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July 7, 2014


Jo-Ellen Darcy, Assistant Secretary of the Army (Civil Works)
Department of the Army
108 Army Pentagon, Room 3E446, Washington, DC 20310-0108


Robert Bonnie, Under Secretary for Natural Resources and Environment
U.S. Department of Agriculture
1400 Independence Ave., S.W. , Washington, DC 20250


Nancy Stoner, Acting Assistant Administrator for Water
U.S. Environmental Protection Agency
1200 Pennsylvania Ave, NW (4101M) , Washington, DC 20460


Re: EPA–HQ–OW–2013–0820

Secretary Darcy, Secretary Bonnie, and Administrator Stoner:


Pennsylvania Farm Bureau (PFB) is pleased to offer its comments on the “Interpretive Rule Regarding the Applicability of Clean Water Act Section 404(f)(1)(A)” (Interpretive Rule). PFB appreciates the extension of the comment period on the interpretive rule and the opportunity it provides to share our views on an issue of paramount importance to our members.


PFB is a general farm organization, made up of more than 58,000 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 member families throughout the United States. In addition to the comments we are offering today, we want to affirm our support of any comments to be filed by AFBF on this topic, and would request that such comments be treated as part of the comments contained herein.


General Comments

PFB understands the general need for federal agencies to be consistent in analyses and determinations of matters related to federal grants and loan projects, including projects that provide federal funding to farmers for implementation of conservation practices and installation of conservation infrastructure on farms. In that regard, it makes some sense for agencies like EPA and the Corps to administratively defer to the judgment of NRCS in determinations of whether projects receiving federal funds for implementation conservation practices or infrastructure are to be given unequivocal status as exempt from EPA or Corps regulation as part of “normal farming practices.” Deferral of EPA and the Corps to NRCS ensures confidence among those farmers who voluntarily participate in NRCS-funded projects will do so without risk of future sanction and penalty by regulatory officials who may attempt to assert differing views on the propriety of farm projects that NRCS financially supports.


It is clear, however, from our analysis of the interpretive rule—as well as the information associated with it and the proposed “Waters of the U. S.” rule—that the agencies’ intent under this rule goes well beyond merely improving consistency in administrative management of federally funded projects on farms. Normally, memorandums of understanding among agencies will be more than adequate in accomplishing this intent.


Instead, the tone and flavor of this interpretive rule essentially asserts a much broader intent to expand the federal government’s jurisdiction under the Clean Water Act and using National Resources Conservation Service (NRCS) standards as the sole measurement of what constitutes “normal” farming practices that are exempt from federal regulation and enforcement action. The effect of the interpretive rule’s assertion is to seriously limit the scope of traditional and commonly recognized farming practices that are to be given exemption under the Clean Water Act, greatly expand the orbit of activities that EPA and the Corps would otherwise require a permit in the wake of this interpretive rule, and leave a multitude of conservation practices commonly recognized as providing significant improvement to environmental quality with little to no future protection merely because they are not fully in line with NRCS specs.


First of all, EPA’s assertion that the interpretive rule is neither regulatory nor binding is undercut by the information provided on its own website about the rule, as well as by how it is being interpreted by EPA regions and Corps districts. EPA’s March 2014 “questions and answers” document makes clear that the agencies believe that the conservation practices listed therein take place in waters of the U. S., thus giving the interpretive rule regulatory effect. Furthermore, the proposed expansion of the definition of waters of the U.S. relies almost entirely on the personal judgment of agency staff to identify such waters. While the interpretive rule, on its face, does not assert such a presumption, the presumption is readily apparent from the coincidental pronouncement of the “Waters of the U.S.” proposed rulemaking. EPA and Corps staff will undoubtedly view the interpretive rule in the context of their regulatory function, and not in the context of just fostering consistency in administrative management of federal funding projects.


Without clear and express recognition in the interpretive rule that the “normal farming practices” is not merely limited to projects meeting NRCS standards and that common farming activities and commonly recognized conservation practices on farms also qualify for the exemption as “normal farming,” the interpretive rule will be narrowly construed and applied by EPA and the Corps within the framework of the framework of the finally adopted “waters of the U.S.” rule. Assuming there are no material changes in the final version of the proposed “Waters of the U.S.” rulemaking, the interpretive rule will be a de facto expansion of regulatory authority.


Second, we believe the practical effect of the interpretive rule is to require compliance with NRCS standards when undertaking any normal farming, silviculture, or ranching activity that federal officials, exercising their personal judgment, might consider to be located in a water of the U.S. EPA’s fact sheet, entitled “Clean Water Act Exclusions and Exemptions Continue for Agriculture,” makes it clear that the use of NRCS practices is binding.  According to the fact sheet:


To qualify for this exemption, the activities must be part of an established farming, forestry, or ranching operation, consistent with the statute and regulations and be implemented in conformance with Natural Resource Conservation Service technical standards.


Similarly, the agency memorandum of understanding (MOU) asserts that: “Discharges in waters of the U.S. are exempt only when they are conducted in accordance with NRCS practice standards.” Given the above, we believe it is highly likely that any activity that EPA and the Corps judge to be out of conformance with NRCS standards will be questioned.

 

Finally, we must make note of two important and related concerns. While the agencies state that they are not changing their interpretation of Section 404(f) of the Clean Water Act under the interpretive rule or its accompanying MOU, Section 404(f)(2) “recaptures” regulatory authority over the activities exempted under Section 404(f)(1) if the agencies believe there is any change in hydrology, because a change in hydrology is viewed as a change in the use of a “water of the U.S.”  Many conservation practices are designed to control the movement of water and thus could be considered changes in hydrology.  If these practices are carried out on land that is now considered a water of the U.S., and the practices involve the movement of dirt (such that they may be considered dredging or filling), then these conservation practices would not be exempt under the agencies’ current interpretation of Section 404(f)(2).  This change in interpretation of Section 404(f), along with others contemplated in the draft “Waters of the U. S.” rule, significantly increases the risk of legal action from federal agencies or via citizen lawsuits challenging the 404(f) exemptions. Farmers have been and continue to be concerned that abuses of these actions can and do occur, thus requiring them to mount costly, time-consuming defenses of their activities that even if successful divert scarce resources from their operations (which, sadly, is often the point).


Conclusion


The evidence available to Pennsylvania’s farmers overwhelmingly suggests that the intended effect of the interpretive rule is to narrow the scope of “normal farming activities” that are exempt under the CWA. General assertions being made by EPA and the Corps in the public and social media that no such narrowing of the “normal farming practices” is intended is wholly inconsistent with other materials produced by federal officials on this matter, as documented in the comments expected to be submitted by AFBF, and in our view, are not highly credible without clearer directives in the interpretive rule to recognize that NRCS conservation projects are but one subset of the scope of “normal farming practices” exempt under the Clean Water Act. PFB strongly recommends that the interpretive rule be withdrawn immediately.


Sincerely,
Grant Gulibon, Director, Regulatory Affairs
Pennsylvania Farm Bureau