Erin Flannery-Keith
c/o Water Permits Division, Office of Wastewater Management
Attn: Docket ID No. EPA-HQ-OW-2016-0145
U.S. Environmental Protection Agency
Mail Code 4203M
1200 Pennsylvania Ave. NW
Washington, DC 20460

Re: National Pollutant Discharge Elimination System (NPDES): Applications and Program Updates; Proposed Rule (81 FR 31343)
Dear Ms. Flannery-Keith:
The North Dakota Stockmen’s Association (NDSA) is an 87-year-old beef cattle trade organization representing more than 3,000 cattlemen and cattlewomen in our state. Some of those members operate feedlots, which would be designated as concentrated animal feeding operations (CAFOs). Many of these members have obtained National Pollutant Discharge Elimination System (NPDES) CAFO permits. Members with NPDES permits take great care to ensure they comply with permit requirements. They also take their responsibility to maintain our country’s natural resources and to promote a healthy environment seriously.
Thank you for this opportunity to comment on the Environmental Protection Agency’s (EPA) proposed changes to the NPDES program.
  1. The NDSA opposes EPA’s proposed revision regarding objection to administratively continued permits.
This proposed revision would allow EPA to object to administratively continued permits by providing EPA regional administrators the discretion to change the status of an administratively continued permit to a “proposed permit,” which would then trigger the federal review process outlined in 81 Fed. Reg. 31344, 31372.
This proposed revision is not supported by industry or state regulators and should be omitted from the final rule. It marginalizes a valuable tool afforded to states with authorized NPDES permit programs – the ability to administratively continue an existing NPDES permit in lieu of permit reissuance. This tool is important, because it allows states to prioritize limited resources and personnel to ensure the most efficient management of their NPDES program. EPA’s proposed revision disincentivizes the use of this tool by exposing state NPDES programs to additional federal oversight and, ultimately, denial of state permits. This would allow EPA to deny NPDES permits without due process afforded to the permit holders. This does not bode well for our permitted members and, moreover, creates a regulatory hook for the EPA to commandeer state NPDES programs.
The use of this new authority would put our NPDES-permitted members in peril. Denial of an administratively continued permit, which this rule revision entails, would leave our members without permit coverage and vulnerable to citizen lawsuits. It also raises a constitutional concern due to the lack of due process considerations. Lawful permit holders whose permit may be denied by the EPA through the exercise of this new administrative power should, in the very least, have a voice in the process. As the revision is currently drafted, there is no procedure to challenge the EPA’s decision to change a permit’s status.
The revision raises additional concern because it appears to be a self-grant of authority that only Congress can mandate.
Members also disagree with this revision because it would further insert EPA into the state management of the NPDES programs. This revision compromises the principle of cooperative federalism underlying the Clean Water Act.
  1. The NDSA opposes any additional burdens that will slow the NPDES permitting process.
The NDSA opposes the augmentation of Endangered Species Act (ESA) consultation on NPDES permits beyond what is currently required by law. Some commenters have suggested that EPA should conduct a more extensive ESA consultation by partnering with the U.S. Fish and Wildlife Service. We disagree. Any consultation that goes beyond the current requirements of the law will cause a disruption in the permitting process and will further complicate it. EPA is already meeting their statutory obligation in conducting ESA consultation. Because this would impact NPDES-permitted members, we oppose any augmentation of the ESA consultation process on NPDES permits beyond what is currently required.
  1. The NDSA urges clarification that the proposed definition for “pesticide applications to the waters of the U.S.” does not reference the definitional change contained in the Clean Water Rule, which is subject to a nationwide stay while being litigated.
The EPA seeks to amend their regulations to include the definition of “pesticide applications to waters of the U.S.” The EPA does not clarify which waters of the U.S. (WOTUS) definition they are referring to in this pesticide application definition. The inclusion of WOTUS concerns the NDSA because the Clean Water Rule is the subject of active litigation. Furthermore, the Clean Water Rule is currently stayed by the Sixth Circuit Court of Appeals. Until the litigation is resolved, the reference to WOTUS will cause confusion and uncertainty with those to whom it will apply, including members who use crop protection products. Because the courts have yet to make a formal decision as to whether the Clean Water Rule is legal or illegal, NDSA recommends the EPA clarify that the term identified in the definition “pesticide applications to waters of the U.S.” references the definition of WOTUS in pre-existing guidance and regulations and not the definition which is currently the subject of active litigation and the stay.
  1. The NDSA urges EPA to apply privacy protections to any data collected by the Agency that implicates a privacy interest.
The EPA proposes to amend the NPDES application requirements to include seconds and method of measurement for any longitude and latitude data. We oppose any additional requirements, as they impose more burden on an applicant for an already burdensome process. The EPA states these changes are being proposed in order to improve consistency and precision. However, EPA concedes that the inconsistency lies in the forms currently used. Some forms require latitude and longitude to the nearest second, and other forms simply require latitude and longitude. The regulations are also inconsistent. We are concerned that by further restricting permit holders with these additional data requirements, the only benefit will be to those looking to use this information in a detrimental way. For example, this data may be used by people or organizations who will intend to cause biosecurity and agricultural terrorism issues.
If the revision is finalized as proposed, it may implicate a privacy interest because many farmers and ranchers maintain a personal residence on their operations. This information may be protected under privacy protections of the law. For example, the Freedom of Information Act (FOIA) Exemption 6 protects “personnel and medical and similar files” from disclosure if such information “would constitute a clearly unwarranted invasion of personal privacy.” Prior to any public release of this information, the NDSA contends that EPA must conduct a balancing test to determine whether this information is protected under FOIA and, therefore, must not be released. This test requires EPA to weigh the public’s interest in receiving the information against the individual’s right to privacy. We strongly urge EPA to consider the FOIA exemption and other relevant privacy protections before releasing any information that could risk the residences of farmers and ranchers. 
Thank you for this opportunity to comment and for your consideration as you move forward.
Steve Brooks