NCC Responds to Interpretive Rule

July 7, 2014

Water Docket
U.S Environmental Protection Agency
Mail Code 2822T
1200 Pennsylvania Ave. NW
Washington, DC 20460 

RE: Docket No. EPA–HQ–OW–2013–0820:Notice of Availability Regarding the Exemption From Permitting Under Section 404(f)(1)(A) of the Clean Water Act to Certain Agricultural Conservation Practices

The National Cotton Council (NCC) appreciates the opportunity to comment on the U.S. Environmental Protection Agency's (EPA) Interpretive Rule (IR) regarding the exemption from permitting under Section 404(f)(1)(A) of the Clean Water Act (CWA) to certain agricultural conservation practices which is already in effect. The NCC disagrees with EPA's assessment that the IR will expand agricultural exemptions. From our evaluation, we believe the IR will actually restrict the exemptions that Congress intended for agriculture. Therefore, the NCC urges EPA to withdraw the IR.

The NCC is the central organization of the U.S. cotton industry representing producers, ginners, merchants, cooperatives, textile manufacturers, cottonseed processors and merchandisers, and warehousers in 17 states stretching from California to the Carolinas. The NCC represents producers who historically cultivate between 10 and 14 million acres of cotton. Annual cotton production, averaging approximately 20 million 480-lb bales, is valued at more than $5 billion at the farm gate. While a majority of the industry is concentrated in the 17 cotton-producing states, the down-stream manufacturers of cotton apparel and home-furnishings are located in virtually every state. The industry and its suppliers, together with the cotton product manufacturers, account for more than 230,000 jobs in the U.S. In addition to the cotton fiber, cottonseed products are used for livestock feed and cotton-seed oil is used for food products ranging from margarine to salad dressing. Taken collectively, the annual economic activity generated by cotton and its products in the U.S. economy is estimated to be in excess of $120 billion.

The NCC disagrees with EPA's claim that the IR will expand protections for agriculture from Section 404 permitting. Congress amended the CWA in 1977 to make a clear exemption for "normal farming, silviculture, and ranching activities" from Section 404 dredge and fill permitting if conducted as part of an established farm or ranch operation. The 56 practices listed in the IR are normal farming activities and, therefore, already are exempted. These 56 listed practices are not inclusive of all possible normal farming practices and the NCC also asserts that normal farming practices not listed in the IR still enjoy statutory exemption.

The NCC believes that EPA has further eroded these exemptions by linking them to the implementation of USDA-Natural Resource Conservation Service (NRCS) standards. NRCS conservation standards are very detailed, specific and may be more time-intensive and expensive to implement than the methods currently employed by farmers which are no less effective. Previously, farmers could qualify for a Section 404 exemption without meeting the NRCS standards. Under the IR, farmers are not provided any flexibility in how they choose to conduct normal farming operation on their farms and are in jeopardy of being denied a Section 404 exemption as a consequence. The NCC does not understand how the EPA can view this linkage as a benefit for farmers.

The NCC believes that the IR will increase farmers' legal liability and anticipates citizen suits by environmental organizations. The Memorandum of Understanding established among USDA, EPA, and the Department of the Army states, "Landowners not relying on NRCS for technical assistance have the responsibility to ensure that implementation of the conservation practice is in accordance with the applicable NRCS conservation practice standard. It is important to emphasize that practices are exempt only where they meet conservation practice standards." The NCC believes that this language places a substantial burden on farmers which previously did not exist and opens them to legal liability.

Lastly, the IR raises a question over enforcement. It is unclear which agency will verify and enforce the implementation of NRCS standards. NRCS currently enjoys a very good working relationship with farmers. However, should the agency take on an enforcement role, that relationship will deteriorate and negatively impact all conservation programs to the detriment of environmental quality.

Given these serious concerns and the fact that the agricultural community was not consulted during the development of this IR, the NCC urges EPA to withdraw this rule.

Thank you for your consideration of our concerns and request.

Sincerely,

Mark Lange
President & CEO