February 7, 2022
Oceans, Wetlands and Communities Division Office of Water (4504–T)
Environmental Protection Agency 1200 Pennsylvania Avenue NW, Washington, DC 20460
Office of the Assistant Secretary of the Army for Civil Works Department of the Army
108 Army Pentagon
Washington, DC 20310–0104
RE: Revised Definition of “Waters of the United States” – 86 Fed. Reg. 69,372 –Docket ID No.EPA-HQ-OW-2021-0602 FRL-6027.4-03-OW
Dear Ms. Christensen and Ms. Jensen:
On behalf of Pennsylvania Farm Bureau (PFB) the state’s largest general farm organization, I am writing to submit comments to the U.S. Environmental Protection Agency (“EPA”) and U.S. Army Corps of Engineers (“Corps”) (together, “the Agencies”) in response to the Agencies’ December 7, 2021 Proposed Rule entitled “Revised Definition of Waters of the United States” (“Proposed Rule”). See 86 Fed. Reg. 69,372 (Dec. 7, 2021) – Docket ID No.EPA-HQ-OW-2021-0602 FRL-6027.4-03-OW. The
purpose of these comments is to provide particular emphasis on those aspects of the Proposed Rule that most directly affect farmers in Pennsylvania.
With more than 7.3 million acres of farmland, and $7.8 billion in cash receipts from production agriculture, agriculture is a leading economic enterprise for Pennsylvania. Farmers are incredibly productive, while also working hard to be responsible stewards of the land, water and environment. Our farmers depend on being able to use their land to produce food, fiber and energy not only for consumers in the United States but around the world. One of the biggest concerns for farmers over the last many years is the definition of a “waters of the United States” or WOTUS because this definition ultimately impacts the ability of farmers (and other landowners) to use their land.
This is why PFB has participated in numerous rulemaking proceedings on this issue for decades.
Farming is a water-dependent activity, regardless of the type of operation a farmer may have. For this reason, farming tends to occur on lands where there is either plentiful rainfall or adequate water available for irrigation. There are many features on those lands that are wet only when it rains and that may be miles from the nearest “navigable” water. Farmers regard these features as simply low spots on farm fields.
The regulation of low spots on farmlands and pastures as jurisdictional “waters” means that any activity on those lands that moves dirt or applies any product to that land could be subject to regulation. Everyday activities such as plowing, planting, or fence building in or near ephemeral drainages, ditches, or low spots could trigger the Clean Water Act’s (CWA) harsh civil or even criminal penalties unless a permit is obtained. The tens of thousands of additional costs for federal permitting of ordinary farming activities, however, is beyond the means of many family or small business farm owners. And even those
farmers who can afford it should not be forced to wait months, or even years, for a federal permit to plow, plant, fertilize, or carry out any of the other ordinary farming activities on their lands. For all of these
reasons, farmers have a keen interest in how the Agencies define “waters of the United States.”
Unfortunately, farmers across Pennsylvania are disappointed by the Agencies’ proposed rule. We feel strongly that the Navigable Waters Protection Rule (NWPR) was a clear, defensible rule that appropriately balanced the objective, goals, and policies of the CWA. The Agencies should keep the NWPR in place, rather than revert to definitions of WOTUS that test the limits of federal authority under the Commerce Clause and are not necessary to protect the Nation’s water resources. The Agencies can ensure clean water for all Americans through a blend of the CWA’s regulatory and non-regulatory approaches, just as Congress intended. It is unnecessary (and unlawful) to define non-navigable,
intrastate, mostly dry features that are far removed from navigable waters as “waters of the United States” to try to achieve the Act’s objective.
As explained in more detail below, farmers have significant concerns with the Agencies’ Proposal to codify both the “relatively permanent” and “significant nexus” approaches in a radical expansion of the Agencies’ jurisdiction as compared with the NWPR and even as compared to the pre-2015 regulatory regime that the Agencies are currently implementing. Moreover, given the Supreme Court’s recent decision to revisit the Agencies proper scope of jurisdiction under the CWA, the Agencies should pause this rulemaking until after the Court rules in Sackett v. Environmental Protection Agency.
I. The Proposed Rule Will Profoundly Affect Everyday Farming Activities.
As mentioned previously, farming is a necessarily water-dependent enterprise. Fields on farms often have low spots that tend to be wet year-round or at least contain water seasonally. Some of these areas are ponds used for purposes such as stock watering, providing irrigation water, or settling and filtering farm runoff. Irrigation ditches also carry flowing water to fields throughout the growing season as farmers open and close irrigation gates to allow water to reach particular fields. These irrigation ditches are typically close to larger sources of water, irrigation canals, or actual navigable waters that are the source of irrigation water—and they channel return flows back to these source waters. In short, America’s farm lands are an intricate maze of ditches, ponds, wetlands, and so-called “ephemeral” drainages.
Considering drains, ditches, stock ponds, and other low spots on farmlands and pastures as jurisdictional “waters” opens up the potential for regulation of activities on those lands that move dirt or apply products to the land. Farmers need to apply weed, insect, and disease control products to protect their crops. Fertilizer application is another necessary and beneficial aspect of many farming operations that is nonetheless swept into the CWA’s broad scope (even organic fertilizer, i.e., manure). 40 C.F.R. §
122.2 (defining “pollutant”). On much of our most productive farmlands (i.e., areas with plenty of rain), it would be extremely difficult to avoid entirely the small wetlands, ephemeral drainages, and ditches in and around farm fields when applying crop protection products and fertilizer. And yet, permits could also be required for those activities, and even accidental deposition would be unlawful, even when those features are completely dry and even harder to differentiate from the rest of the fields.
Many family and small business farm owners can ill afford the tens of thousands of dollars in additional costs for federal permitting of ordinary farming activities. Even those who can afford the permitting should not have to wait months, or even years, for a federal permit to plow, plant, fertilize, or carry out any of the other ordinary farming activities on their lands. Yet this is exactly what could occur should the Agencies finalize their Proposal.
Additionally, in a state like Pennsylvania, where the size of farms are smaller and the economies of scale of farming operations are lower than other regions of the country, farmers’ ability to make consistent and economically-sound land use decisions that minimize risks and uncertainty is critical.
II. The Proposed Rule Thrusts Farmers Back Into a World of Uncertainty and Inconsistency.
The 2015 Rule—where it took effect—dramatically expanded the scope of CWA jurisdiction over land used for normal farming activities. The Agencies’ proposal this time around is different only in degree and timing, not kind. Their aggregation policy potentially allows the Agencies to assert jurisdiction over any sometimes-wet feature which, taken together with other sometimes-wet features in the region (broadly defined), have what the Agencies consider to be a “significant nexus” on a
“foundational water.” But the term “significant nexus” generated significant confusion and inconsistent results under the pre-2015 regime, and the Proposed Rule is likely to only make things worse.
Furthermore, the process to arrive at a jurisdictional determination is tortuous and costly. A jurisdictional determination could take between six months and a year to receive, and in the meantime a farmer is stuck in limbo. The harm from delay is only compounded once an affirmative jurisdictional determination occurs, with the cost of consultants, engineers, permit applications, and mitigation and compliance costs that make the process simply untenable for many. Indeed, it can amount to a $500/acre or greater decrease in value of the land. Mitigation costs to proceed with development could be into the thousands of dollars per linear foot. Adding insult to injury, the Agencies’ proposed approach of case-by-case analysis threatens to create a seriously unequal playing field, where identical features may be viewed as jurisdictional or not depending upon where the property is located. This is not a dependable, clear rule.
Rather, the Agencies are setting up a system that is based in arbitrary decision-making.
Perversely, the Agencies’ broad assertion of jurisdiction can make it more difficult for farmers to engage in soil conservation activities. Farmers have more incentive than most to try to preserve topsoil on their land; as such, where land is at risk of erosion they may want to engage in mitigation activities.
Farmers also often take on projects that provide stormwater management, wildlife habitat, flood control, nutrient processing, and improve overall water quality in uplands and ephemeral features. But if a farmer could not do this without applying for a federal permit, it may be cost-prohibitive, resulting in environmental degradation, not protection.
In sum, the Proposed Rule threatens to impede farmers’ ability to provide safe, affordable, and abundant food, fuel, and fiber to the citizens of this nation and the world. The concerns that farmers have are not hyperbole nor are they isolated occurrences. They are lived experiences illustrating the pitfalls of returning to an overly expansive definition of “waters of the United States” and, specifically, an outsized view of what it means for a water to have a “significant nexus.”
III. Rather than Providing Clarity and Certainty for Farmers, the Proposed Rule Makes Opaque Pronouncements Leading to Potentially Unlimited Jurisdiction.
A. The Proposed Rule’s Case-by-Case, “Significant Nexus” Approach Is Unconstitutionally Vague, Leaving Farmers without Any Clarity of What the Status of Their Land May Be.
While the Agencies have resisted the urge to again categorically regulate all tributaries and all adjacent waters like they did in the 2015 Rule, the case-by-case approach in the Proposed Rule is no less of an overreach. The Agencies once again propose to resurrect the same broad and confusing significant nexus standard that was the foundation for the 2015 Rule. It is clear the Agencies will just expand their jurisdiction one watershed at a time, instead of by general fiat—but it is only a matter of time until the
Agencies will find a significant nexus. This illustrates the almost limitless jurisdiction that the Agencies will have over private property.
The significant nexus standard can be used to assert jurisdiction over tributaries, adjacent
wetlands, and basically any “other water” because the Proposed Rule uses undefined, amorphous terms like “similarly situated” and “more than speculative or insubstantial” that will leave farmers guessing about whether waters on their lands are WOTUS. See 86 Fed. Reg. at 69,449-50. To make things worse, the Agencies throw out a bunch of alternatives for implementing some of these terms. See id. at 69,439-
40. This suggests that regulators can manipulate the standard to reach whatever outcomes they please and that farmers may not know the outcomes until they are already exposed to civil and criminal liability, including devastating penalties.
Because of the subjective nature of the Proposed Rule, it all but guarantees that regulators’ assessments are bound to vary from field-office to field-office and case to case. This approach does not give ordinary farmers fair notice of when the CWA actually applies to their lands or conduct, nor does it provide any assurance against arbitrary or discriminatory enforcement.
B. “Tributaries” Cannot Include Ephemeral Drainages.
Most of the time, ephemeral drainages are dry land—they are not flowing rivers or streams. It is simply shocking to farmers that the Agencies could interpret a “tributary” as reaching ephemerals and thereby sweeping in many features that look just like land. The NWPR provided important clarification regarding the status of ephemeral streams that flowed only in response to precipitation by correctly concluding that they were not WOTUS. The Agencies’ rapid about-face in this proposal is disappointing, to say the least.
The Agencies set off on the wrong foot by failing to define tributary in the first place. The lack of a definition of tributary with measurable criteria results in significant vagueness and fairness concerns,
especially where the application of “tributary” could substantially expand or limit the scope of jurisdiction under the CWA.
By failing to provide clarity, the Agencies are forcing farmers to either: (1) presume that an ephemeral drainage that carries water only when it rains will be deemed a jurisdictional tributary, or (2) seek a jurisdictional determination from the Corps, or (3) take a chance that their activities near or in such features may result in unlawful discharges carrying civil penalties of nearly $60,000 a day. See 87 Fed.
Reg. 1,676, 1,678 (Jan. 12, 2022). Even worse, a farmer could face criminal liability with jail time and up to $100,000 a day in fines. With such stiff statutory penalties at stake—including the loss of one’s own personal liberty—farmers deserve more clarity.
The Agencies’ approach to seasonal flow under the relatively permanent standard could also unlawfully sweep in some ephemeral water features (and too many intermittent features for that matter). The Agencies’ propose to employ a vague “flow at least seasonally” approach, where by “seasonally” they mean generally three months, or possibly even less time depending on what part of the country the water feature is located in. The Agencies do not articulate any scientific or legal basis for interpreting seasonal flow to mean three months.
Ultimately, the question is not whether tributaries or ephemeral streams are “important” or may as a scientific matter have some connection with downstream navigable waters, see, e.g., 86 Fed. Reg. at
69,390; rather, the question is whether they should be considered as falling within the bounds of federal jurisdiction. As with so many other categories in the Proposed Rule, the agencies collapse that distinction.
C. The Adjacency Category Should Be Limited to Wetlands that Directly Abut Other WOTUS.
Pennsylvania Farm Bureau recommends that the Agencies assert jurisdiction over only wetlands, and only those wetlands that are directly abutting other “waters of the United States.” The Proposed Rule instead grasps at the constitutional limits of the Agencies’ jurisdiction.
First, the Proposed Rule’s approach to “relatively permanent” is not consistent with the plurality’s opinion in Rapanos v. United States, 547 U.S. 715 (2006), because the Agencies deprive the Court’s
requirement for a “continuous” connection of all meaning by turning it into a mere “physical connection or ecological connection” test. Id. at 69,435. Further, the criteria for establishing whether a wetland is
“adjacent”—such as whether a “shallow” subsurface connection exists or whether wetlands are in reasonably close proximity to a jurisdictional water—stray too far from the plurality’s test and raise vagueness and fair notice concerns.
Second, we also oppose the significant nexus approach to adjacent wetlands in the Proposed Rule. The Agencies’ approach of aggregating wetlands is flatly contrary to Justice Kennedy’s requirement that each wetland be judged in its own right to determine whether it (and it alone) bears a significant nexus to traditional navigable waters.
Finally, the Agencies’ proposal to aggregate the functions performed by all of the wetlands in an entire watershed (or similarly broad region) to evaluate whether a significant nexus is present expands the reach of the significant nexus test even farther, and is even less clearly implementable.
Rather than finalize the Proposed Rule, the Agencies should assert jurisdiction over only those wetlands that are directly abutting “waters of the United States;” in so doing, the Agencies would provide much needed clarity that is capable of easy application in the field. Only those wetlands that directly touch “waters of the United States” would meet our definition of “adjacent.”
D. The Broad Sweep of the Agencies’ Proposal for “Other Waters” Is Likewise Unlawful.
This new category would reach many intrastate, non-navigable water features that would be
considered “isolated” under Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Eng’rs, 531 U.S. 159 (2001). This category would extend federal regulatory authority to, for example, any
relatively permanent (defined too broadly), standing or continuously flowing “other water” that has a continuous surface connection to a relatively permanent, non-navigable tributary (i.e., an (a)(5)(i) water) of a non-navigable interstate water or wetland. See 86 Fed. Reg. at 69,449-50 (proposed 33 C.F.R. § 328.3(a)(3)(i) & 40 C.F.R. § 120.2(a)(3)(i)).
Worse still is the Proposed Rule’s application of the significant nexus standard to “other waters,” not least because, if that standard is ever to be applied, it should be to wetlands, and wetlands only.
Applying the significant nexus standard elsewhere allows the Agencies to aggregate all similarly situated “other waters” (e.g., prairie potholes or ponds that are not part of a tributary system) across an entire watershed and claim jurisdiction over all such features based on a finding that they collectively perform a single important function for a downstream “foundational” water. This is plainly not what Congress could have intended, and not what the Supreme Court would allow. It appears, though, that under this Proposal, countless small wetlands or other small waters that are far removed from traditional navigable waters
(including ephemeral tributaries and ditches) or coast nevertheless will be potentially within the scope of federal jurisdiction. For these reasons, the Agencies should withdraw the “other waters” category.
E. The Agencies Should Clearly Exclude Farm Ditches and Artificial Farm Ponds.
Ditches and similar water features commonly found on farms that are used to collect, convey, or retain water should be excluded from the definition of “waters of the United States.” Without adequate drainage, farmlands could remain saturated after rain events and unable to provide adequate aeration for crop root development. Drainage ditches and other water management structures can help increase crop yields and ensure better field conditions for timely planting and harvesting. In areas without sufficient rainfall, irrigation ditches and canals are needed to connect fields to water supplies and to collect and convey water that leaves fields after irrigation. Put simply, ditches are vitally important to support American agriculture and ultimately to feed the growing population.
Therefore, farmers strongly recommend that the definition of WOTUS should retain standalone exclusions for ditches (including, but not limited to drainage ditches and irrigation ditches), and artificial ponds (including, but not limited to, stock watering ponds, irrigation ponds, and sediment basins).1 But if these exclusions are to be meaningful, they must not be limited to features constructed on dry land or upland. Because these features are constructed to store water, it would not typically be useful for them to be constructed along the tops of ridges, for example. Rather, often the only rational place to construct a ditch or a farm or stock pond is in a naturally low area to capture stormwater that enters the ditch or pond through sheet flow and ephemeral drainages. Depending on the topography of a given patch of land, ditch or pond construction may be infeasible without some excavation in a natural ephemeral drainage or a low area with wetland characteristics.
The NWPR appropriately recognized the practical realities surrounding ditches on farm lands by excluding ditches so long as they are not constructed in WOTUS and by excluding other water features found on agricultural lands (e.g., farm, irrigation, and stock watering ponds) so long as they were
“constructed or excavated in upland or in non-jurisdictional waters.” See 85 Fed. Reg. at 22,338. We strongly support both of these exclusions as codified in the NWPR.
F. The Agencies Must Give Full Effect to the Prior Converted Cropland Exclusion.
Pennsylvania’s farmers support the Agencies’ proposal to maintain the decades-old exclusion for prior converted croplands (“PCC”). Farmers across Pennsylvania rely on this critical exclusion which establishes that PCC may be used for any purposes so long as wetland conditions have not returned. In practice, however, numerous issues have arisen regarding the interpretation and application of the PCC exclusion. For this reason, we have long advocated for a clear, commonsense definition and clarification of PCC in the Agencies’ regulations. We welcomed the NWPR’s approach to PCC, which was designed to improve clarity and consistency regarding the implementation of the exclusion, and are disappointed to see that the Agencies are not proposing to carry it forward. The lack of a clear definition of PCC has
1 Farmers also rely on conservation infrastructure to support their operations, including grassed waterways, terraces, sediment basins, biofilters, and treatment wetlands. These features serve important functions such as slowing stormwater runoff, increasing holding time before water enters a stream, sediment trapping, increasing soil infiltration, and pollutant filtering. The Agencies should also clarify that such features are excluded unless they were constructed in a WOTUS.
presented problems in the past regarding when, for example, PCC can be “recaptured” and treated as jurisdictional.
We oppose implementation of the PCC exclusion for CWA purposes in a manner consistent with the USDA’s “change in use” principle. The 1996 Farm Bill adopted that concept relevant to USDA wetlands certifications (not PCC certifications), but those changes did not affect the Agencies’ determination of what constitutes “waters of the United States” for CWA purposes. Far from merely codifying the pre-2015 regulatory regime that the Agencies claim to be implementing, incorporating a
“change in use” policy into the PCC exclusion would upend nearly 30 years of largely consistent implementation in accordance with the 1993 Rule.
We recommend that the Agencies retain the following clarifications from the NWPR, which will help reduce confusion over how the PCC exclusion is implemented: (i) formal withdrawal of the 2005 Joint Guidance and any other guidance that is inconsistent with the 1993 regulations; (ii) a site can be PCC regardless of whether there is a PCC determination from either USDA or the Corps, as there is no specific requirement for issuance of a formal PCC determination, and USDA does not provide determinations unless a farmer is seeking benefits under the conservation compliance programs; and (iii) PCC designations are retained so long as land has been used for a broad range of agricultural purposes at least once in the preceding five years.
IV. The Agencies’ Expanded Assertion of Federal Jurisdiction Threatens to Shrink the Scope of Congress’s Exclusions to the Point of Uselessness.
Congress plainly expected that most activities on farmlands and pastures would be covered by state programs aimed at controlling nonpoint source pollution and would not be subject to federal permit requirements. Congress specifically included in the CWA several critical statutory exemptions for agriculture, each of which would be unlawfully undermined by the Proposed Rule:
- Section 404 exemption for “normal” farming and ranching activities
- Section 404 exemption for construction of farm or stock ponds
- Exclusions of agricultural stormwater discharges and return flows from irrigated agriculture from the definition of “point source” and hence, from Section 402 permitting
When Congress enacted these exemptions, it used language that assumed that farming and ranching activities generally occur on land, not in “waters of the United States.” An expansive
interpretation of the phrase “waters of the United States”—one that effectively defines land to be water— would nullify Congress’ specific choice to avoid federal permitting requirements for farming and ranching.
V. The Proposed Rule Raises Significant Federalism Concerns
The Agencies continue to give States short shrift in the Proposal, leaving to the States only very few water features the Agencies do not deem fit to regulate themselves. But the Agencies do so at their peril, for it simply is not the case that Congress intended to diminish States’ role in water quality
protection so completely. Rather, in the CWA Congress sought to preserve and protect States’ primary responsibilities and rights to plan the development and use of land and water resources, which the Supreme Court has recognized.
There is a common misassumption that land areas neighboring waters and wetlands will not be subject to effective water quality regulation and protection unless federal agencies are proactively engaged. However, many state regulatory agencies, including Pennsylvania’s, play a key role in
regulating water quality within their own state. Pennsylvania’s scope of regulatory jurisdiction under the state’s water quality law is broader than under the federal Clean Water Act. State regulators and those potentially regulated under our state’s water quality laws should be able to rely on analyses and determinations made, without being countermanded at some point in the future by federal enforcers applying nebulous jurisdictional standards. Definitions that more clearly identify the extent and limitation of federal authority helps states in their effective management, maintenance and enforcement of local water quality standards.
VI. The Agencies Have Failed to Provide a Meaningful Opportunity for Notice & Comment
The Agencies’ meager 60-day public comment period for this proposal does not provide an appropriate opportunity for interested stakeholders to review all of the supporting documents in the docket―not all of which were even available when the comment period was opened―and comment on the proposed rule. Moreover, the Agencies’ “regional roundtables” are focusing not on this Proposal, but rather on identifying regional similarities and differences that should be considered as part of a separate rulemaking. Even the Obama Administration provided more time—207 days, in all—to comment on the proposal.
Perhaps the Agencies did not believe that a lengthy comment period would be necessary, since they describe the Proposed Rule as a mere codification of prior practice. E.g., 86 Fed. Reg. at 69,406. That description provides little comfort about this proposal, given the Agencies’ past exceedances of their authority under the Constitution and the Act. Moreover, that description is inaccurate. The Proposed Rule is not as limited in scope as the Agencies suggest; to the contrary, the Proposed Rule is a thinly-veiled attempt to expand how the Agencies are currently implementing the relatively permanent and significant nexus standards by, among other things, appealing to purported deference to the Agencies’ evolving ecological judgment. In essence, the Agencies are attempting to convert a test that Justice Kennedy intended to be a check on “unreasonable applications of the statute,” Rapanos, 547 U.S. at 782 (Kennedy, J., concurring) into a justification for reaching as far as, or arguably further than, the Agencies did under the Migratory Bird Rule or the “any hydrological connection” theories. The Agencies cannot pretend that the Proposed Rule—which required dozens of pages of the Federal Register and even more in supporting documents—requires so little time to review and comment on. Given the importance of this issue and the inadequately short comment period, the Agencies should respect the calls for more time.
Pennsylvania’s farmers recommend that the Agencies withdraw the Proposed Rule. Retaining the NWPR is a far preferable alternative, given the certainty and predictability it provided. Even were the Agencies to seek to amend it, the NWPR is a more appropriate foundation for a durable and defensible rule than a return to the flawed pre-2015 framework. Regardless of the course the Agencies choose, they must include all stakeholders in a more robust and meaningful dialogue to arrive at a rule that respects congressional intent and the limits the Supreme Court has recognized. We thank the Agencies for the opportunity to provide these comments.
Rick Ebert President