Public Interest Comment on the Proposed Definition of "Waters of the United States" Under the Clean Water Act


By G. Tracy Mehan III

November 07, 2014

Download the full comment

These comments are offered to assist EPA and the Corps in attaining their stated goal of "Developing a final rule to provide the intended level of certainty and predictability, and minimizing the number of case-specific determinations" consistent with the rule of law, private property rights, and due regard for prior notice and due process. The following recommendations are intended to enhance the Agencies' final rule establishing definitions of Waters of the United States:

  • Without clear a clear definition of "significant," regulated entities and citizens are awash in uncertainty, which defeats the Agencies' goal of achieving certainty and predictability. The Agencies should develop an affirmative definition of "significant" for the phrase "significant nexus" and seek comment on it.
  • The Agencies have misconstrued the law by de-coupling the SWANCC decision from Justice Kennedy's opinion in Rapanos. The Agencies should defer promulgation of the rule and seek public comment on the relationship of SWANCC to Rapanos and revise both the rule and Appendix B accordingly.
  • The Agencies should propose and seek public comment on additional exclusions from the Waters of the United States to include, not just wastewater systems, but also MS4s and their conveyance network as well "green infrastructure" practices; water reuse, recycling, and reclamation operations; and commercial, industrial and manufacturing water treatment systems.
  • The proposed rule does not address its applicability to waters "that were previously found to be non-jurisdictional, but that are re-evaluated and found to be jurisdictional," raising the issues of retroactivity and grandfathering. The Agencies should address the retroactivity problem by including a "grandfather" provision in the proposed rule after proposing seven options offered by the blue-ribbon legal team advising state environmental commissioners and receiving public comment on them.
  • Finally, the Agencies have failed to incorporate a retrospective review plan into their rule, pursuant to presidential executive order and sound policy. The Agencies should include in their final rule a plan for retrospective review to facilitate transparency, public accountability, and measurement of the success of their rule. This plan should identify how the Agencies will measure the effects of their rule and a timeline for review. 

Continue reading