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November 14, 2014 Water Docket Environmental Protection Agency

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November 14, 2014 Water Docket Environmental Protection Agency November 14, 2014 Water Docket Environmental Protection Agency Mail Code 2822T 1200 Pennsylvania Ave., NW Washington, DC 20460 E-mail: [email protected] Re: EPA-HQ-OW-2011-0880: NWF et al Comments on Proposed Rule Definition of “Waters of the United States” under the Clean Water Act To Whom It May Concern: Please accept for the record these comments on the proposed Environmental Protection Agency (“EPA”) and the Army Corps of Engineers (“Corps”) Proposed Rule Definition of “Waters of the United States” under the Clean Water Act (“Proposed Rule”). 79 Fed. Reg. 22188 (April 21, 2014). The agencies extended the deadline for submitting comments to November 14, 2014. The National Wildlife Federation (NWF) represents over 4 million conservation-minded hunters, anglers, and outdoor enthusiasts nationwide. Conserving our Nation’s wetlands, streams, and rivers is at the core of each organization’s mission. Our organizations also have years of experience protecting these resources and dealing with the legal and other tools available to help us protect such resources. We have been active in advocating for Clean Water Act protections since the Act was passed in 1972. Through comments to agencies, participation in the legislative and rulemaking processes regarding the Act, litigation, and in other forums, we have gained valuable expertise in the Act and how it is used to protect our waters. Additionally, we have been actively involved for more than a decade in the lengthy deliberations on the question of what are “waters of the United States,” such as commenting on the Advance Notice of Proposed Rulemaking in 2003, the 2007 Rapanos guidance, and the draft 2011 “waters of the United States” guidance; and participation as Amici Curiae in the Rapanos Supreme Court case, and participation in numerous other federal court cases concerning the issue of “waters of the United States.” For the reasons set forth below, our organization strongly supports the proposed rule with respect to tributaries and adjacent waters, and urge the agencies to issue a final rule that includes as “waters of the United States” categories of non-adjacent “other waters” consistent with the scientific evidence of connectivity. We urge the agencies to move swiftly to finalize the “waters of the United States” rule and to formally withdraw the 2003 SWANCC Guidance and the 2008 Rapanos Guidance. For ease of navigation, and to highlight our main points, here are our headings and sub-headings with page numbers in parentheses: I. This Rule is Necessary and Offers the Best Opportunity in a Generation to Clarify the Waters that Are – and Are Not – Subject to Clean Water Act. (6) A. SWANCC, Rapanos, and subsequent agency guidance have created a decade-long, untenable status quo of uncertainty, confusion, wasteful litigation, and lost clean water protections. (6) B. At stake in this rulemaking are millions of stream miles and wetland acres, drinking water supplies for 117 million Americans, healthy waters to support a healthy economy, and the effectiveness of the Clean Water Act itself. (8) C. The clean water rule is the product of four years of rigorous and transparent scientific and public policy deliberation and offers the best chance in a generation to clarify the “Waters of the United States.” (10) II. The proposed definition of “Waters of the United States” is consistent with the goals of the Clean Water Act and with legal precedent. (12) III. There Is a Strong Scientific Foundation for the Proposed Definition of “Waters of the United States.” (18) A. Kennedy’s significant nexus test calls for more than speculative or insubstantial scientific evidence of connectivity to downstream waters. (18) B. EPA has compiled a rigorous, accurate, and comprehensive science synthesis that supports categorical findings of significant nexus for the entire tributary system, adjacent waters, and several categories of non-floodplain “other waters.” (19) IV. The Overall Approach to the Proposed Rule Increases Clarity and Consistency with the Clean Water Act, the science, and the legal precedent. (23) V. The Proposed Rule Definition of Traditional Navigable Waters is Well-Supported by Statute and Case Law. (24) A. TNWs include waters currently used, used in the past, or susceptible of use in interstate commerce. (24) B. Susceptibility for future use may properly be based on capacity for use and future use for waterborne recreation. (26) 2 C. The final rule regarding TNWs could be improved by further clarifying the TNW case law and improving available TNW mapping data. (26) VI. The Proposed Rule’s Treatment of Interstate Waters is Well-Supported by Statute, Regulations, and Case Law. (28) A. The Clean Water Act and the agencies’ existing rules provide for categorical protection of interstate waters. (28) B. The agencies’ treatment of tributaries, adjacent wetlands, and other waters in relation to interstate waters is well-supported. (29) VII. The Agencies’ Definition and Treatment of Tributaries is Scientifically and Legally Sound. (29) A. The agencies’ definition of tributary is consistent with existing law and science, and does not expand Clean Water Act jurisdiction. (31) 1. The agencies’ use of the existing OHWM definition helps clarify the definition of tributary and tributary boundaries. (32) 2. Any further clarifications of the tributary definition must respect connectivity science and the goals of the Clean Water Act, and must not exclude wetlands, lakes, and ponds that function as tributaries and are integral elements of the tributary system. (32) B. The Proposed Rule, much like the 2008 Guidance, properly treats many non-tidal ditches as tributaries where they clearly function as tributaries. (34) C. The Proposed Rule excludes from the definition of tributary many ditches and certain other features that are not considered tributaries. (36) 1. The perennial flow requirement is not consistent with the connectivity science and should be revisited. (37) D. The agencies’ treatment of headwater and ephemeral streams is scientifically and legally sound. (38) E. The 2008 Guidance has undermined protections for ephemeral streams and must be withdrawn. (40) VIII. The Proposed Rule Properly Asserts Jurisdiction Over Adjacent Waters. (42) A. The Agencies’ proposal to revise the existing “adjacent wetlands” jurisdictional category to include “adjacent waters” provides additional clarity and is scientifically and legally sound. (44) 3 B. The agencies’ definition of “neighboring,” “floodplain,” and “riparian area” to support and clarify the existing definition of adjacent is scientifically and legally sound. (45) 1. Efforts to further clarify the definition of “floodplain” must be scientifically sound and not place undue emphasis on geographic proximity. (46) 2. The Agencies’ proposal defining “neighboring” to include waters with hydrological connections in determining adjacency is scientifically and legally sound. (48) 3. The Agencies’ consideration of options for additional precision in defining “neighboring” should be informed by science and should not place undue emphasis on geographic proximity to the floodplain or tributary. (49) C. The agencies should determine adjacency on the basis of functional relationships, not proximity to (a)(1) through (a)(5) waters. (50) D. The Agencies’ proposed “adjacent waters” provision improves the term’s clarity by deleting the confusing phrase “other than waters that are themselves wetlands.” (52) E. The 2003 SWANCC and 2008 Rapanos guidances have put millions of adjacent wetland acres at risk and must be replaced with a scientifically and legally sound waters of the U.S. rule. (52) IX. The Final Rule should define categories of non-adjacent waters as “waters of the United States” where the scientific evidence of connectivity satisfies Justice Kennedy’s Significant Nexus Test. (54) A. The proposed rule significantly limits the scope of jurisdictional “other waters”, is far more restrictive than the limits set by the Supreme Court, ignores the scientific evidence of connectivity, and runs counter to the goals of the Clean Water Act. (54) 1. The single point of entry watershed is a reasonable basis for interpreting “in the region” for purposes of aggregating “other waters” to determine their collective effect on the nearest TNW, IW, or territorial sea. (56) 2. The single point of entry watershed approach should provide for more flexible application where region-specific science warrants. (56) 3. The agencies must reject the 2008 Guidance’s flawed and harmful stream segment approach to aggregation. (57) B. In categorizing waters as “similarly situated” the final rule should focus on the similar functions of non-adjacent water bodies in the region and less on proximity to TNWs, IWs, and territorial seas. (58) C. The agencies’ definition of significant nexus is legally and scientifically sound. (60) 4 D. The final rule should define categories of “other waters” as “waters of the United States” based on the current scientific evidence of connectivity. (61) E. The agencies have the legal authority to make a categorical determination for subcategories of “other waters” when a majority of those waters meet the significant nexus standard. (63) F. The agencies should determine by rule that “other waters” are similarly situated in certain areas of the country. (65) G. The agencies should determine by rule that certain “other waters” have a significant nexus and are jurisdictional by rule. (67) H. The agencies should not categorically exclude from aggregation or jurisdiction “other waters” that are not located in these identified ecoregions. (67) I. Retaining the case-specific approach where the science is inconclusive is scientifically sound and helps to accommodate evolving science that could establish significant nexus in the future. (68) J. The final rule should establish a process by which emerging scientific evidence of connectivity can be incorporated into a cumulative body of scientific information and used to inform both case-specific and categorical significant nexus determinations over time. (69) K. Summary of Science-based Comments Supporting Findings of Significant Nexus and Jurisdiction by Rule for Other Water Subcategories in Specific Regions (69) 1.
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