July 7, 2014

Ms. Nancy Stoner                                                                   
Acting Assistant Administrator                                                           
Office of Water                                                                      
U.S. Environmental Protection Agency                                               
1200 Pennsylvania Ave. NW                          
Washington, DC 20460
Ms. Jo Ellen Darcy
Assistant Secretary (Civil Works)
Department of the Army
441 G. St. NW
Washington, DC 20314
Re: Docket ID No. EPA-HQ-OW-2013-0820-0001; Notice of Availability Regarding the Exemption From Permitting Under Section 404(f)(1)(A) of the Clean Water Act to Certain Agricultural Conservation Practices; 79 Fed. Reg. 22276, April 21, 2014.
Dear Ms. Stoner and Ms. Darcy:
The North Dakota Stockmen’s Association (NDSA) is an 85-year-old beef cattle trade organization, which is proud to represent nearly 3,000 North Dakota cattlemen and cattlewomen. Our organization works to unite, protect, promote, educate and serve our state’s beef cattle industry.
We respectfully submit these comments on the Interpretive Rule (IR) published in the Federal Register on April 21, 2014, (Docket ID No. EPA-HQ-OW-2013-0820-0001; 79 Fed. Reg. 22276) by the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps), which included a Memorandum of Understanding (MOU) with USDA’s Natural Resource Conservation Service (NRCS). The IR, along with the MOU between the agencies, increases the liability of farming and ranching operations under the Clean Water Act (CWA), would negatively impact farmer and rancher participation in conservation programs and was promulgated without input from the agricultural community. For these reasons and those that follow, we strongly encourage the agencies to withdraw the IR and ask that a dialogue be undertaken with the agricultural community prior to any future interpretive rules being promulgated that may alter the exemptions for agriculture Congress included in the CWA. 
  1. The IR Has Narrowed the Statutory Exemption Under § 404(f)(1)(A)
The NDSA believes the IR has narrowed the scope of the “normal farming, silviculture and ranching activities” exemption. (33 U.S.C. §1344(f)(1)(A), CWA §404(f)(1)(A)). That exemption already covers normal farming and ranching activities, such as building fence and grazing cattle for on-going operations, but the IR would require ranchers to meet the specific national conservation standards in order to receive the exemption, thus limiting the exemption to only NRCS-compliant fences and grazing plans. Grazing cattle and constructing and maintaining fence are generally not done as part of a “conservation activity,” but rather as routine everyday activities that take place on a farm or ranch. The IR’s requirement to meet the NRCS standard for Fencing (#382) and Prescribed Grazing (#528) now forces farmers and ranchers to comply with the standards for these normal ranching practices. Is it the agencies’ policy now that grazing cattle is a discharge activity subject to the 404 Dredge and Fill program? By including Prescribed Grazing in the list of selected practices that were chosen in part for their potential to discharge, the agencies have declared grazing to be a discharge activity. This proposition has never been asserted and, it is our belief that grazing should not be a discharge activity under Sec. 404 of the CWA.
The result is to force farmers and ranchers to comply with the once voluntary NRCS standards or face penalties for violating the CWA, in effect making those standards mandatory. The NDSA believes the true motivation behind the IR is to force farmers and ranchers to conduct routine activities according to NRCS standards, limiting their production activities and choices and adding significant costs. What the agencies have failed to recognize is that, by so doing, farmers and ranchers will simply avoid this CWA liability by not engaging in any conservation activities, either voluntary or cost-shared.
The federal agencies have not explained to the agricultural community why these normal activities and practices were not covered under the plain language of the statutory exemption. Unfortunately, the NDSA believes the IR has effectively limited the 404(f)(1)(A) exemption by precluding conservation practices outside those 56 chosen by EPA, the Corps and NRCS from being protected from 404 permitting and requiring producers to follow NRCS practice standards. By the language of the IR itself, it is clear that conservation activities or normal ranching activities falling outside those chosen by the agencies will no longer receive the exemption. If producers do not follow the NRCS standards, they now face liability for any discharge that touches a “water of the U.S.” The NDSA believes Congress provided the farming and ranching community with the exemption to insulate farmers and ranchers from permitting requirements under Sec. 404 when conducting common activities and practices that occur on their ranches, inevitably touching a ditch, pond or puddle that will now come under federal jurisdiction based on the proposed definition for “waters of the United States.” Requiring a Sec. 404 permit for activities like installing a fence will place a significant burden on cattle producers without any benefit.
In fact, we believe that removing normal ranching activities like construction and maintenance of a fence from the protection of the exemption flies in the face of Congressional intent when it included the “normal farming” exemption in the CWA. Even Senator Muskie, who sponsored the legislation in the Senate in 1971, stated that the exemption applies to those activities that “cause little or no adverse effects either individually or cumulatively.” The NDSA asserts that very few, if any, conservation practices would have an adverse effect on water quality, and, in fact, cumulatively, it is more likely that these practices will have positive impacts on water quality; therefore, the agencies’ interpretation should be that conservation practices in general, whether voluntary or cost-shared, should fall under the “normal farming and ranching” exemption. This would truly provide clarity to the agriculture community on this one aspect under the 404 permitting program.
  1. The IR Will Chill Participation in Conservation Activities
Due to the dramatic increase in liability for farmers and ranchers through the attempted narrowing of the 404(f)(1)(A) exemption by the federal agencies, farmers and ranchers will not be willing to participate in conservation programs. Cattle producers implement voluntary conservation practices as good stewards of the land. These practices protect the soil that grows the grass and grain our cattle consume and the water they drink. The NDSA cannot find a way around the liability that USDA, EPA and the Corps have created. The only way for ranchers to protect themselves and their operations from CWA liability is simply to not participate in conservation programs and not implement voluntary conservation efforts on their operations. The net effect of this IR will be a reduction in our nation’s water quality.
The IR and the accompanying Q&A document make it clear that practices implemented as part of a cost-shared contract with USDA or entirely voluntary must meet all the specifications and requirements under one of the 56 NRCS chosen practices to receive the “normal farming and ranching” exemption. The NDSA believes that voluntary conservation practices should not be required to meet NRCS standards for many reasons. First, producers who want to implement conservation practices on their own should be encouraged to do so, not discouraged. Telling producers that they either do it to NRCS standards and specifications or face CWA civil and criminal penalties is the fastest way to halt conservation efforts. Second, farmers and ranchers must be able to afford to implement practices, especially if they themselves are footing the bill entirely. Requiring NRCS standards be met can escalate the cost of implementing a practice tenfold. NRCS standards are the “gold standard,” and with that comes a cost, which many producers cannot afford. Limiting producers to only the NRCS way is going to prevent them from installing or maintaining practices that are beneficial to water quality. The agencies need to ask themselves whether a practice on the ground that has some benefit to water quality is better than not putting a practice in place at all. Third, USDA conservation programs have historically been based on a voluntary approach. The IR is completely turning that approach on its head. By threatening producers with 404 permits and CWA penalties, your agencies are forcing producers to comply with NRCS standards, making them no longer voluntary. If the only way to avoid the requirements is to avoid instituting conservation practices, that is what farmers and ranchers will ultimately do.
  1. The IR Provides No Real Assurances for Farmers and Ranchers
The IR does not provide clear and complete protection to farmers and ranchers from CWA enforcement. First, if the IR is mere guidance with an attached MOU, it can provide little legal protection to farmers and ranchers if challenged. As stated in the MOU, the list can be changed at any time without any notice and comment provided to the ranching community.
Second, the IR does not provide the needed assurance that farmers and ranchers will not be required to get § 402 NPDES permits for chemical applications on fields and pastures or from protection from requirements under Total Maximum Daily Loads (TMDLs) or Water Quality Standards (WQS). The expansion of the definition of “waters of the U.S.” proposed by the agencies would make many ephemeral streams in pastures and fields or roadside ditches “waters of the U.S.,” making chemical applications a point source discharge and subject to liability under the CWA. The agencies’ IR and subsequent presentations and outreach are misleading, indicating that the agricultural community is insulated from the expansion of the definition of “waters of the U.S.” In our view, ag is not insulated at all.
Third, the IR cannot protect farmers and ranchers from the “recapture provision” under Sec. 404(f)(2).This provision states, even if the activity listed is exempt, if EPA or the Corps believe that the activity would change the use, impair or reduce the reach of a water of the U.S., the exemption for that activity no longer applies and a § 404 permit is required.
  1. The IR Has Turned NRCS Into a CWA Compliance Agency
The immediate and unavoidable effect of the IR is to turn NRCS into a regulatory compliance agency for CWA enforcement purposes. The chilling effect on participation in conservation activities mentioned above will be compounded when NRCS is seen as wielding the final say on whether a producer is in violation of the CWA or not. Historically, NRCS has been seen as a friend to agriculture; helping producers achieve goals in production and conservation through technical and financial assistance. But, that perception and approach to cooperative and voluntary conservation will be upended by the IR.
The IR went into immediate effect upon publication in the Federal Register on April 21, 2014. We are concerned about reports that the Corps is now requesting NRCS’ judgment on whether conservation practices on producers’ lands are in compliance with NRCS standards, despite whether these are cost-shared practices or not. This is inappropriate and will overwhelm NRCS resources, requiring the agency to abandon their primary mission in assisting producers on the ground. Due to budget cuts, NRCS field offices and personnel are already low. Placing this burden of being EPA’s and the Corps’ CWA agriculture compliance agency will halt all productive activity by the agency because they will now be overwhelmed with conservation compliance requests.
Ranchers will no longer be willing to discuss their operations or seek advice and assistance from NRCS if NRCS is a CWA compliance agency. There is no way to avoid this from happening if the IR remains in effect.
  1.  Agriculture Had No Input Into the IR
Finally, the agricultural community was kept from the table when this rule was being discussed, developed and promulgated. Had agriculture been consulted, we and our peers could have enlightened your agencies on what the potential problems would be with such a rule.
The agencies should immediately withdraw the IR because of the detrimental impact it will have on water quality through decreased participation in conservation programs and the significant increase in liability it has placed on farmers and ranchers. Should the agencies continue to feel this type of action is necessary for clarity amongst the agricultural community, the agricultural community should be at the discussion table when any such rule is being discussed.
Thank you for this opportunity to share our concerns. If you have any questions about these comments, please feel free to contact our office at (701) 223-2522.
Jason Zahn