Comments
I. Introduction
The Waters Advocacy Coalition (“WAC” or “Coalition”) hereby offers the following comments on the U.S. Environmental Protection Agency’s (“EPA”) and the U.S. Army Corps of Engineers’ (“Corps”) (together, the “Agencies”) proposed revised definition of “waters of the United States” (“WOTUS”) under the Clean Water Act (“CWA” or “Act”), 86 Fed. Reg. 69,372 (Dec. 7, 2021) (hereinafter, “Proposal” or “Proposed Rule”).
The Coalition’s members possess a wealth of expertise directly relevant to the Agencies’ proposed revised definition of “waters of the United States” and are committed to protecting and restoring America’s wetlands and waters. WAC members believe that a regulation that draws clear lines between federal and state waters will help further that goal. However, the Agencies seemingly have abandoned their long-lasting pursuit to provide more clarity, consistency, and predictability regarding the scope of “waters of the United States” protected under the Act. E.g., 76 Fed. Reg. 24,479, 24,479-80 (May 2, 2011); 80 Fed. Reg. 37,054, 37,054 & 37,056-57 (June 29, 2015); 85 Fed. Reg. 22,250, 22,252 & 22,270 (Apr. 21, 2020). Throughout the Proposed Rule and its supporting documents, the Agencies state that they are codifying the pre-2015 regulatory regime that they are currently implementing. This is the very same regime that the
Agencies criticized in 2015 for subjecting stakeholders to case-specific significant nexus analyses that are “time and resource intensive” and that “result in inconsistent interpretation of CWA jurisdiction and perpetuate ambiguity over where the CWA applies.” 80 Fed. Reg. at 37,056. Given those shortcomings, it was obvious why stakeholders on virtually all sides of this issue were pushing for more clarity, predictability, and consistency. See id. at 37,056-57.
Apart from the fact that jurisdiction under the pre-2015 regulatory regime often depends on case-specific, time-consuming, and inconsistent analyses, that regime is built on an erroneous foundation: that the Agencies can assert jurisdiction under either the plurality’s relatively permanent standard or Justice Kennedy’s significant nexus standard from Rapanos v. United States, 547 U.S. 715 (2006). And the Agencies have compounded that fundamental error by
misapplying both of those standards to extend jurisdiction beyond the limits articulated in the plurality’s and Justice Kennedy’s opinions.
Were the Agencies truly just codifying the flawed pre-2015 regulatory regime that they
are currently implementing, the Proposed Rule would be problematic enough. But in reality, the rule is far worse than advertised. The Agencies are poised to significantly broaden the reach of their authority under the CWA compared to the pre-2015 regime by using the same overbroad interpretation of “significant nexus” that underpinned the 2015 Rule. While the Agencies do not go so far as they did in the 2015 Rule when they categorically defined all tributaries and all
adjacent waters as jurisdictional, the Proposed Rule is essentially a renewed quest to claim jurisdiction eventually over all tributaries, all floodplain riparian area wetlands and open waters, and as many remaining wetlands and open waters in non-floodplain landscapes as possible.
The Agencies state in the Proposed Rule that they are not reaching any conclusions, categorical or otherwise, about which waters and wetlands might meet the significant nexus standard. See 86 Fed. Reg. at 69,390. Yet at the same time, they are doubling down on the approach that they previously relied on in 2015 to justify categorical asserting jurisdiction over all tributaries, adjacent water features, and even dry land. By ignoring Congressional intent and decades of judicial precedent and instead reaffirming their belief that the science “unequivocally demonstrates” that most features are clearly connected to downstream navigable waters in ways that profoundly influence downstream water integrity1 and by seemingly reviving the 2015 Rule’s watershed approach to aggregating features for purposes of determining whether they collectively have more than a speculative or insubstantial effect on a downstream navigable water, the Agencies have set the stage to rack up significant nexus determinations, one watershed at a time, until they replicate the overly expansive jurisdictional reach of the 2015 Rule—a rule that was enjoined by several courts.
Fortunately, the Supreme Court has stepped in and agreed to address whether Justice Kennedy’s “significant nexus” inquiry is the proper test for asserting jurisdiction over wetlands that are adjacent to tributaries of “waters of the U.S.” See Sackett v. EPA, __ S. Ct. __, 2022 WL 199378 (Mem), No. 21-454 (Jan. 24, 2022). Because the Proposed Rule’s “either/or” approach to jurisdiction treats the “significant nexus” standard as a controlling test for determining what is a
“water of the United States,” the Agencies should halt rulemaking proceedings pending the outcome of that case. There is no sense in rushing through a rulemaking proceeding that codifies a standard that the Supreme Court could change or foreclose altogether.
If, however, the Agencies insist on moving forward with this rulemaking, they need to go back to the drawing board given the numerous important concerns that the Coalition sets forth in these comments. For the reasons discussed below, the Agencies should withdraw the Proposed Rule; reconsider the rule while addressing our concerns and reengaging stakeholders; and repropose a rule that adheres to the CWA and relevant Supreme Court precedent.
A. The Coalition’s Diverse Membership Is Vital to a Thriving National Economy.
WAC represents a large cross-section of the nation’s construction, transportation, real estate, mining, manufacturing, forestry, agriculture, energy, wildlife conservation, and public health and safety sectors―all of which are vital to a thriving national economy and provide much-needed jobs. The Coalition’s members remain committed to the protection and restoration of America’s waters and wetlands. Businesses and landowners have interests in and are among
our most effective stewards of the environment. Members of the Coalition include:
Agricultural Retailers Association
American Exploration & Mining Association
American Exploration & Production Council
American Farm Bureau Federation
American Forest & Paper Association
American Fuel & Petrochemical Manufacturers
American Gas Association
American Iron & Steel Institute
American Petroleum Institute
Industrial Minerals Association North America
International Council of Shopping Centers
Leading Builders of America
National Association of Home Builders
National Association of Manufacturers
National Association of Realtors
National Association of State Departments of Agriculture
National Club Association
American Public Power Association
American Road & Transportation Builders Association
American Society of Golf Course Architects
American Soybean Association
Associated Builders & Contractors
Associated General Contractors of America
Association of American Railroads
Association of Oil Pipe Lines
Club Management Association of America
Corn Refiners Association
Florida and Texas Sugar Cane Growers
Golf Course Builders Association of America
Golf Course Superintendents Association of America
Independent Petroleum Association of America
National Corn Growers Association
National Cotton Council of America
National Mining Association
National Multifamily Housing Council
National Oilseed Processors Association
National Pork Producers Council
National Rural Electric Cooperative Association
National Stone Sand & Gravel Association
Responsible Industry for Sound Environment
Southeastern Lumber Manufacturers Association
Texas Wildlife Association
The Fertilizer Institute
Treated Wood Council
USA Rice Federation
US Chamber of Commerce
Many of the Coalition’s members construct residential developments, multi-family housing units, commercial buildings, shopping centers, factories, warehouses, waterworks, roads, and other infrastructure. During 2021, total public and private investment in the construction of residential structures alone totaled nearly $800 billion.
Many of the Coalition’s members construct and maintain critical infrastructure: airports, bridges and highways, ports and waterways, railroads, tunnels, electric generation, transmission, and distribution facilities, and pipeline facilities. Research has shown that infrastructure investments increase economic growth, productivity, and land values. Coalition members support building smart, modern, and resilient infrastructure ahead of the next crises. Not only are investments in infrastructure critical to quality of life and environmental protection throughout the nation, but their effect on job creation is substantial.
WAC’s agricultural members grow virtually every agricultural commodity produced commercially in the United States, including significant portions of the domestic wheat, soybean, cotton, milk, corn, poultry, egg, pork, and beef supply. Agriculture and livestock-related industries contributed over $1.109 trillion to the U.S. gross domestic product in 2019 and employed 20 million people in 2020.3 Moreover, forest products―wood, paper, and furniture manufacturing―contribute nearly 6% of U.S. manufacturing GDP.
Additionally, WAC represents producers of most of America’s coal, metals, and industrial minerals, including critical minerals that support the supply chains of the low carbon energy transition. In 2017, U.S. mining activities directly and indirectly generated over 1.5 million U.S. jobs and $95 billion in U.S. labor income and contributed $217.5 billion to the U.S. GDP. WAC also represents the energy industry that generates, transmits, transports, and distributes the nation’s energy to residential, commercial, industrial, and institutional customers. Together, oil and natural gas supply more than 60 percent of our nation’s energy. Overall, as of 2017, the oil and natural gas industry supported 10.3 million U.S. jobs and contributed 8% of U.S. GDP.
All of these sectors feed into the domestic manufacturing sector, which employs more than 12.5 million men and women, contributes $2.55 trillion to the U.S. economy annually, has the largest economic impact of any major sector, and accounts for nearly two-thirds of all private-sector research and development in the nation.8 98.6% of American manufacturing companies are small businesses, and 75.3% of those businesses have fewer than 20 employees.
B. The Definition of WOTUS Is Exceptionally Important to WAC Members.
WAC members have substantial interests in ensuring that federal CWA jurisdiction is exercised lawfully and in promoting national uniformity and consistency in the definition of what features are WOTUS. Their members must comply with the CWA’s prohibition against unauthorized “discharges” into any areas that are ultimately deemed jurisdictional. Their projects and operations are all subject to regulation (to differing extents) under CWA Sections 402, 404, 401, 311, other provisions of the Act, and the state and local laws that protect water quality.
In contrast with the Navigable Waters Protection Rule (“NWPR”), which provided WAC members long-overdue certainty in describing what features are or are not WOTUS, the Proposed Rule codifies a return to unpredictable case-by-case determinations of jurisdiction by agency staff, thereby subjecting WAC members and landowners nationwide to considerable confusion about what features on their lands may be jurisdictional. This confusion deprives WAC members of notice of what the CWA requires and makes it impossible for WAC members to make informed decisions about the operation, logistics, and finances of their businesses. Even worse, under the CWA, WAC members may be subjected to severe criminal and civil penalties and citizen suits.
The Proposed Rule marks the latest development in nearly two decades of administrative proceedings, not to mention considerable litigation. WAC has submitted detailed comments on every proposed rule or draft guidance document that the Agencies have issued on the definition of WOTUS dating back to 2007:
- 2019 Proposed Revised Definition of “Waters of the United States,” 84 Fed. Reg. 4,154 (Feb. 14, 2019)
- 2018 Supplemental Notice of Proposed Rulemaking to Repeal the 2015 Clean Water Rule and Recodify the Preexisting Rule, 83 Fed. Reg. 32,227 (July 12, 2018)
- 2017 Proposed Rule to Repeal the 2015 Clean Water Rule and Recodify the Preexisting Rule, 82 Fed. Reg. 34,899 (July 27, 2017)
- 2014 Proposed Definition of “Waters of the United States” Under the Clean Water Act, 79 Fed. Reg. 22,188 (Apr. 21, 2014)
- 2011 Draft Guidance Regarding Identification of Waters Protected by the Clean Water Act, 76 Fed. Reg. 24,479 (May 2, 2011)
- 2007 Guidance Regarding Clean Water Act Jurisdiction After Rapanos, 72 Fed. Reg. 31,824 (June 8, 2007)
Separately, many individual members of the Coalition have submitted comments on these rulemaking proposals and guidance documents, as well as other agency actions. In all of these comments, WAC and its members have consistently urged the Agencies to define “waters of the United States” in a way that: gives appropriate weight to the explicit statutory policy to recognize, preserve, and protect the States’ traditional and primary authority over land and water
use; adheres to the full Supreme Court precedent on the definition of WOTUS under the CWA; gives effect to the term “navigable” in the statutory text; draws clear lines between federal and state or tribal jurisdiction so that regulators and regulated entities can easily identify what features are subject to federal CWA jurisdiction; and accounts for science, but recognizes that the statutory text ultimately dictates jurisdiction.
Through their experience, planning, and operations, WAC members have developed extensive experience under the CWA and, in particular, with the practical consequences of how the Agencies define WOTUS.
C. Summary of Coalition Comments and Recommendations.
When Congress enacted the CWA, it did not intend “to exert anything more than its commerce power over navigation.” Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps of Eng’rs (“SWANCC”), 531 U.S. 159, 168 n.3 (2001). To be sure, the CWA is broader than its predecessor statutes by extending federal regulatory authority beyond those interstate waters that are navigable-in-fact, or readily susceptible of being rendered so, and part of a continued highway over which interstate or foreign commerce is or may be carried by water. See Rapanos, 547 U.S. at 723. But Congress’s use of the term “navigable” in the CWA “has at least the import of showing us what Congress had in mind as its authority for enacting the CWA: its traditional jurisdiction over waters that were or had been navigable in fact or which could reasonably be so made.” SWANCC, 531 U.S. at 172. Equally important, the CWA reflects Congress’s express policy to recognize, preserve, and protect the states’ traditional and primary authority over land and water use. See 33 U.S.C. § 1251(b).
Over several decades, the Agencies have sought to steadily expand the definition of “waters of the United States” through regulations and guidance documents. The Supreme Court has had to intervene twice to curb the Agencies’ overreach and reinforce the limits that Congress placed on their regulatory authority under the CWA. Nonetheless, with this latest Proposal, the Agencies are back to their old ways of testing the outer limits of their authority by, among other things, articulating as broad a view of the “significant nexus” standard from Justice Kennedy’s concurring opinion in Rapanos as the Agencies have ever taken.
As explained in these comments, the Proposed Rule suffers from numerous flaws in its attempts to expand the Agencies’ authority beyond the limits set by Congress in the CWA and recognized by the Supreme Court. WAC members are especially concerned about the following aspects of the Proposal:
- The Agencies have reverted to disregarding the limits that Congress and the Supreme Court placed on their CWA authority and giving short shrift to the Congressional policy to recognize, preserve, and protect the primary responsibilities and rights of states to plan the use and development of land and water resources. In particular, the Proposed Rule effectively revives the 2015 Rule’s overbroad approach to significant nexus that appears to reach further than the approaches to jurisdiction that the Supreme Court rejected in SWANCC and Rapanos.
- The Agencies badly misinterpret Rapanos in the Proposed Rule by: (1) allowing for the assertion of jurisdiction under either the plurality’s relatively permanent standard or Justice Kennedy’s significant nexus standard; and (2) misreading both of those opinions to expand jurisdiction to far more water features than the plurality or Justice Kennedy had in mind in writing their respective opinions.
- The significant nexus standard in the Proposed Rule is unconstitutionally vague. The Agencies leave certain key terms such as “similarly situated” and “in the region” undefined. To make things worse, the rule gives individual regulators too much discretion to assert jurisdiction based on subjective determinations and nebulous inquiries. This standard does not give property owners fair notice of when the CWA actually applies to their lands.
- Because the so-called “foundational waters” in the Proposed Rule are defined too broadly, the other categories of waters that are jurisdictional because of their relationship to foundational waters are likewise overbroad. The Agencies’ view of what constitutes traditional navigable waters is inconsistent with Supreme Court precedents. Moreover, the standalone interstate waters/wetlands category impermissibly reads the term “navigable” out of the CWA.
- The tributaries, adjacent wetlands, and other waters categories impermissibly expand the scope of federal regulatory authority based on misinterpretations of the Rapanos plurality and concurring opinions. The newly expanded “other waters” is especially flawed and would effectively allow the Agencies to claim jurisdiction over a wide array of isolated water features that have not previously been regulated as “waters of the United States.” This expansion is incompatible with SWANCC.
- None of the reasons that the Agencies provide for repealing the NWPR withstand scrutiny. The Agencies’ claims that the NWPR does not advance the Section 101(a) objective and is inconsistent with the science are based on a deeply flawed interpretation of the Act and mischaracterizations of the record supporting the NWPR. Moreover, the record for this rule does not support the Agencies’ claims that the NWPR was causing environmental harm.
- The Proposed Rule’s expanded definition of “waters of the United States” will substantially affect all CWA programs. The Agencies have not adequately considered the implications of that expansion.
- The Agencies’ claim that the Proposed Rule will have zero impact on regulators or the regulated community because it codifies essentially the same definition as the pre-2015 regime they are currently implementing is implausible. The Agencies must actually assess the economic impact of broadening jurisdiction beyond the current regime. Furthermore, they must correct the many errors in their secondary baseline analysis comparing the Proposed Rule to the NWPR.
- In rushing to issue the Proposed Rule, the Agencies have failed to meaningfully comply with several requirements applicable to this rulemaking proceeding.
These and other concerns are discussed in detail below. We hope the Agencies carefully consider the Coalition’s comments and recommendations.
