Feb 7, 2022 Comments of the Waters Advocacy Coalition (WAC) on the U.S. Environmental Protection Agency’s and U.S. Army Corps of Engineers’ Proposed Revised Definition of “Waters of the United States”
The Waters Advocacy Coalition (“WAC” or “Coalition”) hereby offers the following comments on the U.S. Environmental Protection Agency’s (“EPA”) and the U.S. Army Corps of Engineers’ (“Corps”) (together, the “Agencies”) proposed revised definition of “waters of the United States” (“WOTUS”) under the Clean Water Act (“CWA” or “Act”), 86 Fed. Reg. 69,372 (Dec. 7, 2021) (hereinafter, “Proposal” or “Proposed Rule”). The Coalition’s members possess a wealth of expertise directly relevant to the Agencies’ proposed revised definition of “waters of the United States” and are committed to protecting and restoring America’s wetlands and waters. WAC members believe that a regulation that draws clear lines between federal and state waters will help further that goal. However, the Agencies seemingly have abandoned their long-lasting pursuit to provide more clarity, consistency, and predictability regarding the scope of “waters of the United States” protected under the Act. …
WAC members have substantial interests in ensuring that federal CWA jurisdiction is exercised lawfully and in promoting national uniformity and consistency in the definition of what features are WOTUS. Their members must comply with the CWA’s prohibition against unauthorized “discharges” into any areas that are ultimately deemed jurisdictional. Their projects and operations are all subject to regulation (to differing extents) under CWA Sections 402, 404, 401, 311, other provisions of the Act, and the state and local laws that protect water quality.
In contrast with the Navigable Waters Protection Rule (“NWPR”), which provided WAC members long-overdue certainty in describing what features are or are not WOTUS, the Proposed Rule codifies a return to unpredictable case-by-case determinations of jurisdiction by agency staff, thereby subjecting WAC members and landowners nationwide to considerable confusion about what features on their lands may be jurisdictional. This confusion deprives WAC members of notice of what the CWA requires and makes it impossible for WAC members to make informed decisions about the operation, logistics, and finances of their businesses. Even worse, under the CWA, WAC members may be subjected to severe criminal and civil penalties and citizen suits. …
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