Comments Submitted on Waters of the US

SLMA News,

Yesterday, the Waters Advocacy Coalition, of which SLMA is a member, submitted comments to the EPA regarding its proposed rule defining Waters of the US, in addition to technical and economic comments. The comments highlight the following points: 

  • The Agencies have reverted to disregarding the limits that Congress and the Supreme Court placed on their Clean Water Act 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. 
  • 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. 
  • 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 tributaries, adjacent wetlands, and other waters categories impermissibly expand the scope of the federal regulatory authority based on misinterpretations of the Rapanos plurality and concurring opinions. 
  • None of the reasons the Agencies provide for repealing the National Waters Protection Rule withstand scrutiny.
  • The Proposed Rule's expanded definition of "waters of the United States" will substantially affect all CWA programs. 
  • 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 implemented is implausible. The Agencies must actually assess the economic impact of broadening jurisdiction beyond the current regime. 
  • In rushing to issue the Proposed Rule, the Agencies have failed to meaningfully comply with several requirements applicable to this rulemaking proceeding. 

In addition to the comments submitted by the Waters Advocacy Coalition, SLMA joined comments written by the National Alliance of Forest Owners that oppose the proposed rules' language to broaden the Agencies' approach to implementing the significant nexus standard, creating an entirely new "other waters" category, and narrowing the list of non-regulated ditches. Updates on this issue will continue to be included in the monthly Regulatory Update.