September 27, 2017
Department of the Army, Corps of Engineers (COE), Department of Defense; and, Environmental Protection Agency (EPA).
RE: Docket ID No. EPA–HQ–OW–2017–0203: Definition of ‘‘Waters of the United States’’—Recodification of Pre-Existing Rules
The National Cotton Council (NCC) is the central organization of the United States cotton industry. Its members include producers, ginners, cottonseed processors and merchandizers, merchants, cooperatives, warehousers and textile manufacturers. A majority of the industry is concentrated in 17 cotton-producing states stretching from California to Virginia. U.S. cotton producers cultivate between 9 and 12 million acres of cotton with production averaging 12 to 18 million 480-lb bales annually. The downstream manufacturers of cotton apparel and home furnishings are located in virtually every state. Farms and businesses directly involved in the production, distribution and processing of cotton employ more than 125,000 workers and produce direct business revenue of more than $21 billion. Annual cotton production is valued at more than $5.5 billion at the farm gate, the point at which the producer markets the crop. Accounting for the ripple effect of cotton through the broader economy, direct and indirect employment surpasses 280,000 workers with economic activity of almost $100 billion. In addition to the cotton fiber, cottonseed products are used for livestock feed and cottonseed oil is used as an ingredient in food products as well as being a premium cooking oil.
The National Cotton Council supports rescinding the 2015 Waters of the U.S. Rule because it is inconsistent with Supreme Court precedent, expands federal jurisdiction beyond measure into geographical features which are demonstrably not “waters” in any sense of the word, opens farmers up to huge liability for common agricultural practices, fails to preserve the States’ authority to regulate non-navigable waters, and fails to provide needed clarity and certainty for both regulators and the regulated community. Rescission of the 2015 Rule and the corresponding recodification of the pre-existing regulations will return the Code of Federal Regulations to the regulations that existed prior to the 2015 Rule and reflect the current legal regime under which the Agencies are operating pursuant to the Sixth Circuit’s October 9, 2015, nationwide stay order. In re EPA, 803 F.3d 804 (6th Cir. 2015).
NCC fully supports the more in-depth comments submitted to this docket by the Waters Advocacy Coalition and the Agricultural Nutrient Policy Council, both of which NCC is a member.
NCC thanks the agencies for proposing to rescind the 2015 Rule and recodifying the pre-existing regulation. While we realize it is necessary in the near term for clarity and regulatory certainty, there are many issues with the pre-existing regulations and guidance documents that need to be addressed through a new rulemaking. If they are not addressed properly and with some finality then we will continue to experience the negative economic consequences of this spiral of regulations that are not consistent with the statute, case law, and principles of cooperative federalism.
Senior Scientist, Regulatory and Environmental Issues
National Cotton Council