Letter to the EPA by National Wildlife Federation and Trout Unlimited Opposing the Rollbacks to the Clean Water Rule

RE: Docket ID Number EPA-HQ-OW-2017-0203: Comments on Definition of “Waters of the United States”—Recodification of Preexisting Rule, Federal Register, Vol. 83, No. 134 (July 12, 2018)

Dear Acting Administrator Wheeler and Assistant Secretary James:

On behalf of the National Wildlife Federation and Trout Unlimited, our more than six million members and supporters—including millions of conservation-minded hunters, anglers, and outdoor enthusiasts—and state and territorial affiliates, we write in strong opposition to the Environmental Protection Agency’s (EPA) and Army Corps of Engineers’ (Corps) proposal to repeal the 2015 Clean Water Rule – a popular, much-needed, and carefully-developed action taken to protect the nation’s waters from pollution and destruction. We also oppose your plan to weaken decades-old safeguards via this and a subsequent rulemaking action. These rollbacks, which President Trump initiated by signing Executive Order 13,778 on February 28, 2017, jeopardize waterways upon which we all rely.

The National Wildlife Federation and Trout Unlimited have championed clean and healthy rivers and streams since our founding in 1936 and 1959. Conserving our Nation’s wetlands, streams, and rivers for fish, wildlife, and communities is at the core of our mission. We worked closely with Senator Muskie to pass the Clean Water Act in 1972 and have worked hard to fulfill its promise of clean water for all Americans ever since. We believed then—and still believe today—that the best way to improve water quality is to prevent pollution at its source, which is much cheaper than trying to remove pollution downstream. Since the SWANCC and Rapanos U.S. Supreme Court decisions issued in 2001 and 2006, respectively, we have been actively engaged in the effort to clarify the definition of “Waters of the United States” that underpins the 1972 Clean Water Act.

We respectfully request your careful consideration of our comments on this proposed rule, highlighting the strong technical, scientific, legal, and public support for the Clean Water Rule – and the lack of public support and supporting rationale for the proposed Clean Water Rule repeal. We urge you to withdraw this proposed repeal of the Clean Water Rule as well as the proposed codification of the failed 2008 Rapanos guidance.

Comment Overview

The agencies’ 2018 supplemental proposal to repeal the Clean Water Rule, like their initial 2017 proposal is arbitrary, capricious, and contrary to law because the agencies fail to provide meaningful opportunity for public comment, fail to consider all relevant information, and fail to provide a rational explanation for reversing course in defining Waters of the U.S. In fact, the supplemental proposal compounds the arbitrariness of the proposed repeal and recodification of the Rapanos guidance by, among other things, failing to compare the merits of the Clean Water Rule with the Rapanos guidance they propose to recodify, casting doubt on the Rapanos guidance and whether they intend to enforce it, and failing to give an accurate assessment of the effects of the Clean Water Rule and how the repeal of the Clean Water Rule will impact the nation’s waters and the communities, outdoor recreation economy, property values, drinking water supplies, and fish and wildlife that depend on healthy waters. Instead, the agencies selectively mine and mischaracterize the Clean Water Rule administrative record as well as litigation documents attacking the Clean Water Rule in a failed attempt to support their proposed repeal.

The agencies propose to justify the repeal of the Clean Water Rule based on two primary grounds: that the Clean Water Rule repeal will promote regulatory certainty and that the Clean Water Rule is legally vulnerable. They fail on both fronts to provide a rational explanation for repeal of the Clean Water Rule.

First, it is the Clean Water Rule, not its repeal, that promotes regulatory certainty and the agencies’ initial and supplemental proposals provide no support for repeal on this basis. State and industry litigation challenging the Clean Water Rule does not, in and of itself, provide a basis for repeal. To the extent there has been stakeholder confusion regarding the scope of the 2015 Rule, it has been manufactured by state and industry opponents and by EPA Administrator Pruitt and is not a legitimate basis for Clean Water Rule repeal. The agencies’ selective references to state claims of Clean Water Rule regulatory uncertainty are one-sided, unsupported, and not a valid basis for repeal. They simply underscore the agencies’ unalterably closed mind throughout this rulemaking. Longstanding agency experience with the 1986 regulations supports continuing to refine Clean Water Rule-based guidance and implementation; it does not support repeal of the Clean Water Rule and recodification of the Rapanos guidance – much less further deviation from that guidance as the agencies seem to intend. In reality, the agencies’ wide-ranging, vague, and contradictory supplemental proposal maximizes regulatory uncertainty with respect to the waters of the U.S.

Second, the Clean Water Rule is consistent with the Clean Water Act and the Supreme Court’s direction in SWANCC and Rapanos, and the agencies fail to justify repeal of the Clean Water Rule as exceeding CWA authority. The 2015 Clean Water Rule relies on the widely accepted “significant nexus” standard for Clean Water Act jurisdiction. The 2015 Rule clarifies and limits — but does not expand – the historic scope of Clean Water Act jurisdiction. The Clean Water Rule is based on a state-of-theart review of the science, incorporating the basic principles and findings of connectivity science in order to meet the goals of the Clean Water Act and satisfy the Kennedy significant nexus jurisdictional standard.

In a failed attempt to undermine the Clean Water Rule and support its repeal, the agencies mischaracterize the SWANCC and Rapanos decisions and Justice Kennedy’s significant nexus test and even propose that the agencies relied too much on the connectivity science in promulgating the Clean Water Rule. They fail, however, to provide a more credible approach to ensuring compliance with the Clean Water Act and Supreme Court precedent. The agencies’ one-sided arguments fail to support their proposed findings that the Clean Water Rule exceeds CWA authority, expands the potential scope of CWA jurisdiction or mischaracterizes the extent of the Rule’s impact on the scope of jurisdiction beyond the estimates in the agencies’ 2015 analysis.

The agencies also fail to support their argument that the Clean Water Rule disrupts the federal-state balance in violation of the Clean Water Act. They provide no rational basis for repealing the Clean Water Rule on state rights grounds. Nor can the agencies justify repeal on constitutional grounds. The Clean Water Rule tows the Commerce Clause constitutional line in accordance with Justice Kennedy’s significant nexus test and other Supreme Court precedent.

In the pot-calling-the-kettle-black category, the agencies’ claims of Clean Water Rule procedural deficiencies also fall flat and fail to justify repeal of the Clean Water Rule. In fact, the agencies’ Clean Water Rule proposal is riddled with procedural deficiencies and finalizing this Clean Water Rule repeal would be unlawful. For starters, the paltry 30-day public comment period has been far too limited to allow a meaningful opportunity for public participation for such an important and wide-ranging rulemaking. Furthermore, the agencies fail to provide a meaningful opportunity to comment by failing to provide factual support for their legal conclusions, by asking opponents of the Clean Water Rule to provide this support to agencies during the comment period, and by failing to consider the substance of the guidance or the Clean Water Rule and their relative merits and impacts in violation of the APA. In addition, the agencies fail to provide a sound economic analysis of the impact of their Clean Water Rule repeal. Finally, Administrator Pruitt’s active promotion of the Clean Water Rule repeal based on false and misleading statements continues to undermine public comment and demonstrates the agencies’ refusal to consider and respond to all relevant information with an open mind.With regard to next steps, rather than repeal the Clean Water Rule, the agencies should use the Rule as a starting point from which to objectively and transparently reassess any specific Clean Water Rule provisions that may warrant further refinement or clarification.

I. The Agencies’ Repeal Proposal Is Arbitrary And Capricious Because The Agencies Fail To Provide A Rational Explanation For Reversing Course On The Waters Of The US.

The 2015 Clean Water Rule is a final rule that is binding law, having been promulgated through rulemaking as required by the Administrative Procedure Act (APA). Any repeal of such a final rule is an agency action that itself must undergo rulemaking pursuant to the APA. To comply with the APA in promulgating or rescinding a final rule, an agency must: 1) publish a notice of proposed rulemaking that includes “either the terms or substance of the proposed rule or a description of the subjects and issues involved;” 2) provide the public a meaningful opportunity to comment on the merits of the rulemaking action; and 3) consider and respond to all of the “relevant matter presented” during the rulemaking process. The agencies must “examine the relevant data and articulate a satisfactory explanation for its action including a `rational connection between the facts found and the choice made.'”

Where the agencies propose to reverse course on an agency policy, here the definition of waters of the U.S. by repealing the Clean Water Rule, based in large part on “factual findings that contradict those which underlay [their] prior policy,” the agencies must also provide “a reasoned explanation…for disregarding facts and circumstances that underlay or were engendered by the prior policy.”5 Any final rulemaking action found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” violates the APA and must be set aside by the federal courts.6

As explained in our 2017 Clean Water Rule repeal comments and further explained below, the agencies’ proposed repeal and supplemental repeal of the Clean Water Rule and codification of the Rapanos guidance must be withdrawn or, if finalized, invalidated as arbitrary and capricious and in violation of the APA because the agencies have failed to provide the required notice and meaningful opportunity for comment, refused to consider all relevant information, and offered no reasoned explanation to justify their repeal and replace rulemaking action. See NWF Clean Water Rule Repeal Comments at 6-11 (September 26, 2017) (“NWF 2017 Repeal Rule Comments”), attached and incorporated by reference.

The agencies’ proposed repeal is arbitrary, capricious, and contrary to law because, among other deficiencies, it would elevate the Rapanos guidance to the status of a regulation without public notice and comment on its merits compared to the merits of the Clean Water Rule and with no stated rationale for reversing course, repealing the Clean Water Rule, and returning to the Rapanos guidance. The agencies’ 2018 supplemental proposal compounds the arbitrary nature of their repeal and recodification proposal for numerous reasons, including the fact that the agencies’ latest proposal provides little analysis of the Rapanos guidance, and what analysis it includes at times casts doubt on whether the agencies consider the Rapanos guidance legal and whether they have any intention of implementing or enforcing it. See e.g., 83 Fed. Reg. at 32237, 32247.

In addition, the agencies fail to give an accurate assessment of the merits of the Clean Water Rule, selectively mining and mischaracterizing the Clean Water Rule administrative record and litigation documents attacking the Rule in order to cast doubt on the regulatory certainty it provides as well as its legality. The agencies’ proposed repeal of the Clean Water Rule “is rendered inadequate by [their] affirmative mischaracterization of its import and impact.”

As detailed in our 2017 comments and below, the agencies’ supplemental proposal again ignores the relevant shortcomings of the Rapanos guidance, documented in the Clean Water Rule administrative record, including its attendant uncertainty, litigation, and costs. It is irrational and unreasonable for the agencies to undo the final Clean Water Rule that provided clarity and instead “codify” a failed system that all parties agree is not working. Indeed, the agencies fail to even consider the very real economic costs associated with the uncertainty they create by each step of their now multi-step haphazard attempts to repeal the Clean Water Rule. Their unfounded assumption that they are reducing uncertainty and that their actions result in economic benefits from reduced uncertainty is arbitrary and capricious.

It is arbitrary and capricious to repeal the Clean Water Rule – which does in fact promote regulatory certainty – without any evidence-based rationale. Where the agencies propose to reverse course on the definition of waters of the U.S. by repealing the Clean Water Rule, based in large part on “factual findings that contradict those which underlay [their] prior policy” – here with respect to regulatory certainty — the agencies must provide “a reasoned explanation…for disregarding facts and circumstances that underlay or were engendered by the prior policy.” As a result of these deficiencies in administrative procedure and others, the agencies have failed to give proper notice, failed to consider all relevant information, and failed to “examine the relevant data and articulate satisfactory explanation for its action including a `rational connection between the facts found and the choice made.'”11

II. The Clean Water Rule Repeal Does Not Promote Regulatory Certainty And Is Not Justified On That Basis.

The agencies’ primary rationale for their Clean Water Rule repeal proposal is based on two related – and unsubstantiated — factual conclusions:

1. That the 2015 rule “is creating significant confusion and uncertainty for agency staff, regulated entities, states, tribes, local governments, and the public, particularly in view of court decisions that have cast doubt on the legal viability of the rule;” and
2. That the repeal of the 2015 rule and recodification of the pre-2015 regulations will provide greater regulatory clarity.

See 83 Fed. Reg. 32227, 32228 (“To provide for greater regulatory certainty, the agencies propose to repeal the 2015 Rule and to recodify the pre-2015 regulations, thereby maintaining a longstanding regulatory framework that is more familiar to and better understood by the agencies, states, tribes, local governments, regulated entities, and the public.”).

Neither of these premises are true or supported by the administrative record for the Clean Water Rule or the current repeal proposal. Nor is it true that the pre-2015 regulatory framework is longstanding or more familiar to and better-understood by the regulated community and the public. In fact, these factual conclusions are contradicted by the administrative record for the Clean Water Rule. As described in NWF’s 2017 comments opposing this repeal, and further explained below, the repeal of the Clean Water Rule does not promote regulatory certainty and the proposed repeal of the Clean Water Rule is not justified on that basis.

• The Clean Water Rule minimizes regulatory uncertainty.

As noted in NWF’s 2017 comments, the Clean Water Rule revises the longstanding definition of “waters of the United States” subject to the Clean Water Act in response to the Supreme Court’s decisions in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (“SWANCC”),12 and Rapanos v. United States. The EPA and the Corps took on this historic rulemaking because at least two of the Supreme Court Justices clearly called for it in their Rapanos concurring opinions: Chief Justice Roberts and Justice Breyer, and a majority in Rapanos embraced the role of expert agency regulations to clarify which waters are – and are not – “waters of the United States.”

In Rapanos, the Supreme Court issued five opinions, none of which garnered a majority. In the ensuing litigation implementing the Court’s opinions, Justice Kennedy’s opinion establishing the “significant nexus” analysis has been widely accepted by the U.S. Courts of Appeals. Justice Kennedy’s “significant nexus” test requires a showing – through regulation or case-by-case review – that the ecological linkages between smaller or more remote waterbodies and navigable waters, “alone or in combination,” must be more than “speculative or insubstantial.”

The Clean Water Rule closely tracks Kennedy’s pivotal significant nexus standard, grounding its definition of which waters are protected in science-based findings of significant nexus to traditionally navigable and interstate waters. The Federal Register preambles to the proposed and final versions of the Clean Water Rule include an extensive legal analysis documenting the rule’s reliance on the significant nexus test.

In promulgating the Clean Water Rule, the agencies consistently recognized the critical importance of clarifying the scope of waters of the U.S. in order to provide fair and predictable notice of the limits of federal jurisdiction. See Proposed Rule at 79 Fed. Reg. 22188-89, 22190, 22192 (“[T]he agencies also seek additional information that would enhance the predictability and accuracy of its jurisdictional determinations.”), 22209, 22214 (“[S]ignificant goals of the agencies in developing this proposed rule are to provide greater clarity, certainty, and predictability to the public as to what waters are and are not subject to the jurisdiction of the CWA.”), 22216, 22217 (“Codifying these longstanding practices [exclusions from ‘waters of the U.S.’] supports the agencies’ goals of providing greater clarity, certainty, and predictability for the regulated public and the regulators.”), 22218, 22219 (The agencies recognize that there have been inconsistencies in practice implementing agency policy with respect to ditches and this proposed rule is designed to improve clarity, predictability, and consistency.”). See Clean Water Rule: Definition of “Waters of the United States”; Final Rule, 80 Fed. Reg. 37054 (June 29, 2015) at 37054, 37057 (“The agencies sought comment on a number of approaches to specific jurisdictional questions, and many of these commenters and stakeholders urged EPA to improve upon the April 2014 proposal, by providing more bright line boundaries and simplifying definitions that identify waters that are protected under the CWAA, all for the purpose of minimizing delays and costs, making protection of clean water more effective, and improving predictability and consistency for landowners and regulated entities.”), 37064, 37073 (“Codifying these longstanding practices [exclusions from ‘waters of the U.S.’] supports the agencies’ goals of providing greater clarity, certainty, and predictability for the regulated public and regulators, and makes rule implementation clear and practical.”), 37079, 37090 (re setting the 4,000 foot boundary enhances “regulatory clarity, predictability, and consistency.”), 37091 (“Determining by rule that covered adjacent waters have a significant nexus follows the science, achieves regulatory clarity and predictability, and avoids expenditure of agency and public resources on case-specific significant nexus analysis.”), 37095, 37098 (re codifying exclusions to provide greater clarity, certainty, and predictability).

Consequently, a key attribute of the Clean Water Rule is its additional clarity, relieving federal and state agencies and landowners alike of the confusing and burdensome case-by-case jurisdictional determinations required under the guidance for plans to discharge pollutants into most wetlands and streams. Indeed, the agencies’ supplemental rulemaking acknowledges as much, observing that regulating “certain waters by category,” as the Clean Water Rule does, “could improve regulatory predictability and certainty and ease administrative burden while still effectuating the purposes of the Act.” 83 Fed. Reg. at 32237.

Logically, in contrast, returning to the case-by-case, non-binding, non-categorical Rapanos guidance, as the agencies propose to do, will reduce regulatory predictability and certainty, increase inconsistency, and increase the administrative burden of making jurisdictional determinations. Indeed, the agencies catalogued their extensive experience implementing the pre-Rule regime when they issued the Clean Water Rule, see 80 Fed. Reg. at 37065, and they found that “this time and resource intensive process can result in inconsistent interpretation of [Clean Water Act] jurisdiction and perpetuate ambiguity over where the [Act] applies.” Id. at 37056. The Agencies identified a “compelling need for clearer, more consistent, and easily implementable standards to govern administration of the Act, including brighter line boundaries where feasible and appropriate.” Id. at 37057.

The agencies now reverse course, without explaining why they no longer agree with their earlier conclusion that the Clean Water Rule is clearer and easier to apply than the preRule regime, and without providing any evidence that the pre-Rule regime led to predictable or consistent outcomes. As noted above and below, the supplemental proposal adds substantial additional uncertainty as the agencies suggest that even the pre-Rule regime may exceed their new interpretation of the limits of CWA authority, and cast doubt on whether they have any intention of enforcing it. See e.g., 83 Fed. Reg. at 32237, 32247.

As a binding rule, promulgated through a rigorous, transparent, and extended rulemaking process, and codified in the code of federal regulations, the Clean Water Rule’s revised definition of “waters of the United States” provides greater certainty and consistency in jurisdictional determinations for landowners, federal and state agency field staff, and the courts.

Significantly, the regulatory certainty provided by the Clean Water Rule has been undermined by the rule’s opponents, including EPA Administrator Pruitt both before and after he assumed his position at EPA. Legal challenges to the Clean Water Rule by states and industry plaintiffs, often promoted by EPA Administrator Pruitt and advanced as a one-sided rationale for Clean Water Rule repeal, along with the 2018 two year suspension of the Clean Water Rule, have contributed to confusion and delay in at least three critical respects:

1) Any new regulation, particularly governing a complex and science-based matter like which waters are covered or not covered by the CWA, requires a concerted agency effort to inform and train federal and state agency staff as well as regulated entities in how to apply the new regulation on the ground. The North Dakota federal district court preliminary injunction decision immediately following the effective date of the Rule, and the Sixth Circuit preliminary injunction decision following 5 weeks later, put an immediate halt on agency efforts to inform, educate, and train agency staff and stakeholders for fear of being accused of Clean Water Rule implementation in defiance of the injunctions;

2) The industry and state opponents of the Clean Water Rule presented misleading and outright untruthful characterizations of the Rule in court, in private meetings, and in public communications; and

3) EPA Administrator Pruitt himself openly made false statements about the substance of the Clean Water Rule, manufacturing confusion and demonstrating hostility to the Rule. See NWF 2017 Repeal Rule Comments at 9-12.

Chief Justice Robert’s observation in Hawkes that “[i]t is often difficult to determine whether a particular piece of property contains waters of the United States” applies to the pre-Clean Water Rule regulatory framework that the agencies now seek to return to. Repealing the Clean Water Rule and recodifying the 1986 rule as interpreted through the 2008 Rapanos guidance will increase regulatory uncertainty, not decrease it. It will exacerbate rather than fix the uncertainty and fair notice concerns at issue in Hawkes. Rescinding the Clean Water Rule and replacing it with the 2008 Rapanos guidance will only extend the confusion, delay, inconsistencies, and costs of Clean Water Act jurisdictional determinations.

The agencies provide no evidence to the contrary. In fact, in order for the public to meaningfully assess their claims, the agencies should conduct an objective, factbased analysis of all of the 2015 Clean Water Rule-based Approved Jurisdictional Determinations (AJDs) and associated records in order to credibly assess the extent to which the Clean Water Rule jurisdictional determinations increased or decreased regulatory certainty, predictability, and consistency, and provided for more efficient and cost-effective determinations of which waters are – and are not – waters of the U.S. The agencies acknowledge these records in their supplemental proposal, but fail to even consider this data, much less make them public or objectively analyze them. The 500 or so 2015 Clean Water Rule AJDs are among the more “relevant matter presented” during the rulemaking process. The agencies must “examine the relevant data and articulate a satisfactory explanation for its action including a `rational connection between the facts found and the choice made.'”

• The Clean Water Rule Repeal maximizes regulatory uncertainty.

As noted in NWF’s 2017 repeal rule comments, the 2008 Rapanos guidance, which the agencies propose to reinstate, has resulted in an untenable status quo of delays, confusion, and uncertainty for applicants seeking permits, along with increased workloads for Corps and EPA officials. EPA’s costs to enforce CWA §§402, 404, and 311 have increased significantly due to the incremental resources required to assert jurisdiction on a case-by-case basis post-SWANCC and Rapanos. For years following Rapanos, litigation increased as courts grappled with the threshold question of which jurisdictional test to apply in the wake of the splintered Rapanos decision. Because it can be difficult to establish where the CWA applies after the Supreme Court’s decisions in SWANCC and Rapanos, enforcement efforts shifted away from small streams high in the watershed where jurisdiction is a potential issue. Post-Rapanos uncertainty and added time and expense is undermining Clean Water Act enforcement and the overall effectiveness of the Clean Water Act in maintaining and restoring the nation’s waters.

In light of this uncertainty and its attendant costs, regulated industry and clean water stakeholders alike criticized the 2008 Rapanos guidance status quo and called on the agencies to clarify the “waters of the United States” through rulemaking. It is irrational and unreasonable for the agencies to undo the rulemaking that provided clarity and codify a failed system that all parties agree is not working.

Indeed, the agencies fail to even consider the very real economic costs associated with the uncertainty they create by each step of their haphazard, now multi-step, rulemaking process. Their unfounded assumption that they are reducing uncertainty and that their actions result in economic benefits from reduced uncertainty is arbitrary and capricious. It is arbitrary and capricious to repeal the Clean Water Rule – which does in fact promote regulatory certainty – without any evidence-based rationale. Where the agencies propose to reverse course on the definition of waters of the U.S. by repealing the Clean Water Rule, based in large part on “factual findings that contradict those which underlay [their] prior policy” – here with respect to regulatory certainty — the agencies must provide “a reasoned explanation…for disregarding facts and circumstances that underlay or were engendered by the prior policy.”

The agencies’ supplemental rationale that the pre-Clean Water Rule regulatory framework is “longstanding” and “better-understood” is neither true nor supported by the record. The 1986 regulatory definition of waters of the U.S. was itself wellestablished, well understood — until the SWANCC and Rapanos Supreme Court decisions muddied the jurisdictional waters. The resulting 2008 Rapanos guidance interpreting these Supreme Court decisions are not longstanding, not clear, and not consistent in application. The agencies acknowledge as much, noting that “the 1986 regulations have posed certain implementation difficulties and were the subject of court decisions that had the effect of narrowing their scope.” 83 Fed. Reg. at 32,239-40.

The agencies’ unsubstantiated conclusion that, “as between the 2015 Rule and the 1986 regulations, the 1986 regulations (as informed by applicable Supreme Court precedent and the agencies’ guidance) would appear to provide for greater regulatory predictability, consistency, and certainty” is simply false and is contradicted by the Clean Water Rule administrative record. 83 Fed. Reg. at 32,239-40.

The agencies’ supplemental repeal proposal creates additional, protracted uncertainty and wastes scarce federal and state resources by proposing – again without justification – to undermine and limit Justice Kennedy’s widely accepted “significant nexus” jurisdictional test, grounded in the law and the science, and to shift the definition of waters of the U.S. away from the “significant nexus” jurisdictional test to a definition based on Justice Scalia’s “relatively permanent” jurisdictional test, which lacks both legal and scientific foundation.

All of the Circuit Courts that have addressed the issue of Clean Water Act jurisdiction following Rapanos have applied Justice Kennedy’s significant nexus analysis or, have adopted the even broader application of the Act’s protections similar to the Eighth Circuit. None have relied exclusively upon Justice Scalia’s “relatively permanent” jurisdictional test. See, United States v. Cundiff, 555 F.3d 200, 210 (6th Cir. 2009) and United States v. Johnson, 467 F.3d 56, 65 (1st Cir. 2006) (if either plurality or Justice Kennedy’s test is met, there is a “water of the United States”); United States v. Gerke, 464 F.3d 723, 724 (7th Cir. 2006) (Court looks to “significant nexus” standard as precedent); United States v. Robison, 505 F.3d 1208, 1222 (11th Cir. 2007) (Court looks to “significant nexus” standard as precedent); N. Cal. River Watch v. City of Healdsburg, 496 F.3d 993, 999- 1000 (9th Cir. 2007) (Court looks to “significant nexus” standard as precedent) (followed by N. Cal. River Watch v. Wilcox, 633 F.3d 766, 781 (9th Cir. 2011) where court describes Justice Kennedy’s concurrence as the “controlling rule of law”); United States v. Lucas, 516 F.3d 316, 327 (5th Cir. 2008) (Court looks to “significant nexus” standard as precedent); United States v. Donovan, 661 F.3d 174, 182 (3d Cir. 2011) (Court looks to “significant nexus” standard as precedent). See also, Precon Dev. Corp., Inc. v. United States Army Corps of Engineers, 633 F.3d 278, 289-90 (4th Cir. 2011) (parties agree and court adopts Justice Kennedy significant nexus test, approving of Corps definition of “adjacent”) and Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637, 649 n.10 (4th Cir. 2018) (characterizing Justice Kennedy’s Rapanos concurrence as “controlling”).

The agencies’ proposal to shift the definition of waters of the U.S. and dramatically limit the scope of the Clean Water Act ensures on-going uncertainty and litigation challenging such an unprecedented rollback, and is sure to muddy the regulatory waters for years to come.

• The state and industry litigation challenging the Clean Water Rule does not provide a basis for Clean Water Rule repeal.

The agencies acknowledge that the 2015 rule reflected the judgment of the agencies, the science, the agency expertise, and the goals of providing clarity while protecting the environment and public health consistent with the law. 83 Fed. Reg. at 32238, citing 80 Fed. Reg. at 37065.

Yet now the agencies argue that the state and industry litigation challenging the Clean Water Rule constitutes a change in circumstances that creates more Clean Water Rule uncertainty and justifies rule repeal: “Since then, developments in the litigation against the 2015 Rule and concerns raised since the rule’s promulgation indicate that maintaining the 2015 Rule would produce substantial uncertainty and confusion….” Id. This reasoning is unsound on its face. Taken to its logical conclusion, litigators could undermine the Clean Water Rule – or the agencies’ recent Clean Water Rule suspension, repeal, and replacement rules – as creating uncertainty and a justification for repeal simply by bringing suit. The agencies’ Clean Water Rule suspension, repeal, and replacement rules will all be subject to legal challenge and are more legally vulnerable than the Clean Water Rule. Yet, the mere fact of litigation does not provide a basis for invalidation. Litigation challenging the Clean Water Rule may raise uncertainty as to where and when the rule will apply, but the litigation does not raise uncertainty with respect to the provisions of the Rule itself and does not provide a rational basis for Clean Water Rule repeal.

The preliminary injunction orders cited by the agencies at 83 Fed. Reg. 32238 were not conclusive on the merits of the Clean Water Rule and do not constitute a basis for rule repeal. The merits of the Clean Water Rule should be decided through vigorous briefing and argument on the merits – not by a presumptive administrative repeal of the Clean Water Rule. The Sixth Circuit nationwide stay decision relied upon by the agencies, a decision ultimately invalidated for lack of jurisdiction to review the Clean Water Rule, was issued out of a stated concern for maintaining the pre-rule status quo pending careful review of the merits. See In Re EPA, 803 F. 3d 804, 806 (6th Cir. 2015). The Court reasoned that “the sheer breadth of the ripple effects caused by the Rule’s definitional changes counsels strongly in favor of maintaining the status quo for the time being.” And that “[a] stay allows for a more deliberate determination whether this exercise of Executive power, enabled by Congress and explicated by the Supreme Court, is proper under the dictates of federal law….” Id. at 808.

Like the Sixth Circuit, the North Dakota federal district court decision the agencies rely on recognized the fact that the Clean Water Rule would increase regulatory certainty for many:

The court acknowledges that implementation of the Rule will provide a benefit to an important public interest, both in providing some protection to the waters of the United States and because it would provide increased certainty as to what constitutes jurisdictional waters as some people will be categorically removed from the definition of waters of the United States (for example owners of an intermittent wetland 4,001 feet away from an established tributary). North Dakota v. EPA, 127 F. Supp. 3d 1047, 1060 (D.N.D. 2015).

Similarly, the most recent Georgia v. Pruitt preliminary injunction decision, currently on appeal, holds little weight regarding the merits. Given the preliminary injunction procedural posture, not to mention the fact that EPA was not defending its own rule, the Court’s conclusions regarding likelihood of success on the merits are by definition not thoroughly vetted. Any increased risk of a district court order vacating (or upholding) the Clean Water Rule in coming months does not increase regulatory uncertainty given the likely appeal of any such merits decision and, more importantly, the fact that the applicability of the rule is suspended until 2020.

Finalizing the Clean Water Rule repeal and recodification of the Rapanos guidance will generate even more litigation and regulatory uncertainty. Litigation challenging the Clean Water Rule is not a valid basis for repeal of the Clean Water Rule.

• Stakeholder confusion regarding the scope of the 2015 Rule has been manufactured by EPA Administrator Pruitt and state and industry opponents and is not a legitimate basis for Clean Water Rule repeal.

The agencies’ one-sided reliance on self-serving and inaccurate statements made in litigation does not support the conclusion that “there has been substantial disagreement and confusion as to the scope of the 2015 Rule” and does not provide a rational basis for the repeal of the Clean Water Rule. See 83 Fed. Reg. at 32239. The agencies simply perpetuate a falsehood when they offer up as an example of stakeholder confusion the self-serving assertion by the state petitioners in their Sixth Circuit brief that the 2015 rule extends jurisdiction to “virtually every potentially wet area of the country.” This is a selfserving assertion, not a fact. Id.

The one-sided comments “cherry-picked” from the July 2017 proposed repeal rulemaking vaguely assert a lack of clarity associated with key terms, but fail to substantiate their concerns, much less document how the pre-Clean Water Rule regulatory framework was less confusing or provided more certainty. Id. The agencies’ one-sided examples and failure to examine and summarize the Clean Water Rule administrative record evidence of the Clean Water Rule’s increased certainty and clarity demonstrates that the agency has an inalterably closed mind with respect to its Clean Water Rule repeal proposal and that the repeal rule is unsupported and arbitrary and capricious. See NWF 2017 Repeal Rule Comments at 9-12.

• State claims of Clean Water Rule regulatory uncertainty are one-sided, unsupported, and not a valid basis for Clean Water Rule repeal.

While the agencies acknowledge there are states and tribes on both sides of this question, with some finding the Clean Water Rule provides increased clarity, the agencies fail to recognize and describe the specific elements of the Clean Water Rule that increase clarity and predictability and instead focus almost exclusively on state comments opposing the Clean Water Rule. Even these examples do not provide objective evidence of regulatory uncertainty due to the Clean Water Rule.

Again the agencies rely on vague, self-serving, and misleading statements made in litigation, citing the State of Indiana’s assertion in the Southern District of Georgia that implementing the 2015 Clean Water Rule will divert resources by “[d]emanding the time and attention of regulators to make the now difficult determination of when and whether a feature is a WOTUS” and “[g]enerating unnecessary administrative appeals and lawsuits to resolve jurisdictional disputes.” See 83 Fed. Reg. at 32239 citing Statement of Bruno L. Pigott, Georgia, No. 15-cv-79 (S.D. Ga. July 21, 2015). This statement is simply not factually correct or substantiated. The Clean Water Rule provides additional clarity, provides clear exclusions from waters of the U.S., and provides for more categorical determinations and fewer case-specific determinations. As a result, the Clean Water Rule will demand less time and attention of regulators to make determinations and should generate fewer administrative appeals and lawsuits. Under the Clean Water Rule, jurisdictional determinations are more predictable and less burdensome than under the pre-Rule regime the agencies propose to reinstate. The agencies have provided no evidence to the contrary; only self-serving, unsubstantiated allegations.

• Agency experience with the 1986 regulations does not support repeal of the Clean Water Rule.

As noted previously, the agencies’ rely on a remarkably misleading statement when they assert consistent agency implementation of the 1986 rule and “over 30 years of experience.” See 83 Fed. Reg. at 32239; see also, id. at 32249. NWF agrees that the 1986 rule was well established — until SWANCC in 2001 and Rapanos in 2006. The rule was clear in its application before 2001 because of the breadth of case precedent under the 1986 definition of waters of the US – precedent that the “waters of the U.S.” include ditches, seasonal streams, adjacent wetlands, wetlands connected to tributaries via periodic and subsurface flow, and wetlands separated artificially from tributaries by berms, levees, roads, and other artificial or natural barriers. However, SWANCC and Rapanos threw this consistency and clarity into disarray, suggesting the line should be drawn more narrowly, but providing little guidance regarding where that line should be drawn – except that it should be based on science.

The agencies’ extensive experience, expertise, guidance, memos, trainings are based on CWA law, science, and 1986 rule precedent – almost all of which would be abandoned in a Scalia-based rule. It is the agencies’ turn toward a Scalia-based rule and a new and unprecedented elevation of states’ rights that would be a deviation from longstanding CWA precedent and agency experience, and would generate significant regulatory uncertainty.

In fact, the agencies’ new interpretations of the law could undermine implementation of the pre-Clean Water Rule regime they claim to be enforcing. This further undermines the agencies’ claim that the pre-Clean Water Rule regime is more certain and predictable than the Clean Water Rule itself. The agencies state, for example, that “[w]hile some ephemeral streams may have been jurisdictional after a case-specific analysis pursuant to the Rapanos Guidance, and while challenges to some of those determinations have been rejected by courts, the agencies are requesting public comment on whether these prior conclusions and assertions were correct.” 83 Fed. Reg. at 32247. The agencies seem to be proposing to further narrow the pre-Rule regulatory framework rather than reinstate it.

Similarly, the current repeal proposal suggests that close physical proximity to tributary is necessary for wetlands to be considered adjacent and therefore “waters of the U.S.” However, such an interpretation may undermine findings of adjacency based on subsurface flows or hydrologic or other connections through a non-jurisdictional feature. Yet, such findings of adjacency are consistent with longstanding CWA precedent pursuant to the 1986 rule as the Rapanos guidance. See also Natural Resources Defense Council (NRDC) Supplemental Repeal Rule Comments at 8-11.

The 1986 rule precedent and agency experience do not support repeal of the Clean Water Rule. They support implementation of the Clean Water Rule or, at most, using the Clean Water Rule’s significant clarifications as a starting point and reconsidering specific aspects of the Clean Water Rule that may warrant further clarification, building on 1986 precedent and agency expertise.

III. The Clean Water Rule Is Consistent With The Kennedy Standard And The CWA. Repeal Is Not Justified As Exceeding CWA Authority.

The agencies provide no legal or other rational basis for their proposal to repeal the Clean Water Rule on grounds that the 2015 Clean Water Rule “took an expansive reading of Justice Kennedy’s significant nexus test and exceeds the agencies’ authority under the Act.” To justify their proposal, the agencies misrepresent Kennedy’s significant nexus standard as “a test intended to limit federal jurisdiction” when, in fact, it was intended to “avoid unreasonable applications of the statute” by ensuring that the agencies establish a clear significant nexus between the water features deemed jurisdictional affect the chemical, physical, and biological integrity of “other covered waters more readily understood as ‘navigable.’” See 83 Fed. Reg. at 32240.

• The Clean Water Rule responds to – and is consistent with – the Supreme Court’s direction in Swancc and Rapanos, relying on the widely accepted “significant nexus” test for Clean Water Act jurisdiction.

The Clean Water Rule revises the longstanding definition of “waters of the United States” subject to the Clean Water Act in response to the Supreme Court’s decisions in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (“SWANCC”), and Rapanos v. United States. The EPA and the Corps took on this historic rulemaking because at least two of the Supreme Court Justices clearly called for it in their Rapanos concurring opinions: Chief Justice Roberts and Justice Breyer, and a majority in Rapanos embraced the role of expert agency regulations to clarify which waters are – and are not – “waters of the United States.”

The 2001 SWANCC decision was narrow. It simply precluded the Corps from asserting jurisdiction over certain ponds based solely on their use by migratory birds. It did not overturn any aspect of the existing waters of the U.S. regulatory definition, including the provision protecting waters beyond those that qualify as tributaries or adjacent wetlands. In 2006, in Rapanos, the Supreme Court issued a fractured (4-1-4) decision involving wetlands adjacent to non-navigable tributaries of traditional navigable waters. Importantly, the Court issued five opinions, none of which garnered a majority. In the ensuing litigation implementing the Court’s opinions, Justice Kennedy’s opinion establishing the “significant nexus” analysis has been widely accepted by the U.S. Courts of Appeals. Justice Kennedy’s “significant nexus” test requires a showing – through regulation or case-by-case review – that the ecological linkages between smaller or more remote waterbodies and navigable waters, “alone or in combination,” must be more than “speculative or insubstantial.” No U.S. Circuit Court has held that only Justice Scalia’s “relatively permanent waters” plurality test applies to determine Clean Water Act jurisdiction.

The Clean Water Rule closely tracks Kennedy’s pivotal significant nexus test, grounding its definition of which waters are protected in science-based findings of significant nexus to traditionally navigable and interstate waters. The Federal Register preambles to the proposed and final rules include an extensive legal analysis documenting the rule’s reliance on the significant nexus test. The Clean Water Rule also reflects some seven years of EPA and Corps experience grappling with how to apply the significant nexus test in the field, consistent with the underlying science and law.

As a binding rule, promulgated through a rigorous, transparent, and extended rulemaking process, and based on extensive agency experience and expertise, the Clean Water Rule must logically and rationally remain in effect and form the basis for any further revisions to the definition of waters of the U.S. The Clean Water Rule will provide greater certainty and consistency in jurisdictional determinations for landowners, federal and state agency field staff, and the courts. It will also ensure that longstanding clean water protections continue to safeguard millions of wetland acres and stream miles that have been in legal limbo for more than a decade. In contrast, the repeal of the Clean Water Rule, codification of the failed Rapanos guidance, and proposal of narrower definition of waters of the U.S., based on a different jurisdictional test that is not grounded in either law or science, will significantly increase both regulatory uncertainty and costly impacts to the nation’s waters.

• The Clean Water Rule clarifies and limits — but does not expand – the historic scope of Clean Water Act jurisdiction.

The final rule clarifies and definitively restores Clean Water Act protection to two major categories of waters, while drawing clarifying and limiting boundaries:

1. Tributaries to traditionally navigable and interstate waters and the territorial seas. For example, intermittently-flowing headwater streams that have a defined bed and bank and ordinary high water mark, and flow to a traditionally navigable or interstate water body; and

2. Wetlands, lakes, and other water bodies located adjacent to these tributaries (including those within the 100-yr floodplain up to a maximum distance of 1,500 ft.).

Based on a careful review of the wetland science and the “significant nexus” test, the final rule also authorizes protections for waters that are “similarly situated” and located beyond river floodplains when they significantly affect downstream waters’ condition. As independent scientific advisors recommended, the rule also finds that specified wetlands — prairie potholes in the Dakotas, western vernal pools in California, Carolina and Delmarva bays and pocosins along the Atlantic coastal plain, and Texas coastal prairie wetlands along the Gulf of Mexico — are “similarly situated” in how they provide fish and wildlife habitat, especially for waterfowl, important flood storage and drought resistance, and critical pollution filtration.

While these clarifications remove uncertainty, and better protect many wetlands and streams that have been at risk for the last decade, the fact is that the final Clean Water Rule actually narrows the historic scope of Clean Water Act jurisdiction, excluding protections for some wetlands and other waters protected for almost 30 years prior to 2001. Indeed, in our view, a couple of the 2015 Clean Water Rule’s waters of the U.S exclusions go too far, removing protections for wetlands and other waters that the science indicates are likely to have a significant nexus to downstream traditionally navigable or interstate waters.30

First and foremost, the Clean Water Rule deletes the pre-existing and longstanding “other waters provision that provided Clean Water Act jurisdiction over many types of waters based on their potential effect on interstate commerce. Given the breadth of the federal commerce clause power, and the Clean Water Act legislative intent to regulate to the full extent of that power, this provision provided for Clean Water Act coverage for over millions of wetland acres protected for almost 30 years prior to 2001. In response to the Court’s consideration of waters’ ecological links to downstream waters, EPA and the Corps deleted this section and instead expressly linked all jurisdictional “waters of the U.S.” determinations to science-based findings of significant nexus to downstream waters. As a result, many of the intrastate, non-navigable, geographically “isolated” wetlands, lakes, and ponds previously covered by the Clean Water Act regulations will no longer be covered under the final Clean Water Rule.

Second, the Clean Water Rule definition of “waters of the U.S.” includes – for the first time — a clear definition of “tributary” that both clarifies and limits Clean Water Act jurisdiction over streams, ditches, and other tributaries. To be guaranteed protection as a tributary, a waterway must have a bed, bank, and ordinary high water mark. To further clarify what is not a protected tributary, the final rule expressly excludes – again for the first time – several types of ditches, as well as gullies, rills, non-wetland swales, and lawfully constructed grassed waterways.

In further response to concerns from agricultural and water treatment and delivery sectors, and in addition to existing exemptions for prior converted cropland and waste treatment systems, the final rule also explicitly excludes from the definition of waters of the U.S. other water features in dry land, including artificially irrigated areas, storm water control features and wastewater recycling systems.

In addition, the final rule adds physical and measurable distance limits to define adjacent waters, further narrowing jurisdiction and excluding wetlands and other waterbodies previously covered by the Clean Water Act.

And, of course, the final rule does not alter the Clean Water Act provisions excluding several activities from applicable permitting requirements (unless they destroy waterbodies): 

• Common farming and ranching practices, including “plowing, cultivating, seeding, minor drainage, harvesting for the production of food, fiber, and forest products;” 
• “Construction or maintenance of farm or stock ponds or irrigation ditches, or the maintenance of drainage ditches;” 
• “Agricultural storm water discharges and return flows from irrigated agriculture;” 
• “Construction of temporary sediment basins on a construction site;” and 
• “Construction or maintenance of farm or forest roads or temporary roads for moving mining equipment.”

The agencies proposed Clean Water Rule repeal fails to satisfy even the most basic rulemaking requirements of the APA by failing to provide meaningful public notice and comment on this substance of the Clean Water Rule. The EPA Administrator further undermines public comment on the Clean Water Rule by falsely claiming, in effect, that the Rule does not exclude, for example, puddles, and many ditches. The Clean Water Rule should remain in effect and form the basis for any further revisions to the definition of waters of the U.S.

• The Clean Water Rule is based on a state-of-the-art review of the science, incorporating the basic principles and findings of connectivity science in order to meet the goals of the Clean Water Act.

Closely tracking Justice Kennedy’s pivotal significant nexus test, the Clean Water Rule definition of which waters are protected is grounded in the agencies’ science-based findings of significant nexus to traditionally navigable and interstate waters and EPA’s Connectivity Science Report, The Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence. The EPA Science Advisory Board (SAB) peer review affirmed not only the findings and conclusions of EPA’s unparalleled compilation of the connectivity science, but the scientific basis for the Clean Water Rule itself. Below are excerpted and summarized some of the key principles and findings of wetland and stream scientists derived from the Connectivity Science Report that form the scientific foundation for the Clean Water Rule.

Rivers are networks, and their downstream navigable portions are inextricably linked to small headwaters just as fine roots are an essential part of the root structure of a tree or our own circulatory system is dependent on the function of healthy capillaries. Longstanding and robust scientific research (like those studies included in EPA’s Connectivity Report) has demonstrated that ecological processes in navigable rivers reflect what is occurring in their headwaters as well as in associated geographically isolated wetlands, floodplains, and tributaries.

A sizable portion of a river network is in intermittent and headwater streams. In arid states such as Arizona, Utah, and Colorado, from 71 to 96% of stream miles have been classified as ephemeral or intermittent. Intermittent streams are also significant in states that receive more rainfall. In Alabama, 80% of stream miles in the National Forests are considered intermittent because they go dry during late summer or autumn; intermittent streams in Michigan comprise 48% of the length of stream channels in the state. These examples illustrate the extent of intermittent streams in river networks throughout the Nation.

As the SAB concluded from the 2014 Connectivity Report:

There is strong scientific evidence to support the EPA’s proposal to include all tributaries within the jurisdiction of the Clean Water Act. Tributaries, as a group, exert strong influence on the physical, chemical, and biological integrity of downstream waters, even though the degree of connectivity is a function of variation in the frequency, duration, magnitude, predictability, and consequences of physical, chemical and biological processes.

Small streams and wetlands contribute to the physical integrity of navigable rivers – they help retain water during storms and can decrease the intensity of floods. They also help recharge groundwater and other sources of water for drinking, irrigation, and industry.

Small streams and wetlands also contribute to the chemical integrity of navigable rivers –they help reduce contaminants and help with nutrient removal. For example, Delmarva bay wetlands help protect water quality and improve functions for water that flows through them to the Chesapeake Bay.

Small streams and wetlands contribute to the biological integrity of navigable rivers. They supply food resources to riparian and downstream ecosystems. Small streams are a refuge at critical life history stages or during critical times of the year for trout, salmon, and many fish species. They also serve as vital spawning and nursery habitats for many fish species including many prized sport fishes, including trout and salmon. Small streams and wetlands also provide critical habitat for a number of species.

As the SAB concluded from the 2014 Connectivity Report:

The available science supports the EPA’s proposal to include adjacent waters and wetlands as waters of the United States. This is because adjacent waters and wetlands have a strong influence on the physical, chemical, and biological integrity of navigable waters.

The SAB also advised EPA:

The available science, however, shows that groundwater connections, particularly via shallow flow paths in unconfined aquifers, are critical in supporting the hydrology and biogeochemical functions of wetlands and other waters. Groundwater also connects waters and wetlands that have no visible surface connections.

The SAB also concluded:

The scientific literature has established that “other waters” can influence downstream waters, particularly when considered in aggregate. Thus, it is appropriate to define “other waters” as waters of the United States on a caseby-case basis, either alone or in combination with similarly-situated waters in the same region.

The SAB further concluded:

There is also adequate scientific evidence to support a determination that certain subcategories and types of “other waters” in particular regions of the United States (e.g., Carolina and Delmarva Bays, Texas coastal prairie wetlands, prairie potholes, pocosins, western vernal pools) are similarly situated (i.e., they have a similar influence on the physical, biological, and chemical integrity of downstream waters and are similarly situated on the landscape) and thus are waters of the United States.

The agencies proposed repeal of the Clean Water Rule ignores the scientific record that must form the foundation for the definition of waters of the U.S. in order to be consistent with Supreme Court case law as well as the Clean Water Act itself. By failing to incorporate the science into its proposal, the agencies fail to provide for meaningful public notice and comment on the repeal and replacement of the Clean Water Rule. They also fail to consider information that is not only relevant but fundamental to their rulemaking decisions. The agencies’ supplemental proposal that the agencies relied too much on the science in promulgating the Clean Water Rule only compounds the arbitrariness of the repeal proposal. See 83 Fed. Reg. at 32241. The Clean Water Rule and the scientific record on which it is founded must logically and rationally form the basis for any further revisions to the definition of waters of the U.S.

• The agencies’ one-sided supplemental proposal fails to support their conclusion that the Clean Water Rule exceeds CWA authority.
  • The Clean Water Rule’s interpretation of the term “similarly situated waters in the region” is consistent with Justice Kennedy’s significant nexus standard.

The agencies first take aim at the Clean Water Rule’s interpretation of the term “similarly situated waters in the region” as used by Justice Kennedy in his significant nexus standard. The agencies suggest that the Clean Water Rule definition is too expansive, apparently because it is departs from the cramped and scientifically unsound interpretation included in the 2008 Rapanos guidance. Id. at 32240. See e.g., NWF 2014 Clean Water Rule Comments at 40-42, 52-54. However, the final Clean Water Rule interpretation of this key term is legally and scientifically sound and fully supported in the final rule preamble and technical support document. See 80 Fed. Reg. at 37065-77; Brief for Respondents at 25-26, In Re EPA, No. 15–3571 (6th Cir. Jan. 13, 2017) (United States Brief in the Sixth Circuit).

While Justice Kennedy’s test does not define the term “in the region,” the Clean Water Rule’s definition of “in the region” to mean the watershed that drains to the nearest [primary] water is precise, limited, and consistent with Justice Kennedy’s legal and scientific rationale for the significant nexus test. Merriam-Webster defines “watershed” as “a region or area bounded peripherally by a divide and draining ultimately to a particular watercourse or body of water,” https://www.merriam-webster.com/dictionary/watershed. Contrary to the suggestion in the proposal, the Clean Water Rule applies this term with specificity: not to an “entire watershed, or to all waters within an entire watershed, but to “similarly situated waters” within the specific watershed that drains to the nearest [primary] water, 80 Fed. Reg. at 37106. The Clean Water Rule clearly limits aggregation for casespecific determinations to only those “similarly situated” waters with similar form and ecological function, and only those that are located within a specific watershed that drains to the nearest [primary] water. Id. As a result, relative to the proposed Clean Water Rule, the final Clean Water Rule did not “materially broaden[] the scope of aggregation” for case-specific jurisdictional determinations. See 83 Fed. Reg. at 32241.

With or without the distance-based limitations included in the final Clean Water Rule, the Clean Water Rule interpretation of these terms is fully consistent with the text and underlying rationale of Justice Kennedy’s significant nexus standard and does not provide a reasonable basis for repeal of the Clean Water Rule. Nevertheless, the agencies also ask whether the distance-based limitations included in the final Clean Water Rule “mitigated or affected” the agencies interpretation of “similarly situated waters” in the final Clean Water Rule. 83 Fed. Reg. at 32241. These distance-based limitations were noticed in the proposed Clean Water Rule and were included in the final Clean Water Rule in order to provide additional clarity and certainty for the regulated community. See e.g., United States Brief at 184-192. They provide a clear limitation on the extent of waters to be found jurisdictional based on a case-specific significant nexus determination and logically had the effect of mitigating any legal or practical concerns that the Clean Water Rule interpretation of “similarly situated waters” might be overly expansive.

 

• The Clean Water Rule’s consideration of biological effects in determining significant nexus is consistent with Justice Kennedy’s significant nexus standard.

Next, the agencies propose, without legal or other rational support, to narrow Justice Kennedy’s significant nexus test to exclude significant biological effects on downstream navigable waters. Id. at 32241. The agencies again parrot the unfounded arguments of Clean Water Rule litigants, this time falsely equating the Clean Water Rule’s reliance on biological effects on downstream navigable waters to establish significant nexus with the Migratory Bird Rule at issue in SWANCC, which relied on the potential for migratory bird use as the sole basis on which to establish CWA jurisdiction without any regard to whether there exists a significant nexus to navigable waters. This proposal ignores this important distinction between the Migratory Bird Rule (which was not even a rule) and the Clean Water Rule, and, most fundamentally, ignores the explicit reference to biological effects in Justice Kennedy’s statement of his significant nexus test:

[W]etlands possess the requisite nexus, and thus come within the statutory phrase “navigable waters,” if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as “navigable.” When, in contrast, wetlands’ effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the statutory term “navigable waters.”

In a vain attempt to justify ignoring Justice Kennedy’s express reference to biological effects, the agencies misleadingly quote Justice Kennedy’s statement in Rapanos that “environmental concerns provide no reason to disregard limits in the statutory text.” However, in the very next few sentences, Justice Kennedy invokes the CWA’s objective to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,” as his basis for a broader reading of the limits of the statutory text. See 547 U.S. at 778. The agencies provide no legal or other rational basis for their proposal that “the 2015 Rule is flawed in the same manner as the Migratory Bird Rule” as discussed in SWANCC. See, 83 Fed. Reg. 32241.

 

• The Clean Water Rule’s definition of tributary is consistent with Justice Kennedy’s significant nexus standard.

The agencies again misleadingly quote Justice Kennedy (at 32242) in another attempt to infer a much more limited interpretation of his significant nexus standard, this time seemingly taking aim at the Clean Water Rule definition of tributary. A complete quotation of Justice Kennedy’s reasoning at 781-782 leads to his holding that a showing of significant nexus — through regulations or case-by-case — is both necessary and sufficient “to avoid unreasonable applications of the statute”:

“Absent more specific regulations, however, the Corps must establish a significant nexus on a case-by-case basis when it seeks to regulate wetlands based on adjacency to nonnavigable tributaries.” Id. at 782 (emphasis added).

The agencies also recycle the arguments of the state litigants and the agencies’ own misrepresentation of the SWANCC holding and Justice Kennedy’s Rapanos opinion, in an apparent attempt to support the argument that the Clean Water Rule definition of tributary exceeds CWA authority because it “carries with it the same concern that Justice Kennedy had [in Rapanos].” 83 Fed. Reg. at 32242. Again the agencies trot out the unsound argument that the Clean Water Rule may exceed CWA authority simply because it is plausible that the water features found non-jurisdictional in SWANCC for lack of a demonstrated significant nexus could possibly be found jurisdictional based on a well-documented case-specific significant nexus analysis pursuant to the Clean Water Rule. Id.

The agencies again quote Justice Kennedy’s Rapanos opinion out of context, relying on his observation that, “[b]ecause such a [significant] nexus was lacking with respect to isolated ponds, the [SWANCC] Court held the plain text of the statute did not permit” CWA jurisdiction. Id. (citing Kennedy at 547 U.S. at 767). The agencies once again conveniently ignore the central premise of Kennedy’s pivotal opinion: that a showing of significant nexus — through regulations or case-by-case — is both necessary and sufficient “to avoid unreasonable applications of the statute.” 547 U.S. at 782. Justice Kennedy explains at 547 U.S. 779 that the waters at issue in SWANCC were understood to “bear[] no evident connection to navigable-in-fact waters.” But, critically, he goes on to reason that if those same waters were demonstrated to have an evident significant nexus — through regulations or case-by-case – jurisdiction would indeed be appropriate.

The agencies also mischaracterize the Clean Water Rule definition of tributary in an effort to support their proposed conclusion that the Clean Water Rule exceeds CWA authority. 83 Fed. Reg. at 33242. For example, the agencies misleadingly state that, “[t]he 2015 Rule did not require any assessment of flow, including volume, duration, or frequency, when defining the “waters of the United States,” and that “[t]he 2015 Rule thus covers ephemeral washes that flow only in response to infrequent precipitation events if they meet the definition of tributary.” Id.

The agencies stubbornly refuse to acknowledge that the Clean Water Rule definition of tributary does, in fact, incorporate a scientifically sound assessment of flow volume, duration, and frequency. They fail to acknowledge that the Clean Water Rule defines the key term tributary for the first time in regulation for purposes of the definition of waters of the U.S. and defines the term narrowly to require both an ordinary high water mark and a bed and bank as indicators of substantial flow to a downstream water. The Rule plainly requires both of these indicators to define a tributary— both physical manifestations of a tributary under the Rule. 33 C.F.R. § 328.3(c)(3).

The Clean Water Rule administrative record is replete with scientific documentation demonstrating that the requirement of an ordinary high water mark and a bed and bank ensures sufficient physical evidence to demonstrate there is volume, frequency, and duration of flow sufficient to establish significant nexus on a categorical basis. These indicators are fully supported by the Connectivity Science Report and endorsed by the SAB.45 The Clean Water Rule definition of tributary as requiring both of these indicators, as well as the agencies’ on-going work to fine tune methodologies for identifying these stream bank features, allows for the agencies to distinguish between ephemeral “washes” that function as tributaries and those that do not. See United States Brief in the Sixth Circuit at 71-76 and 2015 TSD, Connectivity Science Report, Corps stream indicator research, and other administrative records cited therein.

In addition, the agencies fail to acknowledge that the Clean Water Rule definition of tributary is significantly constrained by the first time exclusions in the Clean Water Rule for intermittently flowing ditches as well as gullies, swales, and other erosional features. See discussion, supra, at 19. These exclusions significantly limit the inclusion of “ephemeral washes” and other erosional features, as spelled out in the 2017 U.S. Department of Justice Brief of Respondents cited above. Yet, the mitigating impact of these exclusions are nowhere to be found in the agencies’ Clean Water Rule repeal proposal.

As noted above, the Clean Water Rule’s scope is, in fact, narrower than the pre-existing regulation. See generally 2015 TSD at 30-34. The Rule excludes the pre-Rule definition’s broad category for intrastate waters whose use, degradation or destruction could affect interstate or foreign commerce. Id.at 30; Cf. 33 C.F.R. 328.3(a)(3). The Rule also categorically excludes, for the first time, certain waters from the Act’s coverage, including many ditches, swales, gullies, and other erosional features, certain ponds, and groundwater. See 33 C.F.R. 328.3(b). The Clean Water Rule also defines covered waters relatively narrowly. Compare id. at 328.3(c)(3) (defining tributaries as requiring, inter alia, a bed and banks and ordinary high water mark), with id. at 328.3(a)(5) (no definition for covered “tributaries”) and SAB criticism that science supported a broader definition of tributary. And it provides for the first time a distance cut-off for covered waters, excluding waters outside that distance from even case-by-case consideration. Id. at 328.3(a)(8).

The Clean Water Rule embodies Justice Kennedy’s significant nexus standard and imposes legally and scientifically sound limitations on case-specific significant nexus determinations “to avoid unreasonable applications of the statute.” The agencies’ misleading and one-sided arguments to the contrary demonstrate their inalterably closed mind and provide no rational basis for repeal of the Clean Water Rule.

IV. The Agencies Appropriately Characterized The Potential Scope Of CWA Jurisdiction In Promulgating The Clean Water Rule.

The agencies next float “concerns” as to whether the agencies “appropriately characterized or estimated the potential scope of CWA jurisdiction that could change under the 2015 Rule, including whether the documents supporting the 2015 Rule appropriately considered the data relevant to and were clear in that assessment.” 83 Fed. Reg. at 32243. As explained more fully below, none of these concerns hold water and none provide a rational basis for repeal of the Clean Water Rule.

• The Clean Water Rule’s estimate of the potential increase in “other waters” jurisdiction was rigorous, conservative, and sound.

First, the agencies take aim at the 2015 Clean Water Rule estimate and analysis of the potential increase in positive jurisdictional determinations for “other waters.” 83 Fed. Reg. at 32244. The agencies request comment on: 

• whether the projected increase for this category is most relevant to measuring the impacts of the 2015 Rule; 
• whether the public had ample notice of the doubling of projected positive jurisdiction over the other waters category from the proposed to final rule; 
• whether the final rule could expand overall CWA positive jurisdictional determinations by a material amount inconsistent with the findings and conclusions that justified the 2015 Rule; and 
• “the conclusions that were based on the method that estimated a 2.84 to 4.65 percent increase in overall jurisdiction, including the use of a method whereby the 
• increase in assertion of jurisdiction in a particular category of waters (e.g., streams, wetlands, and other waters) was proportionally applied based on the raw number of records in a category relative to the total number of records across all categories in the ORM2 database, notwithstanding whether the regulatory changes in the 2015 Rule did not materially impact those other categories.”

As explained below, the 2015 Clean Water Rule analysis was rigorous and intentionally conservative. The agencies quibble with details of the methodology, but offer no alternative methodology or analysis. The agencies present no evidence that “the final rule could expand overall CWA positive jurisdictional determinations by a material amount inconsistent with the findings and conclusions that justified the 2015 Rule.”

In fact, the agencies acknowledge in their supplemental proposal (at 32243-44) that “the regulatory changes in the 2015 Rule did not materially impact” the scope of CWA jurisdiction with respect to streams or adjacent wetlands. See 83 Fed. Reg. at 32243 (“These assumptions resulted in a relatively minor projected increase in positive jurisdictional determinations under the final rule for these categories: 99.3 to 100 percent for the streams category, and 98.9 to 100 percent for the wetlands category.”). This acknowledgement contradicts a key premise of the agencies’ supplemental proposal to repeal the Clean Water Rule: that “the 2015 Rule appears to have expanded the meaning of tributaries and adjacent wetlands to include waters well beyond those regulated by the agencies under the preexisting regulations, as applied by the agencies.” 83 Fed. Reg. at 32228. The agencies offer no rational basis for repealing the Clean Water Rule due to purported shortcomings in the 2015 Clean Water Rule analysis.

In addition, as NRDC points out in its supplemental repeal rule comments, the 2015 Economic Analysis was intentionally conservative: “The agencies relied on certain conservative assumptions in their economic analysis that have the effect of consistently increasing the number of positive JDs that results from the new rule as analyzed against a baseline of recent practice.” 2015 Economic Analysis at p. vi (emphasis added); see also id. at viii (describing approach for increased application of permitting and other CWA programs as “a very conservative assumption”).

As for the 2015 assumption that the future jurisdictional questions would arise in the same proportion (streams/adjacent wetlands/other waters) as in the ORM2 database, the agencies offer no specific critique of this assumption. Nor do they suggest some other more reasonable methodology for estimating the impact of the rule on future positive jurisdictional determinations for different types of waters.

The agencies’ reference to “doubling of projected positive jurisdiction” in the other waters category mischaracterizes the 2015 Clean Water Rule analysis. The agencies clearly used the doubling factor to ensure a conservative estimate of the Rule’s potential impact on “other waters” jurisdiction. Recognizing that it was possible that their economic estimates wouldn’t account for people who, under the pre-Clean Water Rule regime, “assumed their waters to be non-jurisdictional” without checking with the agencies, the agencies applied the doubling factor to provide some conservative estimate of the potential impact of the rule. See 2015 Econ Analysis at 12. The agencies acknowledged, though, that “[t]here is little evidence from which to infer how many landowners did notrequest jurisdictional determinations under recent practices, but whose holdings would be found to be jurisdictional under the rule.” Id.

• The agencies’ hand-picked case studies fail to show that the Clean Water Rule would expand jurisdiction beyond the estimates reported in support of the Clean Water Rule.

The agencies next attempt to cast doubt on the 2015 Rule and its effect on CWA jurisdiction by presenting “illustrative” examples for comment. However, these handpicked examples are irrelevant to the question of “whether the final rule could expand overall CWA positive jurisdictional determinations by a material amount inconsistent with the findings and conclusions that justified the 2015 Rule” because, with one exception, they offer no clear explanation of whether or how these waters would in fact be found jurisdictional under the Clean Water Rule.

The agencies’ first example, Case study A, involves a Chesapeake Virginia wetland located approximately 80 feet from a tributary, yet was determined to be non-jurisdictional because it lacked a “surface connection.” 83 Fed. Reg. 32,244. Under the Clean Water Rule, it would be categorically jurisdictional because it is within 100 feet of a tributary. This finding of jurisdiction under the Clean Water Rule is entirely consistent with the Clean Water Rule and “the findings and conclusions that justified the 2015 Rule.”

As the Southern Environmental Law Center (SELC) concludes in its supplemental repeal rule comments at 10-11, none of the remaining examples involve sites that are categorically jurisdictional. Each would require a case-specific significant nexus analysis. Each previous analysis found no significant nexus. There is no explanation provided for concluding that the Clean Water Rule would reverse that analysis. Id.

SELC highlights the Chicago District Case Study E as illustrative. Id. at 32245. Although the supplemental notice states that the previous analysis resulted in “Yes JD” under the Clean Water Rule, the underlying chart cited in the Technical Document actually says only that “now would be able to do [significant nexus.]” SELC Comments at 10-11, citing Technical Document at 2. As noted, that Corps’ analysis resulted in a finding of no significant nexus. The supplemental notice provides no justification for concluding that the significant nexus analysis would reach a different result under the Clean Water Rule.

The agencies’ own characterization of the Pittsburgh District Case Study F confirms this point. See 83 Fed. Reg. at 32245. Here, the agencies acknowledge that the effect of the Clean Water Rule on this wetland would simply be that it “would be subject to a significant nexus evaluation.” “It is unclear, however, whether the wetland and its flood storage function would contribute significantly to the chemical, physical, or biological integrity of the nearest category (1) through (3) water as required by the 2015 Rule to satisfy the significant nexus test.” Id. The agencies’ “illustrative” examples offer no support for the agencies’ proposal to repeal the Clean Water Rule.

• The Clean Water Rule’s characterization of the potential increase in jurisdiction over tributaries was rigorous, conservative, and sound. The agencies fail to show that the Clean Water Rule would expand jurisdiction beyond the estimates reported in support of the Clean Water Rule.

The agencies next raise a concern that there could be a “significant expansion of jurisdiction over tributaries in some States beyond current practice” because the 2015 Clean Water Rule Economic Analysis (conservatively) assumes that 100 percent of stream jurisdictional determinations will be positive under the Clean Water Rule. Id. at 32246. The agencies seemingly assume “such expansions” and solicit comment on whether they “conflict with the assumptions underlying and statements justifying the 2015 Rule.” Id. The agencies’ presentation of varying jurisdictional determination and stream mile estimates fails to support their proposal that the Clean Water Rule results in a “significant expansion of jurisdiction over tributaries in some States beyond current practice” and in “conflict with the assumptions underlying and statements justifying the 2015 Rule.” Id.

First, the agencies mischaracterize the state-specific impact on CWA jurisdiction by failing to present the actual numbers of estimated increases in positive jurisdictional determinations. As SELC explains in its Supplemental Rulemaking Comments at 12:

Wyoming’s shocking 57% increase in positive jurisdictional determinations turns out to be due to just 4 newly jurisdictional streams, far from proof of a significant expansion in jurisdiction. The same holds true for South Dakota’s 8.5% increase (6 streams), North Dakota’s 9.2% (20), Nevada’s 13.2% (18), and New Mexico’s 16.7% (1).

…. In the 2015 Economic Analysis, New Mexico and Colorado have just one newly jurisdictional stream each, outpacing Utah’s zero.48 Oklahoma’s six assumed jurisdictional streams represent just 4.3% of all streams assessed in the state over the two-year period. Texas’s 20 streams included as jurisdictional are just 1.5% of streams analyzed in the state. Even if other parts of the west are included, Montana (2) and Idaho (2) belie the claim that there would be a “significant expansion of federal jurisdiction.” In fact, 35 states would see an increase, if any, of less than 2%. Fourteen would see no change at all.

The agencies’ presentation of these estimated percentage increases in jurisdictional determinations offer no basis for concluding that the Clean Water Rule significantly expanded jurisdiction or that the 2015 Economic Analysis understated the effect of the rule.

Next, despite knowing full well that the arguments are specious, the supplemental notice gives credence to state arguments that the difference in calculation of stream miles presented in state CWA 303(d)/305(b) reports and in a 2013 map submitted to Congress support their claim that the 2015 rule definition of tributary would expand federal jurisdiction over state water resources. 83 Fed. Reg. at 32246. The agencies acknowledge that the USGS data relied on for the reports and the 2013 map do not represent Clean Water Act jurisdiction and that, in fact, a nationwide map of jurisdictional waters cannot be developed. Id. As SELC explains in their supplemental repeal rule comments,

The cover letter to the maps submitted to Congress sought “to be clear that EPA is not aware of maps prepared by any agency, including the EPA, of waters that are currently jurisdictional under the CWA or that would be jurisdictional under the proposed rule.”50 The letter explained why devising such maps, or compiling that information for the 303(d)/305(b) reports is not possible, remarking that “[t]o develop maps of jurisdictional waters requires site-specific knowledge of the physical features of water bodies, and these data are not available and are not shown on any EPA maps.” In response to comments exactly like those cited in the supplemental notice, the agencies repeatedly stated that “[t]he agencies do not have maps illustrating the extent of jurisdictional waters of the United States.”

In addition, the purported “significant differences” between the stream mileage estimates is based on which USGS data was used and has nothing to do with the definition of waters of the United States. As SELC explains: Even if the maps could show jurisdiction, it is clear that the change from 3.5 to 8 million miles of streams has nothing to do with any regulatory change. The 2005 version of the map submitted to Congress used the “medium resolution” NHD to estimate that there are approximately 3.4 million miles of streams in the U.S. 53 The 2013 map uses “high resolution” NHD in its estimate and, therefore, includes more streams.54 Higher resolution has more detail and therefore shows more stream miles. It is no different than if one were to compare a map of the highway system to a map that included both highways and local roads….

The state comments cited in the supplemental notice make clear that this resolution difference, not the Clean Water Rule, is responsible for the differing stream mileage. The states compared EPA’s Section 305(b) report (which is prepared based on medium resolution data) to the 2013 map (high resolution).55 The comments acknowledge that EPA uses the 1:100,000 (medium resolution) NHD in preparing the reports. They go on to concede that the mapping tool is the basis for the “131%” purported increase, admitting that if Missouri is mapped using the 1:24,000 (high resolution) NHD as compared to the 1:100,000 (medium resolution), it would increase the mapped stream mileage by 158,565 miles. The definition of waters of the United States played no role in the analysis.

As NRDC points out, Colorado’s use of 1: 100,000 resolution NHD maps for its 305(b) report also explains the discrepancy between Colorado’s data (https://www.colorado.gov/pacific/sites/default/files/WQ_2016-IntegratedReport_FINAL.pdf, p. viii), and the map provided to the Science Committee which used the high-resolution NHD (1: 24,000). Where Wyoming used tools with the same resolution as the House Committee maps, the estimates are very similar; the state’s section 305(b) report indicates 280,804 miles of ephemeral, intermittent, and perennial streams in the state, compared with 269,872 miles estimated on the House Committee maps.

The agencies’ cannot rely on these differing stream figures to support a purported “expansion of jurisdiction,” particularly here where they are fully aware that these differences are explained by different mapping resolutions and not by any measure of CWA jurisdiction.

Similarly, the agencies cannot rely on the Kansas 2014 Clean Water Rule comment letter protesting, in particular, that the inclusion of ephemeral streams in the definition of tributaries would expand jurisdiction. As SELC explains in their supplemental repeal rule comments at 14-15, Kansas itself concedes in its comment letter that “some ephemeral streams may actually be significant contributors affecting the conditions of downstream waters” and argues for a case-by-case determination rather than a categorical inclusion of ephemeral streams as jurisdictional. The agencies thoroughly responded to these Kansas concerns in their 2015 Clean Water Rule response to comments. They explained that such case-by-case analysis is unnecessary because the Clean Water Rule’s treatment of “tributaries is rooted in a science-based conclusion that such waters have a significant nexus either individually or in the aggregate with traditional waters, interstate waters, and the territorial seas.” They “disagree[d] with the assertion that intermittent and ephemeral waters have not been jurisdictional previously,” stating that “jurisdiction historically has been asserted over intermittent and ephemeral waters,” and noting that “court decisions, some of which are decades old, have supported assertions that intermittent and ephemeral waters are jurisdictional.” The agencies noted that even “[p]ractice after Rapanos has considered ephemeral waters as jurisdictional under the CWA where they have a significant nexus to a traditional navigable water.” Responding to Kansas’ concerns, the agencies clarified that the Clean Water Rule does support a “case-by-case inquiry [] whether or not the water under consideration meets the rule’s definition of tributary” based firmly on the science that waters with sufficient flow to meet the definition have a significant nexus with downstream waters. The supplemental notice queries “whether these responses to these issues are adequate,” but never addresses the agencies’ specific responses to comments.

It is also the case, as NRDC explains in its comments at 23-24, that the basis for the Kansas estimate of the extent of stream miles considered to be “waters of the US” is that “Kansas classified streams are WOTUS, with designated uses established and numeric water quality criteria used to assess and protect those uses.”  In approving Kansas’s designation scheme, EPA made clear that “classified” streams and “waters of the US” are not one in the same; that the identification of such “classified” streams “is not related in any way to jurisdiction as a ‘water of the United States;’ and it merely refers to the designated uses and type of criteria that apply, as well as the manner in which Kansas keeps records of its waters.”

In promulgating the Clean Water Rule, the agencies thoroughly and transparently deliberated the matter of CWA jurisdiction over ephemeral streams, recognizing in particular regional considerations in the arid West. See discussion, supra, at 19, 24-16; United States Brief in the Sixth Circuit at 27-28, 59-77, and TSD, Connectivity Science Report, Corps stream indicator research, and other administrative records cited therein. It is a fundamental flaw of the agencies’ proposal to repeal the Clean Water Rule that the agencies refuse to recognize, consider, and discuss the agencies’ 2015 supporting rationale for the inclusion of ephemeral streams. By ignoring the agencies’ formal Clean Water Rule responses to Kansas’ comments, and by failing more broadly to objectively present and discuss the agencies’ 2015 supporting rationale for the inclusion of
59 2015 RTC Comp. 8 at 141. 60 2015 RTC Comp. 8 at 141. 61 2015 RTC Comp. 8 at 142 62 See Letter from Gov. Sam Brownback et al., to Docket ID: EPA–HQ–OW–2011– 0880–16636, at 2 (Oct. 23, 2014) (comments submitted by Kansas on proposed Clean Water Rule), available at https://www.regulations.gov/document?D=EPA-HQ-OW-20110880-16636. 63 U.S. EPA, Use Attainability Analyses and Other Tools for Managing Designated Uses, EPA 821-R-07-001, at 2 (Mar. 2006), available at https://www.epa.gov/sites/production/files/2014-11/documents/uaa_casestudies-all.pdf. ephemeral streams, the agencies have not “considered an important aspect of the problem” and have not provided a rationale to justify departing from the Clean Water Rule. See 83 Fed. Reg. at 32247.

V. The Clean Water Rule Does Not Disrupt The Federal-State Balance And The Clean Water Rule Repeal Is Not Justified On This Basis.

In this supplemental rulemaking, the agencies expand on their creative argument that the scope of waters covered by the Clean Water Act in order to meet the CWA §101(a) goals of the Act is constrained by the CWA §101(b) policy reserving to the states the authority to “prevent, reduce and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources.” See, e.g., 83 Fed. Reg. at 32228, 32232-33, 32238, 32241, 32246, 32248. As noted in our 2017 comments opposing the Clean Water Rule repeal, the agencies fundamentally misunderstand or misrepresent the cooperative federalism framework as set forth in §101(a) and (b) of the Clean Water Act. See 82 Fed. Reg. at 34902. Congress did preserve important roles for states, giving them the first obligation and authority to develop water quality standards as well as the ability to be delegated CWA permitting authority. However, Congress and the text and structure of the CWA make clear that the states’ CWA obligation and authority is always subject to EPA’s federal review and backstop and that it is federal law and EPA that set the CWA minimum water quality, effluent limit, and permitting standards in order to address the “race to the bottom” shortcomings of the water pollution framework that preceded the 1972 Clean Water Act. See e.g., 33 U.S.C. §§ 1313, 1314, 1316, and 1342. As the agencies determined in finalizing the Clean Water Rule, “Nothing in this rule limits or impedes any existing or future state or tribal efforts to further protect their waters.” 2015 TSD, at 9. The agencies have no legal basis to justify the Clean Water Rule repeal on CWA §101(b) grounds. See also, NWF 2017 Repeal Rule Comments at 15-17.

In fact, it is the Clean Water Rule, through its clear but inclusive definition of waters of the U.S. that “protects the rights of the states to ‘prevent, reduce, and eliminate pollution.’” The agencies acknowledge as much in their proposed rule preamble (82 Fed. Reg. at 34903) and economic analysis where they note the Clean Water Rule’s clear and balanced line drawing and very limited increase in jurisdictional waters over the postRapanos guidance.64 Justice Kennedy’s pivotal opinion in Rapanos confirms that the Clean Water Rule’s reliance on his significant nexus standard for CWA jurisdiction avoids any conflicts with the cooperative federalism policy set forth in CWA §101(b). Nothing in his opinion supports the argument that §101(b) states a statutory goal on a par with the §101(a) water quality goals and objectives. Instead, he dismisses this argument as follows:

As for States’ ‘responsibilities and rights,’ §1251(b), it is noteworthy that 33 States plus the District of Columbia have filed an amici brief in this litigation asserting that the Clean Water Act is important to their own water policies. See Brief for States of New York et al. 1–3. These amici note, among other things, that the Act protects downstream States from out-of-state pollution that they cannot themselves regulate. Ibid.” Id. at 777.

See also, Clean Water Rule Technical Support Document, p. 84.

The agencies’ misrepresent Justice Kennedy’s significant nexus reasoning in Rapanos when they assert (at 83 Fed. Reg. 32241) that “the policies embodied in section 101(b) should inform this [significant nexus] analysis.” The agencies provide no legal analysis or precedent to support this proposition.

The agencies’ reliance on the Court’s statement in SWANCC, 531 U.S. at 174 (quoting CWA §101(b)) is also misplaced. The Court in SWANCC reasoned in part that the §101(b) policy warranted a “significant nexus” to “navigable waters.” As Justice Kennedy opined in Rapanos, his “significant nexus standard” satisfies that concern and avoids any conflict with §101(b). The Clean Water Rule closely tracks Kennedy’s significant nexus standard and thereby avoids any conflict with §101(b). The agencies cannot now rely on SWANCC to justify a further narrowing of the significant nexus standard and CWA jurisdiction. The agencies provide no legal or other rational basis for their proposal “to conclude that the 2015 Rule did not draw the appropriate line, for purposes of CWA jurisdiction, between waters subject to federal and State regulation, on the one hand, and waters subject to state regulation only, on the other.” See 83 Fed Reg. 32247-48.

As we explained in our 2017 repeal rule comments, the State Attorneys General made this point in their 2006 amicus brief and repeatedly since then. In September 2014, the State Attorneys General of New York, Connecticut, Delaware, Illinois, Maryland, Rhode Island, and Washington, and the District of Columbia submitted comments to EPA Administrator McCarthy in support of the proposed Clean Water Rule, reiterating the importance of inclusive Clean Water Act jurisdiction to protecting the waters of their states and the health and welfare of their citizens.

In 2015, the States of New York, Connecticut, Hawaii, Massachusetts, Oregon, Vermont, and Washington, and the District of Columbia, reiterated these views when they moved to intervene in court in support of the Clean Water Rule. We reiterate here that the state attorneys general explained their interest in the Clean Water Rule as follows:

“First…. The health and integrity of watersheds, with their networks of tributaries and wetlands that feed downstream waters, depend upon protecting the quality of upstream headwaters and adjacent wetlands. Moreover, watersheds frequently do not obey state boundaries, with all of the lower forty-eight states having waters that are downstream of the waters of other states. Thus, coverage under the Act of ecologically connected waters secured by the Rule is essential to achieve the water quality protection purpose of the Act, and to protect Proposed Intervenor States from upstream pollution occurring outside their borders.

“Second, by clarifying the scope of “waters of the United States,” the rule promotes predictability and consistency in the application of the law, and in turn helps clear up the confusing body of case law that has emerged in the wake of the Supreme Court’s Rapanos decision. The Rule accomplishes this by reducing the need for case-by-case jurisdictional determinations and, where such determinations are needed, by clarifying the standards for conducting them. Each of the Proposed Intervenor States implements programs under the Act. Thus, the rule is of direct benefit to movants because it helps alleviate administrative burdens and inefficiencies in carrying out those programs. In addition, the rule would help the States in administering the federal dredge-and-fill program if they choose to do so. See 33 U.S.C. §1344 (allowing States to implement a permitting program for dredge and fill material).

“Third, the rule advances the Act’s goal of securing a strong federal “floor” for water pollution control, thereby protecting the economic interests of Proposed Intervenor States and other downstream states. The Rule allows movants to avoid having to impose costly, disproportionate, and economically harmful limits on instate pollution sources to waters within their borders, in order to offset upstream discharges that would otherwise go unregulated if the upstream waters are deemed to fall outside the Act’s jurisdiction and are not otherwise regulated by upstream states. The Rule protects the economies of Proposed Intervenor States because it serves to “prevent the ‘Tragedy of the Commons’ that might result if jurisdictions can compete industry and development by providing more liberal limitations than their neighboring states.” NRDC, 568 F.2d at 1378 (quoting Train, 510 F.2d at 709).”

In the more recent context of the agencies’ 2017 requests for rulemaking comments, the States themselves remind the agencies of the importance of broad Clean Water Act jurisdiction in order to support – not undermine – the ability of states to protect their water resources. Many Clean Water Act federalism partners recognize the critical importance of regulating discharges upstream, at their source, in order to maintain and restore water quality and protect communities from flooding downstream. For example, the Attorneys General of New York, California, Maine, Maryland, Massachusetts, Oregon, Vermont, Washington and the District of Columbia comment that they:

[A]re situated on or near the shores of the Atlantic and Pacific Oceans and the Great Lakes, and are downstream from, or otherwise hydrologically connected with, many of the Nation’s waters. As such, the States are recipients of water pollution generated not only within their borders but also from sources outside their borders over which they lack jurisdiction. The States support a protective, clear, practical, and science-based definition of “waters of the United States” under the CWA in order to maintain a strong federal foundation for water pollution control that preserves the integrity of their waters. Not only does the definition of “waters of the United States” implicate the water quality and economic interests of the States and their citizens, it also affects the administrative burdens the States would need to bear in operating water quality programs should there be inadequate or ineffective protection of waters under the Act.

In their 2017 federalism consultation comments, the National Association of Clean Water Agencies (NACWA) states:

[N]arrowing of the WOTUS jurisdiction could increase the burden for downstream dischargers, like NACWA’s members, where unregulated, upstream discharges to tributaries deemed no longer jurisdictional under the federal Clean Water Act (CWA) contribute to the pollution load of the receiving water. EPA and the Corps must consider these potential impacts on downstream dischargers…. [S]trong federal protection is essential to providing safe and sustainable drinking water supplies into the future. Any significant narrowing of the WOTUS jurisdiction could threaten this protection and NACWA encourages EPA and the Corps to consult with clean water utilities and drinking water utilities during the rulemaking on the importance of protecting source water supplies.

The States themselves do not support the agencies’ new position that CWA jurisdiction must be narrowed to accommodate the states’ CWA §101(b) authority to protect their water resources.

Moreover, the agencies present no evidence that States can or would step in to protect waters not covered by the Clean Water Act if the Clean Water Rule is repealed and replaced. They need only look to the States’ track record since the Clean Water Act passed in 1972. Over the last 45 years, while 46 states have sought –and obtained – delegation of the §402 point source discharge program, only two states have assumed the CWA §404 permit program. It has been 17 years since the Supreme Court issued its SWANCC decision and over a decade since the Rapanos decision, yet very few states have moved proactively to fill the gaps in wetlands and stream protections in the wake of those two decisions, and fewer still have been able to sustain effective implementation and enforcement of those protections. Indeed, the agencies’ economic analysis cites to substantial evidence that most states will not respond to the Clean Water Rule repeal “by continuing to regulate as waters of the state those waters that are no longer considered ‘waters of the United States.’” The agencies expressly conclude that “such a response is less likely” in the two-thirds of all the states that have legal limits on the ability of state and local governments to adopt aquatic resource protections more stringent than the Clean Water Act definition of waters of the U.S.

Most significantly, many states find it too costly to assume responsibility for the CWA §404 program. Absent more robust federal funding and technical support, states are not likely to start regulating the dredging and filling of wetlands, lakes, and streams, and the repeal of the Clean Water Rule will indeed come at the cost of millions of dollars in wetland benefits lost each year. Coupling the Clean Water Rule repeal and return to the burdensome case-by-case determinations required by the Rapanos guidance with the Administration’s budget initially calling for significant cuts in federal Clean Water Act funding to states makes the agencies reliance on the possibility of enhanced state wetland protections all the more absurd.

It is ironic that in purporting to help the states protect their waters by elevating the CWA §101(b) cooperative federalism provisions, the agencies ignore the element of technical and financial assistance to states that has been so central to the success of state water quality programs:

.…It is further the policy of the Congress to support and aid research relating to the prevention, reduction, and elimination of pollution, and to provide Federal technical services and financial aid to State and interstate agencies and municipalities in connection with the prevention, reduction, and elimination of pollution.

In promulgating the Clean Water Rule, the agencies gave due consideration to CWA §101(b):

Some commenters stated that the proposed rule was inconsistent with the CWA because it impinged on the role of States to “prevent, reduce and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources.” Section 101(b). To the contrary, the agencies recognize that States and tribes play a vital role in the implementation and enforcement of the CWA. Nothing in this rule limits or impedes any existing or future state or tribal efforts to further protect their waters. States and tribes, consistent with the CWA, retain full authority to implement their own programs to more broadly and more fully protect the waters in their jurisdiction. Under Section 510 of the CWA, unless expressly stated, nothing in the CWA precludes or denies the right of any state or tribe to establish more protective standards or limits than the CWA. Many states and tribes, for example, regulate groundwater, and some others protect wetlands that are vital to their environment and economy but which are outside the scope of the CWA. See Clean Water Rule TSD, p. 9.

The agencies also provide no rational basis for concluding, as they suggest at 32248, that “the 2015 Rule’s coverage of waters based, in part, on their location within the 100-year floodplain of a jurisdictional water is [not] consistent the policy articulated in CWA section 101(b) ….” Clean Water Rule’s categorical coverage of waters within a 100-year floodplain and 1500 feet of a jurisdictional water is fully consistent with the CWA’s goals and text and Justice Kennedy’s significant nexus standard, and is well supported by the peer-reviewed connectivity science supporting the Clean Water Rule. See United States Brief in the Sixth Circuit at 99-101 and TSD, Connectivity Report, and other administrative records cited therein.

The agencies’ reliance on one-sided, vague, self-serving comments from “certain local governments” that “complicate local land use planning and development” is not a valid basis for the repeal of the Clean Water Rule. The administrative record includes many comments that support reliance on the 100-year floodplain. Id. See also, e.g., Association of State Floodplain Managers Repeal Rule Comments, dated September 27, 2017 (attached). The agencies should provide a thorough and objective review of all of these comments rather than relying exclusively on those that support the agencies’ predetermined decision to repeal the Clean Water Rule.

The agencies further suggest at 32248, without any legal or other rational support, that ““the agencies’ broadening of certain key concepts and terms relative to the prior regulatory regime means that the agencies can potentially review the ‘vast majority’ of water features in the country under the 2015 Rule, unless those features have been excluded from the definition,” and that, as a result, the 2015 Rule may “alter federal-state relationships in the implementation of CWA programs and State regulation of State waters,” and may provide them with a basis for repeal of the 2015 rule.

The agencies lack the evidence to support this finding and to contradict the agencies’ 2015 findings in support of the Clean Water Rule. The fact that the Clean Water Rule may authorize jurisdictional determinations of a vast number of water features nationwide does not mean that the Rule exceeds CWA authority. The pre-Clean Water Rule regime the agencies propose to recodify also permitted the agencies to “potentially review” virtually any water feature in the country. The agencies fail to explain how subjecting water bodies to review to determine whether they are covered by the Clean Water Act under the Clean Water Rule or otherwise undermines the Clean Water Act policy set forth in §101(b). The agencies fail to refute their previous conclusion in support of the Clean Water Rule that:

Nothing in this rule limits or impedes any existing or future state or tribal efforts to further protect their waters. States and tribes, consistent with the CWA, retain full authority to implement their own programs to more broadly and more fully protect the waters in their jurisdiction. Under Section 510 of the CWA, unless expressly stated, nothing in the CWA precludes or denies the right of any state or tribe to establish more protective standards or limits than the CWA. Many states and tribes, for example, regulate groundwater, and some others protect wetlands that are vital to their environment and economy but which are outside the scope of the CWA.” See Clean Water Rule TSD, p. 9.

The agencies lack the legal, policy, and factual support to repeal the Clean Water Rule as inconsistent with the CWA §101(b) policy reserving to the states the authority to “prevent, reduce and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources.” See, e.g., 32228, 32232-33, 32238, 32241, 32246, 32248. The Clean Water Rule does not alter CWA federal-state relationships or otherwise run afoul of the CWA 101(b) policy maintaining primary state powers to protect state water resources. The agencies have failed to justify Clean Water Rule repeal on this basis.

VI. The Clean Water Rule Tows The Commerce Clause Constitutional Line In Accordance With Justice Kennedy’s Significant Nexus Test And Other Supreme Court Precedent.

The agencies seek comment on whether “additional bases” for their Clean Water Rule repeal would include “whether the Clean Water Rule is consistent with the statutory text of the CWA and relevant Supreme Court precedent, [and] the limits of federal power under the Commerce Clause as specifically exercised by Congress in enacting the CWA.” 83 Fed. Reg. at 322248-49. As explained more fully below and in NWF 2014 and 2017 comments (attached), the answer is no: the Clean Water Rule is fully consistent with the CWA, relevant Supreme Court precedent, and the limits of federal power under the Commerce Clause.

As the agencies acknowledge, and as explained more fully below, the application of Justice Kennedy’s significant nexus standard for determining which waters are – and are not – waters of the U.S. subject to CWA jurisdiction ensures the exercise of authority consistent the CWA statutory text and avoids both constitutional and federalism concerns. As Justice Kennedy recognizes in Rapanos, the requirement set forth in SWANCC of a ‘significant nexus’ to navigable waters avoided constitutional as well as federalism concerns. 547 U.S. 715, 776-777 (2006) (Kennedy, J., concurring). In further support of his significant nexus standard in Rapanos, Justice Kennedy cites Supreme Court case law explaining, for example, that regulation of tributaries may be required to in order to manage water quality in downstream navigable waters. Id. at 782-83. See also, United States Brief in the Sixth Circuit at 151-160 and cases cited therein.

While the Clean Water Rule is entirely consistent with the CWA and the Commerce Clause, the agencies’ proposal to further limit CWA jurisdiction – set forth in a footnote – is not. See 83 Fed. Reg. 32249 at fn. 74. The Act’s legislative history and judicial precedent are clear: to meet the goals of the Act, CWA authority must extend to the full limits of the Commerce Clause. See United States Brief in the Sixth Circuit at 151-160 and cases cited therein. The agencies have no legal or rational basis on which to find that “it is more appropriate to draw a jurisdictional line that ensures that the agencies regulate well within our constitutional and statutory bounds.”

In a failed attempt to support repeal on these grounds, the agencies parrot “certain litigants” who suggest that the Clean Water Rule exceeds its statutory and constitutional authority if it would, under any circumstances, subject to case-specific jurisdiction, “the water features at issue in SWANCC or other similar water features.” 83 Fed. Reg. at 32249. This suggestion and request for comment mischaracterizes the very limited holding in SWANCC. As the agencies cryptically acknowledge at 32249, the Court simply ruled that the agencies could not rely exclusively on the Migratory Bird Rule to regulate intrastate, geographically and hydrologically isolated water features. See also, United States Brief in the Sixth Circuit at 10, 92, 111-130 and cases cited therein.

However, consistent with SWANCC, Justice Kennedy’s significant nexus standard, and the underlying connectivity science, these types of water features may be found to have a significant nexus to navigable waters on a case-specific basis, particularly when considered in the aggregate within the watershed. The Clean Water Rule establishes clear requirements and limitations for such case-specific jurisdictional determinations that closely track and are fully consistent with Justice Kennedy’s significant nexus standard and therefore fall well within the limitations of the CWA, the Commerce Clause, and Supreme Court precedent. The mere fact that the water features at issue in SWANCC may, post-Rapanos, be found to satisfy the Kennedy significant nexus standard as set forth in the Clean Water Rule, does not render the Clean Water Rule legally suspect. Neither the agencies nor “certain litigants” present evidence indicating that these water features would be found jurisdictional under the Clean Water Rule or that such a finding would not satisfy Justice Kennedy’s significant nexus standard.

Similarly, the agencies suggest, without legal or factual support, that the Clean Water Rule might exceed CWA statutory authority if the water features “cherry-picked” by litigants and described in case studies B and C in the agencies “technical document” could, under any circumstances, be considered waters of the U.S. under the Clean Water Rule. Id. The agencies erroneously cite SWANCC as support, again misstating the very limited holding of SWANCC – and ignoring Justice Kennedy’s widely accepted ruling that the application of his significant nexus standard ensures that the agencies are acting within their statutory and constitutional authority.

The Clean Water Rule is fully consistent with CWA statutory and Commerce Clause constitutional authorities in accordance with Justice Kennedy’s significant nexus test and other Supreme Court precedent. The agencies present no legal or other rational basis for repealing the Clean Water Rule on these additional grounds.

VII. The Agencies’ Claims Of Clean Water Rule Procedural Deficiencies Do Not Justify Repeal Of The Clean Water Rule.

In a final catch-all request for comment “on any other issues that may be relevant to the agencies’ consideration of whether to repeal the 2015 Rule,” the agencies ask “whether any potential procedural deficiencies limited effective public participation in the development of the 2015 Rule.” 83 Fed. Reg. at 32249. As explained elsewhere in the record and below, the agencies provided extensive, widespread, and transparent processes for effective public participation in the development of the 2015 Rule, including, but not limited to a 200+ day public comment period, a separate extensive and transparent peer review and public comment period on the Connectivity Science Report supporting the Clean Water Rule, and more than 400 stakeholder meetings, all incorporating public comment for the development of the Clean Water Rule. The agencies also provided clear notice in the 2014 proposed rulemaking of the range of approaches, including distance limitations, which the agencies were considering in revising the 1986 definition of waters of the U.S. Consequently, the agencies have no rational basis for repealing the Clean Water Rule on grounds of potential procedural deficiencies limited effective public participation in the development of the 2015 Rule.

In particular, the agencies suggest, without support, that the distance limits in the final Clean Water Rule “did not appear in the proposed rule, and thus the agencies did not receive public comment on these numeric measures.” See 83. Fed. Reg. 32229. The Clean Water Rule administrative record is clear, however, that the proposed rule did provide notice of potential distance limitations and, in fact, did receive public comment on such measures. Of particular note, the proposed rule asked for comments on the issues of how to cover and define tributaries and on the concept and definition of “adjacency” and “neighboring.” 79 Fed. Reg. 22,188, at 22,192-93, 22,250-51, and 22,261 (April 21, 2014). While the Agencies ultimately moved from identifying the neighboring component of adjacency with reference to terms such as floodplain to terms that also included distance and other proximity measures, all of those concepts are rooted in proximity and distance measures from foundational waters. Compare, Id. at 22,206-07 to 80 Fed. Reg. at 37,058. And, significantly, they incorporated these distance limitations in response to public comment and stakeholder engagement. In fact, in the proposed rule, the Agencies noted that in certain circumstances, the Agencies would consider distance as part of the assessment of whether a water was “neighboring.” 79 Fed. Reg. at 22,207. As a result, states and other stakeholders were clearly on notice that specific distance measures of “adjacency” were under consideration and were provided ample opportunity to submit comments on this aspect of the proposed rule. See United States Brief in the Sixth Circuit at 181-210 and administrative record citations therein. See also, NWF 2014 Clean Water Rule Comments at 49-58 (urging the agencies not to impose distance limitations unsupported by the connectivity science).

More broadly, the proposed rule also provided ample public notice and opportunity to comment on the Clean Water Rule. For example, the proposed rule sought comment and input on whether and how the final rule should address specific bodies of water that in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters such as prairie pothole wetlands or Texas coastal plain wetlands. 79 Fed. Reg. 22,188, at 22,192-93, 22,250-51, and 22,261 (April 21, 2014).

The scientific foundation for the Clean Water Rule, and the significant nexus analysis at its core, was widely available and open to public comment throughout the rulemaking process. The Agencies made a draft of the Connectivity Science Report and the Technical Support Document available for review during the comment period, 79 Fed. Reg. at 22,188, and the Science Advisory Board’s deliberations and review of the Connectivity Report were publicly available and open to public participation throughout the rulemaking process. Nothing in the finalization of these documents deprived the States’ of their chance to understand and comment on the issues and proposals in play, nor were they deprived of the ability to advocate for their much-narrower version of jurisdiction under the Act.

It is ironic that state and industry opponents of the Clean Water Rule would assert procedural deficiencies in the finalization of the Clean Water Rule, since the major adjustments in the final rule served their interests: to add additional limitations on the scope of CWA jurisdiction, through distance limitations and additional exclusions. The Department of Justice continues to assert that the notice provided in the development of the Clean Water Rule was adequate and that the Rule was not procedurally deficient. See United States Brief in the Sixth Circuit at 181-210 and administrative record citations therein.

VIII. The Clean Water Rule Repeal Proposal Continues To Violate Procedural Norms Required By Law And Finalizing This Proposal Would Be Unlawful.

Rather than correct the procedural deficiencies of their first proposed repeal of the Clean Water Rule, the agencies’ supplemental proposal simply compounds them. See NWF 2017 Clean Water Rule Repeal Comments. The APA directs that agencies undertaking rulemaking allow “interested persons an opportunity to participate,” and empowers courts to invalidate agency decisions where the length of the comment period is “arbitrary and capricious” or “an abuse of discretion”.73 The Clean Water Act similarly provides that “[p]ublic participation in the development, revision, and enforcement of any regulation, standard, effluent limitation, plan, or program established by the Administrator or any State under this Act shall be provided for, encouraged, and assisted by the Administrator and the States.”

The agencies refusal to allow for meaningful opportunity to comment on the substantive information and comments on the content of the Clean Water Rule, the 1986 rule, and the Rapanos guidance, including which waters are covered and not covered by the Clean Water Act under each, the rationale for each, and the implications of each, is all clearly relevant information essential to determining whether the repeal of the Clean Water Rule has any rational basis. The agencies failure to consider this information75 is contrary to the APA. The repeal of the Clean Water Rule must not proceed unless and until the public is provided the opportunity to engage in “robust deliberations” on the substance of the repeal action and the guidance codification action, and those comments are considered and addressed before the agencies make a final rulemaking decision.

• The 30 public comment period was too limited to allow a meaningful opportunity for public participation and unlawful.

Both the Clean Water Rule and its repeal have significant ramifications for the health of the nation’s waters and communities, businesses, and fish and wildlife that depend on them. Even the agencies’ initial repeal proposal acknowledged that the “scope of CWA jurisdiction is an issue of great national importance,” one that warrants “robust deliberations” about the law’s coverage. 82 Fed. Reg. at 34,902. The Clean Water Rule was developed after extensive research and review and input from more than one million members of the public, researchers, conservation advocates, decision makers, and more. The agencies published the Clean Water Rule proposal in the Federal Register on April 21, 2014, and the comment period ended on November 14, 2014 – a total of 207 days. The Clean Water Rule is based on extensive peer-reviewed science and upon wellestablished legal interpretations of the Clean Water Act, closely tracking Justice Kennedy’s pivotal “significant nexus” standard for determining the “waters of the U.S.

In contrast to the robust public engagement provided for to promulgate the Clean Water Rule, the agencies offer minimal opportunity to comment on the equally significant proposal to repeal the rule. The current 30-day timeframe to submit comments on the supplemental repeal proposal falls far short of even the bare minimum 60-day comment period set forth in Executive Order 12866. 77 And it is a far cry from the standard by which it should be measured – the engagement for the Clean Water Rule itself. The 2015 Clean

Water Rule was developed over many years, with 200+ days of public comment and 400 stakeholder meetings. Yet the agencies propose to eliminate the Rule with virtually no public process.

The agencies’ supplemental attempt to justify the repeal of the Clean Water Rule, offers only 30 days to digest and comment on a wide ranging proposal, including novel legal and policy rationales, a reversal of their own previous rationales for the 2015 Clean Water Rule, and a proposal that the Clean Water Rule was unlawful. 78 The agencies now also request comment on the estimated impact of the 2015 Rule on the scope of CWA jurisdiction compared to pre-Rule practice, questioning the methodology used by the agencies own experts, and present new examples that the agencies indicate may be relevant to assessing whether the Rule was lawful. Effectively reviewing and supplementing these “examples” to consider all the relevant information and provide some semblance of objective analysis is the agencies’ job – not the public’s. Regardless, meaningful public participation in this rulemaking is time-consuming at best. The agencies’ 30-day comment period for this agency action “of great national importance” is arbitrary and capricious and an abuse of the agencies’ discretion.

• Codifying the 2008 Rapanos guidance without the required notice and meaningful opportunity to comment on the substance of the guidance or the Clean Water Rule it would replace violates the APA.

The agencies’ supplemental repeal proposal fails to correct, and in fact compounds, the initial failure to provide meaningful opportunity to comment on the substance of the guidance or the Clean Water Rule it would replace. See NWF 2017 Repeal Comments. As stated in our earlier comments, the agencies purport to be re-codifying the previous 1986 regulation, which includes as “waters of the U.S.” navigable waters, interstate waters and intrastate lakes, rivers, streams (including intermittent streams), mudflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes or natural ponds, the use degradation or destruction of which could affect interstate or foreign commerce ….” when, in fact, the agencies intend codifying not the 1986 rule, or any other rule, but the 2008 agency guidance interpreting the 1986 regulation in light of Rapanos.

At a minimum, the agencies proposed repeal is arbitrary, capricious, and contrary to law because it would elevate the Rapanos guidance to the status of a regulation without public notice and comment on its merits and with no stated rationale for reversing course and returning to the Rapanos guidance. In fact, the supplemental proposal compounds this failure to provide meaningful opportunity to comment on the repeal of the Clean Water Rule and the recodification of the Rapanos guidance for numerous reasons, including the fact that the agencies’ latest proposal barely mentions the Rapanos guidance, and where it does, it at times casts doubt on whether the agencies consider the Rapanos guidance legal and whether they have any intention of implementing or enforcing it. See e.g., 83 Fed. Reg. at 32237, 32247.

In addition, the agencies fail to give an accurate assessment of the effect of the Clean Water Rule, selectively mining and mischaracterizing the Clean Water Rule administrative record and litigation documents attacking the Clean Water Rule in order to support its proposed repeal. As a result of these procedural deficiencies and others, the agencies have failed to give proper notice. The agencies’ proposed repeal of the Clean Water Rule “is rendered inadequate by [their] affirmative mischaracterization of its import and impact.”

• Administrator Pruitt’s active promotion of the Clean Water Rule repeal based on false and misleading statements continues to undermine public comment and demonstrates the agencies’ refusal to consider and respond to all relevant information with an open mind.

Throughout this rulemaking process, the agencies’ proposed repeal of the Clean Water Rule, led by Administrator Pruitt, has demonstrated an inalterably closed mind. The Administrator signed the initial repeal proposal and he signed this supplemental repeal proposal. 83 Fed. Reg. at 32252. As we commented in 2017, not only does EPA refuse to consider public comment relevant to the decision to repeal the Clean Water Rule and codify the Rapanos guidance, EPA Administrator Pruitt actively promoted the repeal of the Clean Water Rule in the media and in select, sometimes by invitation only, forums during the course of the 60-day public comment period. His statements consistently and misleadingly characterized the Clean Water Rule as unlawful and overreaching, at times embracing the Farm Bureau’s “Ditch the Rule” media pitch. The (now former) Administrator’s consistent opposition to the rule and refusal to rationally consider all relevant information and arguments violate core rulemaking requirements of the APA, 5 USC 553 (b) and (c), and the Constitution’s guarantee of Due Process.81 See NWF 2017 Repeal Rule Comments at 9-12.

The supplemental proposal’s consistently one-sided, selective, and misleading characterizations of the CWA, Supreme Court precedent, and the Clean Water Rule administrative record only further underscore the agencies’ inalterably closed mind with respect to the Clean Water Rule and its repeal. The agencies’ consistent opposition to the Clean Water Rule, false characterizations of the Rule and of the waters covered by the Rule, and refusal to rationally consider all relevant information and arguments violate the APA and the Constitution’s guarantee of Due Process.

• The agencies fail to provide a sound economic analysis of the impact of their Clean Water Rule repeal.

In our 2017 Repeal Rule comments, we documented at length that the agencies’ 2017 economic analysis82 arbitrarily writes off more than $300 million in annual wetland economic benefits in a misplaced attempt to justify the Clean Water Rule repeal. See NWF 2017 Repeal Rule Comments at 18-26. We argued the record for the Clean Water Rule demonstrates that by any measure, clarifying and restoring clean water protections for America’s waters is a good investment for healthy communities and a healthy economy. And that lacking any sound rationale for stripping from the economic analysis the wetland benefits secured through the Clean Water Rule, the agencies must use the estimate from EPA’s 2015 analysis or conduct additional analyses. Id.

Now, in their supplemental repeal proposal at 32250, the agencies retreat from their flawed 2017 economic analysis:

While economic analyses are informative in the rulemaking context, the agencies are not relying on the economic analysis performed pursuant to Executive Orders 12866 and 13563 and related procedural requirements as a basis for this proposed action. See, e.g., NAHB, 682 F.3d at 1039–40 (noting that the quality of an agency’s economic analysis can be tested under the APA if the ‘agency decides to rely on a cost-benefit analysis as part of its rulemaking’).

The agencies thus disregard both their 2017 version of the 2015 economic analysis, and the 2015 analysis itself, without any substantive analysis of the effect of their repeal rulemaking. The agencies propose to repeal a final Clean Water Rule that agency experts estimated would add more than $300 billion annually in wetland benefits and a net $110 to $185 billion annually in value considering all costs and benefits. The agencies failure to provide any substantive analysis of the effect of their rulemaking is arbitrary and capricious.

IX. Rather Than Repeal, The Agencies Should Reconsider Specific Clean Water Rule Elements That Warrant Concern Or Clarification.

In response to the agencies’ request for comments on “alternative approaches” “to provide [] predictability and regulatory certainty,” 32249, NWF summarizes and attaches our 2017 recommendations to the agencies that, rather than repeal the Clean Water Rule, the agencies propose “revisions to specific elements of the 2015 Rule” that warrant concern or clarification based on an objective assessment of the final rule. Having codified a clear, consistent, and legally and scientifically sound rule, the agencies should then apply their CWA expertise to develop updated implementation guidance and manuals to support the revised rule. See NWF 2017 Waters of the U.S. Definition Recommendations,

Docket ID Number EPA-HQ-OW-2017-0480 (August 28, 2017. The agencies purport to have considered this approach, but offer no evidence that they have done so. Contrary to their close-minded conclusions at 32249, the 1986 rule precedent and “the agencies’ experience and expertise in applying the CWA” do not support repeal of the Clean Water Rule. They do support implementation of the Clean Water Rule or, at most, reconsidering specific aspects of the Clean Water Rule that warrant further clarification, building on 1986 precedent and agency expertise.

A logical first step – one the agencies should have taken before proposing this Clean Water Rule repeal – is to carefully and objectively assess the more than 500 Clean Water Rule AJDs to identify areas in with the Clean Water Rule is improving the clarity, efficiency, accuracy and consistency of jurisdictional determinations, and areas in which further clarification may be warranted.

Our key recommendations for any reconsideration of the Clean Water Rule are as follows:

• EPA and the Corps should use the 2015 Clean Water Rule, its robust public process, and its extensive administrative record as the basis for defining the “waters of the U.S.”
• Any revision of the Clean Water Rule must be subject to a rulemaking process at least as robust, transparent, and deliberate as the process for promulgating the 2015 Clean Water Rule.
• Any revision of the Clean Water Rule definition of “waters of the U.S.” must rely on the widely accepted significant nexus test for Clean Water Act jurisdiction.
• Any revision of the Clean Water Rule definition of “waters of the U.S.” must be grounded in sound science, including the scientific record supporting the Clean Water Rule.
• Any revision of the Clean Water Rule should be based on the science-based, professional judgment of water resource experts; not on political ideology.
• Any revision of the Clean Water Rule should focus on any necessary and constructive clarifications; not expanded exclusions from the definition of “waters of the U.S.”
• The Clean Water Rule’s definition of traditional navigable waters and treatment of interstate waters should form the basis for any revised definition of the “waters of the United States.”
• The Clean Water Rule’s definition and treatment of tributaries is scientifically and legally sound and should form the basis for any revised definition of the “waters of the United States.”
• The Clean Water Rule’s definition and treatment of adjacent waters is scientifically and legally sound and should form the basis for any revised definition of the “waters of the United States.”
• The Clean Water Rule’s definition of categories of non-adjacent waters as “waters of the United States” where the scientific evidence of connectivity satisfies the significant nexus test is scientifically and legally sound and should form the basis for any revised definition of the “waters of the United States.”
• Any revision of the Clean Water Rule must account for the fact that the Rule’s clarifying and restoring of Clean Water Act protections fosters strong local economies and millions of jobs.

Conclusion

Increasingly, Americans face toxic algal outbreaks, chemical spills, and other threats to their drinking water supplies. We face increasingly intense and damaging storms and floods that threaten communities upstream and down. We are continually reminded of just how important bedrock Clean Water Act safeguards are for communities, fish and wildlife, and the outdoor recreation economy. Rule changes interpreting the scope of the Clean Water Act’s safeguards must therefore not be taken lightly.

The agencies proposal to repeal the Clean Water Rule and roll back Clean Water Act protections threatens the drinking water supplies of more than 117 million Americans and more than 20 million wetland acres remaining in the continental U.S. These remaining wetlands are increasingly important for filtering pollution from contaminated runoff, recharging groundwater supplies, and storing flood waters. An acre of wetlands can store upwards of a million gallons of flood water. Healthy wetlands and headwater streams provide the clean, cool flows and essential habitat for fish and wildlife populations that are essential for a thriving economy. Decades of experience and multiple studies have shown that economic growth is not only compatible with, but benefits from, these protections.

Because the Clean Water Act and its programs are essential to cleaning up and protecting our nation’s waters, the EPA and the Corps developed the Clean Water Rule over a period of several years, providing ample opportunities for stakeholders to evaluate the technical and legal basis for the rule and express their views. The agencies held open the comment period for more than 200 days, receiving more than 1.1 million comments, more than 80% of which were supportive of the rule. During that same time period, the rule was informed by an extensively peer-reviewed scientific report, including a peer review by the independent Science Advisory Board, during which the agency received more than 130,000 comments. During the comment period on the proposed rule, EPA met with more than 400 stakeholders. The agencies then developed a rule that relied on the public input, on a strong scientific record, and on the Supreme Court’s direction about the kinds of waters the Clean Water Act protects.

Rather than solicit thoughtful, science-based, legally sound input on potential revisions to the 2015 Clean Water Rule, this rulemaking to rescind the 2015 Clean Water Rule deliberately ignores the robust record in support of the Clean Water Rule. It also ignores the overwhelming public opposition to the 2017 Clean Water Rule repeal proposal. Rather than acknowledge and respect the more than one half million public comments opposing this repeal proposal, the agencies put forth a supplemental repeal proposal and intentionally limit the opportunity for affected communities to meaningfully respond to it.

The agencies’ 2018 supplemental proposal to repeal the Clean Water Rule, like their initial 2017 proposal is arbitrary, capricious, and contrary to law because the agencies fail to provide meaningful opportunity for public comment, fail to consider all relevant information, and fail to provide a rational explanation for reversing course in defining Waters of the U.S. In fact, the supplemental proposal compounds the arbitrariness of the proposed repeal and recodification of the Rapanos guidance by, among other things, failing to compare the merits of the Clean Water Rule with the Rapanos guidance they propose to recodify, casting doubt on the Rapanos guidance and whether they intend to enforce it, and failing to give an accurate assessment of the effects of the Clean Water Rule and how the repeal of the Clean Water Rule will impact the nation’s waters and the communities, outdoor recreation economy, property values, drinking water supplies, and fish and wildlife that depend on healthy waters. Instead, the agencies selectively mine and mischaracterize the Clean Water Rule administrative record, and litigation documents attacking the Clean Water Rule, in a failed attempt to support the proposed repeal.

We oppose this proposal to repeal the 2015 Clean Water Rule and to strip the protections that have prevented harmful pollution of the nation’s waterways for decades. We urge the Administration to withdraw its proposal immediately. If the agencies decide to consider any potential revisions to the 2015 Clean Water Rule, they must engage in a thoughtful, inclusive, science-based, and legally sound process for doing so. And they should use the duly promulgated final Clean Water Rule and its extensive administrative record as the starting point for those robust deliberations.

Respectfully Submitted,

Jan Goldman-Carter, Senior Director Wetlands and Water Resources National Wildlife Federation

Steve Moyer Vice President, Government Affairs Trout Unlimited