Dear Acting Administrator Wheeler and Assistant Secretary James,

Earthjustice submits these comments on behalf of its clients Ohio Valley Environmental Coalition, Puget Soundkeeper Alliance, Sierra Club, Idaho Conservation League, Minnesota Center for Environmental Advocacy, Cook Inletkeeper, Upper Missouri Waterkeeper, and Southeast Alaska Conservation Council. The Environmental Protection Agency (“EPA”) and the Army Corps of Engineers (“Army Corps”) (collectively, “Agencies”) seek comment on their supplemental notice to the July 27, 2017 proposal to repeal the 2015 Clean Water Rule defining the term “waters of the United States” in the Clean Water Act (“CWA”) and replace it with the pre-2015 regulatory definitions, as interpreted by “Supreme Court decisions . . . applicable guidance documents, training, and experience.” “Definition of ‘Waters of the United States’— Recodification of Preexisting Rule,” 83 Fed. Reg. 32,227 (July 12, 2018). In this second attempt to propose a repeal and replacement, the Agencies more than doubled the length of text in their initial 2017 proposed rule; yet, this lengthening cannot itself rectify the substantial Administrative Procedure Act (“APA”) deficiencies in the original proposal. In spite of the additional length in the new supplemental notice, the Agencies have again violated the APA in many of the same ways as in their initial proposal. For a second time, the Agencies failed to address critical components of the proposal, and offered only arbitrary and capricious explanations for their proposed actions.


  • Agency Proposals Must Include The Content And Support For The Substance Of The Proposed Regulatory Action.

“Notice and comment are not mere formalities,” and the process requires a “forum for the robust debate of competing and frequently complicated policy considerations having farreaching implications.” Nat. Res. Def. Council v. Nat’l Highway Traffic Safety Admin., 894 F.3d 95, 115 (2d Cir. 2018). “Additionally, the process helps ensure ‘that the agency maintains a flexible and open-minded attitude towards its own rules,’ because the opportunity to comment
US EPA, Comment in Dkt. No. EPA-HQ-OW-2017-0203 August 13, 2018 Page 2 ‘must be a meaningful opportunity.’” N. Carolina Growers’ Ass’n, Inc. v. United Farm Workers, 702 F.3d 755, 763 (4th Cir. 2012) (internal citation omitted).

In order to lawfully complete a rulemaking, agencies must “examine the relevant data and articulate a satisfactory explanation for [their] action.” FCC v. Fox Television Stations, 556 U.S. 502, 513 (2009) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 43 (1983) (“State Farm”)). The relevant data must necessarily include “good reasons for the new policy.” Id. at 515. In a repeal and replacement rulemaking, the “new policy” is the proposed rule that replaces the repealed rule. Therefore, in the type of rulemaking the Agencies propose here, they must substantively address not only the rule being repealed, but also the rule the Agencies propose to replace it with. See also N. Carolina Growers’ Ass’n, Inc., 702 F.3d at 770 (holding that a suspension of a current regulation and reinstatement of a prior regulation was arbitrary and capricious for failing to address and solicit comment on both regulations, and it therefore “ignored important aspects of the problem”).

In the supplemental notice for the proposed repeal and replacement, the Agencies failed to address or solicit comments on the policy merits of the regulations they are proposing to codify – namely, the pre-2015 regulations that appeared in the Code of Regulations from 1986 until they were rescinded and replaced with the 2015 Clean Water Rule. Although the Agencies solicited comments on whether the 2015 Clean Water Rule should be repealed, see 83 Fed. Reg. at 32,227, they did not extend the same invitation or opportunity for the merits of reverting to the 1986 regulations as modified by various pre-2015 agency policies (the “Replacement Rule”), nor did they substantively address the reasons why the new regulatory text and approach is good policy. Neither the 2017 proposed repeal nor the present supplemental notice assert that the replacement is needed because 2015 Clean Water Rule fails to achieve the statute’s goal of cleaner water; to the contrary, the predominant theme in the supplemental notice is that the 2015 Clean Water Rule needs to be repealed because it achieves that goal too well, by protecting too many waters and relying too heavily on sound science.

The only meaningful discussion of the proposed regulatory text appears in a short section of the supplemental notice that asserts the Replacement Rule is “more familiar” to regulators and will contribute to “greater regulatory predictability, consistency, and certainty.” 83 Fed. Reg. at 32,239-40. This discussion not only strains credulity, as addressed in infra part IV.A of these comments, but it also utterly fails to address why the regulations are sound public policy. The familiarity of regulatory regimes has no bearing on the substantive wisdom of, or legal, factual, or scientific support for, the policies. Further, the Agencies cannot simply cling to familiarity as a substitute for demonstrating and supporting an assertion that the Replacement Rule is good policy. In fact, the Agencies explicitly recognize elsewhere in the supplemental notice that the Replacement Rule, when originally in effect, “posed certain implementation difficulties,” 83 Fed. Reg. at 32,240, are “imperfect,” and “have been criticized.” Id. at 32,250. Thus, the Agencies here propose to indefinitely codify a suite of regulations, while admitting the regulations are problematic and without addressing the merits of the regulations. Such a gaping regulatory action cannot comply with the APA’s notice and comment requirements.

Moreover, the Agencies must provide “a more detailed justification” when the “new policy rests upon factual findings that contradict those which underlay its prior policy. . . .” Fox Television Stations, 556 U.S. at 515; see also id. (“the requirement that an agency provide reasoned explanation for its action would ordinarily demand that it display awareness that it is changing position. An agency may not, for example, depart from a prior policy sub silentio or simply disregard rules that are still on the books.”). Because the Agencies wholly failed to address the merits of the Replacement Rule at all in both this supplemental notice and in the original 2017 proposed rule, they certainly also failed to offer “a more detailed justification” for the regulations they seek to codify. See “Definition of ‘Waters of the United States’ – Recodification of Pre-existing Rules,” 82 Fed. Reg. 34,899 (June 27, 2017); public comments of Ohio Valley Environmental Coalition, Puget Soundkeeper Alliance, Sierra Club, Idaho Conservation League, Minnesota Center for Environmental Advocacy, Cook Inletkeeper, Upper Missouri Waterkeeper, and Southeast Alaska Conservation Council (Dec. 13, 2017), No. EPAHQ-OW-2017-0644 (hereinafter “2017 Public Comments”). While the Agencies offer a few reasons for wanting to repeal the 2015 Clean Water Rule in this supplemental notice, those reasons cannot logically also provide an explanation for the proposed affirmative replacement with the pre-2015 regulations as modified by pre-2015 guidance. The Agencies propose two distinct and meaningful policy actions in this rulemaking – a repeal and replacement – yet the Agencies completely ignore the substance and merits of the latter. Therefore, the proposal fails to satisfy the most fundamental requirement of rulemaking of providing a satisfactory explanation for the action.

Finally, the Agencies did not properly consider alternatives to repealing the 2015 Clean Water Rule and replacing it with the pre-2015 regulatory regime. In the seminal State Farm case, the U.S. Supreme Court held the National Highway Traffic Safety Administration could not simply rescind a requirement for passive restraints, adopted by the previous administration, without considering alternatives that would achieve the Motor Vehicle Safety Act’s goal of greater traffic safety. State Farm, 463 U.S. at 48. Similarly, the Agencies here cannot repeal the 2015 Clean Water Rule without considering the CWA’s goal of clean water and how alternatives to the proposal could achieve that goal. In the supplemental notice, the Agencies dismissively assert that they “have considered other alternatives that could have the effect of addressing some of the potential deficiencies identified, including proposing revisions to specific elements of the 2015 Rule, issuing revised implementation guidance and implementation manuals, and proposing a further change to the February 6, 2020 applicability date of the 2015 Rule.” 83 Fed. Reg. at 32, 249. Yet, the Agencies do not even identify these purported alternatives, much less address the merits of these potential regulatory paths. And by failing to identify and address alternatives, the Agencies have failed to provide the public with the full opportunity for review and public comment the APA demands.

  • The Fact That The Agencies Are Proposing To Reinstate A Prior Regime Does Not Excuse Them From Addressing The Substance And Merits Of The Prior Regime In This Rulemaking.

The fact that the Replacement Rule is proposed as a recodification of the legal regime in place before 2015 does not excuse the Agencies from fully considering the substance and merits of the two respective regimes, or from soliciting and addressing public comments on both. The Agencies found and demonstrated that Clean Water Rule is necessary in the first instance, with a dedication of extensive resources, research, careful analysis and detailed justification. Logically, reverting back to the pre-2015 regulations for the Replacement Rule is an action directly contrary to the extensive and detailed Clean Water Rule record and it returns the country to a regime that the Agencies had already found to be inadequate, contrary to science, and contrary to law. In order to lawfully return to a regulatory regime the Agencies call “imperfect,” and “criticized,” 83 Fed. Reg. at 32,250, the Agencies must explain to the public why they believe these admittedly flawed regulations are the best way to define “waters of the United States.”

The Department of Labor faced the same situation in North Carolina Growers’ Association. There, the Department of Labor in the newly-elected Obama administration attempted to suspend regulations adopted in 2008—the last year of the Bush administration— governing wages for agricultural workers. N.C. Growers’ Ass’n, 702 F.3d at 759-60. The suspension was to last nine months, pending review and reconsideration, during which time the pre-existing 1987 regulations would be reinstated. Id. at 760. In the notice of the proposed suspension, the agency stated that it would consider comments only on the temporary suspension and not on the substance of either the 1987 regulations or the 2008 regulations. Id. at 761. Despite the fact that the agency was reinstating a rule previously in force, the court held that the reinstatement of the old regulations was subject to the rulemaking requirements of the APA. Id. at 764-66. The court rejected the agency’s attempt to reinstate the pre-existing rule without considering the merits: “because the Department . . . did not solicit or receive relevant comments regarding the substance or merits of either set of regulations, we have no difficulty in concluding that the Department ‘ignored important aspects of the problem.’” Id. at 770 (quoting Ohio River Valley Envt’l Coal. v. Kempthorne, 473 F.3d 94, 103 (4th Cir. 2006)). Accordingly, the court held the action was arbitrary. Id.

In this proposed rulemaking, the Agencies make the same error as the agency in North Carolina Growers’ Association. Namely, they are proposing to repeal a new rule and reinstate an old one without considering the merits of the latter at this time and in light of the record. As recognized in North Carolina Growers’ Association, the Agencies do not have that option. They are required to provide a rational explanation for their decision that considers all the relevant factors concerning both the Clean Water Rule and the legal regime that preceded it, and they had a duty to solicit public comments on both of those regulatory regimes. The Agencies’ unequivocal failure to take this step deprives the public of a meaningful opportunity to comment and violates the requirements of the APA.

  • The Pre-2015 Regime Has Never Before Been Subject To Notice And Comment Rulemaking, Reinforcing The Need To Do So Now.

The need for a thorough explanation and solicitation of public comments is particularly pronounced in this case, where the Agencies are not merely reinstating an old rule for which there was a full and compliant process. Here, the Agencies are reinstating an entire “regime,” a word used throughout both of the public notices for the proposed rule. The original notice explains that the temporary Sixth Circuit stay of the 2015 Rule restored “the ‘pre-Rule regime,’” 82 Fed. Reg. at 34,901 (citation omitted), and that the proposed rule would “codify the legal status quo that is being implemented now under the Sixth Circuit stay….” Id. at 34,902. Similarly, the supplemental notice states “it is important to retain the status quo that has been implemented for many years rather than the 2015 Rule,” 83 Fed. Reg. at 32,250, and explains that the “[t]he agencies would continue to implement those regulations, as they have for many years, consistent with Supreme Court decisions and practice, other case law interpreting the rule, and informed by agency guidance documents.” Id.

The pre-2015 Rule “regime” is a great deal more complicated than the regulatory text in place prior to the 2015 Clean Water Rule. In addition to the regulations, it includes modifications of those regulations through court decisions and through agency guidance, as well as the waste treatment exemption which has never been the subject of proper notice and comment procedures.

The most concerning and perhaps egregious example of how the Replacement Rule does not simply revert to some earlier legitimate process is the so-called “waste treatment system exclusion,” promulgated in 1980. In proper rulemaking, the exclusion was expressly limited to “manmade bodies of water” that “neither were originally created in waters of the United States (such as a disposal area in wetlands) nor resulted from the impoundment of waters of the United States.” 45 Fed. Reg. 33,290, 33,424 (May 19, 1980). But shortly after its adoption, EPA suspended the properly-adopted language limiting the exclusion to manmade systems, without opportunity for public comment, explaining that the suspension was temporary and that EPA would “promptly” amend the rule or “terminate the suspension.” 45 Fed. Reg. 48,620 (July 21, 1980). It never did and, as a result, the Agencies have been applying a much more sweeping version of the exclusion than the version EPA duly adopted.

Additionally, the regulations have been narrowed by two significant Supreme Court opinions interpreting the definition, modified by agency guidance documents adopted in 2003 and 2008, and further modified by other agency practice. 82 Fed. Reg. at 34,900-01; see also 83 Fed. Reg. at 32,250 (“the agencies acknowledge that the 1986 and 1988 regulations have been criticized and their application has been narrowed by various legal decisions, including SWANCC and Rapanos”). The Replacement Rule will include a recodification of the regulatory text that governed the legal regime prior to the 2015 Clean Water Rule, informed by applicable guidance documents (e.g., the 2003 and 2008 guidance documents, as well as relevant memoranda and regulatory guidance letters), and modified as necessary to be consistent with the SWANCC and Rapanos Supreme Court decisions, additional applicable case law, and longstanding agency practice. 82 Fed. Reg. at 34,901-02. This legal regime evolved over decades and has never, until now, been adopted in its entirety through notice-and-comment rulemaking.

Because the Agencies are adopting this regime in its entirety as a rule for the first time now, they must consider all the relevant factors and thoroughly explain and seek comment on the substance of the entire pre-2015 Rule regime.


To justify the proposed repeal of the 2015 Rule, the Agencies must first disclose whether they intend to reverse the factual findings made in support of the 2015 Rule, and then provide a rationale for that choice. See Fox Television Stations, Inc., 556 U.S. at 515 (“the requirement that an agency provide reasoned explanation for its action would ordinarily demand that it display awareness that it is changing position. An agency may not, for example, depart from a prior policy sub silentio or simply disregard rules that are still on the books.”). Neither the 2017 nor the 2018 public notice satisfies this requirement.

The Agencies made extensive factual and legal findings in support of the Clean Water Rule, using what the Agencies found to be the “best available peer-reviewed science, public input, and the agencies’ technical expertise and experience in implementing the statute.” “Clean Water Rule: Definition of “Waters of the United States,” 80 Fed. Reg. 37,054, 37,055 (June 29, 2015).1 The Agencies first affirmed their conclusion that the “significant nexus” standard is the appropriate test for determining which waters are “waters of the United States,” based upon consensus case law and extensive scientific analysis and input. Id. at 37,056. Then, because “[t]he relevant science on the relationship and downstream effects of waters has advanced considerably in recent years,” EPA’s Office of Research and Development prepared a “comprehensive report” entitled “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence,” (the “Connectivity Report”). Id. at 37,057. The Agencies used this analysis to “characterize the nature and strength of the chemical, physical, and biological connections between upstream and downstream waters,” and to develop a rule that would “greatly reduce[] the extent of waters subject to this individual review.” Id.

The Connectivity Report contained five major conclusions which the agencies set forth in support of the Clean Water Rule: (1) that all tributary streams “exert a strong influence on the chemical, physical, and biological integrity of downstream waters,” (2) “that wetlands and open waters in riparian areas and floodplains are chemically, physically, and biologically integrated with rivers via functions that improve downstream water quality,” (3) that “[w]etlands and open waters in non-floodplain landscape settings (“non-floodplain wetlands”) [also] provide numerous functions that benefit downstream water integrity,” (4) that connectivity between tributary streams and wetlands and downstream jurisdictional waters “occurs along a gradient that can be described in terms of the frequency, duration, magnitude, timing, and rate of change of water, material, and biotic fluxes to downstream waters,” and that, while the connectivity of stream channels and riparian/floodplain wetlands to downstream waters is unequivocal, “the connectivity of non-floodplain wetlands and open waters is more variable and more difficult to address categorically based solely on the scientific literature,” (emphasis added), and (5) that the “incremental effects of individual streams and wetlands are cumulative across entire watersheds, and therefore, must be evaluated in context with other streams and wetlands” in the same watershed. Id. at 37,063-64.

Based on these conclusions in the Connectivity Report, the Agencies went on to make specific findings in support of their decision to categorically define certain waters as jurisdictional in the Clean Water Rule, and to define additional separate categories of waters that should be subject to case-specific significant nexus analysis to make a jurisdictional determination. They “conclude[d] that it is appropriate to assess the effects of [similarly situated] waters in combination based on the similarity of the functions they provide to the downstream water and their location in the watershed,” id. at 37,065-66, and further found that the appropriate region for assessing “similarly situated” waters is “the watershed draining to the nearest traditional navigable water, interstate water, or the territorial sea.” Id. at 37,067. They made findings as to a list of specific ecological functions that provide a nexus between upstream tributaries, wetlands, and other surface waters and downstream jurisdictional waters. Id. at 37,067-68.

Building on that foundation, the Agencies concluded that all tributaries (as specifically defined in the 2015 Rule) and all “adjacent” wetlands and surface waters (as specifically defined in the 2015 Rule) have a significant nexus to downstream jurisdictional waters. Id. at 37,068-70. The Agencies then identified two “exclusive circumstances” in which, based on the scientific literature, the agencies should undertake a case-specific analysis of significant nexus. Id. at 37,071. One category comprises five types of wetlands: Prairie potholes, Carolina and Delmarva bays, pocosins, western vernal pools in California, and Texas coastal prairie wetlands. Id. The second category comprises all waters located within certain specific distances from downstream jurisdictional waters.

When an agency spends years studying a topic and developing an extensive factual record to support a selected policy, it cannot simply reverse course without identifying flaws in that previous analysis. In a similar case regarding the Bureau of Land Management’s recent suspension of the methane “Waste Prevention Rule,” the U.S. District Court for the Northern District of California explained the type of “detailed justification” that is necessary to support this type of policy reversal. The court explained that the agency

must provide some basis – indeed, a “detailed justification:” – to explain why it is changing course after its three years of study and deliberation resulting in the Waste Prevention Rule. New facts or evidence coming to light, considerations that BLM left out in its previous analysis, or some other concrete basis supported in the record – these are the types of “good reasons” that the law seeks. Instead, it appears that BLM is simply “casually ignoring” all of its previous findings and arbitrarily changing course.

Sierra Club v. Zinke, 286 F. Supp. 3d 1054, 1068 (N.D. Cal. 2018) (“Zinke”) (internal citation omitted).

Here, the Agencies similarly “casually ignor[e]” their previous science-based findings and four years of study and deliberation that led to the passage of the Clean Water Rule. The Agencies point to no new scientific facts, no mistakes, and no considerations the Agencies neglected to include in their previous analysis. The Agencies’ only stated dispute with their prior scientific findings is that they “previously placed too much emphasis on the information and conclusions of the Connectivity Report . . . relying on its environmental conclusions in place of interpreting the statutory text and other indicia of Congressional intent. . . .” 83 Fed. Reg. at 32,241. This shocking statement from an environmental protection agency – that it relied too heavily on valid and consensus scientific and environmental conclusions – does not substitute for the requisite “detailed justification” of the reversal of the multi-year, science-based Clean Water Rule.2 Therefore, as in Zinke, the Agencies failed to provide any concrete support in the record that would justify their reversal of their careful scientific analysis. The Agencies must substantively address their prior scientific findings, and cannot simply pretend they never happened or are not highly relevant to the Agencies’ proposed action here.


The Agencies’ proposed rule and supplemental notice also violate the environmental justice requirements of Executive Order 12,898, 59 Fed. Reg. 7,629 (Feb. 16, 1994), and the requirement to consult with tribal governments in Executive Order 13175, 65 Fed. Reg. 67,249 (Nov. 9, 2000).

  • Executive Order 12898

By their own admission in both the 2017 and 2018 notices, the Agencies entirely ignored their obligation to assess the environmental justice impact of this proposed rule, dismissively stating that “[t]his proposed rule maintains the legal status quo. The agencies therefore believe that this action does not have disproportionately high and adverse human health or environmental effects on minority, low-income populations, and/or indigenous peoples, as specified in Executive Order 12898 (59 Fed. Reg. 7,629, Feb. 16, 1994).” 83 Fed. Reg. at 32,252; 82 Fed. Reg. at 34,904 (emphasis added). This is erroneous in that maintaining the legal status quo is not relevant to or the equivalent of actual consideration of environmental justice impacts. Moreover, the proposed actions do not even maintain the status quo, legal or otherwise.

After a rule’s effective date passes and the rule is published in the Code of Federal Regulations, the legal status quo is the new regulation, until it is lawfully repealed. By attempting to repeal the final and effective 2015 Clean Water Rule, the Agencies are upsetting the status quo, not preserving it. This is true regardless of pending judicial cases challenging the merits of the Clean Water Rule. The Agencies could and should have chosen to apply the Clean Water Rule in the majority of states where it would have gone back into effect after the removal of the Sixth Circuit stay, and they could defend the rule in court to maintain the status quo in place since finalization of the rule in 2015. The Agencies’ decision to instead reverse course and abandon the Clean Water Rule, is a purposeful dislodging of the status quo—with real, on-the ground impacts for the protection of waters. Without the Clean Water Rule’s protections for wetlands, tributaries, and various smaller waters, communities across the country will be threatened with increased risks of unpermitted and unregulated water pollution. EPA cannot justify their explicit refusal to conduct an environmental justice analysis by pretending their proposal is meaningless.

The Agencies’ limiting interpretation also ignores EPA’s own environmental justice plan in which EPA states an intent to “integrate[] environmental justice into everything” it does. EJ2020 Action Agenda at iii. To accomplish this vision, EPA sets forth eight different priority areas, the first of which is “rulemaking.” Id. Specifically, EPA aims to “institutionalize environmental justice in rulemaking,” including performance of “rigorous assessments of environmental justice analyses in rules,” in order to “deepen environmental justice practice within EPA programs to improve the health and environment of overburdened communities.” Id. Recognizing that “[r]ulemaking is an important function used by the EPA to protect human health and the environment for all communities,” EPA devotes the second chapter of the plan to “Rulemaking,” and through this chapter, aims to “ensure environmental justice is appropriately analyzed, considered, and addressed in EPA rules with potential environmental justice concerns, to the extent practicable and supported by relevant information and law.” Id. at 13. Consistent with its environmental justice plan and with Executive Order 12,898, EPA issued its own Guidance on Considering Environmental Justice During the Development of Regulatory Actions, recognizing how “vital” it is “that Agency rule-writers identify and address potentially disproportionate environmental and public health impacts experienced by minority populations, low-income populations, and/or indigenous peoples,” Guidance at 1 (May 2015),, as well as a Technical Guidance for Assessing Environmental Justice in Regulatory Analysis. Technical Guidance (June 2016), Thus, EPA has regularly and purposefully focused on the need for environmental justice assessments of its rulemaking. The Agencies’ blithe claim that their proposed rule does not require an environmental justice assessment is clearly at odds with what the EPA itself recognizes it must do to comply both with Executive Order 12,898, as well as its own policies.

  • Executive Order 13175

The Agencies likewise explicitly ignored their duty to comply with their tribal consultation obligations under Executive Order 13175. Under that Executive Order, the Agencies have a responsibility to “to ensure meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Consultation and Coordination With Indian Tribal Governments,” 65 Fed. Reg. 67,249 (Nov. 6, 2000).

Yet, as with the environmental justice analysis, in both the 2017 and 2018 notices, the Agencies claim the tribal consultation and coordination Executive Order “does not apply” because the rule merely preserves the status quo. 83 Fed. Reg. at 32,251; 82 Fed. Reg. at 34,904. For the same reasons discussed supra, the Agencies are incorrect to assert that their proposal has no effect on water protection. Therefore, they likewise erred in failing to fulfill their obligation to consult with tribal governments over the effects of their proposed rule. In sum, the Agencies were required under Executive Order 12,898 and 13,175 to conduct an assessment of the environmental justice impact of the proposed rule and to consult with tribes, but they admittedly failed to so do. Their blatant and acknowledged failure to comply with their obligations is yet another reason why the proposed repeal and replacement rule cannot stand.


  • The Proposed Actions Will Undermine, Not Advance, Regulatory Clarity And Certainty.
    • The Agencies will foster regulatory uncertainty with this action.

The Agencies offer only one reason for repealing the Clean Water Rule in both the 2017 and 2018 notices: regulatory uncertainty. See 82 Fed. Reg. at 34,899, 34,903; 83 Fed. Reg. at 32,238-240. However, the record shows the proposed actions would actually increase regulatory uncertainty. The Agencies’ abrupt about-face regarding the definition of “waters of the United States,” is dizzying. In less than three years, the Agencies have finalized the Clean Water Rule, announced an intent to repeal and replace the Clean Water Rule, proposed to repeal the Clean Water Rule outright and recodify the pre-2015 regulations, proposed and finalized a two-year inapplicability period instead of a repeal, and now have filed the present supplemental proposal for the earlier proposed repeal. With each new announcement, the Agencies foster further uncertainty regarding application of the Clean Water Act and their intended course of action.

In addition, the pre-2015 regime the Agencies now seek to re-codify is itself a notoriously confusing and unpredictable system. As discussed above, the Agencies are attempting to revert not only to a pre-existing rule, but to a rule “narrowed by various legal decisions, including SWANCC and Rapanos,” and “informed by applicable agency guidance documents and longstanding practice.” 83 Fed. Reg. at 32,250. The problem with this plan is that the pre-2015 regime itself engendered confusion. In fact, the Agencies’ desire to reduce that confusion was a prominent theme in the preamble for the final 2015 Clean Water Rule. To counter these inconsistencies and the uncertainty left from the SWANCC and Rapanos decisions, the Agencies developed a rule that, according to their contemporaneous findings, “makes the process of identifying waters protected under the CWA easier to understand, more predictable, and consistent with the law and peer-reviewed science.” 80 Fed. Reg. at 37,055.

In promulgating the 2015 Rule, the Agencies noted that the accumulated interpretations of the pre-existing regulations embodied in case law and agency practice had led to a situation where “[m]any waters are currently subject to case-specific jurisdictional analysis to determine whether a ‘significant nexus’ exists, and this time and resource intensive process can result in inconsistent interpretation of CWA jurisdiction and perpetuate ambiguity over where the CWA applies.” 80 Fed. Reg. at 37,056. The Agencies similarly found that pre-existing jurisdiction determinations “often depend[ed] on individual, time-consuming, and inconsistent analyses of the relationship between a particular stream, wetland, lake, or other water with downstream waters.” Id. at 37,057. They also found that the pre-existing regime fostered “confusion and inconsistency regarding the regulation of ditches.” Id. at 37,058. And they found a “lack of clarity and inconsistent field practices across the nation” due to the lack of definition for the term “neighboring,” as well as pre-existing “inconsistency by clarifying the meaning of the term “similarly situated.” Id. at 37,082, 37,095. The Agencies specifically noted that the 2003 and 2008 guidance memoranda “did not provide the public or agency staff with the kind of information needed to ensure timely, consistent, and predictable jurisdictional determinations.” Id. at 37,056. Yet, this is the same regulatory regime to which the Agencies now seek to return.

The supplemental repeal notice seems to briefly and obliquely acknowledge the confusion surrounding the pre-2015 regime, stating that it “posed certain implementation challenges.” 83 Fed. Reg. at 32,240. But, the public notice fails to really acknowledge the 2015 Rule’s findings of significant unpredictability and administrative costs associated with the pre2015 regime, much less explain why those findings are eclipsed or even negated by the Agencies’ current purported need for a regime that “is more familiar.” Id. The Agencies simply do not explain why an unequivocally confusing, albeit familiarly-confusing, regime creates more certainty than the 2015 Rule which was designed to eliminate much of the uncertainties and which EPA recently acknowledged created “bright line[s].” See Materials Shared at Outreach Meetings for Docket EPA-HQ-OW-2017-0203, “Waters of the United States” Under the Clean Water Act, Water quality Standards Academy (Spring 2018) at 340. A new regulation, by its very nature of being new, will always be unfamiliar. Plainly, for that reason alone, familiarity is not and cannot be a proper factor justifying repeal of a new regulation under the APA. Rather, the Agencies must more solidly ground their decision in real facts, science, and law. Absent a robust justification, it is irrational to suggest that re-imposing the confusing pre-2015 regime will “provide for greater regulatory predictability, consistency, and certainty.” 83 Fed. Reg. at 32,240.

    • There is no “confusion” over the Clean Water Rule.

In addition, the Agencies’ claim that there is stakeholder confusion regarding the scope of the 2015 Rule is unsupported by the record. In an attempt to support this assertion, the Agencies cull a handful of statements from litigation over the 2015 Rule, comment letters from the 2015 Rule public comment period, and comment letters from the 2017 proposed repeal which the present notice supplements.4 However, most of these statements actually demonstrate disagreement with the 2015 Rule, not uncertainty. Indeed, throughout this section of the notice the Agencies repeatedly qualify their claims of stakeholder uncertainty by labeling the problem “disagreement and confusion.” 83 Fed. Reg. 32,239. As an example, the Agencies point to a statement made by certain states in a brief before the Sixth Circuit, in which the states “asserted that the 2015 Rule covers waters outside the scope of the CWA pursuant to Rapanos and ‘extends jurisdiction to virtually every potentially wet area of the country.’” 83 Fed. Reg. at 32,239. The Agencies’ attempt to twist this hyperbolic statement into an assertion of regulatory uncertainty is misleading and incorrect. The statement actually demonstrates a level of certainty (albeit an incorrect certainty) regarding how the 2015 Rule applies, as it expresses discontent with the purportedly broad scope of that application. Similarly, the Agencies misleadingly imply that environmental groups have also expressed uncertainty in how the 2015 Rule is applied, by selectively quoting conservation petitioners’ assertion that the pre-2015 regime was confusing, and also citing conservation petitioners’ concern that the 2015 Rule improperly excluded certain waters.5 The Agencies’ inferences are absolutely false because neither of the examples even hinted at an assertion that the 2015 Rule is confusing. Indeed, the quote the Agencies include from conservation petitioners addresses the rampant confusion with the pre-2015 regime.

Moreover, the few comments the Agencies cite that actually do address the relative confusion or certainty associated with the 2015 Rule are mixed and include comments that the 2015 Rule “more clearly identifies what types of waters would be considered jurisdictional.” Id. In sum, the handful of litigation and comment letter anecdotes the Agencies cite to support their claim that stakeholders and states are confused by the 2015 Rule either do not support that conclusion or are tempered by the many other comments the Agencies received stating that the 2015 Rule decreased confusion.

Finally, the Agencies claim that litigation over the 2015 Rule is a reason the rule increases uncertainty, 83 Fed. Reg. at 32,238. This is a non-reason. There is often litigation over rules, but that litigation is not and cannot be a reason, on its own, to simply abandon a rule wholesale after it is final, with a complete record, and in effect. Facts and issues that arise in litigation may contribute to an agency reconsidering a position, but the existence of litigation alone cannot serve that purpose. If that were the case, then the best-funded entity who may have the most to gain from forestalling legitimate regulation (or the most litigious and belligerent party) would have incentive and be rewarded for highly obstructionist actions. This is not how the APA works, nor should it. Moreover, the Agencies ignore the likelihood that their proposed actions will prompt new litigation and all the uncertainties that may flow from there.

The Ninth Circuit held that an agency action violated the APA in a similar case involving a challenge to the agencies’ move to exempt the entire Tongass National Forest in Alaska from the Roadless Rule, Organized Vill. of Kake v. U.S. Dep’t of Agric., 795 F.3d 956, 970 (9th Cir. 2015), cert. denied sub nom. Alaska v. Organized Vill. of Kake, Alaska, 136 S. Ct. 1509 (2016). In promulgating the “Tongass exemption” the U.S. Department of Agriculture claimed that its rule would “reduce[] the potential for conflicts regardless of the disposition of the various lawsuits” over the Roadless Rule. Id. But this claim was easily belied by the subsequent turn of events: the Tongass Exemption “predictably led to [another] lawsuit, and did not even prevent a separate attack by Alaska on the Roadless Rule itself.” Id. “At most,” the Ninth Circuit found, “the Department deliberately traded one lawsuit for another.” Id. The same is true here. The foregoing discussion demonstrates that the proposed actions are, at a minimum, contrary to the APA and therefore likely to be challenged in court. The initiation of new litigation would again subject the nationwide interpretation of the “waters of the United States” to procedural uncertainty and confusion in addition to the pre-existing substantive confusion caused by inconsistent jurisdictional determinations under the pre-2015 regulatory regime. In light of these uncertainties, the Agencies’ purported goal of reducing uncertainty appears to be a pretext for simply repealing 2015 Clean Water Rule during their new rulemaking process without bothering to provide a substantive, rational justification for that decision.

  • The Agencies’ Claims That The 2015 Clean Water Rule Exceeded The Agencies’ Authority Are Not Supported By The Record.

The Agencies’ second and third proffered reasons for their proposed actions are that the 2015 Rule “may” exceed the Agencies’ authority under the CWA, and that the Agencies have concerns about the scope of CWA jurisdiction under the 2015 Rule. Although this is a lengthy section of the Agencies’ supplemental notice, it does not include a single reasoned explanation that would support this reason for repeal. The vast majority of this section of the notice explains, in great detail, the Agencies’ prior thorough science and statistics-based analysis of connected waters and estimations of the jurisdictional scope of the CWA under the 2015 Rule. 83 Fed. Reg. at 32,240 – 247. Rather than point out any flaws in this previous analysis, the Agencies instead astonishingly assert “that they previously placed too much emphasis on the information and conclusions” of the science, id. at 32,241, and opine that they are now concerned the 2015 Rule exceeds the boundaries of the significant nexus test articulated by Justice Kennedy in Rapanos, “even though this opinion was identified as the basis for the significant nexus standard articulated in the 2015 Rule.” Id. at 32,240. This reinterpretation and repurposing of case law, which contradicts the Agencies’ interpretation of the same case law just three years ago, is an arbitrary and capricious “‘[u]explained inconsistency’ in agency policy.” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016) (internal citation omitted).

Similarly, the Agencies’ attempt to cast doubt on their previous assertions about the scope of the 2015 Rule fails to identify any “[n]ew facts or evidence coming to light, considerations that [they] left out in [their] previous analysis, or some other concrete basis supported in the record.” Zinke, 286 F. Supp. 3d at 1068. The Agencies now question their earlier statistical method used to calculate the predicted increase in jurisdictional waters, without explaining why that statistical method is invalid or suspect. The Agencies’ prior predicted increase is not statistically significant, and without explaining why their imminently rational and thorough approach is statistically invalid or otherwise incorrect, the Agencies now solicit comment on “whether the projected increase for this category is most relevant to measuring the impacts of the 2015 Rule.” Id. Such an empty solicitation for comment cannot, alone, provide a reasoned explanation for the proposal to reverse the Agencies’ prior statistical findings.

The Agencies’ attempt to bolster their conclusion that the 2015 Rule significantly increases positive jurisdictional determinations under the CWA by pointing to six “illustrative” examples that were included in the 2015 Rule supporting materials fares no better under the APA. The Agencies present no new information or facts with their highlighting of these six examples of individual water bodies from the 2015 rulemaking. Perhaps more importantly, the Agencies cannot logically claim these examples support a concern that the 2015 Rule significantly expands the scope of CWA jurisdiction because such a small sampling cannot possibly be statistically relevant (as the Agencies themselves admit), and the Agencies could have just as easily chosen examples of the opposite outcome from the same document.

Finally, the Agencies’ vague and unsubstantiated assertions that certain states “would see significant expansions of federal jurisdiction over streams,” 83 Fed. Reg. at 32,245-247, do not provide the “detailed justification” required to change course under the APA. Fox Television Stations, 556 U.S. at 515. In particular, the fact that state-submitted CWA section 305(b) estimates of total nationwide river and stream miles are different from the estimates of total river and stream miles provided by the National Hydrography Dataset cannot logically support the conclusion that the 2015 Clean Water Rule significantly expanded the jurisdictional scope of the CWA, as the Agencies suggest.7 83 Fed. Reg. at 32,246. This difference in dataset estimates simply has no bearing on the scope of CWA jurisdiction under the 2015 Rule because that rule did not rely on either dataset at all to define the scope of CWA jurisdiction. The Agencies did not define jurisdiction under the 2015 Rule with respect to any map or any total quantification of waters in the U.S. because site-specific knowledge is needed for many sites and, moreover, no such map exists. See U.S. EPA and U.S. Army Corps of Engineers, Clean Water Rule Response to Comments—Topic 8: Tributaries at 88-89, available at The Agencies’ illogical and irrelevant claims regarding dataset estimates cannot pass muster under the APA’s arbitrary and capricious test.

  • The Proposed Actions Are Not Justified By The Agencies’ Desire To Prioritize The Statutory Policy Found In CWA Section 101(b).

The Agencies’ stated desire to reconsider the “federal-state balance” in CWA section 101(b), 82 Fed. Reg. at 34,902, does not support the proposed rule. 83 Fed. Reg. at 32,248. The Agencies’ reliance on an alleged federal-state imbalance as a reason to repeal the 2015 Rule and recodify the pre-2015 regulatory regime is irrational and not supported by the law. Section 101(a) establishes the core statutory “objective” “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). In contrast, sections 101(b)-(g) set forth additional “policy” goals that include such things as encouraging foreign countries to “take meaningful action” toward the Act’s objective, and to “encourage the drastic minimization of paperwork.” Id. §§ 1251(b)-(g). It would be improper to “balance” these provisions by elevating the “policy” contained in section 101(b) to equal status and force with section 101(a)’s explicit core objective.

Moreover, section 101(b) is aimed primarily at preserving a state’s “responsibilities and rights…to prevent, reduce, and eliminate pollution,” not to maximize the states’ ability to act unfettered by federal jurisdiction. Id. Indeed, this single paragraph of the Act discusses the “prevention, reduction, and elimination of pollution” no fewer than three times. The Agencies properly concluded that states under the 2015 Rule “retain full authority to implement their own programs to more broadly and more fully protect the waters in their jurisdiction,” and that by creating “greater clarity regarding what waters are subject to CWA jurisdiction,” the 2015 Rule “will reduce the need for [states and tribes] to make jurisdictional determinations on a casespecific basis” in their own section 402 or 404 permitting programs. 80 Fed. Reg. at 37,060.

Because the Agencies already properly balanced the core statutory objective in section 101(a) and the policy in section 101(b), there is no need to reexamine that balance.

Finally, the Agencies’ solicitation of public comments on the federal-state balancing is leading and circular, suggesting an attempt to create a new record for repeal based on section 101(b) through the public comment process, where none currently exists. On multiple occasions within this section of the notice, the Agencies solicit specific comments that assume the answer they want to hear. For example, the Agencies (1) “request comment on whether the 2015 Rule’s use of the 100-year floodplain as a factor to establish jurisdiction over adjacent waters and casespecific waters interferes with States’ primary responsibilities over the planning and development of land and water resources in conflict with CWA section 101(b);” (2) “seek comment on . . . whether the 2015 Rule readjusts the federal-state balance in a manner contrary to the congressionally determined policy in CWA section 101(b);” (3) “solicit comment on whether the definitions in the 2015 Rule would subject wholly intrastate or physically remote waters or wetlands to CWA jurisdiction, either categorically or on a case-by-case basis, and request information about the number and scope of such waters of which commenters may be aware;” and (4) “solicit comment about whether these, or any other, aspects of the 2015 Rule as finalized would, as either a de facto or de jure matter, alter federal-state relationships in the implementation of CWA programs and State regulation of State waters, and whether the 2015 Rule appropriately implements the Congressional policy of recognizing, preserving, and protecting the primary rights of states to plan the development and use of land and water resources.” 83 Fed. Reg. at 32,248. At no point in this discussion do the Agencies similarly seek comment on whether the 2015 Rule correctly struck the balance between federal and state rights under the CWA, or whether it appropriately implemented the Congressional policy to nationally aim to “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). Because the Agencies solicit one-sided public comments on this topic in a leading manner, and also state that the solicited conclusions “would, if adopted by the agencies, negate a key finding underpinning the 2015 Rule,” the Agencies seemingly seek to create a record supporting a final repeal rule by explicitly requesting the types of comments that they believe would justify that repeal. Such circular prophesying cannot support the Agencies’ proposed actions, and the Agencies offer no substantive rationale demonstrating that the 2015 Rule minimizes section 101(b).

  • The Agencies Did Not Present Evidence To Support The “Other Supplemental Bases” They Are Considering To Justify Their Proposed Repeal Of The 2015 Clean Water Rule.

As if concerned about the rationality of the foregoing proposed reasons for repealing the 2015 Rule, the Agencies conclude their supplemental notice with a brief reference to “several other supplemental bases for repealing the 2015 Rule” that they are “considering.” 83 Fed. Reg. at 32,248. Most specifically, these other potential bases include a concern that the 2015 Rule “test[s] the limits of the scope of the Commerce Clause” and that “the water features at issue in SWANCC or other similar water features could be deemed jurisdictional under the 2015 Rule.” 83 Fed. Reg. at 32,249. As to the first concern, the Agencies admit the 2015 Rule is consistent with the Commerce Clause, but they explain they are merely considering whether it is more appropriate to not come close to testing the limits of the Commerce Clause. Id. at n.74. This explanation makes an unsupported assumption that the Clean Water Rule “comes close,” but points to no new analysis suggesting the Agencies violated the Commerce Clause when they promulgated the 2015 Rule, and it accordingly cannot provide a reasoned explanation for the repeal of that Rule.

Second, the Agencies’ solicitation of comments on the jurisdictional status of specific abandoned pits, such as the one at issue in SWANCC, makes no findings or suggestions about whether the Agencies believe those waters would be jurisdictional under the 2015 Rule, and instead invites anecdotal speculation from the public about the hypothetical jurisdictional status of specific water bodies under the 2015 Rule. 83 Fed. Reg. at 32,249. Such a conclusion would also be contrary to the content and stated intention of the 2015 Rule insofar as it strove to comply with SWANCC, yet the Agencies offer no explanation of why the 2015 Rule could possibly retain jurisdiction over isolated pits. Such an unsubstantiated solicitation of comments cannot constitute a rational basis for repealing the 2015 Rule under the APA.


In this supplemental notice, the Agencies unsuccessfully attempt to rectify the serious APA violations in their original proposed repeal and replacement rule. In spite of the significant addition of new text, the Agencies repeated many of the same mistakes in this supplemental notice. The Agencies skipped essential rulemaking requirements under the APA, and the only reasons offered for the proposed repeal are arbitrary and capricious. We urge the Agencies to withdraw the current proposal as unsupported and contrary to law. Should the Agencies wish to repeal the 2015 Clean Water Rule they must do so in a formal rulemaking setting forth their rationale for both the repeal and the replacement, and providing a full record to support and explain the decisions. Nothing less complies with the law.


/s/ Jennifer Chavez /s/ Anna Sewell /s/ Janette Brimmer Water Project Attorney Staff Attorneys Earth justice
On behalf of:

Bob Shavelson Marie Kellner Inletkeeper & Advocacy Director Water Associate Cook Inletkeeper Idaho Conservation League

Kevin Reuther Alyssa Barton Legal Director Policy Analyst & Executive Coordinator Minnesota Center for Environmental Advocacy Puget Soundkeeper Alliance

Aaron Isherwood Buck Lindekugel Philip S. Berry Managing Attorney Grassroots Attorney Sierra Club Southeast Alaska Conservation Council

Vivian Stockman Guy Alsentzer OVEC Vice Director Executive Director Ohio Valley Environmental Coalition Upper Missouri Waterkeeper

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