September 20, 2010
The Honorable Lisa P. Jackson
The Honorable Jo Ellen Darcy
Ms. Nancy Sutley
Dear Administrator Jackson, Assistant Secretary Darcy, Ms. Sutley:
The Waters Advocacy Coalition (WAC) would like to respond to your recent letter asserting that H.R. 5088, America’s Commitment to Clean Water Act, would restore the historic scope of Clean Water Act (CWA) jurisdiction without expanding it. The members of WAC respectfully but strongly disagree. Based on the legislation, the bill is not only broader but significantly different from the original CWA and existing regulations.
Based on our analysis of H.R. 5088, and our combined experiences operating under the CWA, we remain deeply concerned that H.R. 5088, if enacted, would unnecessarily complicate interpretation and implementation of the CWA and would likely result in many unforeseen and unintended consequences. Instead of restoring jurisdiction, H.R. 5088 would reopen issues of settled law, erode state authority over intrastate property and waterways, and impose additional burdens on states and the regulated community.
First, standard rules of statutory construction make clear that deleting the term “navigable” from the statute would effectuate a significant change and expansion in the law. Indeed, the agencies in previous congressional testimony have stated the importance of the term “navigable.” Since 1972, when the CWA was first enacted, navigable has been the tether for defining where federal jurisdiction ends and state jurisdiction begins. Thus, it simply cannot be said that deleting this fundamental term from the CWA restores its historic jurisdictional scope.
Second, when Congress enacted the CWA, it asserted its authority to regulate navigable waters based on the Commerce Clause. That is why the current regulations tie the scope of federal jurisdiction to waters that affect commerce. Because H.R. 5088 invokes the Treaty and Property Clauses, in addition to the Commerce Clause, it expands jurisdiction beyond the current scope of the law and regulations. H.R. 5088 cannot merely restore the historic scope of the CWA when the CWA and implementing regulations were never based on regulating waters that affect Federal Property and Treaties.
Third, unlike the existing CWA and implementing regulations, H.R. 5088 would expand CWA jurisdiction to cover “international waters” and “adjacent waters.” It is unclear what is intended by the inclusion of “international waters” because U.S. law does not apply extraterritorially. Moreover, the current law regulates adjacent wetlands, not adjacent waters. Indeed, court cases have addressed this
issue and have held that regulations implementing the CWA do not apply to waters based on their adjacency. Thus, defining “waters of the United States” to include adjacent waters is an expansion of current law. Additionally, the language referencing the regulation of waste water treatment systems and prior converted cropland does not reflect current regulations and actually narrows the exclusions by adding several new requirements for facilities or landowners to be covered by the exclusions.
WAC members represent a large percentage of the U.S. economy as well as a substantial portion of the CWA’s “regulated community.” The members represented in WAC are firmly committed to protecting the nation’s waters – both intrastate and interstate waterbodies. We all need clean water, and we recognize our responsibilities as stewards of this important resource. We remain deeply concerned, however, that enactment of H.R. 5088 would result in unintended consequences that would undermine 38 years of success and continued progress under the CWA.
Thank you for considering our views. If you have any questions, please contact Virginia Albrecht or Deidre Duncan, 202-955-1943.
American Farm Bureau Federation
American Forest & Paper Association
American Iron and Steel Institute
American Road and Transportation Builders Association
Associated General Contractors of America
Ball Clay Producers Association
CropLife America
Edison Electric Institute
The Fertilizer Institute
Foundation for Environmental and Economic Progress
Industrial Minerals Association-North America
International Council of Shopping Centers
International Diatomite Producers Association
Irrigation Association
National Association of Home Builders
NAIOP, the Commercial Real Estate Development Association
National Association of REALTORS
National Association of State Departments of Agriculture
National Cattlemen’s Beef Association
National Corn Growers Association
National Council of Farmer Cooperatives
National Industrial Sand Association
National Milk Producers Federation
National Mining Association
National Pork Producers Council
National Stone, Sand and Gravel Association
Public Lands Council
Responsible Industry for a Sound Environment
Southern Crop Production
United Egg Producers
Cc: The Honorable James Oberstar
The Honorable John Mica
The Honorable Eddie Bernice Johnson
The Honorable John Boozman
The Honorable Barbara Boxer
The Honorable James Inhofe
The Honorable Benjamin Cardin
The Honorable Mike Crapo