Recommendations:
We would offer the following recommendations that we feel should be guiding principles for the agencies to follow in consideration of any proposed revisions to the WOTUS rule:

1. The Agencies should not make wholesale changes to the regulatory principles of WOTUS established under the Navigable Waters Rule. And the Agencies should definitely not propose changes in regulation that would revert the scope of federal regulatory jurisdiction back to the 2015 WOTUS rule. We feel the principles for determining federal regulatory jurisdiction established under the Navigable Waters Rule struck the proper balance of adequacy in protection of water quality within the limitations of authority established under federal law and Supreme Court precedent, and is a much better application of common sense in regulatory policy than under the 2015 WOTUS rule. Estimates resulting from at least one study concluded that nearly the entire portion (some 98 percent) of Pennsylvania’s land mass had become subject to federal regulatory jurisdiction under the 2015 WOTUS rule. Such an outcome from any assertion of federal “waters” jurisdiction is not only senseless and unacceptable. It also casts a perpetual and unpredictable cloud on whether and to what degree a landowner’s use and management of land may become subject to claim of intruding a “federally regulated water” at some point in the future. Individual farmers cannot afford a battery of scientists and lawyers in determining which areas of the farm may or may not be subject to federal jurisdiction or in responding to assertions of claims of federal jurisdiction violation by zealous enforcers of the Clean Water Act.

2. The Agencies should respect and adhere to the limitations of authority and federal regulatory jurisdiction prescribed under the Clean Water Act and governing Supreme Court precedent. Regardless of claims or concerns by environmental advocates of “potential threats to the environment” from land use activities practices, the Clean Water Act expressly limits the scope of federal regulatory jurisdiction. And limitations jurisdiction have been clearly affirmed and established by court precedent. The Agencies should make a strong effort to prescribe with distinct clarity in their regulatory framework lands and flows that are not subject to federal jurisdiction.

3. The Agencies should establish clear and concrete principles for WOTUS that farmers and landowners can easily understand and readily apply in determining which conditions and activities are subject federal regulatory jurisdiction and which are not. Historically, the WOTUS rules have provided little guidance that farmers and others more exposed to potential federal regulation can practically use and interpret in evaluating the scope and limitation of legal responsibility. As a result, many individuals face the ominous choice of hiring a team of professionals to make preliminary studies and evaluations to determine the scope of federal jurisdiction, assuming jurisdiction applies and subjecting themselves to the extensive and costly federal permitting process, or guessing and assuming they are not subject to federal jurisdiction and risk the financial and legal jeopardy of defending attempted regulatory and enforcement actions by federal officials with legal costs and potential assessment of tens of thousands of dollars per day in fines and penalties and potential jail time. While the Navigable Waters Rule has done a better job in that regard, we believe the Agencies should do more in expressly providing additional bright-line principles for persons to understand and apply.

4. The Agencies should expressly provide and extensively limit assertion of federal jurisdiction of non-navigable and short-term surface water flows and wetlands non-adjacent to permanent and navigable streams. While there may be a chance under abstract applications of “science” that land use activity near waters of temporary flow and isolated wetlands may “impact” permanently flowing and navigable waters, we believe the chance of such occurrence is so remote as to not warrant assertion of federal regulatory jurisdiction.

5. The Agencies should maintain and strengthen existing exclusions of federal regulatory jurisdiction for prior converted cropland, and continue to expressly include those exclusions established under the Navigable Waters Rule. Historically, the prior converted cropland exclusion has been an important component in delineating the limitation of federal authority on land traditionally used in agriculture for production of field crops. Efforts made in the Navigable Waters Rule to expressly define the scope and applications of the exclusion provide farmers with clearer understanding of activities that can be performed with lands that have qualified for this exclusion. And the definition adopted in the Navigable Waters Rule prevents attempts to apply contingent factors (such as type of use) to nullify application of the exclusion on lands whose attributes in protection of water quality have been eliminated.

6. The Agencies should include provisions in WOTUS that honor and defer to states’ determinations of land areas that are and are not subject to regulatory jurisdiction. There is common misassumption among the public at large that land areas neighboring waters and wetlands will not be subject to effective water quality regulation and protection unless federal agencies are proactively engaged. This notion ignores the legal and administrative measures that many states, including Pennsylvania, have taken to protect local streams and waters and the effectiveness those measures have been in maintenance and enhancement of local water quality. Pennsylvania’s scope of regulatory authority is broader than the standard applicable under the Clean Water Act. Officials and affected parties to administrative determinations that delineate areas within and outside the scope of state regulatory jurisdiction should be able to rely unequivocally on those determinations, without jeopardy of contrary or countermanding jurisdictional determinations by federal officials.

7. The Agencies should make an earnest and good-faith effort to be objective and open-minded in its consideration of any potential changes to the WOTUS rule and include the concerns of farmers and others most likely to be impacted in any regulations changes finally adopted. We strongly feel the Agencies seriously failed to make that effort during the round of proposed rulemaking leading to the adoption of the 2015 WOTUS rule. Basic principles of government should not cause the Agencies to have preconceived notions on their proposed rulemaking, nor should it cause the Agencies to politically engage in lobbying efforts with the public to garner support of their proposed rulemaking.

Inclusion of statement by PFB President Richard Ebert.

We are including as part of our commentary the remarks offered to the Agencies by our organization’s President, Richard Ebert, at the joint listening session of August 26. President Ebert’s remarks are provided in Appendix 1.
Conclusion.

Any questions you may have regarding the discussion above can be directed to my attention. Thank you for the opportunity to provide input on this important matter.

Sincerely,
John J. Bell
Environmental Issues Counsel
Pennsylvania Farm Bureau