Dear Ms. Downing,
Below are comments from the National Association of State Departments of Agriculture (NASDA) regarding the Environmental Protection Agency’s (EPA) and Army Corps of Engineers (collectively as “the agencies”) proposed repeal of the 2015 Clean Water Rule and recodification of pre-existing rules. NASDA strongly supports repealing the 2015 rule as it impedes state authority and fails to clarify the jurisdiction of the Clean Water Act (CWA).
- About NASDA
NASDA represents the Commissioners, Secretaries, and Directors of the state departments of agriculture in all fifty states and four U.S. territories. State departments of agriculture are responsible for a wide range of programs including conservation and environmental protection, food safety, combating the spread of plant and animal diseases and fostering the economic vitality of our rural communities. In forty-three states, the state departments of agriculture are the lead state agencies responsible for the regulation of pesticide use under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). A number of state departments of agriculture also administer Section 402 National Pollutant Discharge Elimination System (NPDES) permitting programs for Concentrated Animal Feeding Operations (CAFO).
- The Agencies Should Rescind the 2015 Rule
Lack of Federalism Consultation
The 2015 Clean Water Rule was promulgated without a federalism consultation resulting in a rule that impeded state authority, adversely impacted state regulatory programs and undermined states’ primacy in land and water use decisions. Simply put, this regulatory overreach undercut a central tenant of the CWA: cooperative federalism. The act states, “It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources.” By acknowledging states’ role in providing clean water oversight and using federal regulations as a framework, the CWA should be a prime example of cooperative federalism.
A robust federalism consultation early in the regulatory process would have helped improve the agencies’ economic analysis and helped realistically evaluate economic impacts. Further, this step would have informed the agencies of state responsibilities and allowed for flexibility in state regulatory programs that oversee water quality.
Overreach of Authority
The final 2015 rule usurped state authority, which could have been prevented through outreach to state and local governments. State departments of agriculture were particularly concerned about:
- The preservation of farming exemptions,
- A lack of administrable definitions,
- The scope of the tributary definition, and
- Implementing the significant nexus standard.
A federalism consultation could have helped avoid many of the rule’s legal flaws and lack of clarity, as it would have provided the “on the ground” information the rule sorely lacked and caused the rule to violate state authority. For example, the 2015 rule created extreme confusion over regulation of ephemeral waters, especially on agricultural land and in the arid west. By allowing for jurisdiction over isolated features and ephemeral washes, the Rule improperly reads the word “navigable” out of the statute, raises constitutional questions, and is contrary to Solid Waste Agency of Northern Cook County v. Army Corps of Engineers and Rapanos v. United States. Consultations could have helped prevent questions over whether agricultural ponds and rarely flowing streams fell within the scope of the regulation, and could have shown the agencies how those features are regulated by the state.
- The Agencies Should Codify the Status Quo By Rescinding the 2015 Rule
The temporary status of the nationwide stay makes it imperative to codify the status quo and rescind the 2015 rule. The uncertainty of when the stay will be ruled on by a higher court prevents farmers and ranchers from making business decisions on their operations. Rescission and recodification will allow the CFR to reflect the current regime which the agencies are operating under and allow business to clearly understand which Clean Water Act regulations are in place.
Recodification of previous rules will not result in a major regulatory change. The 2015 Rule has been stayed for almost two years. The previous rule was in effect in 37 states for six weeks prior to the issuance of the nationwide stay and never went into effect in 13 states. Additionally, there were no enforcement actions under the rule. By codifying the previous regulations, the above structure will be cemented and use the previous regulatory structure to continue protecting federally jurisdictional waters. As the agencies are simply maintaining the status quo, the proposal is not a “significant regulatory action” under OMB Guidelines and it does not trigger the procedural requirements for “significant regulatory actions.”
It is critical to recodify prior regulations to allow for clarity and regulatory certainty in the near term. Additionally, it is necessary for EPA to promulgate a new rule to define and clarify “waters of the U.S.” A new rulemaking is needed to create a regulatory structure that respects state authority, is administrable, is based on interpretation of the Clean Water Act and is legally sound. NASDA continues to support a federal rulemaking based on the principles outlined in our June 19, 2017 comments.
NASDA appreciates the opportunity to comment on the repeal of the 2015 rule and reinstatement of previous regulations. We look forward to continuing to work with EPA through this process and into a new rulemaking on the appropriate scope of federal CWA jurisdiction. Please contact Britt Aasmundstad (firstname.lastname@example.org) if you have any questions or would like any additional information.
Director, Public Policy
 (33 U.S.C. 1251 et seq.) SEC. 101. (b)