Comment
Re: WOTUS Notice: The Final Response to SCOTUS; Establishment of a Public Docket; Request for Recommendations, EPA-HQ-OW-2025-0093
The National Association of State Departments of Agriculture (NASDA) appreciates the opportunity to provide comments on the United States Environmental Protection Agency’s (EPA) and United States Army Corps of Engineers’ (Corps) Request for Recommendations regarding defining “Waters of the United States” (WOTUS) under the Clean Water Act (CWA).
NASDA represents the commissioners, secretaries, and directors of the state departments of agriculture in all fifty states and four U.S. territories. State departments of agriculture are responsible for a wide range of programs, including conservation, environmental protection, food safety, plant and animal disease prevention, and fostering the economic vitality of our rural communities. Several state departments of agriculture also administer or partner in administering Section 402 National Pollutant Discharge Elimination System permitting programs for Concentrated Animal Feeding Operations.
NASDA endorses the detailed comments of the Waters Advocacy Coalition, of which we are members. We want to highlight a specific issue that, as representatives of state departments of agriculture, deserves further emphasis. Our concern is reflected in the underlying justification of the EPA and the Corps to move forward with their rulemaking beginning in 2021 in hopes that history will not repeat itself.
At the start of the 2021 rulemaking process, the Agencies referenced a list of 333 projects that they claimed were causing environmental harm based solely on the premise that these projects were not subject to federal jurisdiction. This position ignored the regulatory authority and effectiveness of state review process in overseeing non-jurisdictional waters. The benefits of many of these projects were highlighted in multiple stakeholder briefings and public meetings. However, during a federalism consultation on August 5, 2021, EPA officials seemed surprised that these projects might be beneficial. Rather than conducting the necessary analysis internally, the Agencies continued to assert these misleading arguments in public releases as justification for their rulemaking.
The review process lacked transparency and failed to engage stakeholders, including state partners. State departments of agriculture could have offered timely insight into the robust, locally implemented environmental programs that support and complement federal efforts.As a rationale for moving forward with the 2021 rulemaking, the Agencies asserted that substantially fewer waters were protected under the 2020 Navigational Waters Protection Rule (NWPR). The Agencies relied on three indicators: (i) increase in number and proportion of Jurisdictional Determinations (JD) where resources were found to be non-jurisdictional; (ii) increase in determinations that 404 permits are not required for specific projects; and (iii) increase in requests to complete approved Jurisdictional Determinations (AJDs) instead of preliminary Jurisdictional Determinations (PJDs).
From 2015–2019, the five years leading up to the NWPR, negative JDs accounted for between 27% and 45% of all JDs in any given year, whereas 75% of JDs were negative under the NWPR. In New Mexico and Arizona, 100% and 99.5% of the 1,525 (NM) and 1,518 (AZ) streams were found non-jurisdictional in year one of the NWPR. In the five preceding years, on average about 94% of streams (138 out of 147) were found to be non-jurisdictional. NASDA was alarmed that this analysis was not completed in a deliberative and transparent way before publishing this list and declaring that these projects are environmentally harmful.
Unfortunately, in response to the Supreme Court’s decision in Sackett, EPA and the Corps issued a “Conforming Rule” that was not subject to notice and comment on September 8, 2023. This rulemaking once again lacked the necessary transparency and deliberation that should be a bedrock of the administrative process. NASDA urges the Agencies to seek more, rather than fewer opportunities to consult with state partners throughout the regulatory process.
The CWA establishes limits on federal jurisdiction and the federal government’s role in regulating interstate commerce, thus recognizing the role of states in regulating non-navigable waters. The NWPR promulgated in 2020 respected these limitations on federal jurisdiction, as well as the capabilities and responsibilities of states to regulate and promote water quality, and NASDA asks that the EPA and the Corps once again respect states’ rights and responsibilities as you begin this new rulemaking process.
NASDA appreciates the opportunity to continue working with EPA and the Corps throughout this process and to ensure the rule maintains the same level of clarity as achieved by the NWPR. Thank you again for the opportunity to comment. Please contact Logan Moss, Associate Director of Public Policy (logan.moss@nasda.org) if you have further questions.
Sincerely,
Ted McKinney
CEO
NASDA
