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On Feb. 7, ABC, as a member of the Waters Advocacy Coalition, filed comments on the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers’ proposed rule to revise the definition of “waters of the United States” applicable to all Clean Water Act programs. The rule would repeal the Trump administration Navigable Waters Protection Rule and codify a definition that reflects the pre-2015 regulatory regime that the agencies are currently implementing. Raising numerous important concerns, the coalition urged the agencies to withdraw the proposed rule, reconsider the rule while addressing the coalition’s concerns and reengaging stakeholders, and repropose a rule that adheres to the CWA and relevant U.S. Supreme Court precedent.

The comment letter states:

“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, 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.”

ABC and the coalition have consistently urged the agencies to define WOTUS 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 which features are subject to federal CWA jurisdiction; and
  • Accounts for science but recognizes that the statutory text ultimately dictates jurisdiction.

The WAC continues to believe that the NWPR is an appropriate foundation for a durable and defensible rule. Rather than wiping out that rule in its entirety and replacing it with the flawed pre-2015 framework that prompted stakeholders to demand more clarity and certainty, the agencies should focus their efforts on revisions to the NWPR or related implementation guidance.

Finally, because the Supreme Court has decided to hear the case of Sackett v. Environmental Protection Agency, which challenges EPA’s overreach of its CWA jurisdiction, there is no sense in rushing through a rulemaking proceeding that codifies a standard that the Supreme Court could change or foreclose altogether.

ABC will continue to provide important updates on this important issue in Newsline.