July 10, 2015

Senator Amy Klobuchar302 Hart Senate Office BuildingWashington, DC 201510

Dear Senator Klobuchar:

On behalf of Minnesota agriculture, thank you for your ongoing support of Minnesota farm families through your advocacy of the Farm Bill and many other federal policies that affect American agriculture.

We are writing today to respectfully request you to cosponsor S. 1140, the Federal Water Quality Protection Act of 2015, because we have very serious concerns about the final waters of the U.S. rule and the liabilities and uncertainties that this rule creates. We would also like to work with you and your staff to continue to provide you with as much information as possible as to how this rule will adversely affect Minnesota farm families.

Minnesota farm families care deeply about protecting water quality and working to minimize the losses of sediments and nutrients. In fact, just recently, farm families in Minnesota worked in concert with the Governor, the State Legislature, and others in crafting legislation to further protect water quality in our State through the enhanced use of buffer strips. We are simply looking for this level of cooperation from the EPA, the Corps, and Congress in furthering the important objective of water quality through means that make sense on the farm. Regrettably, at the federal level, the final waters of the U.S. (WOTUS) does not accomplish this goal, perhaps in large part because it was not an open and cooperative process.

Sadly, the WOTUS rule does not add any tools or mechanisms to help us achieve the goals that we share. In fact, quite the opposite is true. What the rule does is overlay Minnesota agriculture with federal Clean Water Act liability, commonly imposed through citizen suits, for previously agricultural non-point source activities that will now be subject to challenges and fines of up to $37,500 per day as point source discharges without a federal National Pollution Discharge Elimination System (NPDES) permit. Unfortunately, additional guidance by the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (the Corps) on how they might implement the WOTUS rule offers zero protection from these liabilities. What will matter in these lawsuits will be the actual rule language, and whether the federal agencies intend to impose these liabilities themselves has no bearing on the citizen suit risks farm families now face.

Any fair reading of the Clean Water Act prior to this rulemaking will show that it amply provides for protecting the water quality of real waters of the United States without making jurisdictional those waters that nobody heretofore would have regarded as an actual water of the United States. With respect to the latter, with limited duration or quantities of flow, the agencies never discuss in the WOTUS rule trying to make these waters fishable and swimmable, or even concern for their inherent values where they are located. They have too little water in them for too short a period of time for this to even be possible. Instead, the agencies repeatedly discuss making these waters jurisdictional so as to protect the water quality of actual waters. Our question is, why make these waters jurisdictional if the law already provides for the protection of the quality of water moving through them to actual waters of the United States? The law says that point source discharges into non-jurisdictional features are already subject to federal NPDES permitting where those discharges reach the downstream jurisdictional waters. Furthermore, non-point source losses to these upstream waters are dealt with under the Clean Water Act through the Section 319 and other programs. Certainly, Minnesotas strong and well-funded state water quality programs work directly in these upstream areas, in complement to the Clean Water Act. Making the upstream features jurisdictional does not change that situation or help these efforts.

Below are several specific examples of why we are so deeply concerned. Thanks to prior litigation, in each of these scenarios farm families now face the risk and liability that their use of pesticides and fertilizers, applied through nozzles, will now be construed as unlawful point source discharges into these newly-construed WOTUS.

Tributaries and Erosional Features The final rules definition of tributary relies on observations of a so-called bed, bank, and Ordinary High Water Mark (OHWM). There are 83,000 miles or more of stream features in Minnesota, mostly in rural areas and commonly where agriculture takes place and that could meet this highly subjective and imprecise definition. But the implications of this go far beyond these 83,000 miles of streams. The Agencies know that term OHWM is ambiguous and it is applied inconsistently. This means that erosional drainage features with water in them only after it rains or for a few weeks can be claimed as WOTUS. There are numerous examples today of where the federal agencies have done so in the case of erosional features. The final rule expressly contemplates making erosional features jurisdictional if they exhibit a bed, bank and OHWM, or exhibit indicators of these characteristics. Furthermore, the agencies state they will look back in time, using off-site and remote sensing techniques, to find and assert the past existence of these indicators, and use that as grounds for asserting jurisdiction. We can supply you with a specific demonstration of how these remote sensing techniques would work and allow a look back into time to detect the so-called indicators of a bed, bank and ordinary high water mark that in many instances are not visible to the naked eye. These drainage features on our farms are routinely cultivated and will have pesticides and fertilizers applied to them through nozzles.

Grass Waterways Grass waterways are extremely common in the rolling parts of Minnesota and are used to reduce erosion, sediment, and nutrient losses. These grass waterways are installed in drainage features that tend to form gullies, causing erosion, soil and nutrient loss, and reduced agricultural productivity over time as top soil is lost. It is one of the most recognized and commonly used best management practices in agriculture used by farmers to steward their soil resources. Most of these grass waterways have been installed at producers own expense exclusively, voluntarily without any public assistance, as conservation measures on their farms. Others are installed with some conservation cost share assistance from the federal or state conservation agencies.

As gullies and drainage features, these areas and the grass waterways installed in them in fields being farmed have never before been defined as jurisdictional waters. As a result, to our knowledge, none of these grass waterways in Minnesota were installed with a federal CWA Section 404 permit. This has all been changed by the final WOTUS rule. The final WOTUS rule states that a grass waterway that has been lawfully constructed is excluded as WOTUS. The phrase lawfully constructed has never before been applied to grass waterways under the Clean Water Act, which of course raises the specter that according to the federal agencies: (a) there are grass waterways that were unlawfully constructed; and (b) that these grass waterways, and the erosional features in which they were built, are WOTUS. The preamble accompanying the rule confirms this, stating that more commonly a grass waterway will be considered lawfully constructedwhere they have been lawfully converted from an intermittent or ephemeral stream under a CWA permit. More commonly, then, the grass waterways constructed without a federal CWA permit are WOTUS, and by extension then the gullies or drainage features in which they are installed are also viewed by the agencies as, more commonly, jurisdictional intermittent or ephemeral streams.

Minnesota farmers have installed literally thousands of grass waterways at their own expense. They have to now be concerned that these conservation measures on their farms can be reasonably construed as a water of the U.S. and directly jurisdictional under the Clean Water Act. Furthermore, Minnesota farmers with erosional features that might merit the installation of a grass waterway have to now be concerned that this feature, in its current form, can be construed a WOTUS as the agencies have stated that, in their view, more commonly they will be ephemeral or intermittent streams before the grass waterways were installed. The bottom line is, the agencies have now created in law a line of argument that many erosional features in farm fields are WOTUS.

Why is this a problem? Again, there are several reasons. But one of the most pressing is that good conservation practice stewardship as applied to grass waterways requires that they be treated routinely with fertilizers to keep the stand of grass healthy and with pesticides to control wood vegetation that can undermine their function and the farming operation around them. In the case of pesticides, which are applied when there is no water moving over the waterway (as these have water in them only after it rains), farmers today are in violation of the CWA if the pesticides are applied without a federal Section 402 NPDES permit. And, as stated before, the logic behind that permit for pesticides, will as a result of lawsuits, now be applied to fertilizers. As a matter of fact, since pesticides and fertilizers are also used right next to grass waterways as part of crop production, if only a minute portion makes its way into the grass waterway, that is also a CWA violation if done without a permit. This same problem will apply to the gully or erosional feature that is being farmed without an NPDES permit and may yet not have a grass waterway installed.

Ditches The final rule makes ditches WOTUS if they are constructed in a former ephemeral or intermittent tributary. In 2013, the Minnesota Pollution Control Agency estimated that about 41,000 miles of Minnesotas 83,000 miles of streams have been altered for drainage purposes. The mapping of these images captures how these features have been straightened into ditches for drainage purposes. We expect 100 percent of these altered waterways are now directly subject to Clean Water Act jurisdiction and the associated liabilities. Furthermore, the vast majority of Minnesota farms have at least one former small, ephemeral drainage that very well could have met a tributary definition but were subsequently improved for drainage, often generations ago. These are WOTUS, too, under the rule. These features routinely have pesticides and fertilizers applied near to them, a practice that would be severely limited under this final rule.

Farmed Wetlands -- Farmed wetlands are areas that are dry enough to be cultivated to produce a crop most years, and too wet to do so in others. In Minnesota we call these cultivated wetlands. These are formally referred to as farmed wetlands in the Prairie Pothole region by the federal agencies because they are lawfully farmed. Under the final WOTUS rule the agencies have declared that all Prairie Potholes are similarly situated in a watershed. If the agencies find at least one of nine common, natural functions taking place in these similarly situated potholes, then all of them are WOTUS. We expect all of the Prairie Pothole wetlands will be found jurisdictional as a result. The Minnesota Pollution Control Agency estimates that in 2001, 37 percent of the states 675,000 acres of depressional wetlands were in cultivation. While the numbers have certainly changed since then, the MPCA has indicated that this number has changed only modestly in the intervening period. The implication is that there are about 250,000 acres of these farmed wetlands under cultivation in the state. Given that these fields or parts of fields are in cultivation to produce a crop, farmers fertilize them and control insect and weed pests. Again, as WOTUS under the final rule, those activities are or will be made unlawful if conducted without a federal CWA NPDES permit.

These are but some of the examples of the ways in which the final WOTUS rule seriously increases risks and liabilities for farm families. These liabilities to us do not come with associated water quality benefits, unless the goal of the rulemaking is to ensure that farm families cannot farm these lands. These liabilities put at risk the ability of farm families to properly and economically manage their operations to produce food, fuel, and fiber. There are better ways to protect real waters of the United States that we all value and cherish without creating these risks and costs under federal law for activities around water or drainage features that never were and never will be fishable and swimmable.

We respectfully request that you cosponsor S.1140 and work to create an alternative to the final WOTUS rule that will protect water quality without these unacceptable liabilities.

Thank you for your consideration of this important request.

Sincerely,

Minnesota Milk Producers Association Minnesota Pork Producers Association Minnesota Soybean Growers Association Minnesota State Cattlemens Association Minnesota Turkey Growers AssociationChicken & Egg Association of MinnesotaMinnesota AgriGrowth CouncilMinnesota Association of Wheat GrowersMinnesota Corn Growers Association

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