Dear Mr. McDavit & Ms. Jensen:

The Theodore Roosevelt Conservation Partnership (TRCP) offers these comments opposing the proposal from the Environmental Protection Agency (EPA) and Army Corps of Engineers (Corps) (collectively, “the agencies”) to repeal their 2015 Clean Water Rule. These comments supplement those we filed last year in response to the agencies’ initial notice.

TRCP’s interest in the scope of the Clean Water Act

TRCP is a partnership of 58 non-profit organizations, with a 28-member corporate council, all dedicated to the idea that Americans deserve great places to hunt and fish. Sportsmen and women, historically and currently, are strong proponents of protecting clean water, including in headwaters streams and wetlands. National polling done for TRCP earlier this year confirms the overwhelming nature of that pro-clean water position:

  • 92% of sportsmen and women want the federal government to strengthen or maintain current standards for clean water protections.
  • 93% of hunters and anglers believe that the Clean Water Act has been a positive thing for our country
  • 4 out of 5 sportsmen and women not only support restoring Clean Water Act protections for headwaters streams and wetlands, but their commitment is firm enough that they would be willing to pay more in taxes to restore and/or maintain our nation’s waters.

This point of view is no surprise. From mountain headwaters streams that are the stronghold for native trout, to the prairie potholes of the Upper Midwest, often called the nation’s duck factory, these waters and wetlands are prime habitat for the fish and wildlife sportsmen and women enjoy. Support for the Clean Water Act is shared across generations. During last year’s public comment period, one sportsman shared how his young nephew explained to him, “in the hilly region of Northwest Arkansas, your runoff is my drinking water.” This commenter summed up, “If a six-year-old who is about to be enrolled in first grade can figure this out, you and all the other scientists there at the EPA could also.”

Legal & Technical Comments

In the Supplemental Notice, the agencies offer additional arguments to attempt to justify their proposed repeal of the Clean Water Rule. This Notice asks for public comments on 21 separate questions. TRCP finds that they primary fall into three buckets:

  1. Does the 2015 Clean Water Rule upset the Clean Water Act balance of power between the federal government and the states?
  2. Did the agencies rely too much on science when they promulgated the 2015 Clean Water Rule so that, as a result, the Rule is inconsistent with the law, agency and court opinions, or the Constitution?
  3. Is the 2015 Clean Water Rule based on analyses that underestimate its expansion of jurisdiction so much that the Rule is not economically justifiable?

Below, we respond to each, as well as a few other themes in the Notice.

  • Does the 2015 Clean Water Rule upset the Clean Water Act §101b balance of power between the federal government and the states?

Before Congress passed the Clean Water Act in 1972, states led the nation’s effort to protect American’s rivers, streams and wetlands from pollution, under their own and national laws, notably the Water Quality Act of 1965 and the Federal Water Pollution Control Act of 1948. But, the quality of the nation’s waters was getting worse; the Cuyahoga River had made national news for weeks when it burned in 1969. Congress passed the Clean Water Act because that state-led system was not protecting the nation’s waters from pollution. With the 1972 legislation, Congress didn’t so much remove state authority as it added a layer of federal authority and oversight, as well as a substantial federal investment in wastewater treatment and the science of water pollution, its sources, its effects on people, fish and wildlife, and the potential technologic responses. Congress acted because the states had been unable to keep the nation’s waters fishable and swimmable.

The CWA establishes a partnership to “prevent, reduce and eliminate pollution” so as to “restore and maintain the chemical, physical and biological integrity of the Nation’s waters.” Clean Water Act §101(b) & (a). See, also, International Paper Co. v Ouellette, 479 US 481, 490 (1987) & Arkansas v Oklahoma, 503 US 91, 101 (1992).

As one professor noted, this partnership is biased toward protection, not toward limits on protection. Moreover, the partnership requires strong federal involvement. See DOE v Ohio, 503 US 607, 634 (1992) (even when a state issues permits, EPA still has a high level of involvement, reviewing state standards and reviewing and enforcing state permits). In Arkansas v Oklahoma, the court held that EPA’s interpretation governed rather than that of the state of Oklahoma. Even in Rapanos, Justice Kennedy expressly rejected the plurality’s notion that 101(b) overrides the CWA’s focus on clean water, since the Act protects downstream states from pollution they cannot themselves regulate. Rapanos, at 777.

The Supplemental Notice ignore that, with the Clean Water Rule in place, states retain their traditional primary powers over the regulation of land use and allocation of water. The fact that a state-approved activity needs a federal permit simply does not affect this state primacy. See, e.g., US v. Akers, 785 F.2d 814 (9th Cir. 1986) (digging ditch to implement a state water right requires federal permit) and Riverside Irrigation District v Andrews, 758 F.2d 508, 513-14 (10th Cir. 1985) (proposed dam w/ state water right still needs federal permit). Moreover, by the terms of the Clean Water Rule itself, states retain all authority to regulate where the Clean Water Act does not, e.g., groundwater, isolated waters like the playas of eastern Colorado and New Mexico and most ditches.

The agencies cannot cede to the states federal responsibilities pursuant to the Clean Water Act partnership, especially without evidence that the states can protect our nation’s waters from pollution. As a practical matter, in today’s world of universal budgetary constraints, many states would be unable to provide even the same level of protection as the federal agencies. Moreover, 36 states have “no more stringent than” federal law provisions in their state water quality statutes, or similar barriers to their providing more expansive regulation than allowed under federal law. Fewer than half of states have any regulatory wetlands program beyond Clean Water Act requirements, and only two have full delegated programs comparable to the Corps’ 404 permits. Budget constraints have prevented states from seeking delegation of the Clean Water Act §404 permitting program for the discharge of dredged and fill materials because its implementation is simply too costly for states. Thus, federal regulations more often provide a ceiling for protection, rather than a floor that states have flexibility to exceed.

Based on history, current state law and the reality of the nation’s fiscal constraints, including the agencies having sought in both FY18 and FY19 to cut their Clean Water Act financial assistance to states, were the agencies to pull back the scope of their regulatory authority, it is unrealistic to claim that states would act in their stead. Instead of a robust, cooperative partnership effectively preventing, reducing and eliminating pollution, a shrunken federal floor covering fewer waters would mean less protection from any level of government. Because of the broad connectivity of our hydrologic system, America could lose the gains of the last 46 years of Clean Water Act-related improvements and end up with lower water quality across the nation.

Sportsmen and women value the Clean Water Act because it has improved America’s rivers, streams and wetlands. More waters are fishable and swimmable today than in 1972. But threats exist and this is not time to retreat. States need an active federal partner to maintain and extend the gains of the last 46 years. As one commenter last year stated,

  • As a hunter, fisherman and father I observe every day how my state’s clean mountain water is of ultimate value to us and paramount to our outdoor economy and way of life in Montana. Last week, my family and I took a 5day back packing trip in the Custer Gallatin National Forest. We spent most of our time at or above 9000 feet elevation where ephemeral streams lace down the mountains to glacial lakes, creeks and eventually rivers and reservoirs …while on this high country backpacking trip, not once did we filter, boil or put tabs in the crystal clean water we drank. Water sources like this are national treasures and evidence of the EPA’s effectiveness and importance.
  • Is the 2015 Clean Water Rule too science-based?

The agencies turn reason on its head to argue in their Supplemental Notice that the 2015 Rule is flawed because it is “too science-based.” Both the final Clean Water Rule, and the agencies’ extensive documentation in support of it demonstrate a myriad of other considerations the agencies balanced in the final rule.These include: the agencies’ legal analysis of the Clean Water Act text and history, the US Constitution, the governing opinions of the Supreme Court; the economic impacts of their action; feedback from interested parties through a million written comments (almost of all of which supported expansive federal jurisdiction) and hundreds of stakeholder meetings, and their expertise, won through decades of implementing the Clean Water Act. These factors influenced both what the agencies excluded from jurisdiction (e.g., all puddles, most ditches & the majority of playas) and what they included (e.g., the same small subset of ditches historically included and similarly situated waters in a region whose aggregated impacts create a significant nexus for a downstream navigable water). As a recent court filing from small business owners lays out, the 2015 Rule is fully consistent with the Constitution, the statute and the US Supreme Court’s opinions.

    • As a result of being science-based, is the Rule inconsistent with the text of the Clean Water Act?

The simple answer is no. While the Supreme Court has twice overturned an application of the agencies’ 1986 rule as too broad, the 2015 Rule is less broad. Its scientific underpinnings are also consistent with the text of an Act whose opening language sets as its goal to restore the nation’s waters’ chemical, physical and biological integrity, three distinct scientific objectives. As noted above, while the agencies considered many factors other than science in their years-long process to craft the Clean Water Rule, the Connectivity Report provided a strong foundation for the Rule’s line drawing, without disregarding the Act’s text.

As always, in writing a rule, an agency starts with its statutory direction: “navigable waters,” defined as “waters of the US.” In 1977, the agencies finalized their definition of this phrase without reference to navigation, and including “all waters subject to the ebb and flow of the tide, the territorial seas, and all interstate and intrastate waters and their tributaries, including lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundments of the foregoing.”In subsequent amendments to the Act, starting with the Water Quality Act of 1987, Congress did not amend the statutory definition of navigable waters or waters of the US, even as it continued to use that phrase, evidencing a tacit acceptance of the agencies’ broad regulatory definition.

The majority in SWANCC and Justice Kennedy in Rapanos both wrote that the word “navigable” must have meaning. Yet, neither opinion remotely suggests that “waters of the US” means only navigable waters and their adjacent wetlands, let alone only traditionally navigable waters and their adjacent wetlands. Justice Kennedy explicitly acknowledged the conundrum: “Congress’ choice of words creates difficulties, for the Act contemplates regulation of certain ‘navigable waters’ that are not in fact navigable.”

Indeed, why would Congress use its commerce clause power to adopt a national statute addressing a national problem after decades of states being unable to control water pollution, only to exclude entire regions of the country from protection? In EPA Region 8’s five states, 83% of stream miles do not flow year-round; in Utah that figure is 88%. The Corps of Engineers designates only 15 of Colorado’s 93,000 classified miles of rivers and streams as “traditionally navigable waters” (while commercial rafting alone – never mind private rafting and kayaking – contributes $193 million annually to Colorado’s economy13 on 30 separate rivers14 across the state). Would Congress have meant that only the two Colorado wastewater treatment plants that discharge to the Colorado River between the confluence of the Gunnison and Colorado Rivers (in the city of Grand Junction) and the Utah state line would need NPDES permits, when Colorado has over 400 such plants? Or that only the three percent of Arizona facilities that discharge effluent into perennial, as opposed to intermittent or ephemeral, streams need permits?

From an angler perspective, if there’s fish in a stream, it’s fishable. And anglers are passionate about fish and fishing. Trout Unlimited staff used to say,” If you take care of the fishery, the fishing will take care of itself.” An angler with personal and professional interests in healthy fisheries wrote last year,

  • As someone who makes a good portion of [his] living from the fishing industry, as well as teaching young people about conservation issues, weakening the protections included in the clean water act is a direct assault on my way of life and my communities’ economic health.

While perhaps at first blush counter-intuitive, fish live in intermittent streams, during certain life stages or seasons. Fishing guides bring clients to fish intermittent streams. That the agencies would repeal a rule for protecting too many of these waters is simply unfathomable to sportsmen and women.

    • As a result of being science-based, is the Rule inconsistent with the Constitution, specifically the limits of the federal government’s commerce clause powers?

The Clean Water Rule’s scientific foundation is consistent with the agencies’ Constitutional authority. Justice Kennedy found that focusing on significant nexus, even though it might “not align perfectly w/ the traditional extent of federal authority” would “not raise federalism or Commerce Clause concerns” because “in most cases, regulation of wetlands that are adjacent to tributaries and possess a significant nexus w/ navigable waters will raise no serious constitutional or federalism difficulty” by itself “prevent[ing] problematic applications of the statute.” He concluded this section of his opinion with a nod toward the overall scheme of the Clean Water Act. “The possibility of legitimate Commerce Clause and federalism concerns in some circumstances does not require the adoption of an interpretation that departs in all cases from the Act’s text and structure.” Rapanos at 782-783.

Numerous commenters on both the 2015 rule and last summer’s first repeal notice have presented to the agencies substantial information about the significant economic contributions of hunting and angling happening on intermittent and ephemeral streams and at small wetlands not directly adjacent to navigable waters. Rather than repeat those here, TRCP incorporates by reference and asks the agencies to review that previously submitted information.

From the standpoint of a duck hunter, the wetlands where waterfowl live provide habitat to the birds and economic activity in interstate commerce for the hunters and all of the businesses that support them. The notion that the agencies are trying to repeal a rule which protects these wetlands is unfathomable to sportsmen and women.

Again, the answer is no. Nowhere does Justice Kennedy suggest that a scientific analysis is inappropriate. TRCP would argue just the opposite – by grounding his opinion in whether a significant nexus between upstream and downstream waters exists, and suggesting that the Corps’ use of a single metric (ordinary high water mark) to determine if a tributary was a water of the US might not be sufficient on its own, Justice Kennedy encouraged just the sort of a multi-faceted scientifically based inquiry that underlies the Rule and that the Rule lays out for use in determining whether a significant nexus exists in a specific situation.

As the agencies note, Justice Kennedy did recognize one of his few agreements with the plurality, when he wrote that “environmental concerns provide no reason to disregard limits in the statutory text.” Bit. The agemcoes fao; tp cote the rest of his sentence, in which he pointed out that the plurality’s was “not a correct reading of the text” of the Clean Water Act. Justice Kennedy was clear that the Act’s goals were environmental in nature.

The agencies suggest that their 2015 Clean Water Rule may have more broadly defined the wetlands (and waters) with a significant nexus to navigable waters than what Justice Kennedy intended. They offer as an example the way that the 2015 Rule treats aggregation. The concept of aggregation comes from Justice Kennedy’s suggestions that, perhaps to avoid overwhelming the agencies with the need to do thousands of site-specific analyses, they could aggregate smaller wetlands similarly situated in a region to determine if, as a group, they have a significant nexus to downstream navigable waters. Whereas the agencies in 2008 chose a cramped definition of aggregation – only those wetlands (or waters) adjacent to a single segment of a single tributary, the Clean Water Rule adopts an approach that considers both location (defining the region as a watershed, a unit used throughout water regulation and management) and function. The agencies do not explain in either of their Notices how it would be inconsistent with the Justice’s opinion to adopt an approach that provides more rigor for the analyses of both similarity and significance.

    • As a result of being science-based, is the Rule inconsistent with the agencies’ 2008 guidance

The answer here is “maybe” given that the agencies presented no scientific basis for their 2008 guidance. Moreover, the 2008 guidance is neither a binding regulation nor of precedential value. Compare Catskills Mountains Ch. of Trout Unltd., Inc. v. City of New York (2006) with Catskill Mountains Chapter of Trout Unlimited, Inc. v. EPA, No. 14-1823, 2017 WL 192707 (2d Cir. Jan. 18, 2017).20 Certainly, the 2008 guidance did not undergo a public, rigorous legal or technical vetting.

While the agencies characterize their proposed repeal as reinstating the older 1986 rule, that is inaccurate. The 1986 regulation is substantially broader than the Clean Water Rule. What the agencies would actually reinstate is a substantially modified 1986 regulation – modified not only by the agencies’ new interpretation of the US Supreme Court’s opinions in SWANCC and Rapanos, but at a practical implementation level, by the agencies’ 2008 guidance. The latter was never duly promulgated as a rule under the Administrative Procedures Act (APA). Through this repeal, the agencies cannot elevate the 2008 guidance to the status of a binding regulation. To codify the 2008 guidance, the agencies would need to take the guidance through an APA notice and comment rulemaking. TRCP, many of its partners and other champions of clean water would object to several the guidelines’ provisions, including regarding aggregation, as described above.

In his comments last year, one westerner argued for broad consideration, based, inter alia, on consideration of watersheds,

  • This issue is especially important to me as an angler, hunter and father. Here in Nevada, we have limited water and water access as it is, and water rights are at the forefront of most conversations. With so many special interests trying to stretch a scarce resource even thinner, our wetlands, watersheds and waterways need as much protection as possible. Please insure they are protected for the public and restrictions are not lifted in favor of special interests.
    • Is the 2015 Clean Water Rule based on economic and regulatory analyses that underestimate the extent of the rule’s expansion of jurisdiction, which is in reality more than the 3% described in the rule’s preamble and those analyses?

The agencies suggest that they should repeal the 2015 rule because it may have understated the additional number of waters that it would make jurisdictional, as compared to what was jurisdictional during the reign of the 2008 guidance. First, even if this assertion is correct, it is likely misplaced. The fact that there are more waters probably means more activities will propose discharging to these waters and thus need permits, but the agencies have presented no evidence of whether or how the two numbers correlate. As such, the agencies cannot assert that the costs are underestimated. Nor can the agencies demonstrate that even a doubling of stream miles made
jurisdictional, as the notice suggests (from 3 to 6 percent), in any way reduces the vast benefits laid out in the 2015 Economic Appendix compiled for the Clean Water Rule. Second, some of the disparity in numbers comes from the fact that many states, like Colorado, simply use a different level of refinement in their data. For example, while Colorado’s 305(b) report describes 93,000 miles of streams at a 1:24,000 ratio, the USGS maps describe more than double that amount using a 1:100,000 aspect. Still, state agency staff believe the percentage of intermittent and ephemeral streams would remain roughly the same.22 As such the maps provide useful information and the rule nowhere says that states must all use the same level of detail as the USGS is capable of providing. EPA has other laws where states choose the appropriate level of refinement, within a set band, e.g., when states choose between 1-5 or 1-7 risk level in certain toxic drinking water standards.

Finally, with regard to the agencies’ cost benefit analysis to justify its current proposed action, TRCP reminds the agencies that, in the comments we submitted last year, pp. 6-7, we urged the agencies to do the work necessary to make defensible economic arguments about the value of wetlands if they proceed to repeal the 2015 Rule. As we argued there, the agencies had failed that test when they simply removed the quantified value of wetlands from the economic analysis they developed to support the 2015 rule. This Supplemental Notice provides no additional economic data. Thus, the agencies cannot rely on this supplemental notice to repeal the Clean Water Rule on economic grounds.


On one hand, the agencies suggest that they must repeal the rule because it is too much based on exacting science, rather than other factors that they should also have considered. (And, which as noted above, they did consider in the rulemaking process for the 2015 Rule, albeit with a different emphasis than the current administration might have taken.) On the other hand, they suggest that they must repeal the rule because it is too vague. TRCP finds these arguments inconsistent and evidence that the agencies actually have no coherent reason to repeal the rule and are instead casting about for some argument that might survive a legal challenge. The rule is not vague, even though it may be applied in ways that result in differing conclusions, given the vast breadth of this country’s landscapes, which in fact is something the agencies seem to want.


Finally, the agencies are again arguing in this Supplemental Notice that codifying the pre-Clean Water Rule regulatory regime (1986 regulations + 2008 guidance + court opinions) would provide more clarity than using the Clean Water Rule, given the litigation against it. This is a self-serving and circular argument. The reason Justice Roberts exhorted the agencies to issue a clarifying rule – back in 2006 – was precisely because of the uncertainty. That uncertainty has only grown, notwithstanding that the agencies have had to issue jurisdictional determinations in the intervening years. One can see the uncertainty in the huge drop in CWA enforcement cases. One can see the uncertainty in the huge variability of lower court opinions and the briefs filed in such cases. As TRCP argued in our comments last year, it is nonsensical to suggest continuing in the name of stability a long-running negative, volatile situation. By embracing the Rule and making clear to all parties they firmly support it based on their having compiled an enormous scientific, legal and 22 Personal communication w/ Colorado Water Quality Control Division staff, August 2018.economic record, held hundreds of meetings and considered a million comments, the agencies can fix the problem of uncertainty and move forward with protecting the nation’s waters.


TRCP supports maintaining and restoring our nation’s waters, using the tools available under federal law. Along with our partners, members and many allies, as well as the vast majority of American sportsmen and women, we urge the agencies not to pull back from the well-reasoned, supported and vetted Clean Water Rule. We could not say it better than this commenter did last year: As a Montana resident, I value ALL of these watersheds that are protected and I would be livid to see their protection repealed. I’m employed by the state of Montana as a fisheries technician. I spend everyday working in tributaries that feed larger rivers. When I’m not working, I choose to spend my free time recreating, in many forms, in these areas and on the water. I directly see the benefits of protection that the clean water rule ensures all year long and in many watersheds. Please do not repeal the clean water rule, it is vitally important to our livelihoods, our economy, and our way of life. To see a change for the worse would be utterly heartbreaking and potentially crippling for future Americans. These watersheds are far too important to lose protection.23

Thank you for your consideration. Sincerely,

Melinda Kassen, Senior Counsel

Share This