September 27, 2017

Ms. Donna Downing
Office of Water (4504-T)
Environmental Protection Agency
1200 Pennsylvania Avenue NW
Washington, DC 20460

Ms. Stacey Jensen
Regulatory Community of Practice (CECW-CO-R)
U.S. Army Corps of Engineers
441 G Street NW
Washington, DC 20314

Federal Docket: EPA-HQ-OW-2017-0203-0001

Dear Ms. Downing and Ms. Jensen:

Pennsylvania Farm Bureau (PFB) is pleased to offer its comments on the rule proposed by the Environmental Protection Agency (EPA) and Army Corps of Engineers (ACOE) (“the Agencies”), “Definition of Waters of United States— Recodification of Pre-Existing Rules” (Docket # EPA-HQ-OW-2017-0203-0001).

PFB is a general farm organization, made up of more than 63,000 members, providing legislative support, information, and services to Pennsylvania's farmers and rural families since 1950. Our organization includes 54 local organizations (county Farm Bureaus) that actively operate in 64 of Pennsylvania’s 67 counties. PFB is the state affiliate of the American Farm Bureau Federation (AFBF), an organization representing more than six million, two hundred thousand member families throughout the United States. In addition to the comments we are offering today, we want to affirm our support of the comments to be filed on this proposed rule by AFBF, and would request that such comments be treated as part of the comments contained herein.

General Comments

PFB strongly supports the Agencies’ proposal to rescind the Clean Water Rule: Definition of “Waters of the United States,” 80 Fed. Reg. 37,054 (June 29, 2015) (the “2015 rule”). We also recommend that the Agencies move quickly to re-issue a proposed new “waters of the United States” definition that is supported by and consistent with the text of the Clean Water Act (CWA), Supreme Court precedent, constitutional limits and the balance of federal and state rights and responsibilities that Congress intended. PFB has previously commented on the myriad flaws with the 2015 rule, as summarized below and expanded upon in the analysis that follows:

  1. The 2015 rule expanded the definition of “waters of the United States” in such a way as to capture ditches, farm ponds, ephemeral features, or low spots in farm fields that hold water when it rains—thus making activities in those places which discharge pollutants subject to federal permitting and potential targets for citizen lawsuits.
  2. The 2015 rule would unlawfully conflict with statutory exemptions intended to prevent federal permit requirements for common farming activities.
  3. Rather than providing clarity on which waters would and would not be regulated under the proposed rule, the 2015 rule instead set the stage for farmers to unknowingly be in violation of it.
  4. The 2015 rule defined the term “tributary” in such a way that it would include ephemeral drainages—features that are dry land most of the time and only carry water after a heavy rain—as regulated waters.
  5. Despite the term “ditch” not being named in any current regulation defining “waters of the United States,” past agency practice and the text of the 2015 rule suggested that EPA and ACOE would have the ability to regulate ditches.
  6. The addition of the term “adjacent waters” in the 2015 rule would bring many more waters under federal jurisdiction, despite protests to the contrary by EPA and ACOE, as could other waters that the Agencies find to have a “significant nexus” to other “waters of the United States.”
  7. The 2015 rule’s expansion of federal authority was not only not necessary to protect the nation’s waters, but was needlessly dismissive of other portions of the Clean Water Act and state laws and regulations designed to protect non-navigable waters.
  8. Previous statements by EPA and ACOE that the 2015 rule is intended, in part, to codify past agency practice are not a proper justification for the rule, given that a significant portion of that past practice consists of improper assertions of jurisdiction by the Agencies.

Constitutional Issues with the 2015 Rule

In enacting the CWA, Congress exercised its commerce power over navigation and granted EPA and ACOE specific, limited powers to regulate navigable waters, defined as “waters of the United States,” while recognizing and seeking to preserve the states’ traditional primary authority over land and water use.  For years, the Agencies’ regulations and guidance documents have attempted to expand the definition of “waters of the United States” beyond its constitutional and statutory limits.  On two occasions, in Solid Waste Agency of Northern Cook County v. United States ACOE (SWANCC), and Rapanos v. United States, the Supreme Court recognized the Congressional limits placed on CWA jurisdiction and invalidated the Agencies’ sweeping assertions of regulatory authority.  Despite this history, the 2015 rule ignores the limits and structure that Congress put in place, as well as the limits recognized by the Supreme Court, and continues the Agencies’ practice of vague and overbroad assertions of CWA jurisdiction.  Such broad overreach violates the Constitutional rights of the regulated public as well as the traditional authority of the states over land and water use and protection, which Congress explicitly sought to preserve.

The Supreme Court has found that the Agencies’ broad assertions of CWA jurisdiction stretched the outer limits of the Commerce Clause. The rule the Agencies now propose to rescind also asserts expansive jurisdiction that is well beyond the commerce authority Congress exercised in enacting the CWA. Even EPA and ACOE acknowledge in the preamble to the rule at its proposal that “constitutional concerns...led the Supreme Court to decline to defer to agency regulations in SWANCC and Rapanos.” The SWANCC Court held that although the term “navigable waters” is to be interpreted broadly, the term “navigable” has meaning and cannot be read out of the statute. The word “navigable,” the Court found, “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.”

Considering Congress’s intent to exercise its traditional “commerce power over navigation,” ACOE’s assertion of jurisdiction over sand and gravel pits based on their use by migratory birds raised “significant constitutional questions.” As such, the Court held that extending CWA jurisdiction to isolated, non-navigable waters like those at issue in SWANCC “is a far cry from the ‘navigable waters’ and ‘waters of the United States’ to which the statute by its terms extends.”  Similarly, the Supreme Court in Rapanos found that the Agencies’ assertion of jurisdiction under the “any connection” theory over wetlands that were not adjacent to traditional navigable waters “stretch[ed] the outer limits of Congress’s commerce power.”

Therefore, according to the Supreme Court, the Constitution allows for the CWA to reach more than “navigable-in-fact” waters, but asserting jurisdiction over an area based on a mere connection to a non-navigable water raises serious constitutional concerns.                                                

In summary, the 2015 rule is illegal in large part because it is based on sweeping jurisdictional theories that were struck down in SWANCC and Rapanos. It improperly asserts jurisdiction over non-navigable features, such as isolated wetlands, ephemeral drainages, and isolated ponds, essentially reading the term “navigable” out of the CWA. It expands jurisdiction well beyond what the CWA’s text and structure allows. The Agencies disregarded statutory checks on their power and distorted relevant Supreme Court precedent. Furthermore, the process by which the 2015 rule was developed violated basic tenets of administrative law.  The Agencies failed to reopen the comment period after making fundamental changes to the rule, and withheld the key scientific report on which the rule rested until after the comment period closed. The Agencies also refused to undertake required economic and environmental analyses, including a mandatory analysis of small business impacts and consideration of less burdensome alternatives; engaged in an unprecedented propaganda campaign to promote the 2015 rule and rebuke its critics, displaying a closed mind even during the public comment period; and lobbied against legislative efforts to stop the rule, which the U.S. Government Accountability Office has concluded was illegal.

The 2015 rule fails on other constitutional grounds as well. It violates Due Process Clause protections that guard against laws that fail to put the public on notice of what is prohibited or that give government agents unchecked discretion to enforce the law in arbitrary and discriminatory ways. The rule also offends both prongs of the vagueness doctrine. It opens regulated entities to severe civil and criminal penalties that rest on nebulous standards like “more than speculative or insubstantial,” “similarly situated,” and “in the region,” and on ambiguous definitions of terms like “ordinary high water mark.” These uncertain standards are impossible for the public to understand or the Agencies to apply consistently. The 2015 rule also exceeds the Agencies’ power under the Commerce Clause and usurps state authority and the CWA’s federalist structure. The rule regulates countless isolated and non-navigable features that are not channels of commerce and have no substantial effect on interstate commerce. The rule’s sweeping assertion of federal jurisdiction upsets the Congressionally mandated balance between state and federal authority without any warrant in the text or history of the CWA, and in direct contradiction of the relevant federal statute. 

Additional Burdens on Agriculture Imposed by the 2015 Rule

The definition of “waters of the United States” is critically important to agriculture. Farmers support clean water and work hard to protect our natural resources. However, the 2015 rule has more to do with land than water. It is a “land grab” that creates a huge regulatory burden for farmers and others who depend on their ability to work the land; increases costs for farmers and others; and produces confusion and uncertainty. In particular, the so-called “Clean Water Rule” provided none of the “clarity” and “certainty” it promised, instead creating confusion and risk by providing the Agencies with almost unlimited authority to regulate, at their discretion, any low spot where rainwater collects, including common farm ditches, ephemeral drainages, agricultural ponds, and isolated wetlands found in and near farms and ranches across the nation.

The 2015 rule defines terms like “tributary” and “adjacent” in ways that make it impossible for a typical farmer to know whether the specific ditches or low areas at his or her farm will be deemed “waters of the U.S.” As noted previously, however, these definitions are certainly broad enough to give regulators (and citizen plaintiffs) plenty of room to assert that such areas are subject to CWA jurisdiction. 

The Agencies did not argue that they need to regulate farming to protect navigable waters—and in fact denied that farming would face any additional regulation under the rule. Yet, the 2015 rule provides sweeping authority to require permits for countless ordinary farming practices nationwide. At the same time, while the Agencies claimed the 2015 rule was faithful to key Supreme Court decisions, the Supreme Court admonished the Agencies not to rely on the “ordinary high water mark” (OHWM) indicator as a basis for identifying jurisdictional features. The plurality opinion in Rapanos criticized the use of the OHWM as an indicator of jurisdiction because it “extended the waters of the United States to virtually any land feature over which rainwater or drainage passes and leaves a visible mark— even if only the presence of litter and debris.” Justice Anthony Kennedy rejected the OHWM as providing “no such assurance” of a reliable standard for determining a significant nexus.

The 2015 rule was also driven by the mistaken view that protection of water resources depends on extending federal jurisdiction to almost all waters—including landscape features that stretch the bounds of the concept of “water,” let alone “navigable water.” As a result, it defines “waters of the U.S.” so broadly as to impermissibly “readjust the federal-state balance” and ignore “Congress[’s] cho[ic]e to ‘recognize, preserve, and protect the primary responsibilities and rights of States … to plan the development and use … of land and water resources.” The Supreme Court ordinarily expects a “‘clear and manifest’ statement from Congress” to authorize “an unprecedented intrusion into traditional state authority” over the regulation of land and water use. The phrase “waters of the United States” hardly qualifies as the “unmistakably clear” statutory language necessary to show that “Congress intend[ed] to alter the usual constitutional balance between the States and the Federal Government.” And there is no doubt that the regulation of land and water use by the Agencies would displace a “quintessential state activity.” The CWA cannot lawfully be used by the Agencies to achieve what amounts to nationwide land use zoning authority.  

PFB commends EPA for taking this important first step toward developing a new definition of “waters of the United States” that will protect water quality while also promoting economic growth, minimizing regulatory uncertainty, and respecting the proper roles of Congress and the states under the Constitution.   

The 2015 rule was stayed by both a federal district court and a federal court of appeals due to its apparent legal flaws and the substantial harm it would cause—particularly to the state Agencies forced to implement it. Challengers raised numerous substantive and procedural defects in the rule, including that the rule exceeds EPA’s statutory authority, imposes burdensome regulatory uncertainty, was finalized in violation of mandatory procedural requirements designed to ensure a well-informed result, and is otherwise unlawful. In all, the rule was challenged in multiple courts by all sides (31 states and 53 non-state parties, including environmental groups, state and local governments, farmers, landowners, developers, businesses, and recreation groups).  

The Agencies have valid and numerous justifications to rescind the 2015 rule because its provisions are, in various respects, beyond the Agencies’ statutory authority, inconsistent with Supreme Court precedent, and contrary to the goals of the CWA, including the Act’s goal to “recognize, preserve, and protect the primary responsibilities and rights of states to prevent, reduce, and eliminate pollution.” The Agencies’ failure to seek input from state and local entities during the development of the 2015 rule contributed to its legal flaws and lack of clarity. There are ample reasons to simply rescind the 2015 rule—period—to maintain the status quo indefinitely rather than move forward with such a dangerous and unlawful regulation.

However, PFB also supports the Agencies’ plan to undertake a substantive rulemaking to reconsider the definition of “waters of the United States.” There are many flaws with the pre-2015 regulations and guidance documents that should be addressed through a new rulemaking. We will continue to support a rulemaking to clearly articulate the extent of federal CWA authority. Thank you very much for the opportunity to comment.

Grant R. Gulibon
Director, Regulatory Affairs