May15, 2017
U.S. Environmental Protection Agency
Washington, D.C. 20004
RE: Docket EPA-HQ-OA-2017-0190
American Farm Bureau Federation (AFBF), the nation’s largest general farm organization, is
pleased to submit these comments to the docket. AFBF represents agricultural producers in all
50 states and Puerto Rico; they are engaged in the production of crops and livestock and are
directly affected by regulations promulgated and enforced by EPA. We commend the agency for
inviting stakeholders to comment on regulations that can be modified, amended or repealed.
AFBF is signatory to a lengthy set of comments (appended to this letter) that are being filed
today by a large number of agricultural organizations. We support those comments in their
entirety. They address regulations that have an immediate, significant impact on farmers and we
encourage the agency in the strongest terms to take up these matters swiftly. We are pleased that
the agency is already addressing the ‘waters of the US’ (WOTUS) rule and we stand prepared to
assist the agency in whatever way is appropriate in repealing the existing rule (80 Fed. Reg.
24043) and replacing it through a separate rulemaking. We also strongly emphasize the
importance of the other initiatives highlighted by the agricultural community in these comments
and wish to offer our assistance to the agency as it turns its attention to other policy areas that
have a direct impact on farmers and ranchers – particularly its interpretation of the ‘normal’
farming exemptions in 404(f) of the Clean Water Act, the TMDL regulations and its
interpretation of the prior converted crop (PCC) regulation.
We support Executive Order 13777, we commend EPA for its prompt efforts to implement the
President’s directive, and we offer our assistance to EPA in its efforts to remedy existing defects
in its regulations.
Sincerely,

Dale Moore
Executive Director
Public Policy

 May 15, 2017
U.S. Environmental Protection Agency
Washington, D.C. 20004
RE: Docket EPA-HQ-OA-2017-0190
The undersigned organizations commend the Environmental Protection Agency [the agency] for
opening this docket and are pleased to submit the attached comments in response to the agency’s
request.
Our organizations represent individuals engaged in agricultural production, both for crops and
livestock. Requirements imposed by the agency through its regulations can have significant impacts
on our members; many of these impacts can be felt in the areas outlined by the agency for review 1 In
the attached comments, we have sought to meet the agency’s request to be as specific as possible. In
some instances, where information responsive to the agency’s request for “supporting data or other
information such as cost information” is not available, we have attempted to quantify the impact of
the regulatory burden as concretely as possible and to “provide specific suggestions regarding repeal,
replacement or modification.” We welcome questions from your office or the Task Force if these
comments need further amplification and will do our best to respond in as prompt and comprehensive
a manner as possible. We greatly value this effort and hope the agency succeeds in alleviating
unnecessary and costly regulatory burdens on the agriculture community.
its notice, EPA has specifically asked for recommendations that address regulations that, inter alia, “(i)
eliminate jobs, or inhibit job creation; (ii) are outdated, unnecessary, or ineffective; (iii) impose costs that exceed
benefits; (iv) create a serious inconsistency or otherwise interfere with regulatory reform initiatives and policies; (v)
are inconsistent with the requirements of section 515 of the Treasury and General Government Appropriations Act,
2001 (44 U.S.C. 3516 note), or the guidance issued pursuant to that provision in particular those regulations that rely
in whole or in part on data, information, or methods that are not publicly available or that are insufficiently
transparent to meet the standard or reproducibility…”
1 In

In this context, we wish to make a brief preparatory remark. As of mid-May, the docket exceeded
17,000 comments, the overwhelming majority of them anonymous. These are presumably submitted
from well-intentioned individuals but they preponderantly assume that the agency’s initiative is to
undo, weaken, rescind or otherwise impair the nation’s environmental safeguards. We see nothing in
the Federal Register notice that supports such an inference. We wish to state for the record that the
undersigned organizations are not requesting that the agency engage in, nor would we expect the
agency to pursue, an effort to impair, rescind, weaken or in any way retreat from health or
environmental safeguards that have been authorized by Congress. Nothing in Executive Order 13777
would have the agency ignore its statutory obligations to administer the environmental laws Congress
has passed. We are not asking the agency to weaken its commitment to health and the environment.
We have identified regulatory obligations that can be modified or repealed consistent with the laws
Congress has enacted and we strongly encourage the agency to consider these recommendations.

 We appreciate your consideration of these comments. If you have questions or wish to discuss any
specific issue in this submission, please contact Paul Schlegel at the American Farm Bureau
Federation at (202) 406-3687 or pauls@fb.org.
Sincerely,
Agri-Mark Dairy Cooperative, Inc.
American Dairy Coalition
American Farm Bureau Federation
AmericanHort
American Soybean Association
American Sugarbeet Growers Association
American Sugar Cane League
California Specialty Crops Council
Dairy Cares
Dairy Farmers of America
Dairy Producers of New Mexico
Dairy Producers of Utah
Exotic Wildlife Association
Federal Forest Resource Coalition
GROWMARK, Inc.
Idaho Dairymen’s Association
Missouri Dairy Association
National All-Jersey
National Aquaculture Association
National Association of State Departments of Agriculture
National Association of Wheat Growers
National Cattlemen’s Beef Association
National Corn Growers Association
National Cotton Council
National Council of Agricultural Employers
National Council of Farmer Cooperatives
National Peach Council
National Pork Producers Council
National Milk Producers Federation
National Sorghum Producers
National Turkey Federation
Northeast Dairy Farmers Cooperatives
Panhandle Peanut Growers Association
Professional Dairy Managers of Pennsylvania
Select Milk Producers, Inc.
Society of American Florists
South East Dairy Farmers Association
Southwest Council of Agribusiness
St. Albans Cooperative Creamery

 Upstate Niagara Cooperative, Inc.
US Apple Association
USA Rice
US Cattlemen’s Association
Washington State Dairy Federation
Western Peanut Growers Association
Western United Dairymen

 I. ‘Waters of the US’ (WOTUS) Rule (80 Fed. Reg. 37054, June 29, 2015) On February 28,
President Trump signed Executive Order 13778 directing EPA to review the WOTUS rule and to
publish a proposal rescinding or revising it. We strongly support the President’s EO and urge EPA to
pursue this effort aggressively. Recommendation: We recommend that the agency:
(a) repeal the existing rule (80 Fed. Reg. 37054).
(b) in a separate rulemaking, propose a revised rule that more closely adheres to the language of the
Clean Water Act and Supreme Court decisions in Riverside Bayview, SWANCC and Rapanos.
II. Spill Prevention Control and Countermeasures (SPCC) Rule (40 CFR 112) While EPA
attempted to address concerns of the agriculture community raised by the SPCC rule, the program
presents nearly insurmountable difficulties for agricultural producers. That assessment is borne out
by the agency’s own Regulatory Impact Analysis (RIA). EPA examined the Clean Water Act
violation data from 2001 to 2006. In over 10,000 violations in that time period, only 292 involved oil
spills of any type, and only one of those involved a farm. Many other estimates in the RIA were
incorrect as well. EPA estimated an approximate figure of 152,000 affected farms based on USDA
numbers. Nowhere did EPA mention the USDA numbers presented in the 2005 round of proposals
that numbered potentially affected farms closer to 400,000. Yet despite these facts, EPA moved to
place a costly and burdensome rule on the agricultural industry with no data to show a risk justifying
the cost. EPA included other incorrect assumptions to bolster the cost-savings analysis. They
estimated a savings of $3.6 million due to exempting pesticide application equipment but that cost
was only based on a report from one state. They estimated $2,000+ savings from not regulating home
heating oil tanks but those tanks were exempted in the original 1973 rule and no one has ever applied
SPCC to those tanks anyway. While Congress granted the agency flexibility to address any concerns
on farms, the agency rejected this approach and imposed the strictest limit possible.
Recommendation: The SPCC for farms should be repealed.

III. CERCLA/EPCRA
(a) On April 11, 2017 the US Court of Appeals for the DC Circuit issued a ruling in long running
litigation that struck down a 2008 rule providing an exemption from federal reporting of emissions
from livestock farms and providing a partial exemption from state/local reporting of such emissions.
As a result of the DC Circuit ruling, in late May or early June 2017 livestock farmers will be
responsible for calculating the rate of various chemical emissions associated with the storage of
manure for use as a fertilizer, and treat and report these emissions as “emergency releases” to state
and local authorities under 42 U.S.C. § 11004 (EPCRA § 304) and to the Coast Guards National

 Response Center under 42 U.S.C. § 9603 (CERCLA § 103). These reports provide little emergency
planning/response benefit to regulators or the public, and in fact could have a detrimental impact on
emergency response programs (and the public’s reliance on them) because the receipt of hundreds of
thousands of reports of livestock odor will overwhelm a system designed for responding to true
emergencies. Failure to file the reports will subject livestock farmers to expensive citizen suit
litigation filed by eco and animal rights activists.
(b) In recent years, efforts have been made to extend the liability provisions of the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA) of 1980 and the Emergency
Planning and Community Right-To-Know Act (EPCRA) of 1986 to livestock and poultry operations
for emissions or discharges from manure produced in those operations. Animal agriculture operations
are already regulated under the Clean Water Act, the Clean Air Act, and various state laws to protect
the environment; these statutes provide for permitting, enforcement and, if needed, remediation.
Manure is not a superfund waste and was not intended by Congress to be regulated as such.
Recommendation: EPA should promulgate regulations confirming that manure is not regulated under
CERCLA or EPCRA.
IV. Worker Protection Standards (WPS) rule (40 CFR Part 170)
(a) Designated Representative. In the WPS rule promulgated November 2, 2015, EPA included a
provision that permits anyone claiming to be a ‘designated representative’ (DR) to gain access to a
farmer’s proprietary records relating to pesticide use.2 This provision provides farmers with no
protection from fraudulent or counterfeit claims; does not assure that records released by the farmer
will actually be shared with workers; and imposes no constraints on what DR’s may do with
documentation once it is obtained. EPA has never cited any data or facts that demonstrate that such a
provision would improve worker safety. Thus, the regulation imposes an unnecessary regulatory
burden and cost, while exposing farmers to legal liability, with no discernible benefit.
Recommendation: EPA should repeal 40 CFR § 170.311(b)(9) and related provisions.

(b) Application Exclusion Zone (AEZ). In the final WPS, EPA inserted a final articulation of the
Application Exclusion Zone (AEZ) that unduly burdens state agencies and the regulated community. 3
As finalized, the AEZ goes beyond the Agency’s stated intent
2 The specific requirement is at 40 CFR 170.311(b)(9).
3 WPS provision at 170.405(a)(1) establishes the applicable AEZ distances, and WPS provision 170.405(a)(2) establishes a requirement for the agricultural employer not to allow
any worker or other person in the AEZ within the boundaries of the establishment until the application is complete. Provision at 170.505(b) establishes a requirement for the
handler to suspend the application if any worker or other person is anywhere in the AEZ. Thus,

 the AEZ goes beyond the boundaries of the establishment in question and applies to any area on or off the
establishment within the AEZ while the application is ongoing.
4 The Farm Regulatory Certainty Act would amend Section 1004(27) of the Solid Waste Disposal Act to codify
EPA’s existing regulations.

to create a one-hundred foot buffer surrounding the application equipment that, according to the
regulations now in place, extends beyond the agricultural establishment, arguably jeopardizing a
grower’s ability to manage all his land and prohibiting appropriate pest mitigation activities if there is
any kind of structure, permanent or otherwise, inhabited or vacant within one hundred feet of the
agricultural establishment. Furthermore, any individual, structure, or a passing vehicle within one
hundred feet of the property can effectively cease the grower’s application activity. After the final
rule was promulgated, EPA’s Office of General Counsel (OGC) was working to issue interpretive
guidance clarifying the Agency’s intent under the final regulation; however, Agency guidance does
not carry the weight and authority of a codified federal regulation and does not provide the necessary
clarity to assist state regulatory agencies or the grower community with compliance and enforcement
activities. In short, both EPA and the state regulatory agencies are still uncertain on how to enforce or
deliver compliance assistance on the AEZ. Recommendation: EPA should revoke the Application
Exclusion Zone (AEZ), which goes beyond EPA’s original intent and creates an unworkable and
unenforceable provision that does not provide any additional regulatory protections beyond those
already required under law.
V. Resource Conservation and Recovery Act In 1979, EPA promulgated regulations that reflect
Congress’ intent that the agency not regulate manure or crop residue under the Solid Waste Disposal
Act (42 U.S.C. § 6903(27)). Certain court decisions, however, have injected uncertainty in this area
of the law. Legislation is now pending in Congress (the Farm Regulatory Certainty Act) to provide
legal certainty for farmers.4 The legislation would also amend Section 7002 of the Solid Waste
Disposal Act (42 U.S.C. § 6972(b)(1)) to clarify that farmers are not to be targeted twice if they are
engaged in legal action with a federal or state regulatory entity to address identified issues.
Recommendation: EPA should continue its policy of not regulating agricultural nutrients under
RCRA. The EPA also should vigorously defend existing regulatory actions should a farming
operation be targeted with a third-party lawsuit for an alleged violation that is already being
addressed by a federal or state legal or administrative proceeding.
VI. “Normal farming” activities under § 404(f) of the Clean Water Act (33 CFR § 323.4) Sec.
404(f)(1) of the Federal Water Pollution Control Act (33 U.S.C. § 1344(f)(1)) provides an exemption
from 404 “dredge and fill” permitting for a wide range of normal farming,

 ranching and silviculture activities, including plowing, seeding, cultivating, harvesting for the
production of food, fiber, and forest products as well as construction or maintenance of farm or stock
ponds or irrigation ditches and for the maintenance of drainage ditches. Even though this broad
language is written in the statute, the Corps’ regulation (33 CFR § 323.4) and EPA’s and the Corps’
guidance and information interpretations have narrowed the scope of ‘normal’ farming, ranching and
silviculture activity.5 Thus, even some explicitly exempt activities (i.e., plowing) have come under
enforcement action. Congress has included appropriations riders directing EPA and the Corps to
eliminate funding for the so-called “recapture” provision at Sec. 404(f)(2), which the agencies use to
sweep otherwise exempt activities back into the regulatory program, yet EPA and the Corps have
ignored Congress’ directives. Recommendation: EPA and the Corps should undertake a rulemaking
that supersedes the Corps’ existing regulation as well as prior guidance from the agencies and
codifies the normal farming, ranching and silviculture exemption under § 404(f)(1) of the Clean
Water Act consistent with the text of the statute.

VII. Total Maximum Daily Loads (TMDLs) (40 CFR Part 130) EPA has used guidance and
informal interpretation of sparse statutory text (Clean Water Act Sec. 303(d)) and ambiguous
decades-old regulations to create a regulatory mechanism that puts EPA bureaucrats and technocrats
in the role of land use planners. This has blurred the lines of authority between the Federal and state
governments and robbed state environmental agencies of the ability to devise and adapt their own
plans to most effectively and efficiently achieve water quality standards. This EPA overreaching
raises the cost of achieving water quality goals, inhibits adaptive management and unlawfully puts
EPA in the role of regulating farming practices. EPA’s existing rules also fail to ensure that
established water quality goals are in fact achievable before burdensome or even economy-breaking
implementation measures are imposed. This is of particular concern where water quality impairment
results largely from naturally occurring “pollutants.”. Recommendations: EPA should revise its
TMDL regulations to provide clarity and certainty to the regulated community and state and local
governments by assuring that:
(a) States, not EPA, have the authority to set pollutant “allocations” for waters within their borders
and incorporate the allocations into state implementation plans. This provides states and localities
with the flexibility they need to change allocations when needed.
(b) EPA’s TMDL authority is limited to approving or setting the total maximum load for a particular
pollutant, as required by the statutory term “total maximum daily load.”
5 For

example, while the Act itself does not restrict the exemption, the agency has seemingly used the recapture
provision in 404(f)(2) to claim that the exemptions for normal activities only apply to ‘established, ongoing’
operations. It has further extended this interpretation to claim that changing an operation from one agricultural
activity (e.g., grazing cattle) to another (e.g., planting, cultivating and harvesting crops) constitutes a ‘change in use’
and therefore negates the exemption provided in the law. See
https://efotg.sc.egov.usda.gov/references/public/NM/CWA_404(f)_Ag._Exemptions.pdf

 VIII. Prior Converted Cropland (33 CFR § 328.3(b)) In 1993, EPA and the Army Corps of
Engineers promulgated a regulation that clarified that wetlands converted before 1985 into farmland
were ‘prior converted croplands’ (PCC) and therefore, not “waters of the US.” The preamble to the
rule clearly provided that land remains as PCC regardless of the use to which the land is put. Yet, in
2005, the Army Corps of Engineers issued guidance eroding this exemption by proclaiming that land
is no longer PCC if it is put to a non-agricultural use. A federal court found the guidance is unlawful
because it conflicts with the 1993 rule,6 but the Corps ignored the court’s decision and continues to
implement the guidance in order to re-regulate land. Recommendation: EPA should undertake a
rulemaking to clarify the 1993 rule that PCC lands are not subject to CWA regulation as
jurisdictional wetlands regardless of the use to which the land is put.

IX. Army Corps of Engineers 1987 Wetlands Delineation Manual and Regional Supplements In
1993, Congress prohibited the U.S. Army Corps of Engineers from using appropriated funds to
delineate wetlands under the 1989 Wetlands Delineation Manual.7 Congress further stated that no
funds shall be used to implement any subsequent manual adopted without the public notice and
comment procedures of the Administrative Procedure Act (APA). In the meantime, Congress
authorized the Corps to use the 1987 Wetlands Delineation Manual, but only until the adoption of a
final delineation manual. Almost 25 years later, the Corps has failed to propose, much less adopt, a
final wetlands delineation manual. Instead, the Corps continues to use the 1987 Manual, adding
regional “supplements” to modify the very same delineation criteria Congress disallowed in 1993.
Rather than placing the Manual and regional supplements through the rulemaking process, the Corps
has used the supplements to avoid the Congressional directive to formally promulgate a final Manual.
Recommendation: We recommend that EPA clarify that no regional supplements should be used in
making determinations of what constitutes “navigable waters” and/or initiate a joint
New Hope Power Company and Okeelanta Corporation v. U.S. Army Corps of Engineers and
Stockton 2010 WL 3834991 (S.D. Fla. September 29, 2010)
6

Energy and Water Development Appropriations Act, Pub. L. No. 102-377, 106 Stat. 1315: “None of the funds
in this Act shall be used to identify or delineate any land as a "water of the United States" under the Federal Manual
for Identifying and Delineating Jurisdictional Wetlands that was adopted in January 1989 or any subsequent manual
adopted without notice and public comment. Furthermore, the Corps of Engineers will continue to use the Corps of
Engineers 1987 Manual, as it has since August 17, 1991, until a final wetlands delineation manual is adopted.
PUBLIC LAW 102-377—OCT. 2, 1992 106 STAT. 1325 None of the funds in this Act shall be used to finalize or
implement the proposed regulations to amend the fee structure for the Corps of Engineers regulatory program which
were published in Federal Register, Vol. 55, No. 197, Thursday, October 11, 1990.”
7 See

 rulemaking with the Corps that subjects the wetlands delineation manual through the rigors and
transparency of the APA’s public notice and comment process.

X. EPA’s proposed revision regarding objection to administratively continued permits (40 CFR
§ 123.44) (Docket ID No. EPA-HQ-OW-2016-0145c) EPA has proposed granting to itself the
power to object to administratively continued permits by providing EPA Regional Administrators the
discretion to change the status of an administratively continued permit to “proposed permit,” an
outcome that would trigger the robust federal review process outlined in 81 Fed. Reg. 31344, 31372
(May 18, 2016). This proposed revision 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 limited personnel to ensure the most efficient management of their state NPDES
program. This revision, if finalized, further erodes State authority to manage their own programs and
will discourage unauthorized states from assuming NPDES authority. Denial of an administratively
continued permit, which this rule revision entails, would leave agricultural producers who hold
NPDES permits without permit coverage and vulnerable to citizen lawsuits. It also raises a
constitutional concern due to the lack of due process considerations given that there is no procedure
to challenge the EPA’s decision to change a permit’s status to “proposed.” The revision raises
additional concern because it exceeds EPA’s statutory authority. Clean Water Act § 402(d) grants
EPA the authority to review proposed permits and to object to them, which if objected to prohibits
the permit from issuing. The revision here would replicate this administrative power and apply it to
administratively continued permits, a step that goes beyond the power Congress granted to EPA in
the Clean Water Act. Finally, this effort by EPA is not needed because EPA already manages a
largely successful effort that resolves the underlying issue. The Priority Permit Measure provides an
avenue for EPA to target state-issued NPDES permits to undergo the reissuance process by
designating them as “priority permits”. Recommended: EPA withdraw its proposed revision
regarding objection to administratively continued permits (40 CFR § 123.44) (Docket ID No. EPAHQ-OW-2016-0145c)
XI. National Ambient Air Quality Standards (NAAQS) for Coarse Particulate Matter (PM10)
The NAAQS and definition for coarse particulate matter are overly broad and do not take into
account naturally occurring sources like dust found on farms.

 Recommendation: EPA should clarify its NAAQS regulations to ensure that agricultural producers
are not found to be in violation of the Clean Air Act for conditions beyond their control when
operating under general farming practices.