July 10, 2015

Congressman Tim Walz

1034 Longworth House Office Building
Washington, DC 20515
Dear Congressman Walz:
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 support legislative efforts
to prohibit implementation of the final Waters of the United States rule because we
have very serious concerns about 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, nonpoint 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 constructed where
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 support legislative efforts to prohibit the
implementation of WOTUS 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 Association
Chicken & Egg Association of Minnesota
Minnesota AgriGrowth Council
Minnesota Association of Wheat Growers
Minnesota Corn Growers Association