Water Docket, Environmental Protection Agency, Mail Code 2822T,
1200 Pennsylvania Avenue, NW
Washington, DC 20460,
Attention: Docket ID No. EPA-HQ-OW-2011-0409
To whom it may Concern:
On May 2, 2011, the Environmental Protection Agency (USEPA) and the Corps of Engineers (USACE) published in the
Federal Register “Draft Guidance on Identifying Waters Protected by the Clean Water Act” (Guidance) explaining how
the current administration intends to implement the U.S. Supreme Court’s decisions Solid Waste Agency of Northern Cook
County v. Corps of Engineers (SWANCC), 531 U.S. 159 (2001), and Rapanos v. United States (Rapanos), 547 U.S. 715
(2006).
While the Guidance was purportedly drafted to take into account the SWANCC and Rapanos decisions, it clearly ignores
any views held by the U.S. Supreme Court limiting Clean Water Act (CWA) jurisdiction and applies only the most
expansive views of CWA jurisdiction. This has resulted in a Guidance that vastly expands the number of jurisdictional
waters under the CWA.
In response to the Guidance, the I have prepared the following comments:
1.)
The effect of implementing the Guidance will vastly increase jurisdiction of the CWA, accomplishing
something Congress has lacked the votes to do. In addition, the Guidance effectively circumvents the
Administrative Procedure Act and the Supreme Court decisions placing limits on federal jurisdiction under the
CWA.
2.)
The SWANCC and Rapanos decisions involved only the CWA §404 dredge and fill permit program yet the
Guidance applies these decisions to the jurisdictional reach of all CWA programs including: the §402 National
Pollution Discharge Elimination System permit program; the §311 oil spill program; the §303 water quality
standards and total maximum daily load programs; and the §401 state water quality certification process. This
was certainly not the intent of the Supreme Court when hearing these two cases.
3.)
As noted above, USEPA and USACE expect the Guidance will “increase significantly” the number of waters
found to be subject to CWA jurisdiction. However, the Guidance states it is not the agencies’ intent that
previously issued jurisdictional determinations be reopened as a result of the Guidance. Is it the agencies’
intention to apply the jurisdictional determination only to those water bodies not settled in previous court cases
so as to avoid reversing the jurisdictional determination for SWANCC, Rapanos, and other such cases?
4.)
Consistent with the Supreme Court’s rulings, the Guidance states that the agencies have CWA jurisdiction over
waters that are navigable in fact or that can be made so. However, as to wetlands, isolated waters, and
tributaries, including drains or ditches that could flow into traditional navigable waters, the Guidance sets forth
a standard effectively allowing a significant nexus to be found in virtually every case.
For example, the Guidance states that if pollution enters any drain, ditch, wet area, etc. and it can somehow find
its way to a traditional navigable water, then the water, drain, ditch, etc. is jurisdictional. Given that a
hydrologic connection of some type can almost always be found, this jurisdictional standard, has few, if any,
limits.
Justice Kennedy condemned the USACE practice of deeming a water jurisdictional “if it feeds into a traditional
navigable water (or a tributary thereof) and possesses an ordinary high water mark (OHWM]….” Nevertheless,
the Guidance provides that if the water “has a bed or bank, and an OHWM” and there is a reasonable basis to
believe it can transport pollutants downstream, then it is jurisdictional.
5.)
Although the Guidance says USEPA and USACE will make a case-by-case finding that the individual water has
a significant nexus, included within the Guidance is language that would allow the USEPA and USACE to
avoid a case-by-case finding. The Guidance allows the agencies to assert jurisdiction if the water “in
combination with similarly situated waters in the region” significantly affects “the chemical, physical, or
biological integrity” of regulated waters. By folding the insignificant effect of the water at issue into the
significant effects of other waters, the water at issue becomes jurisdictional because it is now deemed to have a
significant nexus.
Equally important regarding the case-by-case analysis that Justice Kennedy sought, the Guidance states that “in
conducting a significant nexus analysis, [USEPA and USACE] are not required to identify or evaluate every
similarly situated water” as long as the agencies have evaluated a sufficient number to establish that this “type
of water” has a significant nexus. So, once the agencies have establish a class of waters, anything falling within
that class can be jurisdictional without the case-by-case analysis for an individual water.
6.)
Although Justice Kennedy said there had to be a case-by-case analysis for each jurisdictional assertion, the
Guidance provides a basis for replacing this individual determination with a determination that the water is part
of a class and that other members of the class have a significant nexus to traditional navigable waters. Indeed,
the Guidance indicates that although it may be difficult to demonstrate that a particular individual water or area
has a significant nexus to a traditional navigable water, if the effects of similar waters “in a region” could have a
significant effect on a traditional navigable water, then each similar individual water or area is jurisdictional. It
is also very important to recognize how the Guidance defines the waters “in the region” that can be considered
similar waters for determining the significant nexus of the class. The Guidance establishes a broad standard
stating that similar waters in the region include all such waters within the same watershed.
7.)
In considering what types of “pollution” should be examined to determine if there is a significant nexus of
impact justifying CWA jurisdiction, the Guidance is overly broad and seemingly limitless.
8.)
The Guidance states that the usage of an area by migratory birds is not a basis for CWA jurisdiction. However,
under the provision of habitat standard in the Guidance, if resident aquatic species, including ducks and other
waterfowl, “rely on” the navigable water and the water at issue, then the latter is jurisdictional. This seems to be
the same interpretation of jurisdictional authority which Court rejected in SWANCC.
9.)
The Guidance defines the word “significant” as it is to be applied in determining the evidentiary threshold that
has to be crossed to find there is a “significant nexus” justifying a claim of CWA jurisdiction. The Guidance
states the word “significant” means “more than speculative or insubstantial.” If the effect is “predictable” or
“observable,” the Guidance says it also qualifies as “significant.” This does not seem to coincide with the
definition of “significant” offered by Justice Kennedy in Rapanos.
10.) The USEPA has estimated that the annual cost for implementing the Guidance will be between $87 million to
$171 million nationally; however, these figures do not include the aggregate effect to affected parties. These
aggregate effects include increased costs due to new land use restrictions, permitting requirements, and delays
associated with federal bureaucracy.
11.) While USEPA and USACE both lack the physical capability to enforce the Guidance in every instance, one
likely outcome will be an increased number of citizens lawsuits filed under the CWA.
12.) While the USEPA and USACE claim that the Guidance is needed to improve CWA program predictability and
clarity, the fact is, the Guidance reduces clarity and creates greater uncertainty by expanding jurisdiction
beyond the intent of the CWA and views expressed in Supreme Court decisions.
In conclusion, the Guidance states it only seeks to explain how USEPA and the USACE will implement the SWANCC and
Rapanos Supreme Court decisions. However, at the heart of these Supreme Court decisions was that there are limits to
CWA jurisdiction. The standards set forth for jurisdictional limits in the Guidance are so broad that they might as well
eliminate any jurisdictional limit. Indeed, the jurisdictional assertions that were challenged in SWANCC and Rapanos
would likely be upheld on other grounds by USEPA and USACE using the standards applied in the Guidance.
This is not the result for which the SWANCC and Rapanos decisions stand. In fact, Supreme Court decisions on these two
cases would likely be in stark contrast to even the agencies’ current guidance (issued in 2008) which is much less nclusive
than has been proposed in the draft Guidance.
Furthermore, by issuing guidance rather than initiating formal rulemaking, the agencies have circumvented the
Administrative Procedures Act. In effect, the agencies are exceeding their authority and making law. This is an authority
reserved solely for Congress, and they have declined to take any action on previously proposed legislation that would
expand the jurisdiction of the CWA.
Sincerely,