Letter to Gina McCarthy, Administrator of the Environmental Protection Agency, and Jo-Ellen Darcy, Assistant Secretary of the Army for Civil Works - Federal "Waters of the United States" Proposed Rule

Letter

October 16, 2014

The Honorable Gina McCarthy
U.S. Environmental Protection Agency
EPA Docket Center
Enforcement and Compliance Docket 8
Mail Code 28221T
1200 Pennsylvania Avenue NW
Washington, DC 20460

The Honorable Jo-Ellen Darcy
Assistant Secretary of the Army for Civil Works
108 Army Pentagon
Washington, DC 20310-010

Attention: Docket ID No. EPA-HQ-OW-2011-0880 -- Waters of the United States Proposed Rule

Dear Administrator McCarthy & Assistant Secretary Darcy:

The State of Iowa offers the following comments on the U.S. Army Corps of Engineers' and the U.S. Environmental Protection Agency's (EPA) joint proposed rule - Definition of "Water of the United States" under the Clean Water Act (CWA) - published in the Federal Register on April 21, 2014 (79 FR 22187). The Office of the Governor, Iowa Department of Agriculture and Land Stewardship (IDALS), Iowa Department of Natural Resources (IDNR), Iowa Economic Development Authority (IEDA), Iowa Department of Transportation (IDOT), Iowa Utilities Board (IUB), and Iowa Homeland Security and Emergency Management Department (HSEMD) herein provide coordinated comments following comprehensive stakeholder input. The overriding concern of a diverse group of impacted stakeholders, including state leaders, is that the proposed rule will impose significant barriers to the advancement of innovative, state- and local-driven conservation and environmental practices that would actually advance our common goal of water quality. Because the proposed rule is fatally flawed, we request that it be withdrawn and that future rulemaking be appropriately coordinated with States and relevant stakeholders. We agree that clean water requires good, clear, well-designed regulations -- unfortunately, the ones currently being proposed are not.

The State of Iowa's comments are summarized below and more detailed comments are enclosed.

Abandonment of Cooperative Federalism: States, not the Federal government, have the lead for advancing water quality through the CWA and more importantly through state-local-private sector partnerships. Section 101(b) of the CWA clearly states that, "it is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation and enhancement) of land and water resources..." Successful water quality efforts are driven by engaged stakeholders who have close relationships with state and local officials, not by Federally-prescribed directives. Given that state officials were not involved in the drafting of the proposed rule over the last few years, it is no surprise that the proposed rule will actually impede efforts to advancing innovative, state-based water quality initiatives, such as the State of Iowa Nutrient Reduction Strategy. As currently written, this rule is nothing more than Federal encroachment on the states. Further, numerous stakeholders have expressed concerns that the Federal government is thwarting important requirements of the Administrative Procedure Act (APA) and undermining the public's opportunity for meaningful comment by repeatedly issuing and revising, outside of the APA process, explanations and information critical to the rule. Many stakeholders believe the proposed rule is the most egregious example of Federal overreach in the last few decades -- we unfortunately agree. The proposed rule confuses Federal control with environmental protection. The State of Iowa believes that environmental protection is best driven locally. Nobody cares more about local water quality than those of us who drink it, fish it, boat it, and swim it. Farmers, ranchers and even water quality advocates have noted that the proposed rule is likely to curtail many voluntary water quality improvement projects if such projects would trigger the cost and delay of seeking Federal permits. Such unintended consequences are precisely why the Federal government needs to better engage state governments, local communities, and affected industries. The EPA itself has recently done a better job engaging state and local stakeholders as part of its Clean Air Act implementation and that proactive outreach stands in stark contrast to the approach taken on this CWA rule. The EPA Headquarters' approach on this rule also starkly differs from the very good relationship that State of Iowa leaders have had in advancing state-led and public-private partnerships with EPA Regional Administrator Karl Brooks.

Disconnect between Content and Intent: We do not doubt the Federal government's intentions to advance water quality throughout our nation; however, the Federal government's proposed approach, and the content of the proposed rule, would seriously impair advancements in water quality in the State of Iowa. As an example, too many Iowa farmers would be forced to gain Federal permits to advance water quality infrastructure projects, which would discourage agricultural producers from undertaking the very projects that would improve water quality throughout the State. Small towns, cities and private sector entities, most with limited resources, would face similar challenges.

Increased Uncertainty: The proposed rule increases, rather than decreases uncertainty for various stakeholders. We are very concerned that this vacuum of uncertainty would be filled by an army of lawyers that would slow the advancement of water quality projects throughout the nation. A good regulation would be clear, so all stakeholders plainly understand what is allowed and when a permit is required. Instead, the proposed rule is more ambiguous than current law and promises to be tied up in litigation for years to come, creating uncertainty within conservation interests, industries and communities across the state.

Underestimation of Costs: The Federal government has greatly underestimated the costs of the proposed rule -- both in permitting compliance costs and project delay costs. For example, permitting compliance costs will siphon finite resources that would better be used to advance conservation best practices and infrastructure in Iowa's countryside. Permitting delays would also increase the costs of conservation and economic development projects. We are extremely concerned that these increased costs will hinder the advancement of water quality projects and responsible economic development projects. Compliance costs would be borne by both private sector and public sector entities and the customers and citizens served. Additional costs would impact public transportation projects, renewable energy projects, electricity distribution, disaster recovery projects, mitigation projects, and so on. Every day those projects are delayed has real costs that are currently unaccounted for by the Federal government. There would also be additional enforcement costs that current staffing levels at both the Federal and State levels are not positioned to meet. The rule as proposed would essentially be an unfunded mandate on State agencies tasked with CWA enforcement. Such enforcement costs would drain significant finite resources that could better be utilized to actually deliver water quality best practices and projects. Until all the true costs are better accounted for, this rule is not ready for final deliberation and should be withdrawn. Furthermore, the consensus among stakeholders is that the Federal government has significantly underestimated the percentage of land that will be impacted by the rule and expanded Federal jurisdiction. More accurate estimates of this rule conducted by thirdparty stakeholders demonstrate increased direct and indirect costs. By its own admission, the Federal government's proposed regulations expand the scope of its jurisdiction by approximately 3 percent and likely by much more than that -- through our analysis we estimate that the Iowa stream miles subject to jurisdiction would increase from the current status of approximately 26,000 miles to an estimated 72,000 miles, an increase of approximately 46,000 miles or an increase of 176%. This scope difference alone would vastly increase the costs of the proposed regulation.

The Federal government's proposed rule seems to be more concerned with asserting Federal control over local water bodies than actually improving local water quality. Thus, we were encouraged recently by the bipartisan support in the United States House of Representatives to block the advancement of this flawed rule. Those concerns were similarly echoed in a bipartisan fashion by the National Association of State Departments of Agriculture members who unanimously called on the
Federal government to withdraw the rule. We strongly urge you to listen to the consensus concerns of the States, including Iowa, and withdraw this rule. Proceeding with this rule, without true consultation with the States, would bring into question your commitment to the State-Federal partnership.

Source