lawsuits and permitting if you don't fall
under these specific exemptions, which I really think USDA and
NRCS has been rolled here by the EPA.
So Mr. Chairman, I am glad you had this hearing because
this is really enlightening to everybody that we are putting at
risk our conservation efforts because, as Mr. Fabin stated, you
are probably not going to do things because you are fearful
that the EPA is going to come in.
I guess another question for Mr. Parrish. Since the
underlying rule is the one that we know about, the interpretive
is kind of a result of that, would the EPA have authority to
come in and make determinations?
Mr. Parrish. It sounds like they will every year when these
look at these practices. I am very concerned that these
practices if they are not followed to the letter--and again, I
quoted to you the number of practices that are done and I would
just, for people that build things like terraces or grass
waterways, they do it because they want to. They do it to
protect their land, to improve their land. This puts such a
cloud over that that I think it is really going to diminish the
ability of farmers to do that on their own.
Mr. Gibbs. I do want to follow up an issue that Mr. Bonnie
raised, and he might have misstated when he talked about
discharges under that, because there was a court case on spray
drift, because I believe the court case--that is why my bill is
so important, H.R. 935, because essentially the courts ruled
that the sprayer is now point source, and when you expand the
jurisdiction of waters of the United States, it would require
farmers, even though they are applying that pesticide under EPA
label, they might have to get a section 402 permit.
Mr. Parrish. Okay. I really want to--this is an important
distinction, and I want to clarify that. Spray drift is
different than an actual direct discharge, okay? So that is two
different things. And in the picture that I showed of that
cornfield, if the farmer drives his sprayer across that area
when the water is not there or running off during a rainfall
event, that is a direct discharge, and therefore he would need
a section 402 permit. Now, if the farmer stayed out of that
area and didn't farm it anymore and he normally does, and I
would argue that that is an area that only has water in it when
it is extensive rain, if he is completely out of that area and
there is drift, drift is treated differently than a direct
discharge, and a direct discharge is regulated. Drift is
illegal under all conditions. So it is illegal under FIFRA.
Now, we can have a sidebar on that, but there is a
distinction. Direct discharges are regulated, and this is going
to put those direct discharges right into the middle of a
farmer's field. EPA didn't develop because--the reason this
expands jurisdiction, EPA didn't develop a general permit for
agricultural uses. This expands waters of the United States so
much that now they are going to have to do a permit because
they are going to regulate those kinds of areas I showed in
that picture.
Mr. Gibbs. So in those instances, the farmers would have to
get section 402 permits for those instances, and I don't know,
delays and what the issue would be there.
Mr. Parrish. That is correct.
Mr. Gibbs. Okay.
Mr. Parrish. It is huge.
Mr. Gibbs. Thank you. Thank you, Mr. Chairman.
The Chairman. Thank you. I now recognize the Ranking Member
for another question.
Mr. Walz. I thank the Chairman. We have great witnesses
here, and this is an important topic we need to hear about.
Again, I would make the case on this is that we should show
great concern that our producers are showing this level of
concern because in working on these issues over the years, we
have had great collaborative efforts and there is that attempt
to get their rights. So this expression of frustration, concern
and uncertainty is real. We are hearing it across the country
and also I am hearing from our sportsmen who know we need to
clean our rivers, we need to make sure we get this opportunity.
With that being said, I just had a couple questions for me
and for others listening who might not know this. Prior to the
Interpretive Rule, how did you, the producers, know what
practices qualified as normal activities? How did you know
that?
Mr. Bowling. Well, for me, I do have regular contact with
my soil conservation service and NRCS and my FSA office. The
most important ways that I learn is from other farmers that are
older than me, my father. My grandfather before him taught me
the right and wrong ways to do things. I didn't need to be
regulated to be told that, and it has been passed down through
generations.
And I would like to add that not only am I a farmer because
that is my occupation but I hunt because I enjoy it. Our farm
is on the river. I boat and I fish because it is time off and I
spend that with my family. So there isn't a person in this room
that doesn't appreciate the normal practice of farming the way
I do and then to enjoy the pristine beauty where my family farm
is and where I hope is there for generations to come. So there
is nothing that I am going to do that is going to jeopardize
that in any way.
Mr. Walz. Mr. Bowling, do you think there is anything in
this Interpretive Rule that makes our waters cleaner?
Mr. Bowling. I don't specifically know. I mean, I have read
through this rule. I just don't see it.
Mr. Fabin. I would have to echo what Mr. Bowling said. My
grandfather bought the farm that we are on sometime in the mid
to late 1940s and we have been implementing these conservation
practices ever since then. So it has been just a rule that that
is how I farm. I really didn't look to the NRCS for their
regulations. Now, we certainly do go to them for some guidance
but it is a way of life for us. It is how we do things.
Mr. Walz. Could you describe, Mr. Fabin--I don't want to
put words in your mouth if it is frustrating or insulting,
whatever, these things that your family has done for so long
now all of a sudden to be told that well, it is okay what you
think, someone else, though, will make that determination?
Mr. Fabin. Yes, it is a little suspicious that we have been
given the responsibility for so many years and thought that we
were doing it correctly and now they are coming in and sort of
implying that we are not.
Mr. Walz. We are all open to new techniques. I have seen
our folks work hand in hand with NRCS and we have heard great
success stories. There are folks out there that are experts in
this and know stream aquatics and things.
Mr. Parrish. May I clarify as to what the Clean Water Act
says about normal farming?
Mr. Walz. Yes.
Mr. Parrish. EPA has two instances that they can recapture
a normal farming practice, and that is, if you impair the reach
or the flow of water. Those are the only two things that would
stop a farming practice from being considered normal. You would
have to impair the reach or the flow of the water. So unless
you are working directly in a stream, most farming practices
don't impair the reach and flow of water.
Mr. Walz. And you believe, Mr. Parrish, this new one says
``Oh, yes, now that runoff you saw from the rain is now
there''?
Mr. Parrish. Grazing, pruning a tree, I don't find any of
those practices that would constitute a discharge. I don't find
any way that it is impairing the reach or the flow of water. It
adds confusion.
Mr. Walz. From a sportsman's perspective, Mr. Kovarovics,
how do we reach this compromise? How do we get there? How do we
understand? We understand watersheds are big. We understand the
interconnectedness of things and all of that. How would you and
how do groups like Izaak Walton League, how do we talk to these
producers about, again, collaboratively reaching that common
ground on this new interpretation?
Mr. Kovarovics. Well, it is probably building on a dialogue
and the work that is already going on out there. I mean, there
are these partnerships broadly across the country. So many
groups are working with individual farmers, private landowners,
on many of these projects. If this was an issue for a future
project that is taking place in the water of the United States,
then there would be that opportunity to work there. I mean, the
bottom line for organizations like ours as we are partnering
with private landowners on so many issues, and we want
conservation to be successful and we are working hard to
achieve that outcome.
Mr. Walz. I am just wondering if in the process now is not
too poisoned or whatever you might say to go forward, do we
need to come at this a different way because if there are
suspicions and if we are breaking down, then I agree with you
on this. Long-held partnerships that are going to be strained
by this that you are hearing from some of these producers, do
we need to take a step back, approach this in a different way
to get there. Any thoughts on that?
Mr. Bowling. I am sorry, I would like to add that groups
like Izaak Walton League or Ducks Unlimited or whoever, in my
opinion, they should reach out to us as we should reach out to
them, come out and visit my farm. I welcome that. I want you to
see what I am doing voluntarily. I want you to see how it is
working for me on a positive way for fish, for migratory birds,
for deer, turkey. It doesn't matter what it is on my farm. We
plant food plots. We build migratory-bird ponds. We have areas
for other things to graze on.
Mr. Walz. And they do that, I guess I see the Federal
agencies could be the convener of those conversations. I would
like to see you two guys working together, which I know you do,
to get these answers right. What concerns me is, is when they
tell us neither one of you are invited ahead of time to do
that, and those are--if they can be the convener of the
conversation, then you two can sit.
Mr. Fabin, I am over my time, but if you would answer, I am
interested if you had something to add.
Mr. Fabin. Yes, I did. I guess the NCBA has been questioned
precisely zero times from the USDA, so that is an easy answer,
but I guess maybe a solution to your question is a new
Interpretive Rule that says all conservation activities are
part of normal farming. That might be one solution.
Mr. Walz. Fair enough.
Mr. Bowling. I would like to add, Mr. Thompson, you asked
Mr. Bonnie to stay here and listen to our testimony, and he is
not here, and we are here talking to you now. You have two
producers here that have taken the time to come in. We are not
getting paid for this. We are doing it because it is the right
thing to do. I firmly believe what I am doing is the right
thing and I would have loved for him to have stayed and heard
what we had to say. I think he may have probably picked
something up.
The Chairman. Mr. Bowling, I agree. That is why I made that
request, and unfortunately, I think that just reflects the
attitude of this entire issue that we are dealing with.
I do have just--these are quick questions that actually are
better suited for Mr. Bonnie but just very quickly get your
response to these three questions. Have our voluntary
conservation programs failed? What are your opinions on that?
Yes or no?
Mr. Bowling. No.
Mr. Fabin. Not at all.
Mr. Parrish. I would say no. I would say they have given us
the opportunity for these guys to achieve more than you would
if you just give them a permit to farm.
Mr. Kovarovics. I would unequivocally say no.
The Chairman. Mr. Parrish, you used the saying--we use it
up north too--if it is not broken, don't fix it. I spent Monday
morning on the Chesapeake Bay--quite a ways outside the 5th
District of Pennsylvania but we are in the Chesapeake Bay
Watershed--with Colonel from the Corps of Engineers, and we
have remarkable progress, largely the result of the voluntary
efforts of our agricultural community.
The second question is, for those of you who have
experience working with the professionals at NRCS--and I
appreciate what they do. They are boots on the ground. But, we
are talking about significant increase in compliance work.
Whether they want to pretend they are not going to be an
enforcement agency, the compliance load, based on your
experience and interactions with NRCS, are they going to be
able to handle this influx, dramatic increase in compliance
work, and quite frankly, what happens if we don't get the
paperwork processed? I guess we don't feed our citizens.
Mr. Bowling. Yes, those guys are swamped right now doing
what they are doing. You know, most of them are local people
who live in the area that work for these agencies. Some of them
are friends of mine. Some of them have become friends of mine
because of the relationship that I have had as a farmer going
in there to make sure that I am in compliance. Every farm that
I farm has a conservation plan. Every farm that I farm has a
nutrient management plan. That work is done in those offices.
They need more help now. I don't see how they can manage to do
any more than they are doing. And my experience is that they
get it done but they rush through it just to get it done so it
doesn't hold me up from farming. If I don't have a nutrient
management plan, I don't have a conservation plan, I can't
farm. I can't buy fertilizer if I don't have a nutrient
management plan. So it has to be done. We have to be on our
regimented cycle of getting all these plans done. They do a
great job of doing it right now but I just don't see how the
workload can be achieved by the people that they have now.
Mr. Fabin. As a quick example, coming up on 2 weeks ago
when I was doing some research for this testimony, I contacted
our local NRCS agent and asked him for a list of some of the
activities that our operation has done, and I have yet to see
that list, so a simple task like that, which should only take
him 5 to 10 minutes, he has not been able to accomplish yet. So
some of--putting more projects on his plate, it is not going to
get us anywhere.
The Chairman. I am going to close my 5 minutes with just
kind of revisiting, Mr. Bowling, replowed ground here, and I
quote you from your testimony because it brings up an aspect of
this, a threat of this that has been mentioned, but it deserves
to be elevated as much as we possibly can. You talked about
citizen suits, I have seen this on our National Forests how
really citizen suits just interfere with the ability to
properly manage land, period. It has completely contrary
outcome from what the citizen activist organizations claim that
they have. We wind up with unhealthy forests and we are going
to wind up with more unhealthy watersheds, and as you talked
about with your neighbor, ``We have seen this very recently
with one of my Maryland neighbors, a broiler farm. Fortunately
this specific case the courts ruled in favor of the farmer,''
and a lot of groups will say well, you always have recourse,
you can defend yourself in the judicial system. But the
question is at what cost. And you have noted in your testimony
at tremendous expense to the defendant, which nearly resulted
in bankruptcy. I don't know if this is the preferred outcome of
this Interpretive Rule or the waters of the United States but
it appears to me that this is a realistic outcome that we can
expect unless we can turn this back.
Mr. Bowling. You are exactly right. I mean, I know the case
you are talking about. I don't know the farmer himself but I
did donate to his cause because I would hope that if that were
me, and thank God it hasn't been yet, that others would help
me. The suit brought against him was basically they felt he had
dumped chicken litter in an unauthorized spot and it wasn't
even chicken litter, it was municipal waste that was permitted
to go on that farm. So again, he had to defend himself on
something that he was doing exactly by the book. He was doing
nothing wrong, and it damn near bankrupted him, and I can tell
you that the damage that it did to him and his family was way
worse than the bankruptcy. He is now scared to make a move on
anything. Again, I hope that doesn't happen to any of my other
counterparts but it is a very real scenario that happened.
I see with this implementation here, I worry about that
myself. I farm a lot around a lot of multimillion-dollar
houses. People come out and watch what I do when I am on the
farm next to them. They pay attention to everything that is
spray, how I plant, when I plow, when it rains, how soon I am
back in there. Every aspect of what I do is looked at.
The public likes farmers. They don't particularly like the
way we farm. They don't like us to do those things. I invite
all those neighbors onto my farm. I explain to them what I am
spraying when I am spraying. I assure them that I would use
nothing on my land that is going to hurt me, let alone them. So
once I do that, it seems to go away, but the day is coming when
I am not going to be able to explain my situation. I am going
to have to prove it in a court of law, and I am not looking
forward to that.
The Chairman. Having spent time during this hearing looking
through the fencing NRCS requirements, I have bad news. You can
be sued by your neighbors if you have an ugly fence because
aesthetics are a part of the standards. Now, I don't know how
you measure that.
With that said, I want to thank the panel. Any closing
comments?
Thank you so much to everyone for your testimony. I think
this has been very helpful as we continue in the process of
dealing with this issue.
Under the rules of the Committee, the record of today's
hearing will remain open for 10 calendar days to receive
additional material and supplemental written responses from the
witnesses to any questions posed by a Member.
The Subcommittee on Conservation, Energy, and Forestry
hearing is now adjourned.
[Whereupon, at 12:23 p.m., the Subcommittee was adjourned.]
[Material submitted for inclusion in the record follows:]
Submitted Letter by Hon. Glenn Thompson, a Representative in Congress
from Pennsylvania
June 18, 2014
Hon. Thomas ``Tom'' J. Vilsack,
Secretary,
U.S. Department of Agriculture,
Washington D.C.
RE: Clean Water Act Jurisdiction and NRCS Technical Standards [EPA-HQ-
OW-2013-0820; 9908-97-OW; EPA-HQ-OW-2011-0880; FRL-9901-47-
OW]
Dear Secretary Vilsack,
The undersigned Iowa agricultural organizations are writing today
to express our concern with recent actions taken by the U.S. Department
of Agriculture in collaboration with the Environmental Protection
Agency (EPA) and the Army Corps of Engineers (Corps) with regard to the
NRCS technical standards and the expansion of Federal jurisdiction
under the Clean Water Act (CWA). Because we believe that these actions
will impede soil and water conservation progress as the NRCS technical
standards become regulatory tools for the EPA and the Corps, the
Interpretative Rule should be withdrawn.
The State of Iowa and our organizations are committed to continued
progress on soil and water quality improvements. The Iowa Nutrient
Reduction Strategy details the scope of the effort necessary to achieve
our goals, and its science report is clear that additional management
of nutrient application will not provide the desired outcomes without
implementing edge of field practices and other conservation
infrastructure. The scope of the effort necessarily dictates that many
practices will need to be installed with exclusively private funds as
there isn't enough cost-share or available technical assistance to
achieve these goals.
Farmers are solutions-oriented and are rising to the challenge.
According to a recent survey of Iowa land improvement contractors,
farmers are investing their own resources into conservation practices
without state or Federal financial assistance at a high rate. For
example, at least 67% of grassed waterways and 50% of terraces are
installed exclusively with personal funds. The survey confirms what has
long been known: farmers are committed to conservation and are willing
to invest their own resources.
NRCS technical standards, technical assistance and cost-share are
voluntary programs. Although farmers may not agree with every
requirement in the technical standards, they understand that following
the standards is the choice they make when signing up for cost-share.
Farmers have long had to consider whether the additional requirements
and expense involved with cost-share programs pencil out when compared
to self-financing. Farmers that chose to self-finance have the
flexibility to accelerate the implementation of practices, design
practices according to the needs of the particular location, and avoid
the additional paperwork burden. Turning the technical standards into
de facto regulations for Clean Water Act compliance is contrary to the
purpose of these voluntary programs.
The Interpretative Rule requires farmers to follow NRCS technical
standards in order to qualify for the ``normal farming practices''
exemption to CWA 404 jurisdiction. Without the exemption, farmers are
required to obtain a 404 permit when conducting activities in
``waters of the U.S.'' According to the economic analysis on the
proposed WOTUS rule, obtaining this permit will cost months of delay
and tens of thousands in additional costs, in many cases far surpassing
the cost of installing the conservation practice. Observing the
experiences of the state and Iowa's drainage districts in recent
projects going through the 404 permitting process, individual farmers
will be unable to navigate or pay for participation in the current
permitting system without assistance.
We are also concerned that the list of practices identified in the
Memorandum of Understanding is not a comprehensive list of conservation
practices. Practices such as grade stabilization structures, terraces,
created wetlands, ponds, sediment basins, cover crops, riparian forest
buffers, residue and tillage management, contour farming, drainage
water management, bioreactors, nutrient management and many other
conservation practices are also ``normal farming practices.'' The
Interpretative Rule states that it does not affect the scope of the
exemption; however, it proceeds to identify that the agencies have
determined that only specific, named conservation practices meet the
new qualification requirements for the exemption. The rule is not
formulated to create a safe haven for those who install conservation
practices. It creates uncertainty, trepidation and additional expense
for those that want to self-finance their conservation practices.
The Agencies do not have the technical support capacity to
implement this rule for the approximately 30 million acres of farmland
in the state of Iowa. NRCS technical staff assigned to Iowa has been
cut about 20% over the past 5 years. NRCS staff has not been willing to
review or verify practices which did not receive Federal technical or
financial assistance to determine whether it meets NRCS standards. NRCS
does not conduct field visits for practice verification for farmers not
receiving Federal assistance. This leaves large numbers of farmers who
want to install more conservation with no options for verifying
compliance with NRCS standards. The only option remaining to create
certainty of compliance is to seek a jurisdictional determination from
the Corps, which is also severely understaffed to handle the numbers of
determinations that will be required to continue the current pace of
conservation implementation in Iowa. Farmers want to do the right
thing, but the new interpretation creates uncertainty, and additional
expense to minimize the uncertainty. Additional costs and uncertainties
will result in fewer conservation practices on the ground, which is
inconsistent with Clean Water Act goals.
Many questions about the interpretative rule that have remained
unanswered. How is a farmer to know whether his land is a ``navigable
water'' without requesting a jurisdictional determination every 5
years? Will EPA recognize NRCS's prior converted cropland
determinations? Which NRCS technical standards are to be followed: the
Federal technical standards or the state NRCS adopted technical
standards? What happens when NRCS technical assistance does not result
in the technical standards being followed? Grassed waterways and
surface drainage pathways in fields have a ``bed and bank'' and an
``ordinary high water mark'' until the ground is tilled and reshaped.
Will 402 permits be required to apply crop protection products to
this land? Will 404 permits be required when the ground is tilled?
Can an installed conservation practice become a ``water of the U.S.''
subject to future 402 permitting requirements? Will the technical
standards become more prescriptive, not allowing for site-specific
flexibility as EPA gains influence over their content? We have more
questions than there are answers about the Interpretative Rule,
Memorandum of Understanding and proposed ``Navigable Waters'' rule.
We are very concerned about the impact of this rule on future
conservation progress and the ability of farmers to produce food, feed,
fuel and fiber. Rather than eliminating uncertainty, the agencies'
actions will create great hardships on farmers who want to produce food
and conserve the land and water while doing it. We encourage you to
engage with the Administration and request withdrawal of the
Interpretative Rule and Memorandum of Understanding before it endangers
the good progress that has been made. We are happy to meet with you to
discuss our concerns at your convenience.
Sincerely,
Agribusiness Association of Iowa, Iowa Institute for Cooperatives,
Des Moines, IA; Ames, IA;
Iowa Cattlemen's Association. Iowa Pork Producers Association.
Ames, IA; Clive, IA;
Iowa Corn Growers Association. Iowa Poultry Association.
Johnston, IA; Urbandale, IA;
Iowa Drainage District Association, Iowa Soybean Association,
West Des Moines, IA; Ankeny, IA;
Iowa Farm Bureau Federation, Iowa Turkey Federation,
West Des Moines, IA; Ames, IA.
Submitted Information by Hon. Glenn Thompson, a Representative in
Congress from Pennsylvania
Submitted Information by Hon. Collin C. Peterson, a Representative in Congress from Minnesota
Conservation Practices
Alphabetical Index
--------------------------------------------------------------------------------------------------------------------------------------------------------
Standard Info. Sheet/ Job Sheet/ National Network
Conservation Practice Name (Units) (Code) (Date -------------------------- Practice CPPE Implement. Statement of Effects
Issued) PDF Word Overview Require. Work Template Diagram
--------------------------------------------------------------------------------------------------------------------------------------------------------
Practices Included in the MOU are 8Highlighted.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Access Control (Ac.) (472) (9/10) PDF DOC PDF PDF DOC DOC PDF
Access Road (Ft.) (560) (7/10) PDF DOC PDF PDF DOC PDF
Agrichemical Handling Facility (No.) (309) (2/08) PDF DOC PDF PDF DOC PDF
Air Filtration and Scrubbing (No.) (371) (4/10) PDF DOC PDF PDF DOC PDF
Alley Cropping (Ac.) (311) (5/11) PDF DOC PDF PDF DOC DOC PDF
Amendments for Treatment of Agricultural Waste (AU) PDF DOC PDF PDF DOC PDF
(591) (4/13)
Anaerobic Digester (No.) (366) (9/09) PDF DOC PDF PDF DOC PDF
Animal Mortality Facility (No.) (316) (9/10) PDF DOC PDF PDF DOC PDF
8Animal Trails and Walkways (Ft.) (575) (4/10)0 PDF DOC PDF PDF DOC PDF
Anionic Polyacrylamide (PAM) Application (Ac.) (450) PDF DOC PDF PDF DOC PDF
(5/11)
Aquaculture Ponds (Ac.) (397) (1/10) PDF DOC PDF PDF DOC PDF
8Aquatic Organism Passage (Mi.) (396) (4/11)0 PDF DOC PDF PDF DOC PDF
Bedding (Ac.) (310) (7/10) PDF DOC PDF PDF DOC PDF
8Bivalve Aquaculture Gear and Biofouling Control PDF DOC PDF PDF DOC PDF
(Ac.) (400) (4/11)0
Building Envelope Improvement (672)(4/13) PDF DOC PDF DOC PDF
8Brush Management (Ac.) (314) (9/09)0 PDF DOC PDF PDF DOC PDF
Channel Bed Stabilization (Ft.) (584) (9/10) PDF DOC PDF PDF DOC PDF
8Clearing and Snagging (Ft.) (326) (7/10)0 PDF DOC PDF PDF DOC PDF
Combustion System Improvement (No.) (372) (4/10) PDF DOC PDF PDF DOC PDF
Composting Facility (No.) (317) (9/10) PDF DOC PDF PDF DOC PDF
8Conservation Cover (Ac.) (327) (9/10)0 PDF DOC PDF PDF PDF DOC PDF
Conservation Crop Rotation (Ac.) (328) (5/11) PDF DOC PDF PDF PDF DOC PDF
Constructed Wetland (Ac.) (656) (7/10) PDF DOC PDF PDF DOC PDF
Contour Buffer Strips (Ac.) (332) (4/10) PDF DOC PDF PDF PDF DOC PDF
Contour Farming (Ac.) (330) (12/13) PDF DOC PDF PDF PDF DOC PDF
Contour Orchard and Other Perennial Crops (Ac.) PDF DOC PDF PDF PDF DOC PDF
(331) (1/10)
Cover Crop (Ac.) (340) (5/11) PDF DOC PDF PDF PDF DOC PDF
8Critical Area Planting (Ac.) (342) (12/13)0 PDF DOC PDF PDF PDF DOC PDF
Cross Wind Ridges (Ac.) (588) (12/13) PDF DOC PDF PDF PDF DOC PDF
Cross Wind Trap Strips (Ac.) (589c) (4/11) PDF DOC PDF PDF PDF DOC PDF
Dam (No. and Ac-Ft) (402) (5/11) PDF DOC PDF PDF DOC PDF
Dam, Diversion (No.) (348) (5/11) PDF DOC PDF PDF DOC PDF
Deep Tillage (Ac.) (324) (12/13) PDF DOC PDF PDF PDF DOC PDF
Dike (Ft.) (356) (11/02) PDF DOC PDF PDF DOC PDF
Diversion (Ft.) (362) (4/10) PDF DOC PDF PDF DOC PDF
Drainage Water Management (Ac.) (554) (9/08) PDF DOC PDF PDF DOC PDF
Dry Hydrant (No.) (432) (9/11) PDF DOC PDF PDF DOC
Dust Control from Animal Activity on Open Lot PDF DOC PDF PDF DOC PDF
Surfaces (Ac.) (375) (9/10)
Dust Control on Unpaved Roads and Surfaces (Sq. Ft.) PDF DOC PDF PDF DOC PDF
(373) (4/10)
8Early Successional Habitat Development/Management PDF DOC PDF PDF DOC PDF
(Ac.) (647) (9/10)0
Farmstead Energy Improvement (No.) (374) (5/11) PDF DOC PDF PDF DOC PDF
Feed Management (No. of Systems and AUs Affected) PDF DOC PDF PDF DOC PDF
(592) (9/11)
8Fence (Ft.) (382) (4/13)0 PDF DOC PDF PDF DOC PDF
8Field Border (Ac.) (386) (12/13)0 PDF DOC PDF PDF PDF DOC PDF
8Filter Strip (Ac.) (393) (12/13)0 PDF DOC PDF PDF PDF DOC PDF
8Firebreak (Ft.) (394) (9/10)0 PDF DOC PDF PDF DOC PDF
8Fish Raceway or Tank (Ft. and Ft3) (398) (9/09)0 PDF DOC PDF PDF DOC PDF
8Fishpond Management (Ac.) (399) (9/11)0 PDF DOC PDF PDF DOC PDF
8Forage and Biomass Planting (Ac.) (512) (1/10)0 PDF DOC PDF PDF DOC PDF
8Forage Harvest Management (Ac.) (511) (4/10)0 PDF DOC PDF PDF DOC PDF
8Forest Stand Improvement (Ac.) (666) (5/11)0 PDF DOC PDF PDF DOC PDF
8Forest Trails and Landings (Ac.) (655) (9/11)0 PDF DOC PDF PDF DOC PDF
8Fuel Break (Ac.) (383) (4/05)0 PDF DOC PDF PDF DOC PDF
Grade Stabilization Structure (No.) (410) (10/85) PDF DOC PDF PDF DOC PDF
8Grassed Waterway (Ac.) (412) (4/10)0 PDF DOC PDF PDF DOC DOC PDF
8Grazing Land Mechanical Treatment (Ac.) (548) (9/ PDF DOC PDF PDF DOC PDF
10)0
Heavy Use Area Protection (Ac.) (561) (1/10) PDF DOC PDF PDF DOC PDF
8Hedgerow Planting (Ft.) (422) (9/10)0 PDF DOC PDF PDF DOC PDF
8Herbaceous Weed Control (315) (Ac.) (4/10)0 PDF DOC PDF PDF DOC PDF
Herbaceous Wind Barriers (Ft.) (603) (1/10) PDF DOC PDF PDF PDF DOC PDF
8Hillside Ditch (Ft.) (423) (5/08)0 PDF DOC PDF PDF DOC PDF
Integrated Pest Management (IPM) (Ac.) (595) (1/10) PDF DOC PDF PDF DOC PDF
8Irrigation Canal or Lateral (Ft.) (320) (9/10)0 PDF DOC PDF PDF DOC PDF
Irrigation Ditch Lining (Ft.) (428) (5/11) PDF DOC PDF PDF DOC PDF
8Irrigation Field Ditch (Ft.) (388) (4/11)0 PDF DOC PDF PDF DOC PDF
Irrigation Land Leveling (Ac.) (464) (9/10) PDF DOC PDF PDF DOC PDF
Irrigation Pipeline (Ft.) (430) (5/11) PDF DOC PDF PDF DOC PDF
Irrigation Reservoir (Ac-Ft) (436) (5/11) PDF DOC PDF PDF DOC PDF
Irrigation System, Microirrigation (Ac.) (441) (5/ PDF DOC PDF PDF DOC PDF
11)
Irrigation System, Surface and Subsurface (Ac.) PDF DOC PDF PDF DOC PDF
(443) (5/11)
Irrigation System, Tailwater Recovery (No.) (447) (5/ PDF DOC PDF PDF DOC PDF
11)
Irrigation Water Management (Ac.) (449) (5/11) PDF DOC PDF PDF DOC PDF
Karst Sinkhole Treatment (No.) (527) (9/10) PDF DOC PDF PDF DOC PDF
8Land Clearing (Ac.) (460) (9/11)0 PDF DOC PDF PDF DOC PDF
Land Reclamation, Currently Mined Land (Ac.) (544) PDF DOC PDF PDF DOC
(8/06)
8Land Reclamation, Abandoned Mined Land (Ac.) (543) PDF DOC PDF PDF DOC PDF
(8/06)0
8Land Reclamation, Landslide Treatment (No. and Ac) PDF DOC PDF PDF DOC PDF
(453) (2/05)0
8Land Reclamation, Toxic Discharge Control (No.) PDF DOC PDF PDF DOC
(455) (4/05)0
Land Smoothing (Ac.) (466) (12/13) PDF DOC PDF PDF DOC PDF
Lined Waterway or Outlet (Ft.) (468) (9/10) PDF DOC PDF PDF DOC PDF
Lighting System Improvement (670) (4/13) PDF DOC PDF DOC PDF
Livestock Pipeline (Ft.) (516) (9/11) PDF DOC PDF PDF DOC PDF
Livestock Shelter Structure (no) (576) (12/13) PDF DOC DOC PDF
Mine Shaft and Adit Closing (No.) (457) (2/05) PDF DOC PDF PDF DOC PDF
Mole Drain (Ft.) (482) (3/03) PDF DOC PDF PDF DOC PDF
8Monitoring Well (No.) (353) (9/10)0 PDF DOC PDF PDF DOC PDF
8Mulching (Ac.) (484) (5/11)0 PDF DOC PDF PDF PDF DOC PDF
Multi-Story Cropping (Ac.) (379) (7/10) PDF DOC PDF PDF DOC PDF
Nutrient Management (Ac.) (590) (1/12) PDF DOC PDF PDF PDF DOC PDF
8Obstruction Removal (Ac.) (500) (1/10)0 PDF DOC PDF PDF DOC PDF
Open Channel (Ft.) (582) (10/87) PDF DOC PDF PDF DOC PDF
Pond (No.) (378) (5/11) PDF DOC PDF PDF DOC PDF
Pond Sealing or Lining, Bentonite Treatment (No.) PDF DOC PDF PDF DOC PDF
(521c) (9/10)
Pond Sealing or Lining, Compacted Clay Treatment PDF DOC PDF PDF DOC PDF
(No.) (521d) (9/10)
Pond Sealing or Lining, Flexible Membrane (No.) PDF DOC PDF PDF DOC PDF
(521a) (9/11)
Pond Sealing or Lining, Soil Dispersant Treatment PDF DOC PDF PDF DOC PDF
(No.) (521b) (9/10)
Precision Land Forming (Ac.) (462) (7/02) PDF DOC PDF PDF DOC PDF
8Prescribed Burning (Ac.) (338) (9/10)0 PDF DOC PDF PDF DOC PDF
8Prescribed Grazing (Ac.) (528) (9/10)0 PDF DOC PDF PDF DOC PDF
8Pumping Plant (No.) (533) (5/11)0 PDF DOC PDF PDF DOC PDF
8Range Planting (Ac.) (550) (4/10)0 PDF DOC PDF PDF DOC PDF
Recreation Area Improvement (Ac.) (562) (10/77) PDF DOC PDF PDF DOC PDF
Recreation Land Grading and Shaping (Ac.) (566) (4/ PDF DOC PDF PDF DOC PDF
13)
Residue and Tillage Management, Reduced Tillage PDF DOC PDF PDF PDF DOC PDF
(Ac.) (345) (12/13)
Residue and Tillage Management, No-Till (Ac.) (329) PDF DOC PDF PDF PDF DOC PDF
(12/13)
8Restoration and Management of Rare and Declining PDF DOC PDF PDF DOC PDF
Habitats (Ac.) (643) (9/10)0
8Riparian Forest Buffer (Ac.) (391) (7/10)0 PDF DOC PDF PDF DOC DOC PDF
8Riparian Herbaceous Cover (Ac.) (390) (9/10)0 PDF DOC PDF PDF DOC PDF
8Road/Trail/Landing Closure and Treatment (Ft.) PDF DOC PDF PDF DOC PDF
(654) (11/08)0
Rock Barrier (Ft.) (555) (9/10) PDF DOC PDF PDF DOC PDF
Roof Runoff Structure (No.) (558) (9/09) PDF DOC PDF PDF DOC PDF
Roofs and Covers (No.) (367) (9/10) PDF DOC PDF PDF DOC PDF
Row Arrangement (Ac.) (557) (4/13) PDF DOC PDF PDF DOC PDF
Salinity and Sodic Soil Management (Ac.) (610) (9/ PDF DOC PDF PDF DOC PDF
10)
Seasonal Tunnel System for Crops (Sq.Ft.) (798) (2/ PDF
14)
Sediment Basin (No.) (350) (1/10) PDF DOC PDF PDF DOC PDF
8Shallow Water Development and Management (Ac.) PDF DOC PDF PDF DOC PDF
(646)(9/10)0
Silvopasture Establishment (Ac.) (381) (5/11) PDF DOC PDF DOC DOC PDF
Spoil Spreading (Ac.) (572) (1/10) PDF DOC PDF PDF DOC PDF
Spring Development (No.) (574) (12/13) PDF DOC PDF PDF DOC PDF
Sprinkler System (Ac.) (442) (4/13) PDF DOC PDF PDF DOC PDF
Stormwater Runoff Control (No. and Ac.) (570) (9/10) PDF DOC PDF PDF DOC PDF
Streambank and Shoreline Protection (Ft.) (580) (9/ PDF DOC PDF PDF DOC PDF
10)
8Stream Crossing (No.) (578) (9/11)0 PDF DOC PDF PDF DOC PDF
8Stream Habitat Improvement and Management (Ac.) PDF DOC PDF PDF DOC PDF
(395) (9/10)0
Stripcropping (Ac.) (585) (12/13) PDF DOC PDF PDF PDF DOC PDF
8Structure for Water Control (No.) (587) (4/10)0 PDF DOC PDF PDF DOC PDF
Subsurface Drain (Ft.) (606) (9/11) PDF DOC PDF PDF DOC PDF
Surface Drain, Field Ditch (Ft.) (607) (9/09) PDF DOC PDF PDF DOC PDF
Surface Drain, Main or Lateral (Ft.) (608) (9/09) PDF DOC PDF PDF DOC PDF
Surface Roughening (Ac.) (609) (9/09) PDF DOC PDF PDF PDF DOC PDF
8Trails and Walkways (Ft.) (568) (1/10)0 PDF DOC PDF PDF DOC PDF
Terrace (Ft.) (600) (4/10) PDF DOC PDF PDF DOC PDF
8Tree/Shrub Establishment (Ac.) (612) (5/11)0 PDF DOC PDF PDF DOC PDF
8Tree/Shrub Pruning (Ac.) (660) (1/06)0 PDF DOC PDF PDF DOC PDF
8Tree/Shrub Site Preparation (Ac.) (490) (1/06)0 PDF DOC PDF PDF DOC PDF
Underground Outlet (Ft.) (620) (12/13) PDF DOC PDF PDF DOC DOC PDF
Upland Wildlife Habitat Management (Ac.) (645) (9/ PDF DOC PDF PDF DOC PDF
10)
Vegetated Treatment Area (Ac.) (635) (5/08) PDF DOC PDF PDF DOC PDF
8Vegetative Barrier (Ft.) (601) (1/10)0 PDF DOC PDF PDF PDF DOC PDF
Vertical Drain (No.) (630) (9/10) PDF DOC PDF PDF DOC PDF
Waste Facility Closure (No.) (360) (5/11) PDF PDF PDF PDF
Waste Recycling (Ac.) (633) (5/11) PDF PDF PDF PDF
Waste Separation Facility (No.) (632) (4/13) PDF DOC PDF PDF DOC PDF
Waste Storage Facility (No.) (313) (10/03) PDF DOC PDF PDF DOC PDF
Waste Transfer (No.) (634) (11/08) PDF DOC PDF PDF DOC DOC PDF
Waste Treatment (No.) (629) (4/13) PDF DOC PDF PDF DOC PDF
Waste Treatment Lagoon (No.) (359) (10/03) PDF DOC PDF PDF DOC PDF
Water and Sediment Control Basin (No.) (638) (9/08) PDF DOC PDF PDF DOC DOC PDF
Water Harvesting Catchment (No.) (636) (9/10) PDF DOC PDF PDF DOC PDF
Waterspreading (Ac.) (640) (4/13) PDF DOC PDF PDF DOC PDF
Water Well (No.) (642) (9/10) PDF DOC PDF PDF DOC PDF
Water Well Decommissioning (No.) (351) (9/10) PDF DOC PDF PDF DOC PDF
Watering Facility (No.) (614) (9/10) PDF DOC PDF PDF DOC PDF
Well Water Testing (No.) (355) (9/10) PDF DOC PDF PDF DOC
Wetland Creation (Ac.)(658) (9/10) PDF DOC PDF PDF DOC PDF
8Wetland Enhancement (Ac.) (659) (9/10)0 PDF DOC PDF PDF DOC PDF
8Wetland Restoration (Ac.) (657) (9/10)0 PDF DOC PDF PDF DOC PDF
8Wetland Wildlife Habitat Management (Ac.) (644) (9/ PDF DOC PDF PDF DOC PDF
10)0
8Windbreak/Shelterbelt Establishment (Ft.) (380) (5/ PDF DOC PDF PDF DOC DOC PDF
11)0
8Windbreak/Shelterbelt Renovation (Ft.) (650) (7/ PDF DOC PDF PDF DOC PDF
10)0
Woody Residue Treatment (Ac.) (384) (5/11) PDF DOC PDF PDF DOC PDF
--------------------------------------------------------------------------------------------------------------------------------------------------------
Editor's note: for the listing including the hyperlinks for the documents go to http://www.nrcs.usda.gov/wps/portal/nrcs/detailfull/null/
?cid=nrcs143_026849.
Submitted Letter by Hon. Timothy J. Walz, a Representative in Congress
from Minnesota
July 24, 2014
Nancy K. Stoner,
USEPA Headquarters,
Washington, D.C.;
Jo-Ellen Darcy,
Assistant Secretary of the Army,
Department of the Army, Civil Works
Washington, D.C.
Dear Ms. Stoner and Ms. Darcy:
On April 21, 2014 the U.S. Environmental Protection Agency (EPA)
and the U.S. Army Corps of Engineers (USACE) jointly issued an
``interpretive rule'' identifying 56 Conservation practices which are
now exempt under 404(f)(1) of the Clean Water Act. Since introduction
this interpretive rule (IR) has been the subject of much scrutiny. The
comment period recently ended with 200+ submissions from various
agriculture and environmental stakeholder groups. This IR was also the
subject of a hearing in the House Agriculture Subcommittee on
Conservation, Energy, and Forestry. I serve as Ranking Member on this
Subcommittee. Having read the comments submitted and as a result of the
conclusions drawn from this hearing, I respectfully request that you
withdraw the interpretive rule. Furthermore, I hope that you will also
take this opportunity to both reevaluate the process for producing and
finalizing similar future efforts and reconsider the substance of this
underlying proposal.
First and foremost, I am concerned with the process by which this
interpretive rule was effectively finalized. At the Subcommittee
hearing held on June 19, 2014 we concluded that the agencies involved
neglected to engage agriculture and conservation stakeholders in any
substantive way prior to publication. Had the IR been an internal
document of little substantive consequence this failure to engage
impacted stakeholders would have been relatively immaterial. This is
not the case. To the contrary, I am of the opinion that the IR has
regulatory effect and therefore should have been subject to the
customary notice and comment period prior to finalizing.
Beyond the question of process, I am also concerned by the
substance of the proposal. As mentioned above, I believe this IR has
regulatory effect and that this effect may serve to dis-incentivize the
very practices we are hoping to promote. Regulatory effect occurs when
an individual is coerced by government to perform a specific activity.
This coercion is present in the IR. Take for instance conservation
practice #382; Fences. Prior to the IR this practice was performed by
farmers safe in the knowledge that it was exempt from 404 permitting as
a practice incident to ``normal farming.'' Adding #382 to the list of
exemptions is problematic because these exemptions now require that the
practice be performed in accordance with NRCS technical standards. The
same result which before would have required a certain set of actions
now requires a different standard. This is the very definition of
coercion. A simple solution to this concern would be to remove
practices from the list that are already exempt as ``normal farming''.
Such practices include but are not limited to; #382--Fences, #460--Land
Clearing, #512--Forage and Biomass Planting, and #528--Prescribed
Grazing.
Let me be clear, I am not opposed to these standards, having
advocated for them in the past, however I am concerned that imposing
them as a qualification for exemption has the potential to lead to
significant disincentives for conservation practices especially on
activities which were clearly exempt before. In the very least this
consequence deserves to be debated and various stakeholders engaged
prior to a rule such as this going into effect.
For these reasons I respectfully request that you withdraw the
rule. Furthermore I hope that future efforts in this space follow the
prescribed process of notice and comment prior to finalization and I
look forward to actively participating in this process.
Respectfully,
Hon. Timothy J. Walz,
Member of Congress.
______
Submitted Letter by Steve Moyer, Vice President of Government Affairs,
Trout Unlimited
July 1, 2014
Hon. Glenn Thompson,
Chairman,
Subcommittee on Conservation, Energy, and Forestry,
House Committee on Agriculture,
Washington, D.C.;
Hon. Timothy J. Walz,
Ranking Minority Member,
Subcommittee on Conservation, Energy, and Forestry,
House Committee on Agriculture,
Washington, D.C.
Dear Chairman Thompson and Ranking Member Walz:
On behalf of Trout Unlimited's (TU) 153,000 members nationwide, I
am writing to provide testimony for your June 17, 2014, hearing titled:
A Review of the Interpretive Rule Regarding the Applicability of Clean
Water Act Agricultural Exemptions. I ask that you please include our
letter in the hearing record.
TU strongly supports the proposed rule because it will clarify and
strengthen the very foundation of the Clean Water Act's protections for
important fish and wildlife habitat. Based on our experience working in
the field with the Clean Water Act, and the detailed analysis completed
by the U.S. Army Corps of Engineers, EPA, and OMB for the proposal, we
believe that the new rule is worthy of your engagement and support. It
will provide landowners, conservationists, and businesses with
substantial improvements in how the law is implemented. In that light,
we urge the Subcommittee to engage the agencies' proposal with an eye
towards making suggestions that will improve the rule, and urge support
for its finalization.
The Clean Water Act is very valuable to TU. Our mission is to
conserve, protect and restore North America's trout and salmon
fisheries and their watersheds. Our volunteers and staff work with
industry, farmers, and local, state and federal agencies around the
nation to achieve this mission. On average, each TU volunteer chapter
annually donates more than 1,000 hours of volunteer time to stream and
river restoration and youth education. The Act, and its splendid goal
to ``restore and maintain the chemical, physical, and biological
integrity of the Nation's waters'' serves as the foundation to all of
this work. Whether TU is working with farmers to restore small
headwater streams in West Virginia, removing acidic pollution caused by
abandoned mines in Pennsylvania, or protecting the world famous salmon-
producing, 14,000-jobs-sustaining watershed of Bristol Bay, Alaska, we
rely on the Clean Water Act to safeguard our water quality
improvements.
Conservation of our nation's water resources is not only critically
important to TU, but also to the success of the agriculture industry.
Partnering with farmers and ranchers is an integral part of the work
that we do. In the Midwest Driftless Area (southwest Wisconsin,
southeast Minnesota, northeast Iowa, and northwest Illinois), TU's work
with dairy farmers has restored watersheds and tripled trout
populations in some streams, creating excellent fishing opportunities
for sportsmen throughout the upper Midwestern states. In West Virginia,
working with dairy farmers and beef ranchers, TU has installed over one
million feet of stream-side fencing to reduce the impacts of cattle on
streams, while adding upslope water sources to allow cattle access to
water. Additionally, TU has worked extensively with ranchers and
landowners in many parts of the western United States to upgrade
irrigation infrastructure to improve agriculture production while
keeping more water in streams to aid watershed health. Much of this
good work was funded by farm bill conservation dollars flowing to our
agriculture partners.
In our view, the protections for watersheds provided by the Clean
Water Act, and the restoration programs provided by the farm bill, fit
beautifully together. The two laws work together well in many places
around the nation.
Unfortunately, the nation's clean water safety net is broken, and
if you appreciate clean water and the Clean Water Act, then you will
appreciate the agencies' efforts to resolve the law's most fundamental
question: which waters are--and are not--covered by the Clean Water
Act. Over the last 15 years, agency guidance following a series of
Supreme Court decisions have weakened and confused these protections.
The agencies' proposal takes important steps to clarify and restore
protections to intermittent and ephemeral streams that may only flow
part of the year. These intermittent and ephemeral streams provide
habitat for spawning and juvenile trout, salmon, and other species, and
protecting these streams means protecting the water quality of larger
rivers downstream. Thus, sportsmen strongly support the reasonable
efforts embodied in the proposal from the agencies to clarify and
restore the protection of the Clean Water Act to these bodies of water
where we spend much of our time hunting and fishing.
I hope that the Subcommittee recognizes the fact that, because of
the uncertainties caused by the Supreme Court cases, a rulemaking was
sought by many business interests, as well as by Supreme Court Justice
Roberts who presided over the Rapanos case.
I also urge the Subcommittee to recognize that the proposal works
to clarify what waters are not jurisdictional. The proposed rule and
preamble reiterates all existing exemptions from Clean Water Act
jurisdiction, including many farming, ranching, and forestry
activities. These exemptions include activities associated with
irrigation and drainage ditches, as well as sediment basins on
construction sites. Moreover, for the first time, the proposed rule
codifies specific exempted waters, including many upland drainage
ditches, artificial lakes and stock watering ponds, and water filled
areas created by construction activity. As highlighted above, TU works
with farmers, ranchers, and other landowners across the nation to
protect and restore trout and salmon habitat. We have a keen interest
in ensuring that the proposal works well for landowners on the ground.
Furthermore, the Interpretive Rule aims to provide more, not less,
certainty than before. The Rule recognizes the great conservation
strides the agriculture community has made since the 1970s, when the
Clean Water Act first came into effect, especially those improvements
made via the farm bill conservation programs. The intent of the
Interpretive Rule is to clarify that certain conservation practices in
waters of the United States following NRCS standards are also exempt
from section 404 permitting requirements in addition to the other
exemptions provided by the law. We understand that some in the
agriculture community are concerned about the Interpretive Rule. We
urge them to work with the NRCS and resolve their differences.
We also urge the Subcommittee members to remember the great, and
direct, benefit that clean water and healthy watersheds provide to
their districts and states. Pennsylvanians, for example, depend on
thousands of miles of rivers and streams for clean and abundant
drinking water, diverse and abundant fish and wildlife habitat, and
local fishing, hunting, bird-watching, and boating recreation that
support a strong outdoor recreation economy. According to the Fish and
Wildlife Service, more than 1.1 million people fished and 775,000
people hunted in Pennsylvania in 2011. Together, they directly spent
more than $1.4 billion on gear and trip expenditures alone. In
Minnesota, more than 1.6 million people fished and 477,000 people
hunted in 2011, and they spent more than $3.1 billion on their trips
and equipment. These hunting and fishing economies depend on healthy
habitat and clean water. They depend on the Clean Water Act.
Last, the Clean Water Act Interpretive Rule and the farm bill,
passed earlier this year under the able leadership of you and your
Subcommittee, go hand in hand, creating opportunities for producers and
conservationists to work together in watershed management. While the
farm bill provides the funding and projects for producers to update
aging infrastructure and more effectively manage their land, the
Interpretive Rule provides clarity and allows producers to continue
with these practices with predictability. The farm bill has spurred
aquatic habitat restoration on agricultural land. The Clean Water Act
offers protections which ensure that those conservation gains are not
undermined by pollution and habitat degradation in other parts of the
watershed. This partnership between agriculture and conservation is an
essential piece of protecting our nation's water resources and the fish
and wildlife that rely on it.
Your Subcommittee helped to give birth to the new farm bill earlier
this year. In 1972, Congress gave birth to the Clean Water Act. These
laws do, and should even more so over time, work together. But the
Clean Water Act has come to a major crossroads. The agencies which the
Congress authorized to implement the Clean Water Act, spurred by the
Supreme Court itself and a wide range of stakeholders, have put forth a
proposal that will help strengthen the very foundation of the law for
years to come. As you scrutinize the proposal, we urge you to strongly
consider the views of sportsmen and women in Pennsylvania, Minnesota,
and others around the nation, and support the reasonable and science-
based efforts of the Corps and EPA to clarify and restore the Act's
jurisdictional coverage.
Thank you for considering our views,
Steve Moyer,
Vice President of Government Affairs,
Trout Unlimited.
______
Submitted Statement by Paul Wenger, President, California Farm Bureau
Federation
June 27, 2014
House Agriculture Committee,
Subcommittee on Conservation, Energy and Forestry.
Re: Comments on the Interpretative Rule regarding applicability of
Clean Water Act agricultural exemptions
Dear Chairman Glen Thompson:
The California Farm Bureau Federation (CFBF) has significant
concerns regarding the Environmental Protection Agency's (EPA) and U.S.
Army Corps of Engineers (Corps) Interpretive Rule and Proposed Rule
pertaining to the Clean Water Act (CWA). We believe these proposals
will leave farmers vulnerable to excessive civil litigation and make
recognized good farming practices burdensome. We urge the Committee to
consider the cumulative impact of the Interpretative Rule and Proposed
Rule especially considering the Interpretative Rule has already taken
effect.
CFBF is California's largest farm organization, representing nearly
78,000 members throughout the state, many of whom will potentially be
impacted by the agencies action. CFBF strives to protect and improve
the ability of farmers and ranchers engaged in production agriculture
to provide a reliable supply of food and fiber through responsible
stewardship of California's natural resources.
EPA's application of the Interpretative Rule without formal rule
making seems disingenuous and lacks transparency. We have significant
concerns with the Interpretive Rule, which took immediate effect on
April 21, 2014 and fundamentally limits recognized good farming
practices, which have been afforded ``normal'' farming exemptions under
CWA Section 404(f)(1)(A). In 1977, Congress amended the CWA to exempt
``normal'' farming, ranching, and silviculture activities from Section
404 ``dredge and fill'' permit requirements. (33 U.S.C. 1344(f)(1).)
For nearly 4 decades, normal agricultural activities on established
operations have been exempt from CWA Section 404 permit requirements.
Under the Interpretive Rule, however, these longstanding normal
agricultural activities have been extensively narrowed. In order to be
exempt from section 404 when undertaking a normal farming activity, a
farmer must now satisfy federally mandated Natural Resource
Conservation Service (NRCS) practice standards, of which only 56 such
standards are included. Failure to comply with the NRCS standard
results in a violation of the CWA, subjecting the farmer to hefty
penalties. As a result, the Interpretive Rule does not provide
``guidance'' on normal farming activities deemed exempt under the CWA,
nor does it provide clarity on existing exemptions. Rather, it is a
``legislative'' rule that imposes new, legally binding obligations on
farmers and ranchers.
The Interpretative Rule and Proposed Rule, applied together,
provide a considerable amount of uncertainty for farmers and ranchers
by requiring compliance with NRCS programs and is thus not a true
exemption. Requiring compliance with NRCS standards can include
consultation and surveying for endangered species with federal or state
fish and wildlife services, which can stall the simple construction of
a fence or changing crops. The impact to species must be considered but
it is not practical when applied to normal, routine farming decisions.
This is unreasonable for any farmer who may need to build a fence,
construct a pond, plant trees, or dig a ditch in order to operate their
farm. Existing state and Federal laws already protect both species and
water bodies.
Current regulations cover only wetlands adjacent to waters of the
U.S. The Proposed Rule would expand the coverage to include not only
wetlands, but all waters adjacent to traditional navigable waters and
it would expand the scope of adjacency by including a broad definition
of ``neighboring'' waters. Neighboring would be defined to include
``riparian areas'' and ``floodplains.'' Although these are not
unfamiliar terms to farmers, they will be left for interpretation by
the courts and regulators since the CWA does not define them.
A farmer must also consider ``other waters'' that have, either
alone or in the aggregate with other ``similarly situated'' features, a
significant nexus to the more traditional navigable waters mentioned
above.
The Proposed Rule categorically regulates as ``tributaries'' all
ditches that could carry any amount of water which eventually flows
(over any distance and through any number of other ditches) to a
navigable water. Ditches are commonplace features prevalent across
farmland (and the rest of the nation's landscape) and may be regulated
by the state. The ditch could now be subject to a 404 permit. The Corps
may not have the resources to take action but farmers are certain to be
caught in third party civil litigation that can be costly, even if you
are found complying with the law.
Multiple factors go into determining how to keep the farm for the
next generation. Crop prices, changing consumer demand and available
markets, soil types, natural habitat, endangered species, capital
investments and water availability are just some of the facts farmer
must consider when deciding what crops to plant. The ``normal farming''
exemption only applies to farming and ranching activities that have
been ``ongoing'' since 1977. In recent years, farmers of all sizes have
recognized the growing demand for wine grapes, olives and tree nuts,
which can be grown successfully throughout California and are
transitioning to these crops. Any additional layer of permitting or
indeterminate delays before planting will negatively effect both
beginning farmers as well as those currently farming, from
transitioning their farms to growing crops that consumers are demanding
for generations to come.
These rules should be practically applied and clearly understood.
Applying both the Interpretative Rule and Proposed Rule on the farm as
currently written will eliminate many of the longstanding exemptions
for on-farm practices. Unfortunately, the on-the-ground application of
the rules will end up in the courts, as well intended farmers must
defend themselves against civil suits brought by special interest
groups with far more legal and financial resources. For a small farmer
it can cost hundreds of thousands of dollars to protect oneself against
litigation, even when they are ultimately found not in violation of the
law, and have no way to recoup the cost from a frivolous lawsuit This
will leave farmers vulnerable and in limbo as they try to comply with
the law while growing a perishable crop.
The general public may assume that EPA is simply clarifying its
regulation over streams, ditches, wetlands and flood zones that have
flowing water and need to be protected. However, the Proposed Rule
would regulate land without historical consideration of potential water
flows. The Rules are being used to regulate land as if it were
``navigable water''. Following the Supreme Court's ruling in SWANCC,
agency guidance has asserted jurisdiction over "non-navigable
tributaries" only after a case-by-case analysis of whether a particular
feature has a "significant nexus" to true navigable waters. Key to that
analysis is the volume, duration and frequency of flow, as well as
proximity to downstream navigable waters. Under the Proposed Rule, the
volume, duration and frequency of flow-as well as distance to navigable
waters-are deemed irrelevant. See 79 Fed. Reg. at 22206 (``tributaries
that are small, flow infrequently, or are a substantial distance from
the nearest [navigable water] are essential components of the tributary
network . . .''). All such ditches and ephemeral drains will be
categorically deemed to be ``navigable waters'' if they carry any flow
that ever reaches navigable waters.
Existing state and Federal laws are achieving the goal of
protecting water bodies. In light of these impacts, Farm Bureau
respectfully requests that the Committee urge the Agencies to withdraw
the Interpretive Rule and the EPA and Corps' Proposed Waters of the
U.S. Rule.
Sincerely,
Paul Wenger,
President.
Cc: Honorable Gloria Negrete McLeod.