July 7, 2014
Nancy Stoner
Acting Assistant Administrator for Water
U.S. Environmental Protection Agency
Jo-Ellen Darcy
Assistant Secretary of the Army (Civil Works)
Department of the Army
Re: Docket ID: EPA-HQ-OW-2013-0820
On behalf of the Agribusiness Association of Iowa (AAI), I am submitting these comments to the Interpretive Rule
(Docket ID: EPA-HQ-OW-2013-0820) and Memorandum of Understanding related to the proposed rule defining Waters
of the U.S (WOTUS).
AAI’s membership includes over 1,100 business locations from across the state that supply feed, seed, crop protection
products, grain, fertilizer, equipment and additional products and services that benefit agriculture. Our members provide
products and services to nearly every farmer in Iowa. AAI has hired additional staff, put together new committees, and
developed new initiatives in support of Iowa’s Nutrient Reduction Strategy, a voluntary, science-based frame work that
will lead to targeted reductions of nitrogen and phosphorus loads in our state’s waterways from both point sources and
non-point sources. Our members are very serious about helping farmers to implement new best management practices
that reduce the nitrogen and phosphorus loads in Iowa waters.
1. As detailed in our June 18, 2014 letter to the Honorable Tom Vilsack, Secretary of Agriculture from the Agribusiness
Association of Iowa and nine (9) other Iowa agriculture organizations, we request that the Interpretive Rule and
Memorandum of Understanding be withdrawn. The June 18, 2014 letter to Secretary Vilsack is attached.
2. If not withdrawn, we request that the comment period for the Interpretive Rule and Memorandum of Understanding
be extended to 180 days from the date of issuance of the proposed rule and memorandum, as detailed in our comment
period extension request letter of May 29, 2014 which is attached. Due to the comment period for the Interpretive
Rule overlapping with a late spring planting season, AAI members and their farmer customers have been extremely
busy and have not had the opportunity to give these proposals adequate review. The Interpretive Rule should be
delayed until the primary WOTUS rule is finalized, as the two rules are intertwined and there is no reason for the
Interpretive Rule to be effective before the primary WOTUS rule.
3. The Interpretive Rule will significantly hamper and retard environmental and conservation progress by Iowa
agriculture under the Iowa Nutrient Reduction Strategy, which is targeted to reduce nutrient transport from croplands
to Iowa and Gulf of Mexico water resources. The proposed Interpretive Rule will discourage farmers from voluntarily
adopting soil and water conservation practices privately without financial and technical assistance through federal and
state conservation programs, and will increase farmer vulnerability for doing so. Yet voluntary and privately
implemented conservation practices are critical to achieving goals of the Iowa strategy to protect Iowa and Gulf of
Mexico waters, because public funding of federal, state and local conservation programs is woefully inadequate to
achieve these goals. The Iowa strategy is working to increase the number of farmers that are voluntarily adopting
without public funding assistance best management practices to address water quality concerns for nutrient loading to
the Gulf of Mexico and Iowa waters. The proposed Interpretive Rule provides that no NRCS assistance will be
available to farmers implementing practices fully at farmer cost without public cost-share funds, to ensure compliance
with NRCS standards and specifications. This punishes farmers for their good efforts and will significantly increase
their vulnerability, creates an un-level playing field discouraging private investment in conservation, and adds to the
already large backlog of unmet demand for public cost-share funding assistance, all ultimately stymying
environmental and conservation progress.
4. The proposed Interpretive Rule does not exempt normal farming operations, such as applications of crop protection
products, from Section 402 NPDES permit requirements in lands that have a long history of cropland use, now
proposed by the new expansive inclusions of croplands as Waters of the U.S. under the definitions and provisions of
the primary WOTUS rule. The lack of this exemption, coupled with the expansive inclusions of the primary WOTUS
rule and the Sixth Circuit Court of Appeals ruling National Cotton Council v. EPA requiring an NPDES permit for
sprayers of crop protection products in, over or near waters of the U.S., will necessitate application for and issuance of
NPDES permits for nearly all crop protection product sprayers in Iowa.
5. The Interpretive Rule narrows the Clean Water Act’s (CWA) “normal farming” exemption by requiring that certain
“normal farming” activities now be conducted in compliance with NRCS technical standards. The Interpretive Rule
makes technical standards developed and utilized for the voluntary adoption of conservation and best management
practices through conservation programs, a mandatory requirement for complying with the CWA. The “narrowing of
normal farming” exemption and applying voluntary standards in a mandatory context are inappropriate and need to be
removed.
6. The Interpretive Rule needs to be modified to remove the compliance tie to NRCS standards entirely for privatelyimplemented conservation and best management practices, or alternatively allow farmers to self-certify that
conservation and best management practices meet applicable NRCS standards for the purpose of CWA exemption.
Conservation and best management practices constructed in good faith by farmers and contractors, with or without the
prior approval of the NRCS, need to qualify for exemptions under the Interpretive Rule. NRCS will not confirm or
verify practices meet their standards for producers not receiving technical or financial assistance from USDA. NRCS
also will not conduct field visits for practice verification for producers not receiving technical or financial assistance
from USDA.
7. Additional conservation practices need to be added to the exemption list. CWA Section 404(f)(1) provides that
normal farming practices (including upland soil and water conservation practices) are exempt from permitting
requirements. To comply with that statutory provision, the listed exemptions should also include grade stabilization
structures, terraces, wetland creation, ponds, sediment basins, cover crops, and any other conservation practices
designed to protect water and land resources.
8. The Interpretive Rule should define what procedures will be used to update the list of exempted practices. The
Interpretive Rule needs to define the opportunities for affected stakeholders and ag organizations to participate in
these future decisions. The rule also needs to address how farmers retain CWA exemption if the installed
conservation practices are later removed from the exempted practices list, and how updates to NRCS standards apply
to previously installed practices in order for the “normal farming” exemption to continue.
We thank you for providing the opportunity to comment on this important rule.
Sincerely,
Joel Brinkmeyer, CEO
Agribusiness Association of Iowa
900 Des Moines Street
Des Moines, Iowa 50309
jbrinkmeyer@agribiz.org
515-262-8323