The National Association of State Departments of Agriculture (NASDA) submits the following comments in response to the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) proposed rule published April 21, 2014 to redefine “Waters of the United States” (WOTUS) under the Clean Water Act (CWA). 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 disease 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).
NASDA is very concerned EPA and the Corps (the agencies) proposed this rule without robust prior engagement with state and local authorities as required under Executive Order 13132, without consideration of state prerogatives and budgets, or without realistically examining the potential economic and legal impacts on agriculture and other segments of society. The proposed rule is ill-conceived and exceeds the legal and statutory boundaries of the CWA. Rather than clarify the intent of Congress and the Supreme Court, the proposed rule would add complexity and uncertainty, disrupt the timely use of FIFRA-registered pesticide products, and cause significant adverse economic impacts to state departments of agriculture and other agencies. By creating confusion and the potential for significant legal jeopardy, the proposed rule would result in costly delays that have not been adequately considered by the agencies.
We request that EPA and the Corps withdraw the proposed rule and initiate significant discussions with states and affected stakeholders. Any replacement rulemaking must reflect those consultations, recognize the limit to federal CWA jurisdiction consistent with Congressional intent and Supreme Court precedent, and be supported by sound science and case law.
The proposal would undermine state authorities over land and water resources. States enhance the efficiency and effectiveness of federal clean water and agricultural programs, but this federal-state partnership cannot result in new unfunded mandates for states, nor can a federal initiative such as this rulemaking ignore state capabilities, authorities and responsibilities. Congress intended the states and EPA to implement the CWA as a federal-state partnership, delegating authority to the states to administer the CWA as co-regulators with EPA. For example, under Section 303(c) of the CWA, states are responsible for reviewing, revising, and adopting water quality standards (WQS) and submitting such WQS to the EPA for review and approval or disapproval. Under Section 401 of the CWA, states have authority to issue water quality certifications for certain federally permitted or licensed activities. This authority allows states to influence the design and operation of projects affecting waters in their jurisdiction. Certifications under Section 401 ensure that federal permits and licenses for activities that may result in a discharge comply with applicable CWA requirements including state or tribal WQS as well as with any other appropriate requirements of state law. Under Section 402, all but four states have delegated authority to design and administer permits for point source discharges of pollutants to waters of the U.S. Any changes to the regulations that govern which waters are jurisdictional will directly affect these and other programs. The proposed rule, however, would create such a sweeping jurisdictional expansion of federal regulation of minor waters and manmade conveyances that traditional state authorities over land and water resources would be undermined, affecting the ability of every state to enact policies regarding waters within their borders and allocate resources. Congress chose to expressly “recognize, preserve, and protect the primary responsibilities and rights of the States . . . to plan the development and use . . . of land and water resources. ” The proposed rule so broadly defines “waters of the U.S.” (WOTUS) that even functionally-marginal connections would be federally regulated. The Supreme Court rejected application of such an “any connection” theory of jurisdiction, stating that it would bring “virtually all planning and development and use of land and water resources by the States under federal control,” and, therefore could not be a lawful interpretation of “waters of the United States. ”
In Executive Order 13132, the White House clearly directed federal agencies to consult with states early in the rulemaking process and give as much weight and deference as possible to state needs, priorities and concerns. For example, §2(i): “The national government should be deferential to the States when taking action that affects the policymaking discretion of the States and should act only with the greatest caution where State or local governments have identified uncertainties regarding the constitutional or statutory authority of the national government;” §3(c) (emphasis added): “With respect to Federal statutes and regulations administered by the States, the national government shall grant the States the maximum administrative discretion possible. Intrusive Federal oversight of State administration is neither necessary nor desirable;” and §6(b): Federal agencies must consult with state and local officials “early in the process of developing the proposed regulation” where the regulation will impose “substantial direct compliance costs on State and local governments and that is not required by statute.” (emphasis added) Promulgation of this proposed rule without complying with E.O. 13132’s consultation criteria could threaten the future federal-state partnership for implementing the CWA.
The proposed rule is inconsistent with Supreme Court limits on non-navigable waters jurisdiction. NASDA believes the proposed rule overlooks the legal and institutional boundaries established by Congress and then interpreted by the Supreme Court (Court) in Rapanos v. United States (Rapanos) and the Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) decision that preceded it. In these cases, the Court specifically rejected agency policy that “any hydrological connection” is a sufficient basis for federalization of conveyances. In SWANCC, the Court held CWA jurisdiction did not extend to isolated “non-navigable” intrastate ponds by virtue of migratory birds using them as habitat. In Rapanos the Court was asked whether wetlands near ditches or man-made drains that eventually connected to traditionally navigable waters were “waters of the U.S.” Although Rapanos was decided by a plurality of four Justices and a separate concurring Justice and not a majority opinion, the agreement by the five Justices represents the dominant legal holding from the case that the proposed rule overlooks. Justice Scalia, writing for the plurality, concluded that only those wetlands with a continuous surface connection to bodies that are “waters of the U.S.” …are “adjacent to” such waters and covered by the Act. The plurality also concluded that “waters of the United States” only included “relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’” such as streams, rivers, lakes and oceans and does not include channels that flow intermittently, ephemerally or periodically after rain. Justice Kennedy concurred with the plurality judgment to reject the agencies’ assertion of jurisdiction over non-navigable tributaries based on “any hydrological connection” and added that when asserting jurisdiction over wetlands adjacent to non-navigable tributaries the Corps must establish that a “significant nexus” exists. ” He repeatedly cautioned that “remote,” “insubstantial,” “speculative,” or “minor” flows are insufficient to establish a significant nexus. A significant nexus exists “if the wetlands…significantly affect the chemical, physical and biological integrity of other covered waters more readily understood as “navigable. ”
NASDA concludes the proposed rule ignores the holding of the plurality opinion and inappropriately relies exclusively on Justice Kennedy’s opinion, selectively, and incorrectly, extrapolating provisions from Rapanos to support the proposed rule. We maintain that the Court held that a hydrologic connection alone is not enough to establish federal jurisdiction and the CWA does not extend jurisdiction to features distant from navigable waters and carrying only minor volumes of flow. The agencies inappropriately draw broad conclusions from Justice Kennedy’s concurring opinion in the proposed rule. The agencies’ proposal would improperly extend CWA jurisdiction far beyond agency authority and beyond the limits interpreted by the Supreme Court in SWANCC and Rapanos. The agencies must acknowledge that Congress and the Supreme Court clearly intend the CWA to have limits, and that states as co-regulators have environmental standards customized to the unique issues related to water quality regulation within their borders. The underlying question of WOTUS jurisdiction and the proposed rule is not so much a matter of science but of legal authority. “Navigable,” while not limited simply to navigable-in-fact waters, limits federal jurisdiction from including all or nearly all water bodies. In the SWANCC decision, the Court stated that “the word ‘navigable’ has at least the import of showing us what Congress had in mind as its authority for enacting the CWA: its traditional jurisdiction over waters that were or had been navigable in fact or which could reasonably be so made.”
The agencies continue to improperly move the regulatory goalposts. Throughout the summer of 2014 and concurrent with the rulemaking comment period the agencies have released a series of communications we believe indicate changes to the regulatory landscape and perhaps the final outcome of the proposed rule. These include public statements made by senior EPA officials in presentations, webinars, and on agency blogs that convey new policy interpretations about key provisions in the proposed rule’s language; concurrent work by the Corps to redefine “ordinary high water mark,” a critical parameter for defining “tributary” under the proposed rule; release of detailed U.S. Geological Survey maps depicting ephemeral, intermittent and perennial waters in 50 states and territories; and “clarification” of agency intent in the recently published Q&A document. We appreciate the repeated extension of the public comment period by the agencies to allow us opportunities to keep up with these ever-changing regulatory goalposts.
The proposed rule will impact all CWA programs and adversely impact states. This proposed rule is the latest in the long series of EPA or Corps policy tweaks to agency hypotheses on jurisdictional waters through additional informal agency letters, revised field manuals, agency guidance or expansive preamble language. With this rule the agencies have proposed comprehensive national regulations that would ignore repeated limits placed on their actions by the Court, codify years of informal policies into black letter law, and in doing so federalize broad categories and perhaps millions of miles of currently unregulated marginal waters and manmade conveyances that may only remotely and infrequently connect to a WOTUS. Many types of waters and features that were not previous regulated as “waters of the State” or that states purposely chose not to regulate (e.g., ditches along roadsides or utility easements, gulches with infrequent ephemeral flows, arroyos, prairie potholes, playa lakes, etc.) would now be subject to federal regulation were the rule to be codified as proposed. Just as significantly, EPA and the Corps would apply this new jurisdictional playing field nationwide regardless of regional topography, hydrogeology, rainfall and snowmelt patterns, and land use, preempting state and local prerogatives and policies for public and private activities in and around these newly-federalized conveyances. NASDA is particularly concerned the proposal would impose new policies and responsibilities on state agencies across all CWA delegated state programs, handicapping state budgets and available manpower, and complicating ongoing programs with citizens for agricultural pest control, public health, wildlife, water and natural resource management, and invasive species control programs.
Additionally, we have significant concerns that, despite public agency statements to the contrary, well-established exemptions for prior converted cropland, agricultural return flows, nonpoint source stormwater flows, silviculture, and natural resource extraction may be threatened by the proposal. For example, the proposal states “Notwithstanding the determination of an area’s status as prior converted cropland by any other Federal agency, for the purposes of the Clean Water Act the final authority regarding Clean Water Act jurisdiction remains with EPA.” Rather than clarify Congressional and Court intent for CWA jurisdiction, the proposal’s vague definitions and application of one-size-fits-all categories to all CWA programs nationwide will create more problems than solutions for public and private entities alike, raise legal uncertainties and adversely affecting the economy. Potential effects would include:
- §404: Producers and others seeking to make improvements to or develop their properties would face increased §404 wetlands dredge-and-fill permit costs, delays, and likely greatly-increased mitigation costs as they wend their way through the policy morass of Best Professional Judgment (BPJ) determinations of “floodplain” adjacency, “significant nexus” or “aggregated” impacts. These §404 policy changes will further confuse farmers and others; NASDA already has commented on the agencies Interpretive Rule and confusion and likely adverse effects that action is causing.
- §303, §304 and §305: Should states be required to develop and enforce water quality standards under CWA §303, §304 and §305 for marginal waters newly (or potentially) regulated under the categories proposed by the agencies in this rule, this would become an impossible task. We have significant concerns that this proposal will dramatically expand the circumstances under which the federal requirement for development of numeric criteria, water quality standards, expanded monitoring and impairment determinations, and enforcement actions will be extended.
- §402: State §402 National Pollutant Discharge Elimination System (NPDES) permits regulate a wide range of discharges, including for agriculture pesticide NPDES general permits and Concentrated Animal Feeding Operations (CAFO). Pesticide NPDES general permits were written by states in all but a few instances, and regulate pesticide applications “into, over or near” water. They vary widely by state in scope and whether they regulate discharges to “waters of the U.S.” or “waters of the State.” The proposed WOTUS rule will likely have significant impacts on the scope of such permits, state efforts to enforce them, and potential third-party lawsuits.
Because many ditches and ephemeral or intermittent features in or near farm fields, pastures, and woodlots could well become newly-jurisdictional under the proposed rule, application in or around those features of terrestrial pesticides (those products lacking a FIFRA label explicitly allowing application into, over, or near “waters”) might result in CWA violations and citizen suit vulnerabilities from inadvertent pesticide contact with these types of newly-jurisdictional waters. For use of FIFRA-labeled aquatic pesticides, EPA’s Pesticide General Permit (PGP) covers use patterns for: (1) mosquito and other flying insect pest control; (2) weed and algae control; (3) animal pest control; and (4) forest canopy pest control. Agricultural use patterns of terrestrial pesticides are not covered under the PGP. We are concerned the agencies have not given enough consideration to the financial and policy impact of the proposed rule or the legal conundrum represented by the interface between the requirements of the CWA and FIFRA relative to pesticide use in “waters.”
For example, would farmers and ranchers routinely making seasonal treatment of, noxious weeds in fields containing dry ephemeral conveyances or manmade ditches now also be required to comply with NPDES permit requirements? If so, would these producers need to secure individual NPDES permits, since terrestrial pesticide use is not covered by the PGP? Most applicators using terrestrial pesticides may not be aware that treatment areas they are treating may for the first time contain newly-jurisdictional “waters,” and in addition to FIFRA label requirements, they might now also need to comply with NPDES performance requirements for “aquatic” pesticide applications. This would pose an extreme difficulty for commercial applicators applying terrestrial pesticides by air, when such ephemeral features could well be unmarked, dry or hidden by vegetation.
Even if landowners and applicators were only to suspect that the new rule might extend federal jurisdiction onto areas where they routinely treat ditches or ephemeral conveyances with terrestrial pesticides, the time it would take to verify the precise locations and WOTUS status of any jurisdictional conveyances, and then also satisfy applicable NPDES permit compliance steps, would be an unwarranted burden and source of ongoing legal uncertainty. Furthermore, timely pest control would be precluded if producers and others have to wait months for the agencies to apply their “best professional judgment” to determinations of whether a potential “significant nexus” exists that may influence their pest control plans or where the jurisdictional boundaries of encountered floodplains may be. These concerns extend beyond pesticide use—we are also concerned that the application of other agricultural inputs in a similar manner, such as fertilizer, would also be problematic under the proposed rule.
Waste management systems designed and built to meet CWA standards would be exempted in the proposed rule, but with the broad expansion of “waters” definition proposed, many CAFO operations could find themselves in violation of the CWA. Processing of animal waste and land application for its nutrients is an important part of agriculture, both farming by conventional and organic methods. Restrictions in the proposed rule could alter well-managed state CAFO programs and expose livestock producers to third-party litigation.
In addition to effects on CWA programs, the proposed rule will have direct and substantial effects on other state programs, such as soil conservation, nutrient management, pesticide regulation, etc. State agencies administering those programs or stakeholders that would be subject to federal regulation and citizen suits as a result of this proposed rule have not been provided adequate clarity or predictability with respect to the potential for federal control over newly-jurisdictional waters and activities on adjacent lands. Nor have the agencies considered the costs, direct and indirect, of such changes to the state programs themselves.
- For example, state conservation programs that stress edge-of-field practices to limit flooding, contaminated runoff and soil erosion could be adversely affected if in-field conveyances are deemed WOTUS under one of the new categories or through BPJ determination of a “significant nexus.” Farm-bill stewardship programs administered at the state level will have to be evaluated to properly embrace the expansion of jurisdictional waters under this proposed rule.
- State pesticide programs and regulations will need to be reevaluated under the proposed WOTUS rule. Some labeled uses of pesticide products could be jeopardized by the proposed federalization of ephemeral conveyances and ditches; for example, when farmers, ranchers, natural resource managers and others seek to use terrestrial pesticides with labels that state “do not apply to water” or require no-spray setbacks from jurisdictional waters to avoid potential spray drift.
- How the proposed rule would affect state policies for the administration of “ditches,” “ephemeral waters,” “aggregated, similarly-situated other waters” and “prior converted cropland” remains to be seen. We find the agencies’ definitions for these confusing, and believe the proposed categories of “waters” would be insensitive to the wide differences that exist among waters nationwide. Applying “one size fits all” categories to waters across all 50 states, all climatic and topographic conditions, does not seem valid to NASDA.
The agencies did not adequately consider adverse impacts on rural communities and small agricultural producers. Notwithstanding impacts on state agriculture and water programs, the proposed rule will have dramatic impacts on farmers, ranchers, as well as the infrastructure, economies, and social networks of small rural communities where they live and work. The specter of new federal regulations for traditional stakeholder activities in and around previously-unregulated marginal conveyances, ditches or other land features on farms, ranches and rural communities speaks volumes about likely impacts on such small entities. Exposure to third-party citizen suits is another concern – whether it’s a farmer or the other business that service that farm. For example, aerial applicators are very small businesses that apply about 19 percent of all pesticides to farms (71 million acres annually). These pilots often work at night or early morning to treat farm fields where they likely could be unaware of the presence of any newly-defined WOTUS – especially if they were dry or covered by vegetation at the time. The complexity, expansiveness and vagueness of the proposed rule will cause confusion instead of clarity for producers and small businesses, and create delays that add costs as the proposed rule’s effects on Farm Bill conservation programs, fertilizer and pesticide use, permits for certain farming activities, and other factors are considered. Small businesses are the mainstay of agriculture and rural communities, and NASDA is convinced the agencies have not adequately considered small business impacts in the development of the proposal.
It appears the agencies avoided proper considerations of small business protections by simply certifying that “this proposed rule will not have a significant impact on a substantial number of small entities” because, in their opinion, “[t]he scope of regulatory jurisdiction in this proposed rule is narrower than under the existing regulations. ” There is no factual basis for this certification. It is based on several false assumptions: That the jurisdictional scope of the proposed rule is smaller than existing regulations, all the impacts of the proposed rule will be “indirect” and such impacts on farmers, ranchers and small agribusinesses will be insignificant. NASDA agrees with the recent comments of the Small Business Administration’s Office of Advocacy that the agency’s certification is invalid, and argues that the agencies in proposing this rule have not met federal law relative to assessment and mitigation of small business impacts.
The proposed rule is fatally flawed and, for all the reasons stated in these comments, NASDA urges the agencies to withdraw the proposed rule. The agencies should initiate robust, meaningful, and collaborative consultation with state agencies, agency associations, and impacted stakeholders on the appropriate scope of—and limits to—federal CWA jurisdiction. Subsequent rulemakings must reflect these consultations and be supported by science and case law.
We appreciate the opportunity to comment on this proposed rule. We have attached for the record our previous comments on the Interpretive Rule.
Barbara P. Glenn, Ph.D.
Chief Executive Officer