[INSERT DATE HERE]
Water Docket
Environmental Protection Agency
Mail Code 2822T
1200 Pennsylvania Avenue, NW
Washington, DC 20460
Attention: Docket ID No. EPA-HQ-OW-2011-0880
Dear Administrator McCarthy:
I write to express my deep concerns regarding the U.S. Environmental Protection Agency‘s and
the U.S. Army Corps of Engineers‘ proposed rule entitled “Definition of ‘Waters of the United
States’ Under the Clean Water Act” that was published in the Federal Register on April 21,
2014. Although the Agencies claim this rule simply clarifies which areas may and may not be
jurisdictional under the Clean Water Act (CWA), in truth, it includes new and inadequate
definitions that expand the scope of the existing regulations and a significant nexus analysis that
can be used to deem virtually any wet spot jurisdictional.
For years, landowners and regulators alike have been saddled with continued uncertainty
regarding the scope of federal jurisdiction under the CWA. However, the proposed rule would
vastly increase federal regulatory power over private property and trigger issues and results that
the Agencies have not even considered. Such proposed changes are not consistent with the
original legislative intent of the CWA, represent a marked departure from Supreme Court
decisions, and raise significant constitutional, procedural, and practical questions. If
implemented, new responsibilities will be imposed, costs borne, and the rights and
responsibilities of private property owners curtailed by the new regulations, leading to further
and unwarranted impacts on the housing industry, local economies, and state prerogatives.
The proposed rule contains the following major flaws:
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Ignores the Intent of Congress. The Clean Water Act was enacted as a means for
Congress to exercise its traditional commerce power over navigation. The proposal’s
attempt to expand the CWA’s reach to isolated, non-navigable waters, among others, is a
far cry from the navigable waters the statute intended to cover.
Fails to Adhere to Supreme Court Holdings. In both Solid Waste Agency of Northern
Cook County v. U.S. Army Corps of Engineers (SWANCC),1 and Rapanos v. United
States & Carabell v. United States (Rapanos),2 the Supreme Court made it clear that there
are limits to federal authority under the CWA. By proposing to expand coverage to
Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001).
Rapanos v. United States, 547 U.S. 715 (2006).
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include areas that are rarely wet or exhibit characteristics of regular flooding or flow, the
Agencies are plainly ignoring these limits and Supreme Court precedent.
Impermissibly and Unnecessarily Expands Federal Jurisdiction. Despite the
Agencies’ claims that this rule is narrower in scope than existing regulations, the
proposed rule contains changes that will expand federal jurisdiction, triggering
substantial and additional expensive and time-consuming permitting and regulatory
requirements while delivering minimal environmental benefit.
Lacks Sufficient Detail or Definition to Allow for Consistent or Repeatable Results.
Despite a heavy reliance on the purported “significant nexus” between traditionally
navigable waters and most other wet areas (e.g., all “tributaries,” all “adjacent waters,”
and many “other waters”), the proposal fails to distinguish between significant and
insignificant connections. Likewise, the rule includes references to vaguely defined
floodplains and riparian areas, giving the Agencies full and unfettered discretion to
impose unnecessary federal oversight over many lands and projects.
Limits the Applicability of Proposed Exemptions. Although certain ditches are
deemed non-jurisdictional under the proposed rule, the expansive definition of “tributary”
will ensure that more ditches will be subject to regulation than will be exempt. Likewise,
the exclusion for waste treatment systems and non-wetland swales is not clear in that it
fails to encompass the full array of green infrastructure devices (e.g., rain gardens),
stormwater treatment systems (e.g., MS4s) and other features installed on private
property that gain little benefit from federal oversight.
Continues to Blur the Line Between State- and Federally-Controlled Waters. It is
clear that Congress intended to create a partnership between the federal agencies and
state governments to jointly protect the nation’s water resources. Under this notion, there
must be a point where federal authority ends and State authority begins. The Agencies,
however, have fashioned a rule so expansive that it all but abandons this precept in favor
of a federal government over all approach.
Fails to Recognize the True Economic Impacts. Among numerous other procedural
flaws, the proposal fails to sufficiently recognize and quantify the costs associated with
the expanded definition of “waters of the United States.” Indeed, many of these costs,
including those associated with increased permitting, mitigation, and regulatory
uncertainty, will be borne by home builders and other small businesses. Using
inadequate data and improper baselines to assess the costs of the rule, however, the
Agencies have wrongfully certified the rule will not impose a significant economic
burden on small businesses.
Asserts Jurisdiction Based on Inadequate Science. The Agencies purport that the rule
is supported by a scientific literature review discussing the connectivity and effects of
streams and wetlands on downstream waters (hereinafter, Connectivity Report). The
Connectivity Report falls short of providing the kind of scientific analysis necessary to
establish a solid foundation for a proposed rule on CWA jurisdiction. Indeed, the Report
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merely documents the presence of connections between waterbodies, yet fails to provide
the basis needed to determine when such connections may or may not significantly affect
downstream waters.
Creates and Exacerbates Regulatory Confusion. The proposal’s ambiguous terms, illdefined limits, and assertion of federal jurisdiction over waters that exhibit little or no
connection to traditional navigable waters will only create more, not fewer questions.
The Agencies’ claim that the proposed rule creates clarity and certainty is a fallacy
because it only does so by illegally asserting jurisdiction over every possible wet feature.
The CWA and its associated permitting scheme must be consistent, predictable, timely, and
focused on protecting true aquatic resources. It must also honor Congressional intent to provide
a cooperative federal and state program where the Corps’ and EPA’s efforts are complemented
by states’ efforts and heed the limits of federal jurisdiction recognized by the Supreme Court in
both SWANCC and Rapanos. Unfortunately, the proposal fails to adhere to these tenets and
rulings.
For these reasons, and the numerous additional shortcomings associated with the proposed rule,
the Agencies should withdraw the rule and repropose it only after its many Constitutional,
judicial, legal, economic, scientific, practical, and procedural infirmities have been addressed and
rectified.
Sincerely,
[INSERT NAME and AFFILIATION HERE]