On July 29, AGC – through a coalition of organizations representing the housing, mining, agriculture, and energy sectors – submitted detailed comments to the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) regarding new draft “Guidance on Identifying Waters Protected by the Clean Water Act” (proposed guidance).
As AGC has previously reported, the agencies intend the proposed guidance to clarify the extent of federal control over construction work “in waters of the United States.” However, if adopted, it will result in significantly more federally controlled waters that would require Clean Water Act (CWA) Section 404 permits. The agencies use the proposed guidance to broadly interpret what waters can be considered “waters of the United States” and then extend that interpretation to all programs authorized under the Act, including the stormwater and oil spill programs.
The extent of the changes proposed in this guidance are so sweeping, the coalition concludes that the agencies have violated the Administrative Procedures Act (APA) and should abandon the proposed guidance in favor of moving forward immediately with a valid rulemaking. The coalition’s comments state that the proposed guidance “amends the agencies’ existing regulations” and constitutes a rulemaking, and, “thus, should have been adopted in accordance with the APA’s procedural requirements ….” The APA process allows for public comment, provides transparency and is subject to judicial review. AGC has long supported a rulemaking to better define federal jurisdiction under the CWA and to resolve the uncertainty and confusion following prior guidance documents and competing decisions in two U.S. Supreme Court cases.
In addition to the APA, a rulemaking also would ensure the agencies follow several other mandatory statutory and regulatory requirements, such as the Regulatory Flexibility Act, Executive Order (EO) No. 12,866 titled “Regulatory Planning and Review,” EO No. 13,132 titled “Federalism,” and the Paperwork Reduction Act. The coalition’s comments assert that even though the Agencies went so far as to redefine their regulatory authority under the CWA with the proposed guidance, they failed to fulfill their obligations under these laws and other requirements.
The coalition also provides substantial comments on ways in which the proposed guidance misconstrues Supreme Court cases, is inconsistent with the agencies’ regulations and expands jurisdiction. Point-by-point, the coalition challenges the agencies’ new definitions and interpretations of: traditional navigable waters (TNWs), interstate waters, significant nexus analysis, tributaries, ditches, adjacent wetlands and other waters. For example, the comments state “the agencies’ definition of ‘traditional navigable waters’ (TNWs) should be consistent with the Rivers and Harbors Act definition cited by the plurality and Justice Kennedy in Rapanos.” The coalition also asserts that the “agencies should not treat interstate waters as equivalent to TNWs.” (Go to page 6 of the coalition’s comments for a summary of the coalition’s key comments.)
The coalition further asserts that the agencies have not fully appreciated the practical, policy and economic implications of expanding their jurisdiction and then extending their new interpretation of “waters of the United States” to all programs in the CWA. “Under the Draft Guidance, virtually all waters could be jurisdictional under the CWA and, as a result, even more projects and activities will be required to obtain Section 404 permits.” Broadening the scope of the agencies’ jurisdiction will also require more activities to obtain stormwater permits and impact the Total Maximum Daily Load program, state water quality certifications and Oil Spill Prevention Control and Countermeasure (SPCC) plans. This expansion of jurisdiction will place additional burdens on already strained permitting programs – many of which are administered by the states – resulting in added costs and delays.
Concerns about the increased burden on state administrators and permitting delays led AGC to join the National Conference of State Legislators, the United States Conference of Mayors, and other state and industry groups in sending an additional joint letter to the agencies. This joint letter addressed the agencies’ failure to consult with state and local governments “to address significant concerns about the preemption of traditional state and local government authority concerning the management of state waters.” The letter also criticized the agencies for failing to consider the effects on all CWA programs, “an omission of this magnitude will have significant unintended financial consequences for federal, state and local governments, as well as businesses and private entities.”
The coalition commissioned a review and critique of the agencies’ economic analysis that concluded the agencies failed to consider many major categories of impacts and significantly underestimated the costs that were quantified. The coalition recommends that the agencies redo their economic analysis to include the true cost impacts associated with implementing the proposed guidance. The agencies should re-evaluate their method for determining the cost associated with the proposed guidance on the Section 404 wetlands permitting program and also evaluate the cost implications of expanding the scope of “waters of the United States” to other CWA programs (e.g., stormwater). The coalition comment letter includes the full critique of the agencies’ economic analysis as an exhibit (see below).
Use the links below to read the coalition’s July 29, 2011, 112-page comment letter. The accompanying 12 exhibits include a critique of EPA’s economic assessment and maps that provide examples to demonstrate the potential impact of the proposed guidance.
- Coalition Comments in Response to the Environmental Protection Agency’s and U.S. Army Corps of Engineers’ Draft Guidance on Identifying Waters Protected by the Clean Water Act
- Exhibit 1: Interests of Coalition Members
- Exhibit 2: David Sunding, Economic Incentive Effects of EPA’s After-the-Fact Veto of a Section 404 Discharge Permit Issued to Arch Coal (May 30, 2011)
- Exhibit 3: “Transcription of Scottsdale, Arizona Rapanos Guidance Workshop Sponsored by the National Mining Association, the National Association of Home Builders, and Hunton & Williams LLP,” Scottsdale, AZ (Sept. 13, 2007)
- Exhibit 4: Corps Regulatory Program Data FY 2003 to FY 2010
- Exhibit 5: Memorandum from John Elmore, Department of the Army, Directorate of Civil Works, and David Davis, EPA, Office of Wetlands Protection, re: Clean Water Act Section 404 Jurisdiction Over Isolated Waters in Light of Tabb Lakes v. United States (Jan. 24, 1990)
- Exhibit 6: U.S. EPA & U.S. Army Corps of Eng’rs, “Guidance for Corps and EPA Field Offices Regarding Clean Water Act Section 404 Jurisdiction Over Isolated Waters in Light of United States v. James J. Wilson” (May 29, 1998)
- Exhibit 7: Map: Arizona & New Mexico, National Hydrology Dataset
- Exhibit 8: Map: Arizona & New Mexico, Little Colorado River Watershed
- Exhibit 9: Map: Fulton & Mason Counties, Illinois, Floodplain of Illinois River
- Exhibit 10: Map: South Dakota, Prairie Potholes Inside and Outside James River Floodplain
- Exhibit 11: David Sunding, Review of EPA’s Preliminary Economic Analysis of Guidance Clarifying the Scope of CWA Jurisdiction (July 26, 2011)
- Exhibit 12: David L. Sunding Biography