Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

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Clean Water Rule Comment Compendium

Topic 13 – Process Concerns and Administrative Requirements

The Response to Comments Document, together with the preamble to the final Clean Water 

Rule, presents the responses of the Environmental Protection Agency (EPA) and the Department 

of the Army (collectively “the agencies”) to the more than one million public comments received 

on the proposed rule (79 FR 22188 (Apr. 21, 2014)). The agencies have addressed all significant 

issues raised in the public comments.

As a result of changes made to the preamble and final rule prior to signature, and due to the volume 

of comments received, some responses in the Response to Comments Document may not reflect the 

language in the preamble and final rule in every respect. Where the response is in conflict with the 

preamble or the final rule, the language in the final preamble and rule controls and should be used for 

purposes of understanding the scope, requirements, and basis of the final rule. In addition, due to the 

large number of comments that addressed similar issues, as well as the volume of the comments 

received, the Response to Comments Document does not always cross-reference each response 

to the commenter(s) who raised the particular issue involved. The responses presented in this 

document are intended to augment the responses to comments that appear in the preamble to the 

final rule or to address comments not discussed in that preamble. Although portions of the 

preamble to the final rule are paraphrased in this document where useful to add clarity to 

responses, the preamble itself remains the definitive statement of the rationale for the revisions 

adopted in the final rule. In many instances, particular responses presented in the Response to 

Comments Document include cross references to responses on related issues that are located 

either in the preamble to the Clean Water Rule, the Technical Support Document, or elsewhere 

in the Response to Comments Document. All issues on which the agencies are taking final action 

in the Clean Water Rule are addressed in the Clean Water Rule rulemaking record.

Accordingly, the Response to Comments Document, together with the preamble to the Clean 

Water Rule and the information contained in the Technical Support Document, the Science 

Report, and the rest of the administrative record should be considered collectively as the 

agencies’ response to all of the significant comments submitted on the proposed rule. The 

Response to Comments Document incorporates directly or by reference the significant public 

comments addressed in the preamble to the Clean Water Rule as well as other significant public 

comments that were submitted on the proposed rule.

This compendium, as part of the Response to Comments Document, provides a compendium of 

the technical comments about process concerns and administrative requirements submitted by 

commenters. Comments have been copied into this document “as is” with no editing or 

summarizing. Footnotes in regular font are taken directly from the comments.
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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TOPIC 13. PROCESS CONCERNS AND ADMINISTRATIVE REQUIREMENTS................................. 15

SPECIFIC COMMENTS ................................................................................................... 15

Committee on Space, Science and Technology (Doc. #16386)............................ 15

Utility Water Act Group (Doc. #0852)................................................................. 19

13.1. CONCERNS ABOUT TIMING/OVERLAP OF SCIENCE DOCUMENT AND REVIEW PROCESS 20

AGENCY SUMMARY RESPONSE.................................................................................... 20

Summary of Concerns About Timing/Overlap of the Science Report and Review 

Process .................................................................................................................. 20

Agencies’ Summary Response Concerns About Timing/Overlap of the Science 

Report and Review Process Comments................................................................ 20

SPECIFIC COMMENTS ................................................................................................... 21

Michigan Department of Environmental Quality (Doc. #5462.1)........................ 21

Rural County Representatives of California (Doc. #5537)................................... 21

Office of the Governor, State of Wyoming (Doc. #7181.1)................................. 22

Area II Minnesota River Basin Projects, Inc. (Doc. #7185.1).............................. 22

Pennsylvania Department of Environmental Protection, Office of Water 

Management (Doc. #7985..................................................................................... 22

Commonwealth of Pennsylvania Department of Agriculture (Doc. #14465) ...... 23

Virginia Department of Environmental Quality (Doc. #18760)........................... 23

California Department of Transportation, Division of Environmental Analysis 

(Doc. #19538) ....................................................................................................... 24

Skamania County Board of Commissioners (Doc. #2469.1)................................ 24

13.2. CONCERNS ABOUT TIMING AND PROCESS OF SCIENCE DOCUMENT ............................... 25

SPECIFIC COMMENTS ................................................................................................... 25

County of El Dorado, California (Doc. #5483) .................................................... 25

St. Johns County Board of County Commissioners (Doc. #5598) ....................... 25

The Carroll County Department of Land Use, Planning and Development (Doc. 

#6266.1) ................................................................................................................ 25

Iowa Department of Agriculture and Land Stewardship – State Soil Conservation 

Committee (Doc. #7642) ...................................................................................... 25

Board of Douglas County Commissioners, Castle Rock, Colorado (Doc. #8145)26

Del Norte County, California (Doc. #8376) ......................................................... 26

Aurora Water (Doc. #8409).................................................................................. 26

Carroll County Board of Commissioners, Maryland (Doc. #8667)...................... 27

City of Copperas Cove, Texas (Doc. #14118)...................................................... 27

Lassen County Board of Supervisors (Doc. #17461) ........................................... 27

Department of Public Works, County of San Diego, California (Doc. #17920).. 27

City of St. Petersburg (Doc. #18897).................................................................... 28

Hidalgo Soil and Water Conservation District, Lordsburg, New Mexico (Doc. 

#19450) ................................................................................................................. 28

Mississippi Valley Flood Control Association (Doc. #19488)............................. 29

Maui County (Doc. #19543)................................................................................. 29

Navajo County Board of Supervisors, Arizona (Doc. #19569)............................ 29

Mesa County, Colorado Board of County Commissioners (Doc. #12713) .......... 30

California Building Industry Association et al. (Doc. #14523)............................ 30
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Unites States Steel Corporation (Doc. #15450).................................................... 30

Contra Costa County Public Works Department (Doc. #15634).......................... 30

Beaverhead County Commissioners (Doc. #16892)............................................. 30

Water Advocacy Coalition (Doc. #17921.1) ........................................................ 31

American Concrete Pressure Pipe Association (Doc. #3306) .............................. 31

County of San Diego (Doc. #14782) .................................................................... 31

Mississippi Farm Bureau Federation (Doc. #14464)............................................ 32

Riverport Levee District (Doc. #15655)............................................................... 32

Mendocino County Farm Bureau (Doc. #16648) ................................................. 33

Montana Stockgrowers Association (Doc. #16937)............................................. 33

San Joaquin River Exchange Contractors Water Authority (Doc. #1351) ........... 33

National Waterways Conference, Inc. (Doc. #12979).......................................... 33

Senators Jeff Flake and John McCain (Doc. #1377) ............................................ 34

United States House of Representatives (Doc. #17457)....................................... 34

United States House of Representatives (Doc. #17464)....................................... 34

13.2.1. SAB Review of Rule..................................................................................................... 34

SPECIFIC COMMENTS ................................................................................................... 34

Nevada County Board of Supervisors, State of California (Doc. #18894)........... 34

California Building Industry Association et al. (Doc. #14523)............................ 35

Colorado Association of Commerce and Industry (Doc. #16172) ....................... 36

Family Farm Alliance (Doc. #17459)................................................................... 36

Associated Industries of Florida (Doc. #19325)................................................... 36

13.2.2. Connectivity Study ...................................................................................................... 37

SPECIFIC COMMENTS ................................................................................................... 37

Kansas Senate Committee on Natural Resources (Doc. #15022.1)...................... 37

Sealaska Corporation (Doc. #15356).................................................................... 37

Indiana Department of Environmental Management (Doc. #16440) ................... 37

New Mexico Environment Department (Doc. #16552)........................................ 38

State of Oklahoma et al. (Doc. #16560) ............................................................... 38

State of Idaho (Doc. #16597)................................................................................ 39

Franconia Township (Doc. #8661) ....................................................................... 39

Maricopa County Board of Supervisors (Doc. #14132.1).................................... 40

City of Golden Public Works, Colorado (Doc. #14617) ...................................... 40

San Joaquin County Board of Supervisors (Doc. #15017)................................... 40

National Association of Counties (Doc. #15081)................................................. 40

City of Poway, California (Doc. #15156)............................................................. 41

Carroll County Board of Commissioners (Doc. #15190)..................................... 41

Fort Bend Flood Management Association (Doc. #15248).................................. 41

Sacramento County, California (Doc. #15518) .................................................... 42

Republican River Water Conservation District (Doc. #15621)............................ 42

City of Poquoson (Doc. #17358) .......................................................................... 42

State of Wyoming (Doc. #14584)......................................................................... 43

South Carolina Association of Counties (Doc. #15573)....................................... 43

Oklahoma Municipal League (Doc. #16526) ....................................................... 44

Colorado Clean Water Coalition (Doc. #3533) .................................................... 44

Southern States Energy Board (Doc. #13011)...................................................... 45
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Pennsylvania Chamber of Commerce and Industry (Doc. #14401) ..................... 45

McPherson Law Firm, PC (Doc. #16397) ........................................................... 46

Construction Industry Roundtable (Doc. #8378).................................................. 46

Perkinscoie (Doc. #15362).................................................................................... 47

Illinois Coal Association (Doc. #15517) .............................................................. 47

National Pork Producers Council (Doc. #1433) ................................................... 48

Alameda County Cattlewoman (Doc. #8674)....................................................... 48

Colorado Cattlemen’s Association (Doc. #15068)............................................... 50

National Alliance of Forest Owners (Doc. #15247)............................................ 50

Arizona Public Service Company (Doc. #15162)................................................. 51

County of San Diego (Doc. #15172) .................................................................... 52

Murray Energy Corporation (Doc. #13954) ......................................................... 52

National Waterways Conference, Inc. (Doc. #12979).......................................... 53

Coalition of Alabama Waterways (Doc. #15101)................................................. 53

Solid Waste Association of North America (Doc. #15264) ................................. 54

House of Representatives (Doc. #12751) ............................................................. 54

United States House of Representatives (Doc. #17458)....................................... 54

13.2.2.1 SAB Review of Connectivity Study................................................................ 55

SPECIFIC COMMENTS ................................................................................................... 55

Small Business Administration (Doc. #1766) ...................................................... 55

National Association of Towns and Townships (Doc. #1864)............................. 55

National Association of State Foresters (Doc. #14636)........................................ 56

Committee on Space, Science and Technology (Doc. #16386)............................ 56

State of Alaska (Doc. #19465).............................................................................. 59

Senator Cathy Giessel, Alaska State Legislature (Doc. #2531.1)......................... 59

Florida Stormwater Association, Inc. (Doc. #7965.1).......................................... 60

Pennsylvania Department of Environmental Protection, Office of Water 

Management (Doc. #7985) ................................................................................... 60

California State Association of Counties (Doc. #9692)........................................ 60

State of Idaho (Doc. #9834).................................................................................. 60

Texas Comptroller of Public Accounts (Doc. #10952) ........................................ 61

Virginia Department of Transportation (Doc. #12756)........................................ 61

New Mexico Department of Agriculture (Doc. #13024)...................................... 62

Gila River Indian Community (Doc. #13619)...................................................... 63

Washington Department of Ecology (Doc. #13957) ............................................ 64

Texas Commission on Environmental Quality (Doc. #14279)............................. 64

Western Governors Association (Doc. #14645)................................................... 65

Arizona Game and Fish Department (Doc. #14789) ............................................ 65

Office of Water Management, Pennsylvania Department of Environmental 

Protection (Doc. #14845)...................................................................................... 66

Arizona Game and Fish Department (Doc. #15197) ............................................ 66

Southern Ute Indian Tribe Growth Fund (Doc. #15386)...................................... 66

State of Michigan, Attorney General (Doc. #16469)............................................ 67

Coastal Restoration and Protection Authority Board of Louisiana (Doc. #17043)

............................................................................................................................... 68

Allen Boone Humphries Robinson LLP (Doc. #19614)....................................... 68
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Lee County, Florida (Doc. #1346)........................................................................ 68

City of Aurora, Colorado (Doc. #1448)................................................................ 69

Board of County Commissioners (Doc. #4679) ................................................... 70

Nevada County Board of Supervisors (Doc. #6856) ............................................ 70

Murray County Board of Commissioners (Doc. #7528.1) ................................... 70

Moffat County Board of Commissioners, Moffat County, Colorado (Doc. #7987)

............................................................................................................................... 71

Pasco County, Florida (Doc. #9697)..................................................................... 71

Mesa County, Colorado Board of County Commissioners (Doc. #12713) .......... 72

Board of County Commissioners, Larimer County (Doc. #14741)...................... 72

Harris County Flood Control District (Doc. #15049)........................................... 72

Rio Grande Water Conservation District (Doc. #15124)...................................... 72

Amador County Board of Supervisors (Doc. #17450) ......................................... 73

Butte County Administration, County of Butte, California (Doc. #19593).......... 73

Western Urban Water Coalition (Doc. #12828) ................................................... 73

Colorado Stormwater Council (Doc. #12981)...................................................... 75

Association of Clean Water Administrators (Doc. #13069)................................. 76

National Association of Flood & Stormwater Management Agencies (Doc. 

#13613) ................................................................................................................. 76

Western Urban Water Coalition (Doc. #15178) ................................................... 77

The United States Conference of Mayors et al. (Doc. #15784)............................ 77

Waters Advocacy Coalition (Doc. #0851)............................................................ 78

Hereford Natural Resource Conservation District (Doc. #1652).......................... 78

U.S. Chamber of Commerce (Doc. #2607)........................................................... 79

Georgia Chamber of Commerce (Doc. #14430)................................................... 79

Resource Development Council for Alaska, Inc. (Doc. #14649) ......................... 80

Greater Houston Partnership (Doc. #14726) ........................................................ 80

Atlantic Legal Foundation (Doc. #15253)............................................................ 80

Volusia County Association for Responsible Development (Doc. #1440) .......... 81

CalPortland Company (Doc. #14590)................................................................... 81

Ames Construction, Inc. (Doc. #17045)............................................................... 81

National Association of Home Builders (Doc. #19540)....................................... 81

API Energy (Doc. #0867.1) .................................................................................. 84

Interstate Mining Compact Commission (Doc. #1435)........................................ 85

American Exploration & Production Council (Doc. #2009.1) ............................. 85

Marcellus Shale Coalition (Doc. #2039) .............................................................. 85

Pulp and Paperworkers’ Resource Council (Doc. #4766) .................................... 86

National Stone, Sand and Gravel Association (Doc. #14412).............................. 86

CONSOL Energy, Inc. (Doc. #14614).................................................................. 87

Washington Forest Protection Association (Doc. #15030)................................... 87

Edward Wisner Donation (Doc. #15438) ............................................................. 88

Georgetown Sand and Gravel (Doc. #19566)....................................................... 88

Cattle Empire (Doc. #8416).................................................................................. 88

North Dakota Soybean Growers Association (Doc. #14121)............................... 89

Rose Acre Farms (Doc. #14423) .......................................................................... 89

California Association of Winegrape Growers (Doc. #14593) ............................ 89
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Missouri Soybean Association (Doc. #14986) ..................................................... 90

Jensen Livestock and Land LLC (Doc. #15540) .................................................. 91

Goehring Vineyards, Inc. (Doc. #19464).............................................................. 92

Martin Marietta Materials, Inc. (Doc. #6250)....................................................... 94

Pike County Highway Department (Doc. #6857)................................................. 94

Ingram Barge Company (Doc. #14796)................................................................ 94

California Farm Bureau Federation (Doc. #16399).............................................. 95

BMG Marine, Inc. (Doc. #18855) ........................................................................ 95

American Public Gas Association (Doc. #18862)................................................ 96

Alabama Road Builders Association (Doc. #18913)............................................ 96

Florida water Environment Association (Doc. #0870)......................................... 96

WateReuse Association (Doc. #1349).................................................................. 97

Yakima Basin Joint Board (Doc. #1708.1)........................................................... 98

Colorado Wastewater Utility Council (Doc. #1744) ............................................ 98

Palm Bech County MS4 NPDES Steering Committee (Doc. #1755.1) ............... 98

Littleton/Englewood Wastewater Treatment Plant (Doc. #3526)......................... 99

Department of Public Works, City of Northglenn, Colorado (Doc. #14990)....... 99

Arizona Public Service Company (Doc. #15162)............................................... 100

Utility Water Act Group (Doc. #0852)............................................................... 100

Duke Energy (Doc. #0855)................................................................................. 101

Dynegy, Inc. (Doc. #1240) ................................................................................. 101

Association of American Pesticide Control Officials (Doc. #1651)................... 102

Clearwater Watershed District, et al. (Doc. #9560)............................................ 102

Mohave Electric Cooperative, Inc. (Doc. #10953)............................................. 103

Duke Energy (Doc. #13029)............................................................................... 103

Southern Company (Doc. #14134) ..................................................................... 104

CropLife America (Doc. #14630)....................................................................... 107

Metropolitan Water District of Southern California (Doc. #14637)................... 108

Utility Water Act Group (Doc. #15016)............................................................. 109

Northern California Water Association (Doc. #17444)...................................... 109

Protect Americans, Board of Directors (Doc. #12726)....................................... 109

Colorado Wastewater Utility Council (Doc. #13619) ........................................ 110

Coalition of Alabama Waterways (Doc. #15101)............................................... 110

Mobile Baykeeper (Doc. #16472)....................................................................... 111

Upper Mississippi, Illinois, & Missouri Rivers Association (Doc. #19563)...... 111

Mercatus Center at George Mason University (Doc. #12754) ........................... 112

Society of American Foresters (Doc. #15075) ................................................... 112

American Legislative Exchange Council (Doc. #19468) ................................... 113

National Association of Flood & Stormwater Management Agencies (Doc. 

#19599) ............................................................................................................... 113

Marcia L. Fudge, Member of Congress, 11th District, Ohio (Doc. #1376)......... 113

Senator John E. Walsh, United States Senate (Doc. #18021)............................. 114

13.3. RULEMAKING PROCESS ................................................................................................... 114

SUMMARY OF RULEMAKING PROCESS COMMENTS .................................................... 114

AGENCIES’ SUMMARY RESPONSE TO RULEMAKING PROCESS COMMENTS ................ 115

SPECIFIC COMMENTS ................................................................................................. 118
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Committee on Space, Science and Technology (Doc. #16386).......................... 118

Senator Dave Kinskey, Senate District 22, Johnson County and Eastern Sheridan 

County, Wyoming (Doc. #6191) ........................................................................ 119

Office of the Governor, State of Wyoming (Doc. #7181.1)............................... 119

State of Iowa (Doc. #8377.1).............................................................................. 121

Texas Comptroller of Public Accounts (Doc. #10952) ...................................... 121

New Mexico Department of Agriculture (Doc. #13024).................................... 122

Senate Natural Resource Committee, Garden City (Doc. #16427) .................... 122

Del Norte County, California (Doc. #8376) ....................................................... 122

City of Palo Alto, California (Doc. #12714)....................................................... 122

Big Horn County Commission (Doc. #13599) ................................................... 123

Cochise County Board of Supervisors (Doc. #14541)........................................ 123

CLUB 20 (Doc. #15519)..................................................................................... 123

National Association of Home Builders (Doc. #19540)..................................... 123

Montana Wool Growers Association (Doc. #5843) ........................................... 125

New Mexico Department of Agriculture (Doc. #13024).................................... 127

Family Farm Alliance (Doc. #14788)................................................................. 127

Wisconsin Farm Bureau Federation (Doc. #16166) ........................................... 128

Missouri Corn Growers Association (Doc. #16569) .......................................... 128

New Salem Township (Doc. #8365.................................................................... 130

Dynegy, Inc. (Doc. #1240) ................................................................................. 130

Colorado Water Congress Federal Affairs Committee (Doc. #14569.1)............ 130

Audubon Florida and Audubon of the Western Everglades (Doc. #15251)....... 131

United States Congress (Doc. #13992)............................................................... 131

13.3.1. Compliance with APA............................................................................................... 132

SUMMARY OF APA COMMENTS................................................................................. 132

AGENCIES’ SUMMARY RESPONSE TO APA COMMENTS ............................................. 132

SPECIFIC COMMENTS ................................................................................................. 134

Alaska State Legislature, Alaska State Leadership (Doc. #7494.1)2q$ ............. 134

State of Iowa (Doc. #8377)................................................................................. 134

Energy Producing States Coalition (Doc. #11552)............................................. 134

New Mexico Department of Agriculture (Doc. #13024).................................... 135

Maine Department of Environmental Protection (Doc. #14624)........................ 136

State of Alaska (Doc. #19465)............................................................................ 137

Hinsdale Colorado Board of County Commissioners (Doc. #1768) .................. 137

Beaver County Commission (Doc. #9667)......................................................... 138

Pocahontas County, Indiana (Doc. #13666) ....................................................... 138

Palo Alto County Board of Supervisors (Doc. #14095) ..................................... 139

Waters of the United States Coalition (Doc. #14589) ........................................ 139

New Mexico Association of Commerce and Industry (Doc. #5610).................. 139

Water Advocacy Coalition (Doc. #7981) ........................................................... 140

Golf Course Superintendents Association of America et al. (Doc. #14902)...... 148

National Association of Convenience Stores (Doc. #15242) ............................. 148

Federal Water Quality Coalition (Doc. #15822.1).............................................. 149

Water Advocacy Coalition (Doc. #17921.1) ...................................................... 150

North Houston Association et al. (Doc. #8537).................................................. 155
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Pennsy Supply, Inc. (Doc. #15255) .................................................................... 155

National Association of Home Builders (Doc. #19540)..................................... 155

Snyder Associated Companies, Inc. (Doc. #18825) ........................................... 162

Georgetown Sand and Gravel (Doc. #19566)..................................................... 162

Pennsylvania Aggregates and Concrete Association (Doc. #16353).................. 162

Alameda County Cattlewoman (Doc. #8674)..................................................... 163

Nebraska Cattlemen (Doc. #13018.1)................................................................. 171

Missouri Agribusiness Association (Doc. #13025) ............................................ 176

North Dakota Soybean Growers Association (Doc. #14121)............................. 177

Western Growers Association (Doc. #14130) .................................................... 177

Kansas Farm Bureau (Doc. #14408)................................................................... 178

Kansas Agriculture Alliance (Doc. #14424)....................................................... 179

Tennessee Farm Bureau Federation (Doc. #14978) ........................................... 180

National Milk Producers Federation (Doc. #15436.1)........................................ 181

Jensen Livestock and Land LLC (Doc. #15540) ................................................ 181

Flathead Joint Board of Control (Doc. #19537) ................................................. 185

Iowa Poultry Association (Doc. #19589)............................................................ 185

Association of American Railroads (Doc. #15018.1)......................................... 187

BMG Marine, Inc. (Doc. #18855) ...................................................................... 187

Alabama Road Builders Association (Doc. #18913).......................................... 187

Florida Water Environment Association (Doc. #0870)...................................... 188

Arizona Public Service Company (Doc. #15162)............................................... 188

Duke Energy (Doc. #13029)............................................................................... 188

Utility Water Act Group (Doc. #15016)............................................................. 189

Basin Electric Power Cooperative (Doc. #16447).............................................. 190

The Center for Rural Affairs (Doc. #15029) ...................................................... 191

Environmental Integrity Project, et al. (Doc. #15376)........................................ 192

Guardians of the Range (Doc. #14960) .............................................................. 196

National Association of Convenience Stores (Doc. #15242) ............................. 196

Missouri and Associated Rivers Coalition (Doc. #15528) ................................. 197

United States Senate (Doc. #1378)..................................................................... 197

United States Senate, Committee on Environment and Public Works (Doc. #4907)

............................................................................................................................. 198

United States Senate (Doc. #15083)................................................................... 198

13.3.2. Executive Order 12866: Regulatory Planning and Review; and Executive Order 

13563: Improving Regulation and Regulatory Review.......................................................... 200

SUMMARY OF COMMENTS ON EXECUTIVE ORDERS 12866 AND 13563...................... 200

AGENCIES’ SUMMARY RESPONSE TO COMMENTS ON EXECUTIVE ORDERS 12866 AND 

13563......................................................................................................................... 200

SPECIFIC COMMENTS ................................................................................................. 202

Northern Counties Land Use Coordinating Board (Doc. #3317) ....................... 202

Kansas Senate Committee on Natural Resources (Doc. #4904)......................... 204

Board of Douglas County Commissioners, Castle Rock, Colorado (Doc. #8145)

............................................................................................................................. 204

Douglas County’s Request to Expand the Rulemaking Process......................... 206

Beaver County Commission (Doc. #9667)......................................................... 208
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Southwest Quay Soil and Water Conservation District (Doc. #19560).............. 210

Water Advocacy Coalition (Doc. #17921.1) ...................................................... 210

National Association of Home Builders (Doc. #19540)..................................... 212

Lyman-Richey Corporation (Doc. #14420)........................................................ 213

National Lime Association (Doc. #14428)......................................................... 213

National Federation of Independent Business (Doc. #1653).............................. 214

Mercatus Center at George Mason University (Doc. #12754) ........................... 214

George Washington University Regulatory Studies Center (Doc. #13563)....... 214

13.3.3. Paperwork Reduction Act ......................................................................................... 218

SUMMARY OF PAPERWORK REDUCTION ACT COMMENTS ......................................... 218

AGENCIES’ SUMMARY RESPONSE TO PAPERWORK REDUCTION ACT COMMENTS...... 218

SPECIFIC COMMENTS ................................................................................................. 218

Uintah County, Utah (Doc. #12720)................................................................... 218

George Washington University Regulatory Studies Center (Doc. #13563)....... 219

13.3.4. Unfunded Mandates Reform Act............................................................................... 220

SUMMARY OF UNFUNDED MANDATES REFORM ACT COMMENTS.............................. 220

AGENCIES’ SUMMARY RESPONSE TO UNFUNDED MANDATES REFORM ACT COMMENTS

................................................................................................................................... 220

SPECIFIC COMMENTS ................................................................................................. 221

Kansas House of Representatives Committee on Energy & Environment (Doc. 

#4903) ................................................................................................................. 221

Kansas Senate Committee on Natural Resources (Doc. #4904)......................... 221

Illinois House of Representatives (Doc. #7978)................................................. 222

U.S. Chamber of Commerce (Doc. #14115)....................................................... 222

Federal Water Quality Coalition (Doc. #15822)................................................. 222

North Dakota Soybean Growers Association (Doc. #14121)............................. 223

The Mosaic Company (Doc. #14640)................................................................. 223

Airports Council International – North America (Doc. #16370)........................ 223

13.3.5. Executive Order 13132: Federalism......................................................................... 224

SUMMARY OF FEDERALISM COMMENTS .................................................................... 224

AGENCY SUMMARY RESPONSE TO FEDERALISM COMMENTS .................................... 225

SPECIFIC COMMENTS ................................................................................................. 227

State of Idaho (Doc. #9834)................................................................................ 227

Florida Department of Agriculture and Consumer Services (Doc. #10260) ...... 228

Energy Producing States Coalition (Doc. #11552)............................................. 229

Utah State Senate et al. (Doc. #12338)............................................................... 230

National Association of Conservation Districts (Doc. #12349) ......................... 231

Wisconsin Legislature (Doc. #14064) ................................................................ 231

Wyoming House of Representatives (Doc. #14308) .......................................... 232

State of Oklahoma (Doc. #14625) ...................................................................... 233

Western Governors Association (Doc. #14645)................................................. 234

State of Oklahoma (Doc. #14773) ...................................................................... 235

Office of the Governor, State of Kansas (Doc. #14794)..................................... 235

North Carolina Department of Environment and Natural Resources (Doc. #14984)

............................................................................................................................. 236
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Nevada State Conservation Commission (Doc. #14998) ................................... 236

Arizona Department of Environmental Quality (Doc. #15096) ......................... 237

North Dakota Office of the Governor,et al. (Doc, #15365)................................ 237

National Association of State Departments of Agriculture (Doc. #15389)........ 239

Indiana Department of Environmental Management (Doc. #16440) ................. 240

Office of the Governor, State of Utah (Doc. #16534) ........................................ 241

New Mexico Environment Department (Doc. #16552)...................................... 241

State of Oklahoma et al. (Doc. #16560) ............................................................. 242

State of Idaho (Doc. #16597).............................................................................. 244

Wyoming Association of Conservation Districts (Doc. #17348) ....................... 245

Water Advocacy Coalition (Doc. #17921.1) ...................................................... 245

Iowa League of Cities (Doc. #18823)................................................................. 246

New York State Departments of Environmental Conservation (Doc. #18895).. 246

State of Louisiana Senate (Doc. #19119) ........................................................... 247

State of Missouri (Doc. #19420)......................................................................... 248

State of Alaska (Doc. #19465)............................................................................ 248

Western Governors Association (Doc. #19654)................................................. 249

Hinsdale Colorado Board of County Commissioners (Doc. #1768) .................. 250

Skamania County Board of Commissioners (Doc. #2469.1).............................. 250

Butler County, Pennsylvania (Doc. #6918)........................................................ 251

Somerset County Commissioners, Somerset, Pennsylvania (Doc. #9734) ........ 252

Office of the City Attorneys, City of Newport News, Virginia (Doc. #10956) . 252

New Mexico Department of Agriculture (Doc. #13024).................................... 252

Big Horn County Commissioners (Doc. #13599)............................................... 253

San Joaquin Tributaries Authority (Doc. #14992).............................................. 253

National Association of Counties (Doc. #15081)............................................... 255

Rio Grande Water Conservation District (Doc. #15124).................................... 256

Sacramento County, California (Doc. #15518) .................................................. 256

Lander County Commissioner (Doc. #15664).................................................... 257

Eddy County Commissioners (Doc. #15665)..................................................... 257

San Bernardino County, California (Doc. #16489) ............................................ 257

Hot Springs County Commissioners (Doc. #16676) .......................................... 260

Navajo County Board of Supervisors, Arizona (Doc. #19569).......................... 261

Association of Clean water Administrators (Doc. #13069)................................ 262

Georgia Municipal Association (Doc. #14527).................................................. 262

County Commissioners Association of Pennsylvania (Doc. #14579)................ 262

Wyoming County Commissioners Association (Doc. #15434).......................... 263

Association of State Drinking Water Administrators (Doc. #15530)................. 263

South Carolina Association of Counties (Doc. #15573)..................................... 264

The United States Conference of Mayors et al. (Doc. #15784).......................... 264

Oklahoma Municipal League (Doc. #16526) ..................................................... 265

U.S. Chamber of Commerce (Doc. #14115)....................................................... 265

Indiana Farm Bureau et al. (Doc. #14119) ......................................................... 265

John Deere & Company (Doc. #14136) ............................................................. 266

Georgia Chamber of Commerce (Doc. #14430)................................................. 266

Connecticut Marine Trades Association (Doc. #14558)..................................... 267
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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11

American Foundry Society (Doc. #15148)......................................................... 268

Federal Water Quality Coalition (Doc. #15822)................................................. 268

Webber Land and Development Corporation (Doc. #10944)............................. 269

National Association of Home Builders (Doc. #19540)..................................... 270

American Petroleum Institute (Doc. #15115)..................................................... 280

Illinois Coal Association (Doc. #15517) ............................................................ 282

Pennsylvania Aggregates and Concrete Association (Doc. #16353).................. 283

Nebraska Cattlemen (Doc. #13018).................................................................... 284

North Dakota Soybean Growers Association (Doc. #14121)............................. 291

Western Growers Association (Doc. #14130) .................................................... 291

Tennessee Farm Bureau Federation (Doc. #14978) ........................................... 292

National Alliance of Forest Owners (Doc. #15247)........................................... 293

Elmore County Highway Department, Wetumpka, Alabama (Doc. #14072) .... 293

Western States Water Council (Doc. #9842)...................................................... 294

Western States Water Council (Doc. #11165).................................................... 294

Westlands Water District (Doc. #14414)............................................................ 295

CropLife America (Doc. #14630)....................................................................... 295

Exxon Mobil Corporation (Doc. #15044)........................................................... 297

Interstate Council on Water Policy (Doc. #15397)............................................. 297

Utility Water Act Group (Doc. #15016)............................................................. 298

Regulatory Environmental Group for Missouri (Doc. #16337).......................... 298

Congress of the United States, Senate Committee on Environment and Public 

Works et al. (Doc. #16564)................................................................................. 299

13.3.6. Executive Order 13175: Consultation and Coordination with Indian Tribal 

Governments........................................................................................................................... 303

EXECUTIVE ORDER 13175 ......................................................................................... 303

SUMMARY COMMENTS ON CONSULTATION AND COORDINATION WITH INDIAN TRIBAL 

GOVERNMENTS .......................................................................................................... 303

AGENCIES’ SUMMARY RESPONSE TO COMMENTS ABOUT CONSULTATION AND 

COORDINATION WITH INDIAN TRIBAL GOVERNMENTS COMMENTS ........................... 303

SPECIFIC COMMENTS ................................................................................................. 305

Western Governors Association (Doc. #14645)................................................. 305

San Carlos Apache Tribe (Doc. # 17094)........................................................... 306

San Carlos Apache Tribe (Doc. #17094)............................................................ 307

13.3.7. Executive Order: 13045: Protection of Children from Environmental Health and 

Safety Risks............................................................................................................................. 308

13.3.8. Executive Order 13211: Actions Concerning Regulations that Significantly Affect 

Energy Supply, Distribution, or Use Compliance, Federalism.............................................. 308

13.3.9. National Technology Transfer and Advancement Act .............................................. 308

13.3.10.Executive Order 12898: Federal Actions to Environmental Justice in Minority 

Populations and Low-Income Populations ............................................................................ 308

SUMMARY OF EXECUTIVE ORDER 12898 COMMENTS................................................ 308

AGENCIES’ RESPONSE TO EXECUTIVE ORDER 12898 COMMENTS ............................. 309

SPECIFIC COMMENTS ................................................................................................. 310

New Mexico Department of Agriculture (Doc. #13024).................................... 310
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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National Religious Partnership for the Environment (Doc. #14060) ................. 311

ADDITIONAL COMMENTS NOTED FROM APPENDIX C. OF THE ENVIRONMENTAL JUSTICE 

REPORT...................................................................................................................... 312

Local Government Advisory Council................................................................. 312

Anonymous: (tracking # 1jy-8buzu-j) - SUMMARY ........................................ 312

Audubon California ............................................................................................ 312

Cochise County................................................................................................... 313

EJ Coalition of Water.......................................................................................... 313

13.3.11.Environmental Documentation ................................................................................. 313

COMMENT SUMMARY ................................................................................................ 313

AGENCIES’ SUMMARY RESPONSE .............................................................................. 313

SPECIFIC COMMENTS ................................................................................................. 314

Uintah County, Utah (Doc. #12720)................................................................... 314

13.4. NEPA ............................................................................................................................... 315

SPECIFIC COMMENTS ................................................................................................. 315

State of Alaska (Doc. #19465)............................................................................ 315

Kansas House of Representatives Committee on Energy & Environment (Doc. 

#4903) ................................................................................................................. 315

Kansas Senate Committee on Natural Resources (Doc. #4904)......................... 316

Kansas Senate Committee on Natural Resources (Doc. #15022)....................... 316

Senate Natural Resource Committee Garden City (Doc. #16427) ..................... 317

Mesa County, Colorado Board of County Commissioners (Doc. #12713)........ 317

Big Horn County Commission (Doc. #13599) ................................................... 318

Waters of the United States Coalition (Doc. #14589) ........................................ 318

South Big Horn County Conservation District (Doc. #17264)........................... 319

Idaho Association of Commerce and Industry (Doc. #15461) ........................... 319

CEMEX (Doc. #19470) ...................................................................................... 320

A. Schafer (Doc. #2743)..................................................................................... 320

J.R. Simplot Company (Doc. #15062)................................................................ 320

Jefferson Mining District (Doc. #15706)............................................................ 321

Westlands Water District (Doc. #14414)............................................................ 321

Colorado Water Congress Federal Affairs Committee (Doc. #14569)............... 323

Southern Company (Doc. #14134) ..................................................................... 323

Center for Biological Diversity, Center for Food Safety, and Turtle Island 

Restoration Network. (Doc. #15233).................................................................. 324

Center for Environmental Law and Policy (Doc. #15431)................................. 324

13.5. OTHER FEDERAL LAWS................................................................................................... 325

SPECIFIC COMMENTS ................................................................................................. 325

Kansas House of Representatives Committee on Energy & Environment (Doc. 

#4903) ................................................................................................................. 325

Kansas Senate Committee on Natural Resources (Doc. #4904)......................... 325

Gila River Indian Community (Doc. #13619).................................................... 326

Illinois Farm Bureau (Doc. #14070)................................................................... 327

Palm Beach County MS4 NPDES (Doc. #13218).............................................. 327

U.S. Chamber of Commerce (Doc. #14115)....................................................... 328
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

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Portland Cement Association (Doc. #13271) ..................................................... 329

CalPortland Company (Doc. #14590)................................................................. 330

National Association of Home Builders (Doc. #19540)..................................... 330

Ohio Coal Association (Doc. #15163)................................................................ 334

Utah Mining Association (Doc. #16349)............................................................ 335

North Dakota Soybean Growers Association (Doc. #14121)............................. 335

Jefferson Mining District (Doc. #15706)............................................................ 336

Central Arizona Project (Doc. #3267) ................................................................ 336

The Clean Energy Group Waters Initiative (Doc. #14616)................................ 337

CropLife America (Doc. #14630)....................................................................... 337

Red River Valley Association (Doc. #16432) .................................................... 339

13.6. SUPPLEMENTAL COMMENTS ON PROCESS CONCERNS AND ADMINISTRATIVE 

PROCEDURES .............................................................................................................................. 339

SPECIFIC COMMENTS ................................................................................................. 339

Western Urban Water Coalition (Doc. #0838) ................................................... 339

Department of Agriculture, New Mexico (Doc. #0854)..................................... 339

U.S. Congressman Chris Collins, U.S. House of Representatives et al. (Doc. 

#1434) ................................................................................................................. 340

New Mexico Farm and Livestock Bureau (Doc. #3969).................................... 340

Delta Conservation District (Doc. #4719.2) ....................................................... 340

Falls County, Texas (Doc. #4758)...................................................................... 341

House of Representatives, Alaska State Legislature (Doc. #4879) .................... 341

L. Banks (Doc. #5554.2)..................................................................................... 341

Montana Association of Counties (Doc. #7334.2).............................................. 342

West Virginia Attorney General, et al (Doc. #7988).......................................... 342

John Ford Ranch (Doc. #9512)........................................................................... 343

Eddy County Board of Commissioners (Doc. #9693)........................................ 343

O’Bannon Cook (Doc. #9878)............................................................................ 344

M. Seelinger (Doc. #12879)................................................................................ 344

Family Farm Alliance (Doc. #12983)................................................................. 345

Sitka Economic Development Association (Doc. #13023) ................................ 346

Todd Wilkinson (Doc. #13443).......................................................................... 346

Colorado Wastewater Utility Council (Doc. #13614) ........................................ 346

M. Smith (Doc. #14022)..................................................................................... 347

Plumas County Board of Supervisors (Doc. #14071)......................................... 347

Legislative Council on River Governance (Doc. #14791).................................. 347

Monarch-Chesterfield Levee District, St. Louis, Missouri (Doc. #14904) ........ 347

Devon Energy Corporation (Doc. #14916)......................................................... 348

The Heritage Foundation (Doc. #15055)............................................................ 349

Federal StormWater Association (Doc. #15161)................................................ 350

Southern Illinois Power Cooperative (Doc. #15486).......................................... 351

Western Landowners Alliance (Doc. #16553).................................................... 351

Salinas Valley Water Coalition (Doc. #15625) .................................................. 351

City of Jackson, Mississippi (Doc. #15766)....................................................... 351

Associated Governments of Northwest Colorado (Doc. #16434) ...................... 352

Cook County, Minnesota, Board of Commissioners (Doc. #17004).................. 352
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

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American Gas Association (Doc. #16173) ......................................................... 352

Atlantic Legal Foundation (Doc. #17361).......................................................... 354

R.D. Primrose (Doc. #18799) ............................................................................. 354

Anonymous (Doc. #18801)................................................................................. 355

Alcona Conservation District (Doc. #19345) ..................................................... 355

City of Morgan City, Louisiana (Doc. #19346).................................................. 355

D. Watson (Doc. #19347)................................................................................... 356

Western States Water Council (Doc. #19349).................................................... 357

M. Sedlock (Doc. #19524).................................................................................. 358

Alpine County Board of Supervisors, County of Alpine, California (Doc. #20492)

............................................................................................................................. 360

Upper Makefield Board of Supervisors Township, Upper Makefield Township, 

Bucks County, Pennsylvania (Doc. #20494)...................................................... 360

Michigan House of Representatives (Doc. #20504)........................................... 361

ATTACHMENTS AND REFERENCES............................................................................................. 361
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

15

Topic 13. PROCESS CONCERNS AND ADMINISTRATIVE 

REQUIREMENTS

Specific Comments

Committee on Space, Science and Technology (Doc. #16386)

13.1 To finalize a rule without fully addressing these issues would be arbitrary, capricious, and 

an abuse of discretion. Reflecting upon the evidence obtained by the Committee on 

Science, Space, and Technology and all other relevant information the Agency is aware 

of or has relied on, please respond to the following unanswered questions and detail how 

such responses were considered in this rulemaking.

2. Why did EPA write the rule and formally propose it before waiting for the Science 

Advisory Board completes their review process?

Agency Response: As noted above, the EPA developed a draft scientific 

assessment that is based on more than 1,000 pieces of previously peer-reviewed and 

publicly available literature. This draft report underwent an independent peer 

review prior to proposal and reflects edits made in response to that peer review, and 

received generally positive peer review feedback from the Science Advisory Board, 

which EPA addressed. The final rule is consistent with the best science, including 

information in the final Connectivity Report. 

13.2 7. When the SAB panel reviewing the science behind this Clean Water Act rulemaking 

meets publicly, EPA has refused to make a transcript of the proceedings available or an 

archived webcast for the public.

a. Why?

Agency Response: It has been a long-standing SAB practice that committee and 

panel meetings are not transcribed or recorded. Summary minutes of SAB 

committee and panel meetings are prepared and always made available to the 

public. Details regarding the conduct of SAB meetings are available on the SAB 

website at www.epa.gov/sab. The science report (Connectivity of Streams and 

Wetlands to Downstream Waters: A review and synthesis of the scientific evidence) 

is available online: http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=296414. 

The report was thoroughly reviewed by the agency’s independent Science Advisory 

board (SAB). The SAB has posted information on the background, process for the 

formation of the ad hoc review panel, advisory meetings and report development, 

and the final peer review report on their website: 

http://yosemite.epa.gov/sab/sabproduct.nsf/02ad90b136fc21ef85256eba00436459/772

4357376745f48852579e60043e88c!OpenDocument&TableRow=2.3#2. Summary 

notes (minutes) for each meeting of the ad hoc panel and chartered SAB concerning 

the Connectivity Report has been posted on the SAB page under the tab “Advisory 

Meetings and Report Development.” The agency’s response to the SAB’s final peer 
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

16

review report was posted on the same page as the Connectivity report under the tab 

“Related Links.”

13.3 Will you commit to make either the transcripts public or archived webcasts available to 

the public? Summaries of meetings are not adequate.

Agency Response: Live access by phone is available for most SAB committee and 

panel meetings. In addition, live streaming webcasts of SAB committee and panel 

meetings are provided if there is sufficient public interest in the proceedings. These 

webcasts are live events designed to share the real time public meeting with all 

interested parties who wish to watch or listen. The webcasts are not archived. The

SAB Staff Office makes all meeting materials available to the public, including draft 

and final reports.

13.4 9. Will you guarantee that all data supporting this rule is publically available?

Agency Response: The rulemaking process proceeded in a legally appropriate and 

transparent process consistent with the Scientific Integrity Policy and the 

Administrative Procedure Act. 

13.5 10. Does the SAB need permission from EPA to answer questions from Congress or the 

public?

Agency Response: The full policy on SAB interaction with Congress and the 

public is available at the SAB’s website at 

http://yosemite.epa.gov/sab/sabproduct.nsf/WebSABSO/PublicInvolvement?OpenDocum

ent With respect to certain congressional inquiries that implicate agency resources, 

discussions have been ongoing regarding the proper lines of communication 

between members of Congress and appointed members of the EPA’s federal 

advisory committees, including the Science Advisory Board.

13.6 11. Does the SAB or the SAB Chair need permission from EPA to testify before 

Congress?

Agency Response: SAB members are free to testify before Congress. However, 

SAB members are encouraged to not discuss topics specific to ongoing reviews until 

deliberations are completed and the final findings report is finalized and approved 

by the Chartered SAB. The EPA encourages panel Chairs to be the primary 

spokesperson for the panel and to respond to Congressional requests to testify. The 

full policy on SAB interaction with Congress and the public is available at the SAB’s 

website at 

http://yosemite.epa.gov/sab/sabproduct.nsf/WebSABSO/Membership%20Information?O

penDocument.

13.7 12. If the scientists on the SAB panel have legal questions, who do they ask? Do they 

have lawyers who are independent from EPA?

Agency Response: If scientists on an SAB panel have questions or require 

information from the EPA, they are instructed to contact the Designated Federal 

Officer (DFO) for the panel. The DFO then contacts the appropriate EPA office to 

obtain the information needed to respond to the questions. The agency’s primary 

source of expertise on legal matters is the EPA’s Office of General Counsel.
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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17

13.8 13. An early version of the "connectivity" report was reviewed in a process managed by a 

contractor, Eastern Research group. While your Agency has provided us with a list of 

individuals involved in that review, you have not released 1) the contractor-provided 

report, 2) the original EPA draft, or 3) the charge questions posed to these reviewers. 

Please provide those documents along with the contract agreement(s) and any related 

correspondence.

Agency Response: The contractor-provided report was part of the publicly 

available docket as a supporting document for the proposed rule since the opening 

of the public comment period. In the docket, the document is listed as “Post-Meeting 

Comments for First Peer Review of EPA’s Draft Report: Connectivity of Streams 

and Wetlands to Downstream Waters - A Review and Synthesis of the Scientific 

Evidence (independent external peer review report)” and is available at 

http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OW-2011-0880-0005. This 

document is arranged by the charge questions the EPA provided to the peer 

reviewers. 

13.9 25. EPA says it "consulted" with states, but in your June 11, 2014, testimony before the 

House T&I Committee you could not name a single state that has come out in support of 

the rule. That was over a month ago, and you promised to survey the states.

a. Please provide that survey and its results.

b. Detail the methodology that you used in conducting this "survey."

Agency Response: The contractor-provided report was part of the publicly 

available scope of Clean Water Act jurisdiction is an issue of broad importance to 

states and many states have asked the EPA to respond to Supreme Court decisions 

in SWANCC and Rapanos through rulemaking. The EPA worked closely with every 

state as a partner in the implementation of federal and state authorities and 

responsibilities. In this role, the EPA consulted early with states and state 

associations to develop the proposed rule.

As part of the agencies’ consultation process, the EPA held three in-person meetings 

and two phone calls in the fall and winter of 2011, to coordinate with state 

organization prior to beginning formal rulemaking. EPA also worked closely with 

states and municipalities after the rule was proposed. Organizations involved 

include the National Governors Association, the National Conference of State 

Legislatures, the Council of State Governments, the National Association of 

Counties, the National League of Cities, the U.S. Conference of Mayors, the County 

Executives of America, the National Associations of Towns and Townships, the 

International City/County Management Association, and the Environmental 

Council of the States (ECOS). In addition, the National Association of Clean Water

Agencies (NACWA) and the Association of Clean Water Administrators (ACWA) 

were invited to participate. As part of the consultation, 12 counties, eight 

associations and various state agencies and offices from five states (Alaska, 

Wyoming, Kansas, Tennessee, and Texas) submitted written comments. 

In addition, the EPA held numerous outreach calls with state and local government 

agencies seeking their technical input. More than 400 people from a variety of state 
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

18

and local agencies and associations, including the Western Governors’ Association, 

the Western States Water Council and the Association of State Wetland Managers 

participated in various calls and meetings. The agencies’ engagement with states 

continued through a series of conference calls organized by both the ACWA and the 

ECOS. The agencies included a detailed narrative of intergovernmental concerns 

raised during the course of the rule’s development and a description of the agencies’ 

efforts to address them with the final rule. 

13.10 27. You say that you have held a number of outreach sessions and listening sessions.

a. Summarize the over-all response from the manufacturing, mining, and construction 

groups. 

b. What have been their greatest concerns?

c. Detail the actions you have taken to address those concerns.

Agency Response: The agencies have received and processed over one million 

public comments submitted on the proposed rule. The agencies carefully considered 

comments submitted by industry groups as well as other stakeholders as they work 

to develop a final rule. 

The agencies included a detailed narrative of concerns raised by small entities 

during the course of the rule’s development and a description of the agencies’ 

efforts to address them with the final rule.

13.11 28. EPA keeps telling opponents of this rule to comment.

a. Do you have any legal obligation to make any changes based on the comments you 

receive?

Agency Response: Under the Administrative Procedure Act, the EPA and the 

Corps are required to solicit public comments on their proposed rule and to review 

the comments they received while developing a final rule. To the extent relevant 

issues are raised during the public comment period, the agencies have an obligation 

to consider them, and we expect to make improvements to the final rule in response 

to public comments. The agencies prepared a response to all comments received to 

accompany the final rule which will address the comments and outline how they 

were considered. 

13.12 b. EPA frequently mentions meetings and consultations with governments and 

businesses. What specifically did the Agencies change as a result of these meetings? (p. 6 

– 10)

Agency Response: The EPA and the Corps published a proposed rule, on which 

the agencies solicited public comments until November 14, 2014. As early as 2011, 

EPA conducted outreach to states, tribes and small businesses to help identify what 

the agencies should include in a proposed rule. For example, the EPA held a series 

of meetings and outreach calls with state and local governments and their 

representatives soliciting input on a potential rule to define “waters of the United 

States.” Similarly, the EPA determined to seek early and wide input from 
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

19

representatives of small entities, enabling the agencies to hear directly from these 

representatives prior to publishing a proposed rule. 

During the public comment period, the agencies met with stakeholders across the 

country to facilitate their input on the proposed rule. We talked with a broad range 

of interested groups including farmers, businesses, states and local governments, 

water users, energy companies, coal and mineral mining groups, and conservation 

interests. In October 2014, the EPA conducted a second small business roundtable 

to facilitate input from the small business community, which featured more than 20 

participants that included small government jurisdictions as well as construction 

and development, agricultural, and mining interests. Since releasing the proposal in 

March, the EPA and the Corps conducted unprecedented outreach to a wide range 

of stakeholders, holding nearly 400 meetings all across the country to offer 

information, listen to concerns, and answer questions. The agencies recently 

completed a review by the Science Advisory Board on the scientific basis of the 

proposed rule and will ensure the final rule effectively reflects its technical 

recommendations. These actions represent the agencies’ commitment to provide a 

transparent and effective opportunity for all interested Americans to participate in 

the rulemaking process.

The agencies prepared a report summarizing their small entity outreach, the results 

of this outreach, and how these results informed the development of this rule.1 By 

holding these meetings early in the rulemaking process, the agencies were able to 

hear from these entities at a time when their input could be subsequently reflected 

in specific regulatory text. For example, many stakeholders indicated that the 

proposed rule should specifically identify those ditches that are excluded from Clean 

Water Act jurisdiction, and the proposed rule does so. Similarly, several

stakeholders asked that the proposed rule clarify the jurisdictional relevance of 

breaks in the “ordinary high water mark,” whether they be natural or man-made, 

and the proposal does so. During the public comment period, the agencies received 

more specific input on their proposed regulatory text, and the agencies carefully 

considered in developing the final rule. The agencies prepared a response to 

comments document to accompany the final rule. A summary of these comments 

can be found in section 13.2.5 of this document and section 11.1 of Compendium 11.

Additional details on the comments received and agency responses can be found in 

the docket for this rule.

Utility Water Act Group (Doc. #0852)

13.13 Furthermore, several weeks into the comment period, certain documents referenced in the 

preamble to the proposed rule are not yet available on the agencies' websites or 

regulations.gov. For example, the preamble states that the agencies "prepared a report 

summarizing their small entity outreach to date" and that the report is "available in the 

docket," but there is no such document yet posted in the docket. 79 Fed. Reg. at 22,220.

(p. 2)

 

1 This report is available at http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OW-2011-0880-1927. 
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

20

Agency Response: All documents were posted and available in the docket on 

April 21, 2014. The small entities report could be found in the docket under Id. No. 

EPA-HQ-OW-2011-0880-1927. A revised copy can be found in the docket under Id 

No. EPA-HQ-OW-2011-0880. 

13.1. CONCERNS ABOUT TIMING/OVERLAP OF SCIENCE DOCUMENT AND REVIEW PROCESS

Agency Summary Response

This Summary Response addresses all comments in section 13.1.

Summary of Concerns About Timing/Overlap of the Science Report and Review Process

The majority of comments in this section expressed concern with the timing and sequencing of 

the science report and the proposed rule. Commenters suggested the agencies should have waited 

to publish the proposed rule until findings of the final science report could be included. Several 

commenters recommended the proposed rulemaking should have been stayed until the science 

report was finalized and the economic analysis was revised. Others requested an extension for 

proper consideration of the science report. 

Many commenters also suggested the sequencing of these documents did not provide adequate 

time to review and provide comment on the science report while it was undergoing review by 

EPA’s Science Advisory Board (SAB). Others suggested that this approach prevented the public 

from meaningful review of the science report prior to the submission of the proposed rule to the 

Office of Management and Budget (OMB).

The sequencing of the report and proposed rule caused many commenters to question the utility 

of a proposed rule based on a draft science report, the agencies’ use of the best available science 

to develop the proposed rule, correlation of the science to legislative language or the Supreme 

Court rulings, and the agencies’ adherence with agency standards for the peer-review process.

These concerns led many to interpret the rule as an expansion of federal jurisdiction with the 

agencies’ interpretation of the Clean Water Act (CWA).

Other commenters contended that it violated the APA to use a draft version of the Science 

Report as a basis for a rulemaking of this significance. Several commenters recommended that 

the Proposed Rule be withdrawn until the Science Report is finalized.

Agencies’ Summary Response Concerns About Timing/Overlap of the Science Report and 

Review Process Comments

The comments related to the adequacy of the opportunity for public comment on the Science 

Report and the results of review by the SAB are addressed in Compendium 9 - Comments on 

Scientific Evidence Supporting Rule, summary responses 9(a) and 9(b).

There is no basis for the commenters’ assertion that relying on a “draft” report for the proposed 

rule somehow violated the APA. The APA requires, in short, that the public have a meaningful 

opportunity to comment and that the final action be reasonably supported by the administrative 

record. Both requirements were met here. 
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

21

Nothing in the APA precludes an agency from relying on a draft report for a proposed rule. The 

label “draft” merely reflected that the analysis was subject to revision based on input by the SAB 

in its review and the public during the comment period. It turns the APA on its head to contend 

that the agencies were precluded from proposing a regulation until it has made definitive and 

final scientific conclusions prior to full airing of the issues during the rulemaking’s public 

process. 

Moreoever, as explained in Compendium 9 - Comments on Scientific Evidence Supporting Rule, 

summary response 9(e) the draft Report reflected a full and robust analysis of the available 

scientific information and was subject to peer review prior to submittal to the SAB and proposal 

of the rule. 

Specific Comments

Michigan Department of Environmental Quality (Doc. #5462.1)

13.14 Although Michigan agrees the United States Environmental Protection Agency (USEPA) 

should clarify the definition of Waters of the United States under the CWA, the State of 

Michigan would like to begin its comments by encouraging the USEPA to wait until the 

Science Advisory Board Draft Report "Connectivity of Streams and Wetlands to 

Downstream Waters" is complete and final before moving forward with a rule. As the 

purpose of this report is to summarize the current scientific understanding of the 

connections between streams and wetlands, and downstream waters, including physical, 

chemical, and biological connections that affect the condition or function of downstream 

waters, any final action to clarify jurisdictional waters under the CWA should be based 

on the final findings of this report, after consideration of public comments and 

independent peer review. In short, we believe a determination of this sort should be based 

on science. (p. 1)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Rural County Representatives of California (Doc. #5537)

13.15 At that time, the proposed Guidance was highly controversial, with many stakeholders, 

including RCRC, believed it to be a drastic de facto jurisdictional expansion by your 

agencies. We are disappointed that you have decided to essentially repackage the 

Guidance into a proposed rule before issuing the draft science report without extensive 

nationwide outreach to counties, farmers, landowners, and the other myriad stakeholders 

that this rule will impact should it be adopted. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

13.16 The rulemaking should not have been initiated before the issuance of the draft science 

report.
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

22

Your agencies have stated that the draft science report, “Connectivity of Streams and 

Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence” is 

informing the proposed rule. However, you are moving forward with the rulemaking 

before the report has been finalized and released, making it impossible to truly use the 

conclusions from the report to inform this proposal. Moving forward with the proposed 

rule before the science report is finalized is bad public policy and premature at best,

particularly when the proposal has the far-reaching impact that this one does. RCRC 

recommends that your agencies withdraw the rule so that a thorough review of the draft 

science report can be conducted before finalizing such a far-reaching regulatory proposal.

(p. 4)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Office of the Governor, State of Wyoming (Doc. #7181.1)

13.17 There is also a question on the validity of the upcoming "science report" - a still pending 

report that the EPA has said it is comfortable supports their proposal. The implication -

pre-knowledge of the conclusions of the science report not yet issued - raises concern. A 

report should not be developed to justify a pre-determined agency position as it appears 

may be the case here. Rather, science should be the neutral foundation to begin 

discussions with the states (where, for the most part, regulatory responsibility rests) and 

other interested partners. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Area II Minnesota River Basin Projects, Inc. (Doc. #7185.1)

13.18 It appears that the EPA and Corps of Engineers are expanding their jurisdiction with their 

interpretation of the Clean Water Act, and not with the actual intent of the Clean Water 

Act. The proposed rule relies on Connectivity of Streams and Wetlands to Downstream 

Waters: A Review and Synthesis of the Scientific Evidence, a draft report released by 

EPA's Science Advisory Board in September 2013. Policy decisions should be made on 

final and approved scientific bases, not ones in draft form. This report's conclusions, if 

enacted into law by the proposed rule, could establish categorical federal jurisdiction over 

tributaries, riparian areas, and floodplains without agencies conducting case-by-case 

analysis. (p. 1)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Pennsylvania Department of Environmental Protection, Office of Water Management (Doc. 

#7985

13.19 PADEP appreciates the opportunity to submit these comments to EPA and reserves the 

right to submit additional comments after review of the final Scientific Advisory Board 
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

23

report: Connectivity of Streams and Wetlands to Downstream Waters: A Review and 

Synthesis of the Scientific Evidence. (p. 1)

Agency Response: Thank you for your comment.

Commonwealth of Pennsylvania Department of Agriculture (Doc. #14465)

13.20 The proposed rule was premature in relation to the ongoing discussions with the 

Scientific Advisory Board (SAB). On the same day the draft Connectivity report was 

released to the public, the proposed rule was sent to the Office of Management and 

Budget (OMB) for interagency review. This is inappropriate and prevented the public 

from being able to provide meaningful comments on the proposed rule. The Connectivity 

report is the scientific basis the agencies rely on to support their proposed rule. The 

science should have been final prior to the proposed rule being developed.

Recently the agencies extended the public comment period, and weeks later the final 

Connectivity report was released. This extension fails to rectify the procedural failures of 

the agencies for not providing a final report in the proposed rule for comment when the 

rule was first released. The process of simultaneously evaluating the science during the 

comment process provides a major obstacle in providing substantive comments and 

recommendations regarding the scientific basis for the validity of the obligations 

established in the rule. It also implies that the scientific basis provided in the draft rule is 

irrelevant. (p. 3)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Virginia Department of Environmental Quality (Doc. #18760)

13.21 DEQ also believes that waiting to implement the rule making until after the Connectivity 

of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific 

Evidence report and EPA's Science Advisory Board (SAB) panel review were concluded 

would have better served the rule makers and states in understanding the Proposed Rule, 

and thus, may have reduced confusion and concern among state regulators. (p. 1 – 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

13.22 Apart from the content of the report, we note that the peer review and agency reliance on 

the report are fundamentally undermined by EPA’s failure to comply with peer review 

principles recognized by EPA and the Office of Management and Budget (OMB). OMB 

observes that “when an information product is a critical component of rule-making, it is 

important to obtain peer review before the agency announces its regulatory options so 

that any technical corrections can be made before the agency becomes invested in a 

specific approach or the positions of interest groups have hardened.”2Likewise, EPA 

 

2 OMB Final Information Quality Bulletin for Peer Review, 70 Fed. Reg. 2664, 2668 (Jan. 14, 2005)

(emphases added).
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

24

holds that peer review “is a process for enhancing scientific or technical work product so 

that the decision or position taken by the Agency, based on that product, has a sound, 

credible basis.”3 Because the proposed rule prematurely relied on a draft, incomplete, 

non-peer reviewed report, EPA and the Corps are already invested in an approach that 

may not be supported by the peer review process. Further, EPA’s release of a proposed 

rule before the peer review was completed may have caused bias in the peer review 

towards not only the conclusions reached in the Connectivity Report, but also the 

approach adopted by EPA and the Corps in the prematurely released proposed rule. Thus, 

the muddled process EPA took in promulgating a proposed rule before any scientific 

review was completed puts the proverbial cart before the horse, with a strong potential to 

create bias in both written products. (p. 14 – 15)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

California Department of Transportation, Division of Environmental Analysis (Doc. #19538)

13.23 11) The proposed change to the definition of WOUS relies on the scientific study recently 

conducted by the EPA titled Connectivity of Streams and Wetlands to Downstream 

Waters. This study is currently in the peer review process. While we recognize the intent 

of the proposed changes to this definition, and support the effort to clarify the extent of 

jurisdictional waters under the Clean Water Act, we recommend that you wait to finalize 

the proposed language until the peer review on the scientific study complete and the 

document is published. (p. 3)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Skamania County Board of Commissioners (Doc. #2469.1)

13.24 Proposed rule should follow, not precede, draft science report In addition to the 

aforementioned issues, we are also concerned with the sequence and timing of the draft 

science report, Connectivity of Streams and Wetlands to Downstream Waters: A Review 

and Synthesis of the Scientific Evidence, and how it fits into the proposed "waters of the 

U.S." rulemaking process, especially since the document will be used as a scientific basis 

for the proposed rule. Releasing the proposed rule before the connectivity report is 

finalized seems premature and the agencies may have missed a valuable opportunity to 

review comments or concerns raised in the final report that would inform development of 

the proposed rule. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

 

3 EPA, Science Policy Council, U.S. Environmental Protection Agency Peer Review Handbook, available at

http://www.epa.gov/peerreview/pdfs/peer_review_handbook_2006.pdf .
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

25

13.2. CONCERNS ABOUT TIMING AND PROCESS OF SCIENCE DOCUMENT

Specific Comments

County of El Dorado, California (Doc. #5483)

13.25 The Connectivity Report should be finalized prior to presenting the proposed rule for 

public review and comment. 

If the EPA's draft connectivity report is to be utilized as the culmination of scientific 

study related to defining connectivity for determining Waters of the United States, then it 

should be finalized before related rule changes are presented for public review and 

comment. Input by stakeholders regarding the draft connectivity report should be 

reviewed, and any resulting modifications to the draft Clean Water Act rule should be 

completed, prior initiation of a public comment period for the rule making. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

St. Johns County Board of County Commissioners (Doc. #5598)

13.26 The draft science report, Connectivity of Streams and Wetlands to Downstream Waters: A 

Review and Synthesis of the Scientific Evidence, is currently under peer review, and it is 

our understanding that the document will be used as a scientific basis for the proposed 

rule. Releasing the proposed rule before the connectivity report is finalized is premature 

and the agencies may have missed a valuable opportunity to review comments or 

concerns raised in the final report that would be useful in development of the proposed 

rule. (p. 1)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

The Carroll County Department of Land Use, Planning and Development (Doc. #6266.1)

13.27 In addition, the scientific report, Connectivity of Streams and Wetlands to Downstream 

Waters: A Review and Synthesis of the Scientific Evidence, should be finalized before a 

rule is proposed and public comment sought. Clearly, issuance of any proposed rules’ 

modifications is premature. (p. 1 – 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Iowa Department of Agriculture and Land Stewardship – State Soil Conservation Committee

(Doc. #7642)

13.28 We recognize that science-based research needs to lead the process, and to that end we 

propose EPA wait for the final version of “Connectivity of Streams and Wetlands to 

Downstream Waters: a Review and Synthesis of the Scientific Evidence” (connectivity 
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

26

report) plus the use of other relevant scientific data before making final rule definitions.

(p. 1)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Board of Douglas County Commissioners, Castle Rock, Colorado (Doc. #8145)

13.29 We recognize the EPA extended the comment period 25 additional days due to the 

anticipated Science Advisory Board (SAB) peer review report release to the public. We 

appreciate the extension of time, but an extension of 30 days or less is inadequate time 

for the County to review and provide meaningful comments on this SAB peer review 

report. In the future, we request that the EPA increase their extension of time to 60 days 

following the publication of new information during an official public comment period.

(p. 1)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Del Norte County, California (Doc. #8376)

13.30 • Proposed rule should follow, not precede, draft science report 

We are also concerned with the sequence and timing of the draft science report, 

Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of 

the Scientific Evidence, and how it fits into the proposed "waters of the U.S." rulemaking 

process, especially since the document will be used as a scientific basis for the proposed 

rule. Releasing the proposed rule before the connectivity report is finalized seems 

premature and the agencies may have missed a valuable opportunity to review comments 

or concerns raised in the final report that would inform development of the proposed rule.

(p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Aurora Water (Doc. #8409)

13.31 The draft Connectivity Report fails to correlate science with legislative language and 

previous Supreme Court rulings; and will not be available for review during this existing 

comment period. The "Connectivity Report" currently in draft and under review by the 

Scientific Advisory Board is supposed to summarize and synthesize the existing scientific 

literature with respect to the "connectivity" factors that include hydrology, chemical or 

biological connections. The available draft seems to consider connectivity as a zero sum 

activity - as either present or absent. This approach fails to recognize that connectivity 

can occur over a wide range of conditions from minor with little or no impacts, to direct, 

with major consequences. Also, the draft report states ... "over sufficiently long time 

scales all aquatic habitats are connected to downstream waters through the transfer of 

water chemicals and biota ..."; while broadly true, this statement is not the basis to 

regulate or determine what are presently WOTUS. 
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

27

Recommendation: The comment period on the proposed rule should be extended for an 

additional 60 days past the issuance of the final Connectivity Report so that comments 

regarding the proposed rule can be modified to incorporate the report's findings. (p. 4)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Carroll County Board of Commissioners, Maryland (Doc. #8667)

13.32 (...) We also note that the scientific report, Connectivity of Streams and Wetlands to 

Downstream Waters: A Review and Synthesis of the Scientific Evidence, has not yet been 

finalized. This important analysis should be completed and its assessments reviewed prior 

to any further action on the proposed rules. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

City of Copperas Cove, Texas (Doc. #14118)

13.33 EPAs decision to publish the proposed rules based on the Connectivity Report that has 

yet to be finalized is of great concern. The proposed rules will possibly inadequately 

address a scientific report that has yet to receive full public comment and clarity based on 

those concerns. (p. 1)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Lassen County Board of Supervisors (Doc. #17461)

13.34 The rulemaking should not have been initiated before the issuance of the draft science 

report

Your agencies have stated that the draft science report, "Connectivity of Streams and 

Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence" is 

informing the proposed rule. However, you are moving forward with the rulemaking 

before the report has been finalized and released, making it impossible to truly use the 

conclusions from the report to inform this proposal. Moving forward with the proposed 

rule before the science report is finalized is bad public policy and premature at best, 

particularly when the proposal has the far-reaching impact that this one does. RCRC 

recommends that your agencies withdraw the rule so that a thorough review of the draft 

science report can be conducted before finalizing such a far-reaching regulatory proposal. 

(p. 3)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Department of Public Works, County of San Diego, California (Doc. #17920)

13.35 13. Scientific basis of connectivity report
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

28

The new rule should be proposed only after the scientific basis has been fully vetted. The 

sequence and timing of the draft scientific report, Connectivity of Streams and Wetlands 

to Downstream Waters: A Review and Synthesis of the Scientific Evidence (Connectivity 

Report), and how it was utilized during the "Waters of the U.S." rulemaking process, is 

cause for concern. The agencies released the Connectivity Report in draft form at the 

same time as the proposed rule, rather than allowing review prior to developing the 

proposed rule. This sequence did not allow time for the public to comment on the draft 

Connectivity Report prior to rulemaking, nor did it provide the agencies time to review, 

address comments and concerns, and update the proposed rule accordingly. Comments 

and concerns on the Connectivity Report could provide valuable feedback that should be 

incorporated into the proposed rule. The County requests that the agencies consider all 

comments and feedback on the connectivity report (including those released on from the 

Science Advisory Board on October 24, 2014), revise accordingly, and re-release the 

report and the proposed draft rule in an appropriate sequence to allow for meaningful 

review and comment on each.

EXAMPLE: Typically, the sequence outlined for background reports to influence the 

design of rules and regulations includes a comment period, along with additions, input 

and revisions prior to release of a final report. After the final report is completed, 

proposed rules are then developed utilizing the final report as a basis. This process was 

not followed for the proposed Waters of the U.S. rule. (p. 9 – 10)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

City of St. Petersburg (Doc. #18897)

13.36 (...) 11. The proposed rule should not be settled until the EPA Draft Science Report is 

finalized. Much of the science cited too in the rule comes from the draft report and is 

used to justify new definitions for "tributary," "significant nexus," and "adjacent waters." 

Until this draft report is finalized, the validity of the science behind the new definitions is 

speculative at best. (p. 4)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Hidalgo Soil and Water Conservation District, Lordsburg, New Mexico (Doc. #19450)

13.37 Document Availability: EPA’s Office of Research and Development’s report, 

“Connectivity of Streams and Wetlands: A Review and Synthesis of the Scientific 

Evidence,” the document, upon which all of these definitional changes are based, was not 

complete at the time of publication of the proposed rule. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

29

Mississippi Valley Flood Control Association (Doc. #19488)

13.38 The Proposed Rule Reflects an Improper Disregard of Science As noted above, EPA’s 

draft scientific report on connectivity, which the agencies purport to rely on as the 

foundation of the Proposed Rule, has not yet been peer-reviewed or finalized. The draft 

report was sent to the SAB to begin undergoing review on the same day the Proposed 

Rule was sent to OMB to undergo interagency review. So, the public will be denied the 

opportunity to comment on the final report that the agencies will use as the basis for their 

final rule. The agencies’ rulemaking process is entirely disordered; the scientific analysis 

supporting a rulemaking should always be conducted and finalized before the rule is 

proposed, particularly where, as here, the relevant scientific and legal concepts are 

exceptionally intertwined. The agencies should extend the Proposed Rule’s public 

comment period to a date at least 90 days after the final report is issued to allow for 

adequate review of this fundamental document. (p. 10 – 11)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Maui County (Doc. #19543)

13.39 The County of Maul further requests that the EPA and Corps stay the current rulernaklng 

process until the scientific assessment is final and the credibility of the EPA's "A Review 

and Synthesis of Scientific Evidence" ("Connectivity Report") is established and the 

agencies have sufficient scientific and technical foundation for the proposed rule, and 

further stay the rule until the EPA conducts a complete cost-benefit study, as required by 

Executive Order 13563. The County of Maui requests that the agencies analyze the 

specific impacts of the proposed rule on each region of the U.S.,with Hawaii being 

considered as a separate region. (p. 1)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Navajo County Board of Supervisors, Arizona (Doc. #19569)

13.40 The proposed rule should follow, not precede, the science report

In addition to the aforementioned issues, Navajo County is concerned with the sequence 

and timing of the science report, Connectivity of Streams and Wetlands to Downstream 

Waters: A Review and Synthesis of the Scientific Evidence, and how it fits in the 

proposed “waters of the U.S.” rulemaking process, especially since the document will be 

used as a scientific basis for the proposed rule. Releasing the proposed rule before the 

connectivity report is finalized seems premature and the agencies may have missed a 

valuable opportunity to review comments or concerns raised in the final report that would 

inform development of the proposed rule. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

30

Mesa County, Colorado Board of County Commissioners (Doc. #12713)

13.41 Mesa County respectfully requests that the United States Environmental Protection 

Agency (EPA) and USACE:

1. Stay the current rulemaking process until the scientific assessment is final and the 

credibility of the Connectivity Report is established and the Agencies have the necessary 

scientific and technical foundation for the Proposed Rule;

2. Stay the rulemaking process until the EPA's Economic Analysis is revised and the EPA 

is able to conduct a complete cost-benefit study;

3. Revise the Proposed Rule based upon the findings and recommendations of the 

Connectivity Report and Economic Analysis and the comments submitted by 

stakeholders; and

4. Conduct a negotiated rulemaking process. (p. 1 – 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

California Building Industry Association et al. (Doc. #14523)

13.42 As explained in greater detail herein, our concerns with the Proposed Rule include: 

(...) Circulation of the Proposed Rule and solicitation of comments thereon prior to 

completion of the scientific analysis and review purportedly underpinning the entire 

Proposed Rule; (...) (p. 4)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Unites States Steel Corporation (Doc. #15450)

13.43 The proposed rule was developed via a flawed process, where the rule was developed 

before review of the underlying science is complete. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Contra Costa County Public Works Department (Doc. #15634)

13.44 4. The rule-making process should be suspended until the EPA Scientific Advisory 

Board's peer review of the Connectivity Report is complete. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Beaverhead County Commissioners (Doc. #16892)

13.45 We are also concerned with the sequence and timing of the draft science report, 

“Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis 
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

31

of the Scientific Evidence,” and how it fits into the proposed “waters of the U.S.” 

rulemaking process, especially since the document will be used as a scientific basis for 

the proposed rule. Rulemaking should follow science, not the inverse. It seems only 

prudent to wait until the Connectivity Report is finalized so comments or concerns from 

the Final Report can be addressed in the development of the proposed rule. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Water Advocacy Coalition (Doc. #17921.1)

13.46 (...) The proposed rule was developed via a flawed process before review of the 

underlying science was complete. (p. 14)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

American Concrete Pressure Pipe Association (Doc. #3306)

13.47 Furthermore, the NPRM was released before an agency study on the connection between 

intermittent waters and wetlands to larger bodies of water was finalized and placed in the 

docket. Before proceeding, the EPA must comply with basic rulemaking requirements.

(p. 1)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

County of San Diego (Doc. #14782)

13.48 13: Scientific basis of connectivity report

The new rule should be proposed only after the scientific basis has been fully vetted. The 

sequence and timing of the draft scientific report, Connectivity of Streams and Wetlands 

to Downstream Waters: A Review and Synthesis of the Scientific Evidence (Connectivity 

Report), and how it was utilized during the "Waters of the U.S." rulemaking process, is 

cause for concern. The agencies released the Connectivity Report in draft form at the 

same time as the proposed rule, rather than allowing review prior to developing the 

proposed rule. This sequence did not allow time for the public to comment on the draft 

Connectivity Report prior to rulemaking, nor did it provide the agencies time to review, 

address comments and concerns, and update the proposed rule accordingly. Comments 

and concerns on the Connectivity Report could provide valuable feedback that should be 

incorporated into the proposed rule. The County requests that the agencies consider all 

comments and feedback on the connectivity report (including those released on from the 

Science Advisory Board on October 24, 2014), revise accordingly, and re-release the 

report and the proposed draft rule in an appropriate sequence to allow for meaningful 

review and comment on each.

EXAMPLE: Typically, the sequence outlined for background reports to influence the 

design of rules and regulations includes a comment period, along with additions, input 
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

32

and revisions prior to release of a final report. After the final report is completed, 

proposed rules are then developed utilizing the final report as a basis. This process was 

not followed for the proposed Waters of the U.S. rule. (p. 9 – 10)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Mississippi Farm Bureau Federation (Doc. #14464)

13.49 We are concerned that EPA chose to publish the WOTUS proposed rule before the 

Scientific Advisory Board (SAB) has had an opportunity to review and provide comment 

on the "Connectivity of Streams and Wetland~ to Downstream Waters: A Review and 

Synthesis of the Scientific Evidence" (Connectivity Study). (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Riverport Levee District (Doc. #15655)

13.50 d. Jurisdiction is improperly expanded as the science supporting the sought after 

connectivity has not been supplied. 

The Agencies published the proposed rule prior to the science upon which it is 

supposedly based having been finalized; something that should have occurred prior to the 

proposed rule having ever been formulated. EPA's Connectivity Report is still not 

finalized and has only recently been peer-reviewed. While the Report documents the 

presence of connections between waterbodies, it appears to fail in supplying the scientific 

basis needed to determine when such connections may or may not significantly affect 

downstream waters. The voluminous amount of data released after publication of the 

proposed rule is too complex to have reviewed in the limited time allowed, and specific 

scientific comments cannot be provided. Instead, we offer that when policy is crafted and 

an implementing rule drafted all in advance of peer-reviewed sound science being 

published, transparency is lost and data driven decision-making has not occurred. Going 

forward the Agencies intend that all adjacent waters be categorized as jurisdictional, 

claiming a significant nexus to jurisdictional waters. Under the proposed rule, all 

tributaries (including ephemeral streams and manmade ditches which may be dry most of

the year), all adjacent waters and all adjacent wetland would be subject to federal 

jurisdiction. Drainage ditches would be considered jurisdictional unless they fall under 

one of the two categorical exclusions: 1) those ditches located in uplands with less than 

perennial flow (another undefined term used in the proposed rule for which there are 

varying working definitions), and 2) those ditches that do not contribute flow either 

directly or indirectly to jurisdictional waters. The basis for this expanded jurisdiction is 

deeply flawed in that it relies on a faulty construction of the significant nexus text and is 

not shown to be supported by sound science. This ill-founded and improper action, 

considering the predictable outcome of expanded jurisdiction and regulatory authority, is 

arbitrary and capricious. (p. 4)
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

33

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Mendocino County Farm Bureau (Doc. #16648)

13.51 The Draft Science Report

It is stated that the draft science report, "Connectivity of Streams and Wetlands to 

Downstream Waters: A Review and Synthesis of the Scientific Evidence" is informing 

the proposed rule. However, this Rule development process was started prior to the 

issuance of the draft science report which impacted the ability for those that have 

submitted comment on the Rule to fully review the scientific merit, or lack thereof, as 

related to the Rule. (p. 3)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Montana Stockgrowers Association (Doc. #16937)

13.52 Use of Draft Report Is a Procedural Flaw. One of our first concerns is the use of the Draft 

Report: Connectivity of Streams and Wetlands to Downstream Waters, as a basis for the 

foundation for the development of the proposed rule. Even though the Report is under 

review by EPA's Science Advisory Board, and will not be finalized until that review and 

the final Report are complete, this clearly presents a procedural flaw. We believe it is 

premature to develop a rule based on a Draft Report and not provide an adequate 

opportunity for the public to comment on the "Final" Report prior to its utilization in the 

development of this rule. (p. 5)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

San Joaquin River Exchange Contractors Water Authority (Doc. #1351)

13.53 I am respectfully requesting an extension of the public comment period for an additional 

90 days from the current due date of July 21, 2014, or for 90 days from the release of the 

final connectivity report by the EPA (whichever is later) on the Environmental Protection 

Agency and U.S. Army Corps of Engineers' Proposed Rule Defining "Waters of the 

United States" Under the Clean Water Act. 76 Fed. Reg. 22,188 (Apr. 21, 2014). (p. 1)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

National Waterways Conference, Inc. (Doc. #12979)

13.54 The agencies’ rulemaking process is entirely disordered. The scientific analysis 

supporting a rulemaking should be conducted and finalized before the rule is proposed, 

particularly where, as here, the relevant scientific and legal concepts are intertwined. In 

this instance, the troubling conclusion is that the agencies set the policy goal of greater 

control of land use decisions first and only afterwards sought for a rationale. (p. 12)
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

34

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Senators Jeff Flake and John McCain (Doc. #1377)

13.55 (...) In addition, we find it troubling that EPA is using a draft report, entitled 

Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of 

the Scientific Evidence, as support for this proposed rule. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

United States House of Representatives (Doc. #17457)

13.56 I also find it troubling that an agency such as yours, which normally roots its rulemaking 

processes in sound science, sent its draft rule to the Office of Management and Budget on 

September 17, 2013 — the same day the EPA submitted its scientific study justifying the 

redefinition to its own, non-peer reviewed Scientific Advisory Board. Not only is that 

headlong sprint towards finalization a violation of the White House's own internal 

regulatory guidelines, it underscores that this rulemaking is a product of the EPA's 

political agenda, rather than the result of new scientific findings. (p. 1 – 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

United States House of Representatives (Doc. #17464)

13.57 Furthermore, the scientific report — which the agencies point to as the foundation of this 

rule — has yet to be either peer-reviewed or finalized. The EPA's draft study, 

"Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis 

of the Scientific Evidence," was sent to the EPA's Science Advisory Board to begin 

review on the same day the rule was sent to OMB for interagency review. The science 

should always come before rulemaking, especially in this instance where the scientific 

and legal concepts are inextricably linked. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

13.2.1. SAB Review of Rule

Specific Comments

Nevada County Board of Supervisors, State of California (Doc. #18894)

13.58 (...) 6) The agencies state that their decision on how best to address jurisdiction over 

"other waters" in the final rule will be informed by the final version of the EPA's Office 

of Research and Development synthesis of published peer-reviewed scientific literature in 
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

35

a report entitled Connectivity of Streams m1d Wetlands to Downstream Waters: A 

Review of the Synthesis of the Scientific Evidence. While it makes sense to study 

published and peer-reviewed scientific reports in developing the proposed rule, the rule 

should not have been released until the SAB's review and subsequent final report are 

complete and available for consideration during the public comment period on the rule.

(p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

California Building Industry Association et al. (Doc. #14523)

13.59 VI. LACK OF SCIENTIFIC JUSTIFICATION: IT IS INAPPROPRIATE TO 

CIRCULATE THE PROPOSED RULE FOR PUBLIC COMMENT PRIOR TO FINAL 

COMPLETION AND REVIEW OF THE CONNECTIVITY REPORT

Placing the proverbial “cart” before the “horse,” the Agencies are conducting the public 

comment period for the Proposed Rule while admitting that the purported scientific 

foundation justifying the Proposed Rule’s sweeping exertion of categorical jurisdiction 

on an unprecedented level, the Connectivity Report, remains a work in progress. See 

Proposed Rule at 22,190. Indeed, the SAB itself has recommended further analysis and 

numerous changes to the Connectivity Report.4

Dr. Mark Murphy of the SAB panel put it well:

I must say I am puzzled as to why EPA has decided to release the Proposed 

Rule before receipt of our review of the Connectivity Report . . . The usual 

protocol in science is not to release a report before the review is complete, the 

purpose being to allow a frank and honest appraisal of the work before 

positions are ‘hardened’ . . . The sequence employed by EPA suggests to the 

public that there is no critical input needed by the SAB—just a few minor 

additions . . . In point of fact, the SAB Review suggested that some major 

additions be made to the Connectivity Report.5

SAB Panel Comments on Proposed Rule at 56.

Absent meaningful consideration of the significance of each alleged nexus’s effect on a 

traditional navigable water, there can be no credible assertion of jurisdiction, categorical 

or otherwise. (p. 26 – 27)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

 

4

See Draft SAB Review of the Draft EPA Report Connectivity of Streams and Wetlands to Downstream Waters 

(Aug 11, 2014), available at 

http://yosemite.epa.gov/sab/SABPRODUCT.NSF/ea5d9a9b55cc319285256cbd005a472e/212bb1480331835285257

d350041a1c0!OpenDocument.

5

SAB Panel Comments on Proposed Rule at 56.
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

36

Colorado Association of Commerce and Industry (Doc. #16172)

13.60 The research findings which the Agencies have relied upon to support the proposed rule 

were not fully or even partially vetted by scientific peer reviews and at the same time 

have not been readily available for the public to access. (p. 1)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Family Farm Alliance (Doc. #17459)

13.61 The EPA’s proposed rule purports to rely on the scientific conclusions of the EPA’s draft 

connectivity report, which is currently under review by the Science Advisory Board 

(SAB).

Given this ongoing SAB Panel review of the adequacy of the science to support the 

proposed rule, commenters should have at least an additional 90 days from the time when 

EPA completes its review of the science and issues a final connectivity report to 

comment on the proposed rule.

There are numerous places throughout the preamble to the proposed rule wherein the 

agencies have asked the public to provide specific information regarding the proposed 

rule’s scientific justifications. The purpose of the SAB Panel review of the draft 

connectivity study was to evaluate the “evolving scientific literature on connectivity of 

waters,” and the public deserves the opportunity to comment on the conclusion of that 

review process.

A significant amount of time and technical expertise will be required first to evaluate the 

report from the SAB Panel and agencies’ scientific conclusions and responses and then to 

prepare substantive and thoughtful responses. The comment period should be extended to 

give stakeholders that additional time needed to review these lengthy, complex scientific 

analyses and provide meaningful feedback. (p. 2 – 3)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Associated Industries of Florida (Doc. #19325)

13.62 Second, the Agencies should await completion of the review being conducted by 

USEPA's Science Advisory Board, and further extend the comment period deadline if 

necessary to allow interested parties to see the Board's review before the comment 

deadline. Doing so is only fair to interested parties who would like to know the rule's 

final form before being required to submit comments. (p. 3)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

37

13.2.2. Connectivity Study

Specific Comments

Kansas Senate Committee on Natural Resources (Doc. #15022.1)

13.63 Because court rulings do not supersede legislative mandates and longstanding protocols 

require administrative rules to be based upon peer-reviewed science, this committee 

needs to understand the scientific and procedural processes EPA used to develop, 

circulate and revise its Connectivity Report. 6I am particularly interested in comments 

EPA received from the peer-review community prior the March, 2014 publication of 

WOWS in the Federal Register. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Sealaska Corporation (Doc. #15356)

13.64 VI. COMMENTS ON CONNECTIVITY REPORT

The EPA report is a synthesis of peer-reviewed scientific literature on the connectivity of 

streams and wetlands. It is a large-scale review that relies on a broad array of scientific 

literature documenting research nationwide and indeed worldwide. However the report 

lacks Alaska specific information and references. The report explores three main methods 

of stream and wetland connection (physical, chemical and biological) and discusses 

hundreds of scientific studies. It does not however explain how waters and wetland 

systems that may be hydrologically connected demonstrate a significant nexus and 

therefore on its own does not support the agency’s jurisdiction by rule.

Sealaska objects to backwards process employed by EPA of identifying science to 

support already reached conclusions to support the proposed rulemaking. The process 

should start with applicable science and then establish conclusions. Backwards process 

EPA has used not consistent with rule making. (p. 22)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Indiana Department of Environmental Management (Doc. #16440)

13.65 1. The Proposed Rule is premature and inappropriately relies on the draft Connectivity 

Report. 

The U.S. EPA relied on a draft report entitled "Connectivity of Streams and Wetlands to 

Downstream Waters: a Review and Synthesis of the Scientific Evidence" for the scientific 

support for the Proposed Rule. However, this report had not been released when the 

 

6 Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence. 

EPA/611/R-R98B. September, 10, 2013.
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

38

Proposed Rule was issued, and it still has not been adequately peer-reviewed. It is 

extremely difficult, if not impossible, to appropriately respond to, and comment on, a 

proposed ruled based on a draft scientific study. The Proposed Rule should be withdrawn 

and held until after the report is finalized and has undergone a thorough peer-review 

process. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

New Mexico Environment Department (Doc. #16552)

13.66 The "Connectivity Report"

13.67 The Department is alarmed by the timing and final comment on the Agencies' supporting 

scientific document titled the Connectivity of Streams and Wetlands to Downstream 

Waters: A Review and Synthesis of the Scientific Evidence ("Report”).7According to the 

Federal Register notice, the Agencies' assertion of jurisdiction is based on the Report. 79 

Fed. Reg. 22,180, 22,190. Because the Report was in draft form when the proposed rule 

was published, the Agencies agreed to postpone the proposed rule's final adoption until 

the Science Advisory Board ("SAB") issued their findings and recommendations. Id. On 

September 30, 2014, the SAB issued its summary findings on the technical and scientific 

basis of the proposed rule. Dr. David T. Allen, Chair, Science Advisory Board, "Science 

Advisory Board (SAB) Consideration of the Adequacy of the Scientific and Technical 

Basis of the EPA 's Proposed Rule titled "Definition of Waters of the United States under 

the Clean Water Act" (Sept. 30, 2014).8 The SAB also issued a more detailed review of 

the Report on October 17,2014. Dr. David T. Allen, Chair and Dr. Amanda D. Rodewald, 

Chair, Science Advisory Board SAB Panel for the Review of the EPA, Water Body 

Connectivity Report, "SAB Review of the Draft EPA Report Connectivity of Streams and 

Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence" 

17, 2014).9 Such a late release of the final Report and SAB comments, only 45 days 

from the public comment deadline, provides inadequate time to submit substantive 

comments on such an important document. (p. 10 – 11)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

State of Oklahoma et al. (Doc. #16560)

13.68 b. Cart before the horse

 

7 The Agencies draft Report, dated September, 2013, was marked "draft-do not cite or quote."

8 Available at 

http://yosemite.epa.gov/sab/sabproduct.nsf/0/518D4909D94CB6E585257D6300767DD6/$FileIEPASAB14-007 +unsigned.pdf.

9 Available at

http://yosemite.epa.gov/sab/sabproduct.nsfl02ad90b136fc21ef85256eba00436459/AF1A28537854F8AB85257D740

05003D2/$FileIEPA-SAB-15-001+unsigned.pdf.
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

39

Further, it defies logic and scientific reason that EPA and the Corps would expedite 

submittal of the draft Connectivity Report10 of the EPA Science Advisory Board (SAB) 

at the same time they submitted the proposed rule to OMB. As a scientist, I am concerned 

by what can only be described as an effort to effectively cut off the ongoing scientific 

deliberation vital to the fundamental questions underlying this proposed rule. Such a 

rushed, uncollaborative process is foreign to state regulatory agencies like the OWRB 

that are often engaged in developing highly technical rules over extended periods of time 

with multiple opportunities for input, first by the scientist that help better inform the 

decision-making process, then by those burdened with implementing or complying with 

such rules. (p. 8 – 9)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

State of Idaho (Doc. #16597)

13.69 EPA and the Corps should finalize the Connectivity Report before proceeding with any 

action regarding the Proposed Rule. EPA's Science Advisory Board (SAB) is reviewing a 

draft report on the connectivity of differing water bodies that will inform the Final Rule. 

Despite requests from the Western Governors' Association, the Western States Water 

Council, and others, EPA and the Corps published the Proposed Rule for public comment 

before SAB completed its review and before the report was finalized.

More recently, EPA and the Corps indicated they will wait until the Connectivity Report 

has been completed before issuing a Final Rule. The State of Idaho appreciates this 

decision. However, EPA and the Corps also should continue to accept comments for a 

reasonable period of time after the Connectivity Report is complete in order to utilize the 

Report and such comments to revise or otherwise develop the Proposed Rule. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Franconia Township (Doc. #8661)

13.70 We also believe that the underlying science of the proposed rule has not been fully vetted 

by the agencies in collaboration with the public to allow the rule to move forward. We 

request that a public comment period be opened on the final Connectivity Report 

currently under review by the Science Advisory Board (SAB) of the EPA when the report 

is finalized with the SAB recommendations attached. This report should be finalized, 

with a public comment period, prior to the closing of the comment period on the 

proposed rule. (p. 1)

 

10 U.S. Environmental Protection Agency, Connectivity of Stream and Wetlands to Downstream Waters: A Review

and Synthesis of the Scientific Evidence, EPAl660R-111098B (Sept. 2013), available at: 

http://yosemite.epa.gov/sab/sabproduct.nsf/fedrgstr_activites/7724357376745F48852579E60043E88C/$File/WOUS

_ERD2_Sep2013.pdf
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

40

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Maricopa County Board of Supervisors (Doc. #14132.1)

13.71 The Connectivity Study The study, labeled "Connectivity of Streams and Wetlands to 

Downstream Waters: A Review and Synthesis of the Scientific Evidence," provides the 

scientific underpinnings for the proposed rule, so EPA should permit public comment on 

the completed study. Unfortunately, EPA did not release this study until October 17, 

2014, less than a month before comments of the proposed rule are due. This is 

insufficient time to properly review and analyze the document, especially because the 

document regularly suggests that further research and refinements are still needed. (p. 3)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

City of Golden Public Works, Colorado (Doc. #14617)

13.72 The proposed rulemaking should be delayed until a final version of the Connectivity 

report is issued and impacted entities are able to review and comment. Once the final 

version of the Connectivity Report is finalized and any revisions to the Proposed Rule are 

complete, additional and ample time for all impacted entities to review and comment 

should be provided in order to generate the most effective rule. (p. 3)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

San Joaquin County Board of Supervisors (Doc. #15017)

13.73 We also believe that the underlying science of the proposed rule has not been fully vetted 

by the agencies with the public. We request that a public comment period be opened on 

the final Connectivity Report when the EPA's Science Advisory Board (SAB) completes 

its review. This report should only be finalized subject to a public comment period, prior 

to the closing of the comment period on the proposed rule. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

National Association of Counties (Doc. #15081)

13.74 The SAB recommendations have yet to be incorporated into the draft connectivity report. 

Releasing the proposed rule before the connectivity report is finalized is premature—the 

agencies missed a valuable opportunity to review comments or concerns raised in the 

final connectivity report that would inform development of the proposed “waters of the 

U.S.” rule.

Recommendations:
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

41

Reopen the public comment period on the proposed “waters of the U.S.” rule when 

the Connectivity of Streams and Wetlands to Downstream Waters: A Review and 

Synthesis of the Scientific Evidence report is finalized. (p. 7)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

City of Poway, California (Doc. #15156) 

13.75 The proposed rule should be drafted and reviewed after the scientific report used to 

justify the proposed rule is completed. We are concerned with the sequence and timing of 

the draft scientific report, Connectivity of Streams and Wetlands to Downstream Waters: 

A Review and Synthesis of the Scientific Evidence, and how it fits into the proposed 

WOTUS rulemaking process, especially since the document will be used as a scientific 

basis for the proposed rule. Releasing the proposed rule before the scientific report is 

finalized seems premature and the agencies may miss a valuable opportunity to review 

issues raised in the final report that would aid in the development of the proposed rule. (p. 

2 – 3)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Carroll County Board of Commissioners (Doc. #15190)

13.76 We also note that the scientific report, Connectivity of Streams and Wetlands to 

Downstream Synthesis of the Scientific Evidence, has not yet been finalized. This 

important analysis should be completed and its assessments reviewed prior to any further 

action on the proposed rules. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Fort Bend Flood Management Association (Doc. #15248)

13.77 d. Jurisdiction is improperly expanded as the science supporting the sought after 

connectivity to establish jurisdiction has not been supplied.

The Agencies published the proposed rule prior to the science upon which it is 

supposedly based having been finalized, something that should have occurred prior to the 

proposed rule having ever been formulated. EPA’s Connectivity Report is still not 

finalized and has only recently been peer-reviewed. While the report documents the 

presence of connections between waterbodies, it appears to fail in supplying the scientific 

basis needed to determine when such connections may, or may not, significantly affect 

downstream waters. The voluminous amount of data released after publication of the 

proposed rule is too complex to have reviewed in the limited time allowed, and specific 

scientific comments cannot be provided. Instead, we offer that when policy is crafted and 

an implementing rule drafted all in advance of peer-reviewed sound science being 

published, transparency is lost and data driven decision-making has not occurred. (p. 5)
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

42

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Sacramento County, California (Doc. #15518)

13.78 Proposed rule should follow, not precede, draft science report

In addition to the aforementioned issues, we are also concerned with the sequence and 

timing of the draft science report, Connectivity of Streams and Wetlands to Downstream 

Waters: A Review and Synthesis of the Scientific Evidence, and how it fits into the 

proposed "waters of the U.S." rulemaking process, especially since the document will be 

used as a scientific basis for the proposed rule. Releasing the proposed rule before the 

connectivity report is finalized seems premature and the agencies may have missed a 

valuable opportunity to review comments or concerns raised in the final report that would 

inform development of the proposed rule. (p. 3)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Republican River Water Conservation District (Doc. #15621)

13.79 8. The Rulemaking Process Should Be Stayed Pending Completion of the 

Connectivity Report

According to the preamble, the EPA's "Connectivity of Streams and Wetlands to 

Downstream Waters: A Review and Synthesis of the Scientific Evidence" report forms the 

scientific basis for the proposed rule. This report remains in draft form and a review of 

the report by the Science Advisory Board ("SAW) was only recently completed. The 

EPA has stated that it intends to review the final report issued by the SAB and ' W e any 

adjustments to the final rule that are appropriate. . . ." While the RRWCD appreciates the 

fact that the original comment period was extended, the decision to push forward and 

solicit public comment before the scientific inquiry is complete has made it difficult to 

prepare meaningful and comprehensive comments on the rule. Rather than forge ahead, 

the better approach is to either withdraw the rule or extend the public comment period to 

allow for a thorough review of the SAB's report and time to modify the proposed rule, as 

may be warranted. (p. 8 – 9)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

City of Poquoson (Doc. #17358)

13.80 The rule is based on an unfinished document: The scientific basis for this proposed rule 

was the draft report "Connectivity of Streams and Wetlands to Downstream Waters: A 

Review and Synthesis of the Scientific Evidence." Releasing the proposed rule before the 

connectivity report was finalized was premature and resulted in the agencies missing 

valuable comments or concerns on the draft report that should have informed the 

rulemaking process. (p. 3)
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

43

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

State of Wyoming (Doc. #14584)

13.81 The lack of a timely release of the science report and the lack of concrete and applicable 

conclusions are serious problems. After withdrawing the 2011 guidance, the Agencies 

appeared to recognize the need for a scientific approach. A "scientific report" was the 

result. See Connectivity of Streams and Wetlands to Downstream Waters: A Review and 

Synthesis of the Scientific Evidence, Washington, DC: U.S. Environmental Protection 

Agency (preliminary draft 2013). Yet the Agencies failed to wait for the final scientific 

report prior to issuing the proposal, calling into question the integrity of both the report 

and the proposed rule.

The Agencies put the cart before the horse. They released a rule supposedly backed by 

science before the science was known and without time for analysis by commenters. 

When pressed, the EPA has indicated that the conclusions of the science report were 

unnecessary to those developing comments as the science was already "known." The 

draft report included information that essentially described the hydrologic cycle. The 

reasoning - all water is connected according to the laws of physics so a nexus exists and 

therefore all waters should fall under federal jurisdiction - is not sound and falls short. It 

is a faulty bootstrap by which to snatch jurisdiction over all waters. Such a conclusion 

does not answer the question of relative significance and fails to acknowledge that 

Congress already recognized the states' authority over certain waters.

Insufficient consideration has been given to establishing and quantifying metrics for 

relatively permanent" connections within the report. The report should be revised to 

address quantity and significance and made available for comment prior to another 

proposal. An adequate report, which does not currently exist, could be the basis for the 

states and the EPA to discuss the thresholds for state versus federal jurisdiction. (p. 5 – 6)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

South Carolina Association of Counties (Doc. #15573)

13.82 The Proposed rule should follow, not precede, the EPA draft science report

SCAC and its member counties are further concerned with the sequence and timing of the 

draft science report, Connectivity of Streams and Wetlands to Downstream Waters: A 

Review and Synthesis of the Scientific Evidence. It is unclear how this report fits into the 

proposed "Waters of the U.S." rulemaking process, especially since the document will be 

used as a scientific basis for the proposed rule. Releasing the proposed rule before the 

connectivity report is finalized seems premature and the agencies will undoubtedly miss 

valuable opportunities to review comments or concerns raised in the final report that 

would inform development of the proposed rule. (p. 2 – 3)
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

44

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

13.83 The Public Comment period is insufficient for review of complex CWA issues

SCAC is concerned that the time for public review and comment is insufficient, even 

with the recently announced extension until November 14, 2014. The scope and 

complexity of this issue cannot be adequately addressed in full in this time-frame. In 

order to fully understand what the rule does or does not do, we recommend that the 

agencies adopt a multi-step consideration process. We thank the agencies for their efforts 

to educate our members on the proposal; however, due to its technical and complex 

nature and the potential unintended consequences this proposal could have on our

communities the Administration should, at the very least, reopen the comment period for 

ninety (90) days after EPA's Connectivity report is released and updates are made to the 

proposed rule based on the final report. (p. 3)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Oklahoma Municipal League (Doc. #16526)

13.84 The report, Connectivity of Streams and Wetlands to Downstream Waters: A Review and 

Synthesis of the Scientific Evidence, is not yet completed. From the rule's preamble, it is 

clear the Agencies place significant reliance on this report. Until the report is finalized 

and peer-reviewed, is not possible for the regulated community to determine the full 

jurisdictional reach proposed under the rule. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Colorado Clean Water Coalition (Doc. #3533)

13.85 We have taken a periphery review of the most recent proposed ruling of Definitions of 

"Waters of the United Rates" Under the Clean Water Act. As suggested, with regard to 

the proposed rule and local impacts, we voiced, in our meeting with you, and are formally 

submitting the following requests with this summary: Two of the documents prepared for 

the proposed rule, The Connectivity of Streams and Wetlands to Downstream Waters: A 

review and Synthesis of Scientific Evidence and The Economic Analysis of Proposed 

Revised Definition of the Waters of the United States prepared March 2014 by the 

USEPA and USACE are currently under peer review and are not final. We formally 

request the proposed rule not be published in the Federal Register to start the 90 

(ninety) day review period until the peer reviews are complete. The final peer reviews are 

a necessary component in the review process due to the complexity of the proposed rule. 

Also, due to the complexity of the proposed ruling, we formally request a longer period 

of public comment no shorter than 6 (six) months to fully review the documents. (p. 2)
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

45

Agency Response: See section 13.1 summary response for information 

regarding concerns about timing/overlap of the science document and review 

process, SAB review of the rule, and the Connectivity Study.

Southern States Energy Board (Doc. #13011)

13.86 (...) WHEREAS, the justification for the scope of the proposed rule rests on a scientific 

analysis that is still under review and the proposing agencies decided to proceed with 

development of a proposed rule addressing issues associated with the connectivity of 

waters prior to being informed by the Science Advisory Board Review and the 

implications of its findings; and (...) (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Pennsylvania Chamber of Commerce and Industry (Doc. #14401)

13.87 The PA Chamber appreciates the efforts and time of EPA and Corps’ staff in considering 

our comments, which were developed after drawing from the resources and views from a 

range of its members. The PA Chamber respectfully requests that the EPA withdraw this 

rulemaking and re-propose if needed only after careful consideration of all stakeholder 

comments, the convening of public hearings throughout the country, and the finalization 

of the Connectivity of Streams and Wetlands to Downstream Waters: A Review and

Synthesis of the Scientific Evidence (the draft Connectivity Report). (p. 1)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

13.88 Because the EPA’s Draft Connectivity Report Remains a Draft, This Rulemaking is 

Premature

EPA and the Corps published this draft “waters of the United States” rulemaking this past 

April, with the stated purpose of issuing the proposal to “clarify the scope of waters 

protected under the Clean Water Act (CWA) in light of the U.S. Supreme Court cases in 

U.S. v. Riverside Bayview, Rapanos v. United States, and Solid Waste Agency of 

Northern Cook County v. U.S. Army Corps of Engineers.” The decisions in these cases 

limited EPA’s authority. EPA and the Corps have proposed this rulemaking on the basis 

of a draft Connectivity Report, which is only now being reviewed by the EPA’s Scientific 

Advisory Board. While the draft Connectivity Report may have been intended to make 

the case on a scientific basis that isolated or intermittent “waters” are connected to 

“navigable” waterways traditionally regulated by the Clean Water Act, the report remains 

a draft. Any development or revision to regulatory frameworks, particularly a revision 

with the scope, magnitude and ramifications of this proposed rulemaking, should 

certainly proceed with a modicum of caution and be based, on the very least, on reports 

that have been made final after being vetted by the public. The PA Chamber urges that 

this rulemaking be rescinded until the Connectivity Report is finalized, and re-proposed 

only after careful consideration of all stakeholder comments and holding a serious of 

public hearings with the regulated community. (p. 4)
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

46

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

McPherson Law Firm, PC (Doc. #16397)

13.89 The EPA has charged the Science Advisory Board with interpreting significant nexus and 

connectivity based on the best science available. The regulated community, including the 

LGAC, is uncertain how to comment on this without the benefit of these important and 

critical definitions being in final form. I therefore join the LGAC in suggesting the 

agencies wait to craft a new proposed rule until the Connectivity Study has been finalized 

and published for public review. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Construction Industry Roundtable (Doc. #8378)

13.90 (...) (2) Rule-Making Before the Science: In the official announcement of April 21, 2014, 

EPA and Corps contended that the rule-making (and its extensive conclusions) was 

supported by or buttressed to some extent by scientific literature and findings – more 

specifically, an EPA “Report” on the subject matter.11 [At the time of the proposed rule’s 

publication the Federal Registry, the final “Report” had NOT been fully reviewed or even 

“completed.”] It is this latter concern that both is troubling and disconcerting when 

applied to the new “Waters of the U.S.” rule making proposal [see footnote 13 for 

details]. Simply stated, the federal agencies have not shown the inclination, willingness, 

nor restraint to limit their reach or to construe their mandate in a narrow least intrusive 

manner, but rather they too often “exploit” loosely defined words or phrases that can be 

manipulated to justify wider reaching results. (p. 3)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

13.91 (...) TO UNDERSTAND the full import of the EPA admission in the announcement: 

Essential decisions incorporated into the proposed rule were based on or relied upon a 

“Report” that had not been fully completed, reviewed, or vetted – EPA proceeded to 

make judgments and findings using the draft as a basis. Even more breath-taking is 

EPA’s assumption that it can simply offer its own “Report” to be the basis of its own 

findings! [This raises serious questions especially since the very nature of the “Report” is 

a “synthesis of scientific evidence” – which can be “cherry picked” to simply reinforce 

pre-determined assumptions and agency conclusions]. As such, the EPA/Corps have 

FAILED to provide compelling scientific evidence that warrants their expansive 

conclusions (and none other) as to this rule-making. (p. 5)

 

11 U.S. Environmental Protection Agency, Connectivity of Streams and Wetlands to Downstream Waters: A Review 

and Synthesis of the Scientific Evidence (Washington, DC; U.S. Environmental Protection Agency, 2013). 

[Hereinafter referred to as “Report”] [79 Fed. Reg. 22,190 (April 21, 2014)]
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

47

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Perkinscoie (Doc. #15362)

13.92 In addition to their above-referenced substantive concerns with the Proposed Rule, the 

Southwest Developers also have procedural qualms with how the agencies have 

proceeded. Essentially, the agencies are precluding any public comment on the Draft 

Connectivity Report after it is finalized, despite the fact that the Proposed Rule 

acknowledges that the agencies will rely on that final version to inform its final definition 

of the scope of waters protected under the Clean Water Act. See 79 fed. Reg. at 22 189 

(jurisdiction over “other waters" will be" informed by the final version or the EPA’s 

Office of Research and Development synthesis of published peer reviewed scientific 

literature discussing the nature of connectivity and effects or streams and wetlands on 

downstream waters,”) (emphasis added). EPA has not yet finalized the Connectivity 

Report, and to do so, EPA must take into account the SAB’s final peer review (issued less 

than one month ago) and the 133,110 comments that EPA received on the Draft 

Connectivity Report, including comments submitted by the Southwest Developers. 

Because the Draft Connectivity Report will not be finalized until after the deadline for 

public comments on the Proposed Rule – in contravention of basic principles of 

administrative law- we request that the agencies open for public comment any changes to 

the Proposed Rule that they make based on the final version of the Draft Connectivity 

Report. (p. 3)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Illinois Coal Association (Doc. #15517)

13.93 B. Reliance on an incomplete scientific analysis casts further doubt on the validity ofthe 

Proposed Rule.

Compounding the numerous concerns addressed elsewhere in these comments regarding 

the Agencies' legal authority are other serious procedural deficiencies stemming from the 

Agencies' handling of the scientific analysis that purportedly serves as the foundation for 

the Proposal. For one, the scientific report - U.S. Environmental Protection Agency, Draft 

Report, Connectivity of Streams and Wetlands to Downstream Waters: A Review and 

Synthesis of the Scientific Evidence, (Washington, DC: U.S. Environmental Protection 

Agency, 2013) ("Connectivity Report") - which the Agencies cite as the key foundation 

for their Proposal had undergone neither a complete peer-review nor been finalized at the 

time the Agencies published the Proposed Rule. In fact, the Connectivity Report was

submitted to the EPA's Science Advisory Board ("SAB") to begin review on the same 

day the Proposed Rule was provided to EPA's Office of Management and Budget 

("OMB") for interagency review. Not only does this defy basic principles of 

administrative rulemaking," as well as specific White House regulatory guidelines', it is 

particularly concerning for a major rulemaking like this where the scientific and legal 
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

48

concepts are inextricably linked and where the sponsoring agencies rely heavily on a 

scientific basis for promulgating the regulatory scheme. (p. 5 – 6)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

National Pork Producers Council (Doc. #1433) 

13.94 The WOTUS proposal and the related Interpretive Rule and the technical documents in 

the docket supporting them are extremely complex and highly technical in nature. Indeed, 

the underpinnings of the proposal depend largely on a complex “Connectivity Study”12

that itself is still in draft form13 and remains in development before EPA’s Science 

Advisory Board. (p. 3)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Alameda County Cattlewoman (Doc. #8674)

13.95 (...) First, the agencies only included in the proposed rule a draft scientific report entitled 

Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of

the Scientific Evidence (Connectivity report).14 The agencies have indicated that the 

Connectivity report will not be completed until after the comment period has closed and 

therefore will not be available for the public to comment.15 EPA’s website states, “This 

report, when finalized, will provide the scientific basis needed to clarify CWA 

jurisdiction...,” (emphasis added).16 Second, the agencies have failed to provide the 

 

12 “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific

Evidence” EPA/600/R-11/098B. Docket ID: EPA-HQ-OW-2011-0880-0004. Available online at

http://yosemite.epa.gov/sab/sabproduct.nsf/fedrgstr_activites/7724357376745F48852579E60043E88C/$File/WOUS

_ERD2_Sep2013.pdf

13 The version of the Connectivity Report (see footnote 1) provided on EPA’s official page of regulatory documents

associated to the Waters of the United State rulemaking includes both of the following exceedingly clear statements

on the cover page:

 “DRAFT DO NOT CITE OR QUOTE.”

 “THIS DOCUMENT IS A PRELIMINARY DRAFT. It has not been formally released by the

U.S. Environmental Protection Agency and should not be construed to represent Agency policy. It is being 

circulated for comment on its technical accuracy and policy implications.” Furthermore, page 2 of the document 

consists only of the following disclaimer: “This document is distributed solely for the purpose of predissemination 

peer review under applicable information quality guidelines. It has not been formally disseminated by EPA. It does 

not represent and should not be construed to represent any Agency determination or policy. Mention of trade names 

or commercial products does not constitute endorsement or recommendation for use.”

Finally, every page of the 331 page document includes the following disclaimers at the bottom:

 “This document is a draft for review purposes only and does not constitute Agency policy.”

 DRAFT—DO NOT CITE OR QUOTE

14 Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific 

Evidence, Washington, DC: U.S. Environmental Protection Agency, (2013).

15 EPA website, http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=238345 (accessed on Sept. 3, 2014).

16 Id.
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

49

public with relevant maps created for the agencies by the U.S. Geological Service 

detailing vast networks of streams across the United States that would become 

jurisdictional under the proposed rule. Third, the proposed rule contains a vast number of 

requests for methods of regulating the public under this rule without providing the 

agencies’ proposed option, leaving the public to wonder what the agency is even 

considering and not allowing comments on any specific proposal. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

13.96 (...) First, the Connectivity report is a draft report. On the same day the report was 

released to the public, the proposed rule was sent to the Office of Management and 

Budget (OMB) for interagency review. Numerous officials at numerous times have 

indicated that the final report will not be made available for the public to comment on. 

This is inappropriate and prevents the public from being able to provide meaningful 

comments on the proposed rule. The Connectivity report is the scientific basis the 

agencies rely on to support their proposed rule. The science should be final before a 

proposed rule is developed. Should a final report be completed that is different from the 

draft report, the public will have been prohibited from commenting on the validity of 

such science. This flies in the face of this Administration’s assertion of transparency and 

in the face of the APA, which requires that the data (or science) the rule is based on to be 

presented to the public for comment.17 ACCW assert the proposed rule must be either 

withdrawn or re-proposed with the final Connectivity report available for the public to 

review.

Recently the agencies extended the public comment period with the justification to allow 

the public to comment on the Scientific Advisory Board’s final report.18 This extension 

fails to rectify the procedural failures of the agencies for not providing a final report in 

the proposed rule for comment for a number of reasons. First, the extension is for an 

additional 25 days, which is hardly enough time to review a technical scientific report 

(should the agencies put out a final report between Oct. 20 and Nov. 14). Providing the 

public with the opportunity to comment on the SAB report is not the same as allowing the 

public to comment on the final Connectivity report and therefore the procedural fouls 

with this rulemaking remain unresolved. (p. 2 – 3)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

13.97 Additionally, ACCW assert that the agencies cannot rely on the Connectivity report 

because it has not been fully reviewed by the Scientific Advisory Board (SAB). At the 

time of publication in the federal register, the Connectivity report is a draft report, 

without incorporating the suggestions of the SAB panel. It is extremely troublesome that 

the agencies did not allow their own science to inform their rulemaking. It seems like the 

 

17 Supra Note 2.

18 EPA Desk Statement, available at http://blogs.cq.com/cqblog-assets/govdoc-4559957.
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

50

proposed rule was written before EPA’s ORD department even assembled the 

Connectivity report. If that were not the case then the agencies would have waited to 

propose a rule until the SAB review of the report was completed. As it stands, the public 

will not have a meaningful opportunity to comment on a proposed rule that was informed 

by the final Connectivity report. The only logical reason to do this is if the agencies knew 

they would not have a final report that was different from the draft report. This is a brave 

assumption from the agencies, and shows that more likely, the agencies had the proposed 

rule written and then fit the science to meet its proposed rule. ACCW again assert that the 

agencies cannot rely on the draft Connectivity report for the reasons described above to 

support their proposed rule.

If the agencies incorporate a final Connectivity report in their final “waters of the U.S.” 

definition, it will be substantively different than the proposed rule, requiring the agencies 

to resubmit the proposed rule to the public for comments. As it stands, the public cannot 

meaningfully comment on the proposed rule. (p. 15)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Colorado Cattlemen’s Association (Doc. #15068)

13.98 (...) Additionally, because the report was still under review when the proposed rule was 

published in the federal register, it is not a final document and therefore is subject to 

change and the public will not have a meaningful opportunity to comment on the final as 

the basis for this rule.

CCA believes that the agencies cannot rely on the Connectivity report because it has not 

been fully reviewed by the Scientific Advisory Board (SAB). At the time of publication 

in the federal register, the Connectivity report is a draft report, without incorporating the 

suggestions of the SAB panel. It is extremely troublesome that the agencies did not allow 

their own science to inform their rulemaking. As it stands, the public will not have a 

meaningful opportunity to comment on a proposed rule that was informed by the final 

Connectivity report. If the agencies incorporate a final Connectivity report in their final 

"waters of the U.S." definition, it will be substantively different than the proposed rule, 

requiring the agencies to resubmit the proposed rule to the public for comments. As it 

stands, the public cannot meaningfully comment on the proposed rule. (p. 6 – 7)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

National Alliance of Forest Owners (Doc. #15247)

13.99 V. The Proposed Rule Improperly Preceded a Full Scientific and Technical Analysis.

The Agencies put the cart before the horse by proposing their rule before the Science 

Advisory Board (“SAB”) panel had even completed its final report on the underlying 

connectivity study. Indeed, the proposed rule is based on a draft review of scientific 

literature “discussing the nature of connectivity and effects of tributaries and wetlands on 

downstream waters (U.S. Environmental Protection Agency, Connectivity of Streams and 
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

51

Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence

(Washington, DC: U.S. Environmental Protection Agency, 2013).”19 Although the 

Agencies’ draft report was still undergoing peer review by EPA’s SAB at the time the 

Agencies issued the proposed rule, the Agencies nevertheless forged ahead with the 

rulemaking process.

The Agencies’ process for this rulemaking signals that they effectively made all policy 

and regulatory decisions before fully developing their understanding of the underlying 

science through the SAB peer review process. In other words, the SAB review process 

appears to be little more than a perfunctory exercise used to support already drafted 

regulatory text. Recently, EPA announced the availability of the SAB’s final peer review 

of the draft Connectivity Report.20 Nevertheless, even with that disclosure, which was 

less than one month before the close of the comment period, the Agencies have not 

provided the public with an adequate opportunity to review the results of the peer review, 

much less the final Connectivity Report itself. The Agencies should therefore reopen the 

comment period for at least 30 days to allow for meaningful comment on the proposal 

after the release of the final Connectivity Report. (p. 26 – 27)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Arizona Public Service Company (Doc. #15162)

13.100 D. Vast Number of Technical Documents Added to Docket Without Sufficient Review 

Time by Stakeholders and Public Entities

As late as October 30, 2014, technical support documents were still being added to the 

docket for public review and comment. In fact, on October 24, 2014, just 21 days in 

advance of the close of the comment period, the Agencies posted a list of 153 documents 

stating “EPA will be adding the following documents to the docket.”21 This late release 

of references deprives the public of a meaningful opportunity to review them or 

understand the Agencies’ rationale for the rule. In order for APS to evaluate if these 

additional documents are important to its review and interpretation of the proposal and to 

provide meaningful feedback, APS requests that the Agencies delay finalizing the rule 

and provide an additional 60-day public review and comment period after the final 

Connectivity Report is published and uploaded to the docket. Not providing

the regulated community, environmental groups, or the general public with an 

opportunity to sufficiently review and provide comments on documents that Agencies 

have determined to be relative to all or parts of the proposed rule creates litigation risk for 

the Agencies. APS recommends that the Agencies withdraw the proposal and give 

interested stakeholders an opportunity to discuss and comment on the issues in advance 

of a re-proposal. This approach will ultimately save time by reducing the amount of 

 

19http://yosemite.epa.gov/sab/sabproduct.nsf/fedrgstr_activites/7724357376745F48852579E60043E88C/$File/WOU

S_ERD2_Sep2013.pdf

20 http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=296414

21 See EPA-HQ-OW-2011-0880-8549 and -8591 (listing added references).
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

52

comments on the re-proposal and likely reduce the amount of litigation on a final rule. (p. 

5 – 6)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

County of San Diego (Doc. #15172)

13.101 13. Scientific basis of connectivity report

The new rule should be proposed only after the scientific basis has been fully vetted. The

sequence and timing of the draft scientific report, Connectivity of Streams and Wetlands 

to Downstream Waters: A Review and Synthesis of the Scientific Evidence (Connectivity

Report), and how it was utilized during the "Waters of the U.S." rulemaking process, is 

cause for concern. The agencies released the Connectivity Report in draft form at the 

same time as the proposed rule, rather than allowing review prior to developing the 

proposed rule. This sequence did not allow time for the public to comment on the draft 

Connectivity Report prior to rulemaking, nor did it provide the agencies time to review, 

address comments and concerns, and update the proposed rule accordingly. Comments 

and concerns on the Connectivity Report could provide valuable feedback that should be 

incorporated into the proposed rule. The County requests that the agencies consider all 

comments and feedback on the connectivity report (including those released on from the 

Science Advisory Board on October 24, 2014), revise accordingly, and re-release the 

report and the proposed draft rule in an appropriate sequence to allow for meaningful 

review and comment on each.

EXAMPLE: Typically, the sequence outlined for background reports to influence the 

design of rules and regulations includes a comment period, along with additions, input 

and revisions prior to release of a final report. After the final report is completed, 

proposed rules are then developed utilizing the final report as a basis. This process was 

not followed for the proposed Waters of the U.S. rule. (p. 9 – 10)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Murray Energy Corporation (Doc. #13954)

13.102 B. Reliance on an incomplete scientific analysis casts further doubt on the validity of the 

Proposed Rule.

Compounding the numerous concerns addressed elsewhere in these comments regarding 

the Agencies’ legal authority are other serious procedural deficiencies stemming from the 

Agencies’ handling of the scientific analysis that purportedly serves as the foundation for 

the Proposal. For one, the scientific report – U.S. Environmental Protection Agency, 

Draft Report, Connectivity of Streams and Wetlands to Downstream Waters: A Review 

and Synthesis of the Scientific Evidence (Washington, DC: U.S. Environmental 

Protection Agency, 2013) (“Connectivity Report”) – which the Agencies cite as the key 

foundation for their Proposal had undergone neither a complete peer review nor been 

finalized at the time the Agencies published the Proposed Rule. In fact, the Connectivity 
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

53

Report was submitted to the EPA's Science Advisory Board (“SAB”) to begin review on 

the same day the Proposed Rule was provided to EPA’s Office of Management and 

Budget (“OMB”) for interagency review. Not only does this defy basic principles of 

administrative rulemaking,22 as well as specific White House regulatory guidelines,23 it is 

particularly concerning for a major rulemaking like this where the scientific and legal 

concepts are inextricably linked and where the sponsoring agencies rely heavily on a 

scientific basis for promulgating the regulatory scheme. As the House Committee on 

Science, Space, and Technology aptly stated in an October 18, 2013 letter to EPA 

Administrator McCarthy:24

Any attempt to issue a proposed rule before completing an independent

examination by the agency’s own science advisors would be to put the cart before 

the horse. The agency’s current approach to CWA jurisdiction appears to 

represent a rushed, politicized regulatory process lacking the proper consultation 

with scientific peer reviewers and the American people. If EPA has not urges the 

agency to do so immediately. Under the law, the advice of scientific experts is a 

prerequisite, not an afterthought. (p. 6 – 7)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

National Waterways Conference, Inc. (Doc. #12979)

13.103 The agencies’ rulemaking process is entirely disordered. The scientific analysis

supporting a rulemaking should be conducted and finalized before the rule is proposed, 

particularly where, as here, the relevant scientific and legal concepts are intertwined. In 

this instance, the troubling conclusion is that the agencies set the policy goal of greater 

control of land use decisions first and only afterwards sought for a rationale. (p. 12)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Coalition of Alabama Waterways (Doc. #15101)

13.104 Finally, the process by which EPA proposed the rule has denied a reasonable opportunity 

for the public to review and comment on important scientific information. (p. 1)

 

22 It is a fundamental requirement of administrative law that an agency’s proposed rule and the basis for public 

comment must be based upon the best available scientific information. See Data Quality Act, Pub.L.106-554 (2001) 

and Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information 

Disseminated by Federal Agencies, EPA Office of Management and Budget (February 22, 2002).

23 See Environmental Research, Development and Demonstration Authorization Act of 1978, 42 USC § 4365:

24 See Letter from Rep. Lamar Smith, Chairmen, House Committee on Science, Space and Technology and Rep.

Rep. Chris Stewart, Chairman, House Subcommittee on Environment to Gina McCarthy, Administrator, USEPA, 

dated Oct. 18, 2013, available at

http://science.house.gov/sites/republicans.science.house.gov/files/documents/Letters/101813_letter.pdf
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

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Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Solid Waste Association of North America (Doc. #15264)

13.105 In addition, we are also concerned with the sequence and timing of the draft science 

report, Connectivity of Streams and Wetlands to Downstream Waters: A Review and 

Synthesis of the Scientific Evidence, and how it fits into the proposed "waters of the 

United States" rulemaking process. Access to this document is especially important as it 

will he used as a scientific basis for the proposed rule. Releasing the proposed rule before 

the connectivity report was finalized seems premature and the agencies may have missed 

a valuable opportunity to review comments or concerns raised in the final report that 

would inform development of the proposed rule. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

House of Representatives (Doc. #12751)

13.106 Compounding both the ambiguity of the rule and the highly questionable economic 

analysis, the scientific report - which the agencies point to as the foundation of this rule -

has been neither peer-reviewed nor finalized. The EPA's draft study, "Connectivity of 

Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific 

Evidence" was sent to the EPA's Science Advisory Board to begin review on the same 

day the rule was sent to the Office of Management and Budget (OMB) for interagency 

review. Science should always come before rulemaking, especially in this instance where 

the scientific and legal concepts are inextricably linked. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

United States House of Representatives (Doc. #17458)

13.107 In addition, the rule relies on data from a scientific study that remains preliminary 

("Connectivity of Streams and Wetlands to Downstream Water: A review and Synthesis 

of the Scientific Evidence"). Will the EPA finalize this study and then allow stakeholders 

to submit public comments on the Proposed Rule prior to the final rule being released?

(p. 5)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

55

13.2.2.1 SAB Review of Connectivity Study

Specific Comments

Small Business Administration (Doc. #1766)

13.108 (...) Advocacy also notes that the agencies have not yet finalized the report upon which 

this rule is substantially based.25 Pursuant to the principles of Executive Order 13563,26

small businesses should have the opportunity to comment on the proposed rule; the final 

version of the report; and the final report and recommendations of the Scientific Advisory 

Board simultaneously.27 (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

National Association of Towns and Townships (Doc. #1864)

13.109 1. The Agencies Have Not Reviewed the Adequacy of the Underlying Science, But Have 

Asked for Commenters to Provide Complex Technical Information. Additional Time Is 

Needed for the Agencies to Complete and Provide Their Assessment So the Public Can 

Effectively Respond.

The EPA’s proposed rule purports to rely on the scientific conclusions of the EPA’s draft 

connectivity report, which is currently under review by the Science Advisory Board 

(SAB). Indeed, the SAB Panel’s discussions on recent public teleconferences

demonstrate that the SAB Panel is still grappling with the proper criteria for determining 

under which circumstances a connection amounts to a significant nexus for the purposes 

of establishing CWA jurisdiction.

Moreover, in recent statements, the EPA has acknowledged that the SAB and the agency 

are still considering options for review of the adequacy of the science to support the 

proposed rule. Given the ongoing SAB Panel review, and that the EPA has not yet 

determined how to review the adequacy of the science to support the proposed rule, 

commenters should have at least 90 days from the time when EPA completes its review 

of the science and issues a final connectivity report to comment on the proposed rule.

There are numerous places throughout the preamble to the proposed rule wherein the 

agencies have asked the public to provide specific information regarding the proposed 

rule’s scientific justifications. The purpose of the SAB Panel review of the draft 

connectivity study was to evaluate the “evolving scientific literature on connectivity of 

 

25 See Connectivity of Streams and Wetlands to Downstream Water, 

http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=238345 (last accessed June 4, 2014). 

26 Exec. Order No. 13,563, 76 Fed. Reg. 3821 (January 21, 2011). 

27 The Scientific Advisory Board will be issuing a report on its findings and recommendations with regards to the 

Connectivity Report.
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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waters28,” and the public deserves the opportunity to comment on the conclusion of that 

review process.

A significant amount of time and technical expertise will be required first to evaluate the 

report from the SAB Panel and agencies’ scientific conclusions and responses and then to 

prepare substantive and thoughtful responses. The comment period should be extended to 

give stakeholders that additional time needed to review these lengthy, complex scientific 

analyses and provide meaningful feedback. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB rev

National Association of State Foresters (Doc. #14636)

13.110 Second, the public has not had sufficient time to review the findings of the Science 

Advisory Board (SAB) on this issue and their justifications. The SAB findings suggest a 

broadening of jurisdiction and more specific changes to exclusions as well as to 

definitions of terms such as tributary, which if EPA incorporates will significantly change 

the draft rule. We suggest that it is inappropriate to release a draft rule for public 

comment before SAB findings that may lead to significant changes in the rule have been 

fully considered by the Agency.

Given all of these factors and the likelihood that the rule will undergo significant changes 

based on the comments received from the public and the SAB, NASF requests that EPA 

reoffer for comment a modified proposed rule once all revisions and needed clarifications 

have been addressed. (p. 2 – 3)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Committee on Space, Science and Technology (Doc. #16386)

13.111 II. Science Advisory Board

Under the law, the advice of scientific experts is a pre-requisite, not an afterthought. 

Specifically, the Environmental Research, Development, and Demonstration 

Authorization Act of 1978 (ERDDAA)29 establishes the Science Advisory Board (SAB) 

as an independent body charged with providing advice to Congress and the EPA. Under 

ERDDAA, the "Administrator, at the time any proposed criteria document, standard, 

limitation, or regulation under the ... [CAA] ... is provided to any other Federal agency 

for formal review and comment, shall make available to the Board such proposed criteria 

document, standard, limitation, or regulation, together with relevant scientific and 

technical information in the possession of the Environmental Protection Agency on 

which the proposed action is based.30

 

28 See 79 Fed. Reg. at 22,192.

29 Environmental Research, Development and Demonstration Authorization Act of 1978, 42 USC § 4365.

30 Id.
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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Significantly, the law explains that this process provides the Board with a critical 

opportunity to share with the Administrator "its advice and comments on the adequacy of 

the scientific and technical basis of the proposed criteria document, standard, limitation, 

or regulation.''31 When followed, ERDDAA helps ensure that regulations are informed by 

sound science before they are ever proposed.

Further, EPA Senior Leadership and the SAB continue to note that waiting until the 

proposal stage to provide information to the SAB is too late in the process for meaningful 

input.32" For this very reason, EPA created a new process to ensure that the SAB received 

planned Agency actions at the pre-proposal stage so that EPA could consider the Board's 

advice before proposing regulations33".

Despite this, on September 17, 2013, the EPA and Army Corps of Engineers announced 

that a proposed rule defining the scope of CWA jurisdiction had been sent to the Office 

of Management and Budget (OMB)for interagency review. On the same day and without 

making the rule available to the Board, EPA submitted its Draft Science Synthesis Report 

on the Connectivity of Streams and Wetlands to Downstream Waters34 to the SAB for 

peer review.35 Along with the Report, the EPA assigned technical charge questions to the 

SAB expert panel with instructions to begin review of the draft Report. 

The importance of the peer review process is underscored by the classification of the 

Connectivity Report as a "Highly Influential Scientific Assessment." In a June 27, 2012 

letter to the Committee, EPA confirmed that the "Synthesis is a 'Highly Influential 

Scientific Assessment' as defined by OMB.36 Specifically, the OMB's Peer Review 

Bulletin37 states that "it is important to obtain peer review before the agency announces 

its regulatory options so that any technical corrections can be made before the agency 

becomes invested in a specific approach or the positions of interest groups have 

hardened." The Bulletin notes that if the review occurs too late in the process "it is 

unlikely to contribute to the course of a rulemaking.”38

 

31 Id.

32 See Memorandum from SAB Work Group on EPA Planned Actions for SAB Consideration of the Underlying

Science to Members of the Chattered SAB and SAB Liaisons, Nov. 12,2013, Attachment A, available at

http://yosemite.epa.gov/sab/sabproduct.nsf/18B19D36D88DDA1685257C220067A3EE/$File/SAB+Wk+GRP+Me

mo+Spring+2013+Reg+Rev+131213.pdf

33 November 12,2013 memo from the Work Group on EPA Planned Actions for SAB Consideration of the

Underlying Science to the Members of the Chartered SAB provides a detailed explanation of this process.

history, and the underlying legal obligations of ERDDAA.

34 U.S. ENVIRONMENTAL PROTECTION AGENCY. Office of Research and Development. Connectivity of 

Streams and Wetlands to Downstream Waters: A Review and Synthesis a/the Scientific Evidence, External Review 

Draft. EPAI600/R-lJ -098B. Sep. 2013. Available at http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=238345

35 The EPA did not provide the Board with the proposed rule until it was published nearly seven months later.

36 Letter from Nancy Stoner, EPA Acting Assistant Administrator to House Committee on Science, Space, and

Technology. June 27,2012. Available at 

http://science.house.gov/sites/republicans.science.house.gov/files/documents/06-27-

2012%20EPA%20to%20Harris%20re%20CWA.pdf.

37 EXECUTIVE OFFtCE OF THE PRESIDENT, OFFICE OF MANAGEMENT AND BUDGET. Final Information 

Quality Bulletin for Peer Review. Dec. 2004. Available at 

https://www.whitehouse.gov/sites/default/files/omb/memoranda/fy2005/m05-03.pdf

38 Id
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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It is clear from the statute and the Agency's own protocol that the Board should review 

the scientific underpinnings of draft proposals and all supporting science as part of the 

interagency process before a rule is ever proposed. The importance of this principle is 

compounded when a rule, such as this proposal, purports to rely almost entirely upon this 

new science. But EPA refused to wait for the science. The Agency wrote this rule and 

sent it to the White House over a year before the SAB completed its review or made 

recommendations to the Agency. The EPA's brash actions flaunt both the language and 

spirit of ERDDAA.

Further, throughout this process, the Science Committee has sought to pose charge 

questions to the Board pursuant to ERDDAA authorities.39 However, the EPA has 

intercepted Congressional communications and prevented SAB response to 

Congressional requests for advice related to this rulemaking. Given the Agency's 

apparent attempts to unduly narrow the SAB's review and silence inquiries, the EPA 

should withdraw this proposal until adequate review and participation are complete. (p. 4 

– 6)

Agency Response: For information on extensive coordination with the SAB, 

please see summary responses 9(a) and 9(b) in Compendium 9. The final 

Connectivity Report is available at: 

http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=296414/.As explained in 

Compendium 9, the agencies consulted extensively with the SAB. Moreover, EPA’s 

position is that this statute does not apply to this rulemaking because neither the 

connectivity report nor the proposed rule were “provided to any other Federal 

agency for formal review and comment.”

To the extent there is any ambiguity over what constitutes “formal review,” EPA 

administers the Board statute and therefore is entitled to deference under Chevron, 

467 U.S. at 842-45; see United States v. Mead Corp., 533 U.S. 218, 227-31 (2001). 

EPA is the sole entity charged with “establish[ing] a Science Advisory Board . . . .” 

42 U.S.C. § 4365(a). EPA, along with the Board, also can establish “member 

committees and investigative panels as . . . necessary to carry out this section.” Id. § 

4365(e)(1)(A). Also, “[u]pon the recommendation of the Board, the Administrator 

shall appoint a secretary, and such other employees as deemed necessary to exercise 

and fulfill the Board’s powers and responsibilities.” Id. §4365(f)(1). Lastly, only 

EPA is given the responsibility of “mak[ing] available to the Board” the specified 

proposed regulatory and other agency actions for “review and comment.” Id. § 

4365(c)(1). Because EPA is the exclusive agency charged with administering the 

Board statute, EPA should be entitled to deference in its interpretations to 

administer that statute.

Congress has not spoken directly to the issue of what “formal review” means under 

the Board statute. Under EPA’s interpretation, “formal review” occurs when a 

statute requires another agency to consult with sister agencies before it can take 

action and such consultation has occurred. For example, 42 U.S.C. § 7571(a)(2)(B)(i) 

 

39 Environmental Research, Development and Demonstration Authorization Act of 1978, 42 USC § 4365(a).
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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requires EPA to “consult with the Administrator of the Federal Aviation 

Administration on aircraft engine emission standards” before issuing any such 

standards. The CWA, however, contains no such consultation requirement. 

Therefore the statute does not apply. In contrast, review by OMB under Executive 

Order 12866 is merely informal agency review. There are no provisions in the 

Executive Order stating how review of agency proposed rules is conducted; if or 

how OMB seeks comments from federal agencies on another’s action; or how those 

agencies’ comments, if any, are considered, documented, or transmitted. OMB is 

the sole arbiter of whether the submittal is provided in turn to other agencies for 

their comments. Even if ERRDDAA did apply, EPA has instituted procedures to 

ensure early appraisal of the Board proposed actions to facilitate meaningful and 

engagement and input, which were followed here. See e.g., 

Chartered Science Advisory Board (SAB) March 8, 2013 Discussion of EPA Planned 

Agency Action and Their Supporting Science, February 26, 2013. 

http://yosemite.epa.gov/sab/sabproduct.nsf/ACD08EC935BE248E85257B1E0066F5

EC/$File/SAB+WG+Chair+memo-EPA+plnd+actns++supp+sci_Redactedv2.pdf

http://yosemite.epa.gov/sab/sabproduct.nsf/02ad90b136fc21ef85256eba00436459/2ef

fd460ce002b6785257cbb006752de!OpenDocument

http://yosemite.epa.gov/sab/sabproduct.nsf/02ad90b136fc21ef85256eba00436459/2ef

fd460ce002b6785257cbb006752de!OpenDocument&TableRow=2.2#2.

http://yosemite.epa.gov/sab/sabproduct.nsf/MeetingCal/D8FA4EB9005D50E485257

D27004E3897?OpenDocument

State of Alaska (Doc. #19465)

13.112 Failure to Include State Regulatory Experts on Science Advisory Board (SAB) Peer 

Review Panel. The peer review panel convened by the SAB to review the draft 

Connectivity Report was made up entirely of representatives from academia, creating a 

built-in bias toward expansive federal jurisdiction with limited relevance to a regulatory 

solution. (p. 5)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Senator Cathy Giessel, Alaska State Legislature (Doc. #2531.1)

13.113 However, before proceeding with a new rule, we need to clarify the current terms, settle 

law suits and complete the scientific review document. Expansion of the authority of the 

EPA without the clarity of current rules, defined terms and a completed scientific review 

is inappropriate.

EPA’s Science Advisory Board’s review is not complete, yet the agencies have

developed the proposed rule without the benefit of a completed independent scientific 

review. How does EPA know they are working with valid scientific data when they 

developed the proposed rule before the scientific document was complete? During the 

comment period how can we, the public and policy makers, be assured that the proposed 
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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rules follow the science when the science has not been completed or available for public 

review. Proposing rules before all the relevant information is completed and reviewed 

calls into question whether the science presented is free from any influences by the 

agencies involved. (p. 1 – 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Florida Stormwater Association, Inc. (Doc. #7965.1)

13.114 The report of EPA’s Science Advisory Board (SAB) is not yet complete. It is impossible 

to provide meaningful comments until there is sufficient time to study and examine the 

Final Report, and it is unwise for EPA to close a comment period without the all 

interested parties having had sufficient time to review the Final Report of the SAB. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Pennsylvania Department of Environmental Protection, Office of Water Management (Doc. 

#7985)

13.115 The proposed rule is premature in relation to the ongoing discussions with the Scientific 

Advisory Board (SAB). The determination of applicable science, which provides a 

baseline for the proposed rule, is not complete or finalized. The proposed rule cites the 

report and recommendations titled Connectivity of Streams and Wetlands to Downstream 

Waters: A Review and Synthesis of the Scientific Evidence which is currently being peer 

reviewed by the SAB. This process of simultaneously evaluating the science during the 

comment process provides a major obstacle in providing substantive comments and 

recommendations regarding the scientific basis for the validity of the obligations 

established in the rule. It also implies that the scientific basis provided in the draft rule is 

irrelevant. P ADEP recommends that the states and the public be provided with a 60 to 

90-day review and comment period, and an opportunity to submit additional comments 

on the rule given the relationship of the study to this rule. (p. 4)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

California State Association of Counties (Doc. #9692)

13.116 Based on the flaws in the CR on the determining connectivity, identified above, the rule 

making process should be suspended until the EPA Scientific Advisory Board’s peer 

review of the document is completed. (p. 5)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

State of Idaho (Doc. #9834)

13.117 Connectivity Report:
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EPA and the Corps should finalize the Connectivity Report before proceeding with any 

action regarding the Proposed Rule. EPA's Science Advisory Board (SAB) is reviewing a 

draft report on the connectivity of differing water bodies that will inform the Final Rule. 

Despite requests from the Western Governors' Association, the Western States Water 

Council, and others, EPA and the Corps published the Proposed Rule for public comment 

before SAB completed its review and before the report was finalized.

More recently, EPA and the Corps indicated they will wait until the Connectivity Report 

has been completed before issuing a Final Rule. The State of Idaho appreciates this 

decision. However, EPA and the Corps also should continue to accept comments for a 

reasonable period of time after the Connectivity Report is complete in order to utilize the 

Report and such comments to revise or otherwise develop the Proposed Rule. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Texas Comptroller of Public Accounts (Doc. #10952)

13.118 Insufficient Public Review

The Agencies admittedly published the proposed rule even though a scientific EPA report 

central to the proposal — Connectivity of Stream and Wetlands to Downstream Waters: A 

Review and Synthesis of the Scientific Evidence — was still in draft form and not yet peer 

reviewed by the EPA Science Advisory Board (SAB).40 Given the importance of using 

sound, peer-reviewed science in developing any rule, combined with the considerable 

public interest in and expected impacts of the proposal itself, EPA should publish this 

important report and allow for public comment. For the Agencies to base the proposal on 

an incomplete, unpublished report is not transparent and can lead to mistrust of the data

used in the proposed rule. The Agencies should withdraw this proposal until the report 

has been fully evaluated by the scientific community and the public has the opportunity 

to review and provide complete comments on the report. (p. 1)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Virginia Department of Transportation (Doc. #12756)

13.119 Publishing of Proposed Rule Prior to Finalization of Scientific Report 

The EPA and Corps have concluded that all "tributaries" will now be considered "Waters 

of the United States" as part of the proposed rule. The agencies have stated numerous 

times in the preamble that this finding is demonstrated based on the findings of a draft 

scientific report entitled, EPA 's Connectivity of Streams and Wetlands to Downstream 

Waters: A Review and Synthesis of the Scientific Evidence, Washington, DC: US. EPA, 

2013 (Report). The preamble notes that the proposed rule was published in the Federal 

Register before EPA's Scientific Advisory Board (SAB) completed their review of the 

 

40 79 Fed. Reg. 22190 (April 21, 2014).
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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Report. The agencies have further stated in the preamble that they will consider the final 

version of the Report prior to the finalization of the proposed rule. VDOT does not 

support the use of a draft scientific report to conclude that all tributaries are WOUS. Such 

findings must first be reviewed and finalized in order to confirm the credibility and 

validity of the data. In publishing the proposed rule prior to the finalization of the Report, 

the agencies have committed to using the results of a draft document whose conclusions 

have not yet been confirmed. (p. 8 – 9)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study. For additional information on the 

definition of tributary, see comment responses in Compendium 8.

New Mexico Department of Agriculture (Doc. #13024)

13.120 Connectivity Report

The EPA's Office of Research and Development's report entitled, "Connectivity of 

Streams and Wetlands: A Review and Synthesis of the Scientific Evidence (Connectivity 

Report)," the document, upon which all of these definitional changes are based, was not 

complete at the time of publication of the proposed definitional changes. The Agencies 

state throughout the Federal Register notice for this proposed rule that the final rule for 

the definition of Waters of the U.S. will not be finalized until the Connectivity Report is 

finalized (79 FR 22188-22274).

Meanwhile, the EPA's Scientific Advisory Board (SAB) was tasked with reviewing the 

Connectivity Report for the "clarity and technical accuracy of the report, whether it 

includes the most relevant peer-reviewed literature; whether the literature has been 

correctly summarized; and whether the findings and conclusions are supported by the 

available science?”41 The SAB completed their review of the Connectivity Report on 

October 17, 2014, and had substantial recommendations for improvement and further 

scientific analysis.

For instance, the SAB report notes technical inaccuracies in the underlying science upon 

which this proposed rule is based:

• "The Report often refers to connectivity as though it is a binary property rather 

than as a gradient that the interpretation of connectivity be revised to reflect a 

gradient approach ..;"

• "The SAB recommends that the EPA consider expanding the brief overview of 

approaches to measuring connectivity."

 

41 U.S.Environmental Protection Agency Office of the Administrator Scientific Advisory Board. "SAB Review of 

the Draft EPA Report Connectivity of Streams and Wetlands to Downstream Waters : A Review and Synthesis of 

the Scientific Evidence " October 17,2014. Available at : 

http://yosemite.epa.gov/sab/sabproduct.nsf/368203f97a15308a852574ba005bbd01/7724357376745f48852579e6004

3e88c!OpenDocument
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• "The SAB recommends that the Report more explicitly address the scientific 

literature on cumulative and aggregate effects of streams, groundwater systems, 

and wetlands on downstream waters."

These technical limitations affect the final outcome of jurisdictional determinations for 

all of the categories of Waters of the U.S.

EPA has the responsibility to provide finalized and complete documentation to the 

public, especially when other important federal actions hinge on the outcome of that 

documentation. Any changes in the Connectivity Report, which is still not finalized, 

could seriously hamper and even invalidate the language proposed in this rule by 

effectively barring public participation. Further, the scientific reasoning for the 

definitional changes to Waters of the U.S. needs improvement. NMDA requests the 

agencies withdraw this proposed rule and reinitiate a comment period at the time the 

Connectivity Report is finalized.

Stakeholders and the public in general have the right to understand the full implications 

that regulatory changes will have on their operations before federal regulation s are 

proposed. Please see our previously submitted comments on this rule pertaining to 

deadline incongruence resulting from the Connectivity Report still being in draft form. 

These comments can be found in Appendix B for further concerns regarding this 

document. (p. 18 – 19)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Gila River Indian Community (Doc. #13619)

13.121 IV. Other Concerns of the Community

The Community shares the concerns of many other tribes, developers, and private 

landowners that the Proposed Rule constitutes agency over-reach and over-regulation 

with unacceptable and inappropriate accompanying costs, bureaucratic processes and 

delays.

A. Scientific Support for the Proposed Rule is Crucial

The Agencies must also ensure that the Proposed Rule is based upon sound scientific data 

before subjecting stakeholders to greater regulation. The scientific conclusions upon 

which the Proposed Rule is based regarding the nexus between certain water bodies and 

navigable waters relies heavily on a draft EPA report entitled, Connectivity of Streams 

and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence. 

This draft report, which was issued in September 2013, is under review by the EPA’s 

Science Advisory Board, and therefore is not final. EPA Administrator Gina McCarthy 

has promised that the final rule defining the waters of the United States will not be 

promulgated until the agency reviews the Science Advisory Board’s report; this is 

unacceptable. The Proposed Rule should not have been issued before the EPA is able to 

confirm the scientific conclusions upon which the Proposed Rule rests. Moreover, by 

proceeding in this manner, the public loses the ability to review and comment on the 

report, and on a Proposed Rule that is based on an EPA-reviewed report. The comment 
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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period for the Proposed Rule should stay open until after the Science Advisory Board 

publishes its final report, and EPA should provide the public ample opportunity to review 

and comment on the final report and the Proposed Rule in light of the final report. (p. 8)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

13.122 V. Recommendations

The federal agencies seek input as to which waters “should be determined nonjurisdictional.”42 Below are the Community’s recommendations.

(...) 3. The EPA should finalize and allow public comment on the “Connectivity of 

Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific 

Evidence” report before basing any Final Rule on this report. (p. 9)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Washington Department of Ecology (Doc. #13957)

13.123 Connectivity report

We recommend that the agencies wait to finalize and adopt the "waters of the US" rule 

until after the science advisory board review is completed and the report is finalized. 

Washington believes that the timing of the final report, Connectivity of Streams and 

Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence, and 

how it interacts with the proposed "waters of the US" rule process is important. Since the 

connectivity study will be used to provide the scientific basis for the determination of 

jurisdiction under the rule, it seems appropriate that the agencies wait to finalize the rule 

until after the Scientific Advisory Board has completed their review and the report is

finalized. To adopt the rule prior to the final report being released would miss an 

opportunity to reline the rule based on the scientific findings of the final connectivity

report. (p. 6)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Texas Commission on Environmental Quality (Doc. #14279)

13.124 In addition, the EPA/USACE have stated the rule will not be finalized until the draft 

Connectivity Report has been finalized. The development of the report was intended to 

provide a scientific basis for the development of the rule. On September 30, 2014, the 

Science Advisory Board (SAB) documented their activities in reviewing the Connectivity 

Report in a letter to EPA. On October 17, 2014 the SAB provided EPA with the final 

 

42 Id. at 22193.
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review of the Connectivity Report. To date, the Connectivity Report has not been 

finalized.

The input provided on the questions posed by the EPA/USACE regarding the framework 

for defining "waters of the United States" as well as changes to the Connectivity Report 

have the potential to significantly change the proposed rule. Because of these potential 

impacts, the TCEQ believes it would have been more prudent for the EPA/USACE to 

seek such input and consult the final version of the report before proposing their 

rulemaking. Failure to do so will result in EPA/USACE adopting a rule for which there is 

not adequate public participation. (p. 3)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Western Governors Association (Doc. #14645)

13.125 The Western Governors thank the agencies for extending the comment period on the 

proposed rule by an additional 25 days. We note, however, that we have twice requested 

a 180-day extension of the comment period.43 Those requests for additional review time 

were submitted to allow states the opportunity for sufficient analysis of the proposed 

rule’s potential implications for water management within their boundaries. Further, 

states deserve time for full evaluation of the Science Advisory Board’s (SAB) report on 

the connectivity of streams and wetlands to downstream waters, which was released just 

weeks before the comment deadline. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Arizona Game and Fish Department (Doc. #14789)

13.126 A proper evaluation of tributaries or other waters requires completion of Connectivity of 

Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific 

Evidence (External Review Draft, EPA/600R-ll-O98B, September 2013) which is under 

review by EPA's independent Science Advisory Board (SAB). SAB's review and the final 

Connectivity report should be made available for public comment before finalizing the 

proposed rule. Furthermore, additional opportunity for public comment on the proposed 

Rule should be made available after the final Connectivity report and EPA Science 

Advisory Board review are published. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

 

43 Western Governors’ Association letters to Administrator Gina McCarthy and Assistant Secretary Jo-Ellen Darcy 

dated May 30, 2014 and August 27, 2014.
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66

Office of Water Management, Pennsylvania Department of Environmental Protection (Doc. 

#14845)

13.127 The proposed rule is premature in relation to the ongoing discussions with the Scientific 

Advisory Board (SAB).

The determination of applicable science, which provides a baseline for the proposed rule, 

is not complete or finalized. The proposed rule cites the report and recommendations 

titled Connectivity of Streams and Wetlands to Downstream Waters: A Review and 

Synthesis of the Scientific Evidence which is currently being peer reviewed by the SAB. 

This process of simultaneously evaluating the science during the comment process 

provides a major obstacle in providing substantive comments and recommendations 

regarding the scientific basis for the validity of the obligations established in the rule. It 

also implies that the scientific basis provided in the draft rule is irrelevant. PADEP 

recommends that the states and the public be provided with a 60 to 90-day review and 

comment period, and an opportunity to submit additional comments on the rule given the 

relationship of the study to this rule. (p. 8)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Arizona Game and Fish Department (Doc. #15197)

13.128 2. A proper evaluation of tributaries or other waters requires completion of Connectivity 

of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific 

Evidence (External Review Draft, EPA/600R-11-098B, September 2013) which is under 

review by EPA's independent Science Advisory Board (SAB). SAB's review and the final 

Connectivity report should be made available for public comment before finalizing the 

proposed rule. Furthermore, additional opportunity for public comment on the proposed 

Rule should be made available after the final Connectivity report and EPA Science 

Advisory Board review are published. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Southern Ute Indian Tribe Growth Fund (Doc. #15386)

13.129 Comments related to the Draft Connectivity Report 

SUlT Growth Fund has concerns about the release of the Proposed Rule for comments 

before the draft science report, Connectivity of Streams and Wetlands to Downstream 

Waters: A Review and Synthesis of the Scientific Evidence (draft Connectivity Report), 

has been finalized. Although the Science Advisory Board (SAB) has completed their 

review of the draft Connectivity Report and provided the EPA with their comments and 

recommendations, a final report has not been released to the public for review. SUlT 

Growth Fund finds that the SAB review has resulted in substantive comments that would 

improve the draft Connectivity Report such that it could be used more readily as a tool in 

jurisdictional determinations as well as provide more clarity to the Proposed Rule. 
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67

For example, the SAB recommends that the report would be more useful to agencies and 

the regulated public if it provided more clarity to the interpretation of connectivity, 

particularly with respect to methods for measuring or quantifying connectivity or the 

effects of streams and wetlands on downstream waters. According to the SAB Panel that 

reviewed the draft Connectivity Report, this could be accomplished if the report provided 

examples of the dimensions of connectivity that could most appropriately be quantified, 

ways to construct connectivity metrics, and the methodological and technical advances 

that are most needed44. These methodologies should acknowledge that connectivity is, in 

part, determined by the extent to which impacts to one water body will affect chemical, 

physical, and/or biological integrity of downstream waters. SUlT Growth Fund agrees 

with these SAWS recommendations and believe they should be incorporated into the 

report. 

Since the draft Connectivity Report is used as a scientific basis for the Proposed Rule and 

is the Proposed Rule, changes to the report in response to the SAB's comments and 

recommendations would result in changes to the Proposed Rule itself. Therefore, SUlT 

Growth Fund believes the agencies should provide the public with the opportunity to 

review and comment on the updated rule as well as the finalized report. 

Recommendation: 

The EPA and the ACOE should re-open the comment period after changes are made to 

the Proposed Rule as a result of the finalized Connectivity Report. (p. 2 – 3)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

State of Michigan, Attorney General (Doc. #16469)

13.130 Your agencies should not have moved forward with a proposed rule that lacks a 

completed scientific analysis, particularly given that the draft report is the linchpin for 

major assumptions that are used to justify the proposed rule. While the Science Advisory 

Board accepted certain conclusions in the draft report, it seems very likely the draft 

report, and potentially the proposed rule itself, will undergo substantial changes before 

the final rule is issued. But the public and other interested parties will not have any 

meaningful opportunity to review and comment on the revised report, or a potentially 

revised rule. That is unacceptable for a rule of this scope and national significance. EPA 

and the Corps should either extend the current comment period or restart the public notice 

and comment process when they have all of the proposed rule's components finalized. To 

do otherwise undermines public confidence in the process and ultimately the legitimacy 

of the rule. (p. 4)

 

44 EPA-HQ-OW-2011-0880-7617. U.S. Environmental Protection Agency Office of the Administrator Science 

Advisory Board (SAB) Panel for the Review of the EPA Water Body Connectivity Report (SAB Panel). (September 

2,2014)
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Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Coastal Restoration and Protection Authority Board of Louisiana (Doc. #17043)

13.131 Similarly, uncertainty in another facet of the proposed rule threatens to undermine the 

validity of the proposed rule. The Agencies' decision on how best to address jurisdiction 

over "other waters" in the proposed rule is heavily reliant on the EPA's 2013 report 

entitled Connectivity of Streams and Wetlands to Downstream Waters: A Review and 

Synthesis of the Scientific Evidence ("Connectivity Report"). The Connectivity Report is 

under review by EPA's Science Advisory Board ("SAB"), yet the preamble to the 

proposed rule states that the Agencies' jurisdiction over "other waters" will be informed 

by the final version of the Connectivity Report. However, comments are still being 

considered on the Connectivity Report. Therefore, SAB's review may be complete, but 

the report is not final. As such, the CPRA has grave concerns as to how the Agencies can 

rely on a Connectivity Report as the basis for their proposed rule when comments are still 

being considered for the report, which has yet to be finalized. Again, this uncertainty 

jeopardizes the validity of the Agencies' proposed rule since the report providing the 

scientific basis for the rule has not been fully vetted through the comment process. (p. 2 –

3)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study. For additional information the 

agencies approach to “other waters” in the final rule, see comment responses in 

Compendium 4.

Allen Boone Humphries Robinson LLP (Doc. #19614)

13.132 The Proposed Rule Reflects an Improper Disregard of Science

The agencies published the Proposed Rule prior to the science upon which it is 

supposedly based having been finalized. For example, the agencies propose to consider 

adjacent waters jurisdictional because the agencies find that they have a significant nexus 

to jurisdictional waters. However, the agencies did not wait for the SAB's input before 

releasing the Proposed Rule on March 25. Moreover, the SAB itself released its study 

less than one month before the close of public comments on the Proposed Rule. Thus the 

flawed bases of the Proposed Rule's impermissible expansion of CWA jurisdiction 

include not only the agencies' faulty construction of the significant nexus text, but also 

incomplete and improper science and analysis. (p. 9)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study. 

Lee County, Florida (Doc. #1346)

13.133 We believe a 120-day extension from the EPA’s release of the final report entitled 

Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of 

the Scientific Evidence (Connectivity Report) would be sufficient.
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69

The scope of jurisdiction under the CWA is of fundamental importance to Lee County. 

Given the significance of the proposed rule, the public should be permitted the 

opportunity to thoroughly review and comment on the proposed rule as well as its 

supporting documentation, including its lengthy Appendices, Economic Analysis, and the 

draft Connectivity Report. As you are aware, EPA’s Science Advisory Board (“SAB”) is 

currently reviewing the draft Connectivity Report which serves as the scientific basis of 

the proposed rule. Even assuming sufficient time had been given for a thorough review, 

by issuing the proposed rule for comment before the completion of the SAB review, the 

EPA and the Corps are hindering the public’s ability to make comments based on all 

available information. Without this analysis, the broad terms used in the draft rule give a 

significantly broader application than that suggested by EPA and Corps staff. As such, 

we believe that any public comments will be premature. (p. 1 – 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

City of Aurora, Colorado (Doc. #1448)

13.134 Given the length, scope, and breadth of the proposed rule, and the pending scientific 

review of the draft EPA Report entitled "Connectivity of Streams and Wetlands to 

Downstream Waters: A Review and Synthesis of the Scientific Evidence" (Connectivity 

Report), Aurora requests that any comment period be delayed until publication and 

comments on the Connectivity Report are complete and final. This requested extension 

would give municipalities the necessary time to absorb, understand, and evaluate the 

proposed rule and what it means for the management and delivery of water, especially in 

the arid west.

Any change or clarification on the definition of "Waters of the United States" under the 

Clean Water Act has direct implications on western communities, where water resources 

are scarce. Aurora, which serves a population of 347,953, obtains our water from three 

different river basins, with some of our resources starting over 200 miles from our city. 

Like many communities along the Front Range of the Rocky Mountains, Aurora is 

evaluating opportunities to increase our storage to help combat drought cycles, climate 

change, and meet the demand of a growing city. Several reservoirs are currently in the 

planning stages, with permitting soon to follow. Sufficient time needs to be provided so 

staff can evaluate the proposed rule with an eye toward understanding the potential 

impacts this rule would bring to the permitting process and its relationship with the final 

Connectivity Report. It is important for the City to identify whether the proposed rule 

could potentially create delays and additional costs, which would be passed directly to 

our rate paying citizens.

Without completion of the Connectivity Report, requesting comments on the rule is 

premature and problematic. Many of our comments or questions will arise from the 

delineations in connectivity between water sources, especially those with intermittent 

seasonal flows. We are working with our partner organizations, such as the American 

Water Works (AWWA), the Western Urban Water Coalition (WUWC), the Western 

Coalition of Arid States (WESTCAS), the National Water Resources Association 

(NWRA), and the National Association of Clean Water Agencies (NACWA), to review 
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70

the rule and Connectivity Report, and develop our comments for consideration. These 

tasks will add a tremendous workload on our staff, and without all of the necessary 

supporting documentation, is doubly burdensome and potentially duplicative.

Accordingly, the City of Aurora, requests that EPA extend the public comment period for 

the proposed rule until at least 120 days following completion of the Connectivity Report 

that takes into account comments received on the draft Connectivity Report and the 

recommendations of EPA's own Scientific Advisory Board. (p. 1 – 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Board of County Commissioners (Doc. #4679)

13.135 The EPA’s Science Advisory Board (SAB) report, “Connectivity of Streams and 

Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence” 

(Connectivity Report) serves as the scientific basis of the proposed rule, but is currently a 

“preliminary draft.” By issuing the proposed rule for comment prior to the completion of 

the SAB review, the EPA and Corps are hindering the public’s ability to provide 

comments based on all of the available information. (p. 3)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Nevada County Board of Supervisors (Doc. #6856)

13.136 The agencies state that their decision on how best to address jurisdiction over ''other 

waters' ' in the final rule will be informed by the final version of the EPA' s Office of 

Research and Development synthesis of published peer-reviewed scientific literature in a 

report entitled Connectivity of Streams and Wetlands to Downstream Waters: A Review 

and Synthesis of the Scientific Evidence. While it makes sense to study published and 

peer-reviewed scientific reports in developing the proposed rule, the rule should not have 

been released until the SAB's review and subsequent final report are complete and 

available for consideration during the public comment period on the rule. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Murray County Board of Commissioners (Doc. #7528.1)

13.137 The EPA's Science Advisory Board is still reviewing public comments on the Office of 

Research Development's report, Connectivity of Streams and Wetlands to Downstream 

Waters.

We are concerned with the chronology in which the agencies have proposed this rule in 

relation to review and final publication of the U.S. EPA's Science Advisory Board's 

report on the connectivity of streams and wetlands to downstream waters, a synthesis of 

published peer reviewed scientific literature discussing the nature of connectivity and 

effects of streams and wetlands on downstream waters.
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Prefatory comments to the rule promise that the final rule will be informed by the final 

version of the Science Advisory Board's report. A significant number of public comments 

were submitted to the report, including comments from many of Minnesota's counties, 

watershed districts, and other local government units. This proposed rule comes at a time 

before the agency has reviewed, responded, and altered its report based on comments and 

concerns regarding unsound science, use of new terminology, and other important 

considerations. In the current rulemaking process, the public is afforded zero opportunity 

to review the final, scientific report to aid in its analysis of the proposed rule.

While we appreciate the extension given to the comment period, we recommend that the 

public be given ample time to review the contents of the Science Advisory Board' s final 

report before the comment period on the proposed rule is opened and closed. (p. 4)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Moffat County Board of Commissioners, Moffat County, Colorado (Doc. #7987)

13.138 EPA Science report should be considered before rule is finalized. EPA's Science

Advisory Board is currently finalizing a report focusing on over 1,000 scientific 

papers that demonstrate the interconnectedness of tributaries, wetlands, and other waters. 

This report titled "Connectivity of Stream and Wetlands to Downstream Waters" is 

reported to be the scientific basis for the new definition of "waters of the U.S." Moffat 

County is concerned with the timing of the draft science report and how it fits into the 

proposed rule making process defining "waters of the U.S." Releasing the proposed rule 

before the connectivity report is finalized does not provide the agencies opportunity to 

review comments or concerns raised in the final report that would inform the 

development of this proposed rule. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Pasco County, Florida (Doc. #9697)

13.139 In addition to the concerns expressed above, the County notes that the EPA's Science 

Advisory Board (SAB) has not yet completed its peer review of the document 

"Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis 

of the Scientific Evidence," which forms the scientific basis for the proposed rule. The 

regulated community, policy makers, and the public cannot be assured that the rule 

reflects the science until the SAB peer review is complete and the SAB recommendations 

have been reviewed and incorporated into the final report. 

Recommendation: Suspend rulemaking until the connectivity report is finalized. Revise 

the proposed rule to address recommendations in the SAB report and public comments 

received to date and provide for an additional public comment period. (p. 5)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.
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Mesa County, Colorado Board of County Commissioners (Doc. #12713)

13.140 The EPA Science Advisory Board has not finalized their scientific back up report 

"Connectivity of Streams and Wetlands to Downstream Waters", which should document 

the need for refining the definition of WOUS. The proposed date to have this report 

finalized continues to change. Usually, the new deadline is later than the deadline for 

comments on the proposed WOUS rule. This leads to a situation where there is no 

scientific justification to back up the proposed Rule. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Board of County Commissioners, Larimer County (Doc. #14741)

13.141 Releasing the proposed rule before the science report titled "Connectivity of Streams and 

Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence" was 

finalized, eliminated a valuable opportunity to review comments and concerns raised in 

the report that could inform development of the proposed rule. We appreciate the 

proposed rule extension of 25 days to review the Science Advisory boards peer review 

released on October 17, 2014, but the peer review is still in draft form and hasn't been 

fully considered in the rulemaking process. Consequently, the scientific credibility of the 

Connectivity Report has not been fully established. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Harris County Flood Control District (Doc. #15049)

13.142 Related Reports

The District is concerned with the sequence and timing of the proposed Waters of the 

U.S. rulemaking. The proposed rule utilized a draft science report, Connectivity of 

Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific 

Evidence (here after referred to as Connectivity Report), as the scientific basis for the 

definitions. The EPA's Scientific Advisory Board (SAB) has subsequently reviewed and 

provided comment on the draft report. The District deems it inappropriate for the rule 

making to have been drafted and be finalized when the scientific report has not been 

finalized. Furthermore, the Connectivity Report seems to provide some basis and value 

for the connectivity of waters but does not provide clarity on which waters would be 

considered jurisdictional which is the stated intent of the proposed rule. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Rio Grande Water Conservation District (Doc. #15124)

13.143 8. The Rulemaking Process Should Be Stayed Pending Completion of the Connectivity 

Report 
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According to the preamble, the EPA's "Connectivity of Streams and Wetlands to 

Downstream Waters: A Review and Synthesis of the Scientific Evidence" report forms the 

scientific basis for the proposed rule. This report remains in draft form and a review of 

the report by the Science Advisory Board was only recently completed. The EPA has 

stated that it intends to review the final report issued by the SAB and "make any 

adjustments to the final rule that are appropriate. . . ."While the RGWCD appreciates the 

fact that the original comment period was extended, the decision to push forward and 

solicit public comment before the scientific inquiry is complete has made it difficult to 

prepare meaningful and comprehensive comments on the rule. Rather than forge ahead, 

the better approach is to either withdraw the rule or extend the public comment period to 

allow for a thorough review of the SAB's report and time to modify the proposed rule, as 

may be warranted. (p. 8)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Amador County Board of Supervisors (Doc. #17450)

13.144 4. Draft Science Report

The agencies have relied significantly on a draft report of the "Connectivity of Streams 

and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific 

Evidence" that is currently undergoing scientific peer review. Developing a propose 

rulemaking based on a draft report is bad public policy. It prohibits both the agencies and 

the public from firmly relying on the conclusions of the report, and subjects the 

rulemaking to later refinement following the completion of the final scientific report. We 

urge the agencies to withdraw the proposed rulemaking until the scientific report is 

finalized. (p. 3)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Butte County Administration, County of Butte, California (Doc. #19593)

13.145 We also believe that the underlying science of the proposed rule has not been fully vetted 

by the agencies in collaboration with the public to allow the rule to move forward. We 

request that a public comment period be opened on the final Connectivity Report 

currently under review by the Science Advisory Board (SAB) of the EPA when the report 

is finalized with the SAB recommendations attached. This report should be finalized, 

with a public comment period, prior to the closing of the comment period on the 

proposed rule. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Western Urban Water Coalition (Doc. #12828)

13.146 The Western Urban Water Coalition ("WUWC") has conducted a preliminary review of 

the Science Advisory Board's peer review of EPA's Draft Report entitled "Connectivity of 
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Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific 

Evidence" (the "Draft Connectivity Report" and the "Peer Review"). While notice of the 

Draft Connectivity Report was published in the Federal Register on September 13, 2013 

(78 Fed. Reg. 58536), the Peer Review was issued just a few weeks ago on October 17, 

2014. EPA has not yet published its Final Connectivity Report in light of the Peer 

Review. Until the public understands how EPA will incorporate the Peer Review into the 

Final Connectivity Report, and how it impacts the agency proposal, it is difficult to 

comment completely and effectively. As it stands, public comments on EPA's proposed 

rule on "waters of the United States" will be due only 28 days after the Peer Review was 

issued, leaving insufficient time to comment on that detailed technical analysis. More 

importantly, commenters will not have any opportunity to provide input on how the 

agencies will incorporate the Peer Review comments into a Final Connectivity Report. 

Because the Draft Connectivity Report is the basis for EPA's proposed rule and the Peer 

Review is the culmination of the scientific review contained in the Draft Connectivity 

Report, WUWC respectfully requests an extension of the public comment period on the 

proposed rule until at least 60 days after the issuance of the Final Connectivity Report in 

order to give stakeholders adequate time to consider and address the 58-page Peer 

Review and EPA's finalization of the Connectivity Report in public comments on the 

proposed rule. (p. 1)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

13.147 The agencies were clear that the proposed rule relies heavily on the Draft Connectivity 

Report. Moreover, the agencies acknowledged that the Peer Review would provide 

additional necessary detail to inform the proposed rule. For instance, in the preamble to 

the proposed rule, the agencies stated that their decision on how to address jurisdiction 

over "other waters" would be "informed by the final version of the EPA's Office of 

Research and Development synthesis of published peer-reviewed scientific literature 

discussing the nature of connectivity and effects of streams and wetlands on downstream 

waters." 79 Fed. Reg. 22 188, 22 189 (Apr. 21, 2014). Because the Peer Review directly 

addresses the scientific basis for proposed rule, a thorough analysis of the Peer Review is 

vital to adequately comment on the proposed rule. Moreover, an understanding of how 

the agencies will incorporate the Peer Review into the Draft Connectivity Report (and 

possibly into the final rule) is necessary for adequate public comments. For these same 

reasons, on November 6, 2013, we submitted comments on the Draft Connectivity Report 

explaining our concern that EPA and the Corps should wait until the Draft Connectivity 

Report's scientific findings were peer reviewed before proposing the expansion of CWA 

jurisdiction in the proposed rule. The agencies failed to follow this request, and issued the 

proposed rule in advance of the final Connectivity Report. That error is about to be 

compounded by not providing the public with any opportunity to comment on the Final 

Connectivity Report and only 28 days to comment on the SAR's review of the draft 

report. 

This is not merely an academic concern. For instance, the Peer Review cover letter 

recommends that "EPA should recognize that there is a gradient of connectivity" in the 

context of how tributaries (perennial, intermittent, and ephemeral) affect downstream 
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waters. WUWC is very interested in this tributary issue, but it needs time to evaluate the 

SAB's comments on it; examine how the agencies will incorporate that Peer Review 

comment into a final version of the Draft Connectivity Report; consider how its public 

comments on the proposed rule should address the Peer Review's examination of the 

science behind the SAB's observation; and provide substantive recommendations to the 

agencies on how to address this issue. 

Ultimately, the extremely short timeframe between the Peer Review publication and the 

deadline for comments on the proposed rule runs contrary to the agencies’ clear 

expression of their eagerness to consider constructive public comments on the proposed 

rule (over and above their legal duty to do so), as well as the President's direction that 

federal departments and agencies ensure that their actions meet the principles of 

transparency, participation and collaboration. See Memorandum for the Heads of 

Executive Departments and Agencies, Executive Office of the President (Dec. 8, 2008).

Accordingly, WUWC requests that EPA extend the public comment period for the 

proposed rule until at least 60 days following EPA S issuance of the Final Connectivity 

Report (based on the Peer Review). This time would allow WUWC and others to take 

into account the recommendations of EPA's own SAB, and more importantly, to submit 

meaningful public comments on the proposed rule as informed by the Peer Review. (p. 2 

– 3)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Colorado Stormwater Council (Doc. #12981)

13.148 The EPA has stated that it would conduct an exhaustive and peer reviewed scientific 

literature review to evaluate connectivity between various surface hydrologic features and 

downstream Traditional Navigable Waters (TNWs) prior to development of the Proposed 

Rule. However, the Agencies are on the path to finalizing the Proposed Rule while the 

Connectivity Report currently remains in draft form. Requesting comments on the 

Proposed Rule before the Connectivity Report is final is problematic. The purpose of the 

Connectivity Report should be to provide the science and technical foundation for the 

Proposed Rule. The Connectivity Report is a compilation of independent peer-reviewed 

scientific literature that, when finalized, is intended to provide the scientific justification 

for the Agencies' interpretation of when waters are subject to CWA jurisdiction. The 

chartered Science Advisory Board (SAB) is currently conducting quality reviews of its 

draft peer review reports on the Connectivity Report and is deliberating on the adequacy 

of the scientific and technical basis of the Proposed Rule. esc requests that any final 

regulatory action related to CWA jurisdiction be based upon a complete and validated 

version of the Connectivity Report. (p. 6)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

13.149 CSC respectfully requests that the Agencies follow the proper course of action to ensure 

that the Proposed Rule is based upon a valid scientific and technical foundation: (I) 
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Revise the Connectivity Report based upon the comments and concerns expressed by 

CSC and other stakeholders; (2) Finalize the Connectivity Report; (3) Revise the 

Proposed Rule accordingly pursuant to the findings and recommendations in the 

Connectivity Report; and (4) Reissue the Proposed Rule for public comment. (p. 6 – 7)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Association of Clean Water Administrators (Doc. #13069)

13.150 II. Timing of Proposed Rule Relative to Science Advisory Board Report

States find that the timing of the Proposed Rule was not appropriate relative to the timing 

of the report that EPA relied on as scientific underpinning for the Proposed Rule, 

Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of 

the Scientific Evidence. Specifically, review of the report by EPA’s Science Advisory 

Board (SAB) panel should have been carried out to completion before the rule was 

proposed, so that the Agencies would have had the full benefit of those findings in 

developing the Proposed Rule, and the states in reviewing the Proposed Rule. For 

example, in a draft review by the SAB, the panel recommended that connectivity be 

examined in terms of a gradient that reflects the spectrum of different aspects of 

connections, such as the frequency, duration, and consequences of those connections. The 

Proposed Rule appears to take a more binary approach, wherein connections are either 

present or absent, and implementation of this approach is very different and can pose 

challenges to regulators. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

National Association of Flood & Stormwater Management Agencies (Doc. #13613)

13.151 Scientific Advisory Board's peer review

The draft Connectivity of Streams and Wetlands to Downstream Waters: A Review and 

Synthesis of the Scientific Evidence report appears to be the basis for many conclusions 

in the proposed rule defining the scope of waters protected under the CWA rulemaking. 

Since the connectivity report was under review by EPA’s Scientific Advisory Board 

(SAB) when the proposed rulemaking was issued, NAFSMA believes circulation of the 

proposed rule for public comment at this time is premature. The Science Advisory Board 

panel on October 17, 2014, recommended significant changes to the connectivity report 

and, if EPA intends to be responsive to those concerns, the final connectivity report will 

differ substantially from the draft that has been made available to the public. NAFSMA 

requests EPA and the USACE to suspend the current public comment period and 

re‐release the proposed rulemaking after EPA has finalized the connectivity report. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.
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Western Urban Water Coalition (Doc. #15178)

13.152 3. Insufficient Time Between the Final SAB Peer Review and the Close of the Comment 

Period on the Proposed Rule

While notice of the Draft Connectivity Report was published in the Federal Register on 

September 13, 2013 (78 Fed. Reg. 58536), the Peer Review was issued just a few weeks 

ago on October 17, 2014. EPA has not yet published its Final Connectivity Report in 

light of the Peer Review. Until the public understands how EPA will incorporate the Peer 

Review into the Final Connectivity Report, and how it impacts the agency proposal, it is 

difficult to comment on the Proposed Rule completely and effectively.

As a member of the SAB panel reviewing the Draft Connectivity Report 

commented:

The usual protocol in science is not to release a report before the review is 

complete, the purpose being to allow a frank and honest appraisal of the work 

before positions are ‘hardened’ and reputations are placed in jeopardy. The 

sequence employed by EPA suggests to the public that there is no critical input 

needed by the SAB - - just a few minor additions. If I believed this to be the case, 

I would be very dismayed.

Attachment to Letter to Dr. David Allen, Chair, EPA, Scientific Advisory Board from Dr. 

Amanda D. Rodewald, Chair, SAB Panel for Review of EPA Water Body Connectivity 

Report, dated September 2, 2014, at page 89.

On November 5, 2014, WUWC requested an extension of the public comment period on 

the Proposed Rule until at least 60 days after the issuance of the Final Connectivity 

Report in order to give stakeholders adequate time to consider and address the 58-page 

Peer Review and EPA’s finalization of the Connectivity Report in public comments on 

the Proposed Rule.

Moreover, the Draft Connectivity Report does not necessarily correlate science with the 

legislative language, legislative intent, Supreme Court precedent or agency objectives 

under the CWA. To support the finding that all “tributaries,” all “adjacent waters,” and 

certain “other waters” have a “significant nexus” the Draft Connectivity Report evaluated 

scientific studies, many of which examined biological connections between bodies of 

water, or water retention, without examining impacts on the quality of navigable water.

(p. 5 – 6)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

The United States Conference of Mayors et al. (Doc. #15784)

13.153 In addition to the missed opportunities, we are concerned about the timing of the yet-tobe finalized Connectivity of Streams and Wetlands to Downstream Waters: A Review 

and Synthesis of the Scientific Evidence report, which will serve as the scientific basis 

for the proposed rule. In mid0October, EPA’s Science Advisory Board (SAB), which 

was tasked with reviewing the document, sent a letter with detailed recommendations on 

how to modify the report. The SAB raised important questions about the scope of 
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connectivity in their recommendations, which will need to be addressed prior to 

finalizing the report. We recommend EPA and the Corps pause this rulemaking effort 

until after the connectivity report is finalized to allow the public an opportunity to 

comment on the proposed rule in relation to the final report. (p. 3)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Waters Advocacy Coalition (Doc. #0851)

13.154 The Agencies Have Not Reviewed the Adequacy of the Underlying Science, But Have 

Asked for Commenters to Provide Complex Technical Information. Additional Time Is 

Needed for the Agencies to Complete and Provide Their Assessment So the Public Can 

Effectively Respond. 

The EPA’s proposed rule purports to rely on the scientific conclusions of the EPA’s draft 

connectivity report, which is currently under review by the Science Advisory Board 

(SAB). Indeed, the SAB Panel’s discussions on recent public teleconferences 

demonstrate that the SAB Panel is still grappling with the proper criteria for determining 

under which circumstances a connection amounts to a significant nexus for the purposes 

of establishing CWA jurisdiction. 

Moreover, in recent statements, the EPA has acknowledged that the SAB and the agency 

are still considering options for review of the adequacy of the science to support the 

proposed rule. Given the ongoing SAB Panel review, and that the EPA has not yet 

determined how to review the adequacy of the science to support the proposed rule, 

commenters should have at least 90 days from the time when EPA completes its review 

of the science and issues a final connectivity report to comment on the proposed rule. 

There are numerous places throughout the preamble to the proposed rule wherein the 

agencies have asked the public to provide specific information regarding the proposed 

rule’s scientific justifications. The purpose of the SAB Panel review of the draft 

connectivity study was to evaluate the “evolving scientific literature on connectivity of 

waters1,” and the public deserves the opportunity to comment on the conclusion of that 

review process.

A significant amount of time and technical expertise will be required first to evaluate the 

report from the SAB Panel and agencies’ scientific conclusions and responses and then to 

prepare substantive and thoughtful responses. The comment period should be extended to 

give stakeholders that additional time needed to review these lengthy, complex scientific 

analyses and provide meaningful feedback. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Hereford Natural Resource Conservation District (Doc. #1652)

13.155 (...) The Connectivity of Streams and Wetlands to Downstream Waters: A Review and 

Synthesis of the Scientific Evidence be finalized and issued with a response to all the 

comments submitted pertaining to this report. (p. 1)
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Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

U.S. Chamber of Commerce (Doc. #2607)

13.156 (...) Moreover, the revised definition is chiefly based upon EPA’s Draft Report, 

“Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis 

of the Scientific Evidence,” which is currently under review by EPA’s Science Advisory 

Board. The 300+ page report discusses complex scientific hypotheses, analyses, and data, 

which may change after the SAB has completed its review. At a minimum, stakeholders 

must have sufficient time to review and evaluate the Final Report before they can 

knowledgably comment on the proposal. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Georgia Chamber of Commerce (Doc. #14430)

13.157 (...) Furthermore, the EPA has mismanaged the regulatory process by improperly 

certifying that the rule would not impact small businesses and by initiating the 

rulemaking process prior to the completion of the Scientific Advisory Board review of 

the underlying scientific report. (p. 3)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

13.158 15. Science Advisory Board (SAB)

EPA has supported its rulemaking proposal with a comprehensive, peer-reviewed 

scientific report: Connectivity of Streams and Wetlands to Downstream Waters: A Review 

and Synthesis of the Scientific Evidence. The Chamber commends EPA on this initiative.

At the time of the publication of the draft rule (April 2014) the report was being reviewed 

by EPA’s Science Advisory Board. EPA stated at the time of the publication of the draft 

CWA rule that the rule would not be finalized until that SAB review and its final report 

are completed. 

The SAB finally presented it findings to EPA on September 30, far too late for 

stakeholders to analyze the SAB’s findings and EPA’s response prior to presenting final 

submissions on this proposed rulemaking.

This means that stakeholders have been unable to properly participate in the federal 

rulemaking process. (p. 18 - 19)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.
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Resource Development Council for Alaska, Inc. (Doc. #14649)

13.159 Instead of allowing the science to be developed, peer-reviewed, and released for public 

review, the EPA compiled a Draft Report on the Connectivity of Waters while 

developing this proposed rule. The draft scientific report was released for public 

comment at the same time the EPA released the rule to the Office of Management and 

Budget for inter-agency review. The Science Advisory Board had not finished its peer 

review, and the public already began commenting. (p. 3)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Greater Houston Partnership (Doc. #14726)

13.160 Science Not Finalized

The 331 page draft report, issued in September 2013 and entitled: Connectivity of 

Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific 

Evidence, on which the rule is based, has not been finalized. GHP is concerned that the 

proposed rule has been developed without the full benefit of a completed scientific 

review and synthesis. GHP urges EPA to suspend the rulemaking process until the report 

has been peer reviewed, finalized, and issued. (p. 4)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Atlantic Legal Foundation (Doc. #15253)

13.161 3. Scientific Basis

The proposed rule is based extensively upon a scientific analysis entitled Connectivity of 

Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific 

Evidence (the “EPA Report”). However, this Report has not yet been properly peer 

reviewed by the Science Advisory Board (SAB). It is troubling that the proposed rule was 

promulgated before its foundational scientific basis could be examined. We understand 

that the SAB is still conducting its Panel review and its panel members have recently 

expressed their view that the EPA Report will require extensive revisions.45 Such 

disregard for peer review, which is an essential safeguard for scientific credibility, calls 

into question the agencies’ adherence to the Administrative Procedure Act and the rulemaking process. The science analysis and peer review should always precede a

 

45 On June 5, 2014 SAB Panel members reviewed and approved a draft SAB report which “recommends a 

substantial number of revisions to improve the clarity of the [EPA] Report, better reflect the scientific evidence, 

provide more quantitative measures, and make the document more useful to decision-makers.” SCIENTIFIC 

ADVISORY BOARD, PANEL MEMBER COMMENTS ON THE DRAFT (6-5-14) SAB REVIEW OF THE DRAFT 

EPA REPORT CONNECTIVITY OF STREAMS AND WETLANDS TO DOWNSTREAM WATERS: A REVIEW AND 

SYNTHESIS OF THE SCIENTIFIC EVIDENCE 7 (2014). It further recommends “that EPA clearly set forth the 

definitions used in the Report to be consistent with the definitions proposed for rulemaking and that any differences 

between the regulatory and scientific terminology be explained and described in terms of how it may affect 

interpretation of the conclusions reached.” Id. at 8.
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rulemaking especially where the scientific and legal concepts are inextricably linked. (p. 

5)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study. For information on the 

Administrative Procedure Act, see section 13.2.1.

Volusia County Association for Responsible Development (Doc. #1440)

13.162 Among other issues brought to your attention in this letter, it is noted that the EPA's 

Scientific Advisory Board has yet to complete its scientific analysis and peer review of 

these regulatory changes. This fact alone should convince you and the U.S. Army Corps 

of Engineers of the need to extend the public comment period so that your constituents 

will have the benefit of your own scientists' review and adequate time to provide 

meaningful input on this rule. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

CalPortland Company (Doc. #14590)

13.163 (...) Rulemaking should be based on sound science, yet the Science Advisory Board has 

not completed its review. In fact, they have raised serious questions that EPA has not 

answered. (p. 3)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Ames Construction, Inc. (Doc. #17045)

13.164 Another troubling aspect of this proposed rule is that the EPA chose not to wait for a final 

peer review of their 'Connectivity of Streams and Wetlands to Downstream Waters: A 

Review and Synthesis of the Scientific Evidence' study. This study has been touted as the 

basis of the proposed rule, but has not yet been peer reviewed by the EPA's own Science 

Advisory Board (SAB). Additionally, EPA's economic analysis seriously underestimates 

impacted acreage and completely ignores impacts to non-404 programs. Recognizing that 

state and local governments are managing water resources that are not under federal 

control, it is unclear why the agencies rushed through these and other important 

procedural steps designed to ensure that businesses like mine are protected. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study. For information on the economic 

analysis, see comment responses in Compendium 11.

National Association of Home Builders (Doc. #19540)

13.165 b. EPA’s Use and Treatment of the Science Advisory Board has been Problematic.
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The timing and manner in which the Agencies have engaged the SAB have been 

questionable and disconcerting. This is particularly problematic considering the proposed 

rule is purported to be supported by science. (p. 146)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

13.166 i. The Agencies have Inappropriately Engaged the Science Advisory Board.

In 1978, Congress directed EPA to establish an SAB to provide scientific advice to the 

agency Administrator.46 The SAB is authorized to review the quality and relevance of the 

scientific information used as the basis for agency regulations. NAHB is concerned that 

EPA and the Corps have engaged the SAB inappropriately.

On September 17, 2013, EPA and the Corps announced that a proposed rule defining the 

scope of CWA jurisdiction had been sent to the Office of Management and Budget 

(OMB) for interagency review.47 On the very same day, EPA submitted its draft 

Connectivity Report to its SAB for peer review. Although the proposed rule that was sent 

to OMB stated, “[t]his draft rule takes into consideration the current state-of-the-art peer 

reviewed science reflected in the [draft Connectivity Report],”48 the proposed rule was 

drafted before the SAB had an opportunity to review the Connectivity Report. In fact, the 

SAB did not even convene for the first time until December 16, 2013 – 91 days after the 

proposed rule was sent to OMB.49

The proposed rule states that the draft Connectivity Report is under review by the SAB, 

and the rule will not be finalized until that review and the final Report are complete.50

Yet, in the proposed rule, the Agencies state they have interpreted the scope of “waters of 

the United States” in the CWA based on “the information and conclusions in the [draft 

Connectivity] Report.”51 This suggests the Agencies have little regard for the SAB’s 

comments and scientific input, and that the outcomes of the proposed rule have been predetermined. In disregarding the SAB’s expert comments on the draft Connectivity Report 

during the proposed rulemaking phase yet stating a rule will not be made final until the 

SAB has reviewed the Report, the Agencies have undermined the critical role of the SAB 

and scientific review in a rulemaking process that claims to be based on the best available 

science. The proposed rule states, “The [Connectivity] Report summarizes and assesses 

much of the currently available scientific literature that is part of the administrative 

record for this proposal, and informs the agencies during this rulemaking. Yet, the draft 

Connectivity Report should have been reviewed and finalized in order to inform the 

Agencies before this rulemaking.

 

46 42 U.S.C. § 4365.

47 See http://yosemite.epa.gov/opei/rulegate.nsf/byRIN/2040-AF30#1

EPA Press Release (Sept 2013), available at http:///cfpub.epa.gov/ucea/cfm/recordispaly.cfm?deid238345.

49 78 Fed. Reg. at 58,536.

50 79 Fed. Reg. at 22,190.

51 Id. at 22,196.
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Indeed, even SAB panel members have voiced concerns over this cart-before-the-horse 

approach the Agencies have taken. SAB panel member Dr. Mark Murphy stated, "I must 

say I am puzzled as to why EPA has decided to release the proposed rule before receipt 

of our review of the Connectivity Report . . . I hardly expected that the draft [rule] would 

be released to the public before our review [of the Connectivity Report]. The usual 

protocol in science is not to release a report before the review is complete, the purpose 

being to allow a frank and honest appraisal of the work before positions are 'hardened' . . . 

The sequence employed by EPA suggests to the public that there is no critical input 

needed by the SAB-just a few minor additions. . . In point of fact, the SAB Review 

suggested that some major additions be made to the Connectivity Report.52

Additionally, the Administrative Procedure Act (APA) requires federal agencies to reveal 

for public evaluation "the technical studies and data upon which the agency [relies in its 

Rulemaking].” By releasing and taking comment on the proposed rule before the 

Connectivity Report is final, the Agencies have failed to comply with the APA (see 

Section X. a for a more thorough discussion of the Agencies' failure to comply with the 

APA). (p. 146 – 147)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study. For information on the 

Administrative Procedure Act, see section 13.2.1.

13.167 iii. The Science Advisory Board has Raised Concerns with Significant Components of 

the Proposed Rule, and EPA has not Released a Final Connectivity Report.

NAHB reiterates its concern, raised in Section X. a. 3., with the Agencies’ preparation of 

a draft rule before the foundational science is peer-reviewed and final. This is even more 

important given that the SAB panel has recommended significant changes to the draft 

Connectivity Report and, if EPA intends to be responsive to those concerns, the final 

Connectivity Report will substantially differ from the draft that has been made available 

to the public.53 In order to provide for meaningful public comment under the APA, 

federal agencies must disclose the data or other material on which they rely to make a 

final decision. Indeed, participation is not meaningful if an agency bases its action on 

information that is not available to the public.54

On September 2, 2014, the SAB panel released comments on the adequacy of the 

scientific and technical basis of the proposed rule.55 The SAB panel members raised a 

number of serious concerns about the proposed rule’s definitions and categories of 

 

52 8/14/14 SAB Comments on the Proposed Rule at 56.

53 See SAB Final Review of the Draft Connectivity Report.

54 See United States v. Nova Scotia Food Prods. Corp., 568 F.2d 240 (2d. Cir. 1977).

55 Memorandum from Dr. Amanda D. Rodewald, Chair, Science Advisory Board Panel for the Review of the EPA 

Water Body Connectivity Report, to Dr. David Allen, Chair, EPA Science Advisory Board, Comments to the 

chartered SAB on the adequacy of the scientific and technical basis of the proposed rule titled “definition of ‘waters 

of the United States’ under the Clean Water Act” (Sept. 2, 2014), available at 

http://yosemite.epa.gov/sab/sabproduct.nsf/F6E197AC88A38CCD85257D49004D9EDC/$File/Rodewald_Memoran

dum_WOUS+Rule_9_2_14.pdf (hereinafter, SAB Panel Comments on the Proposed Rule).
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regulation. For example, “Panel members generally found that the term ‘significant 

nexus’ was poorly defined . . . and that the use of the term ‘significant’ was vague.”56

Panel members also questioned the adequacy of scientific support for several of the rule’s 

definitions and exclusions. For instance, “[p]anelists generally agreed that many research 

needs must be addressed in order to discriminate between ditches that should be excluded 

and included.”57 Substantial changes to the proposed rule and the draft Connectivity 

Report are needed to address these important concerns raised by the SAB panel. To 

comply with the APA, the Agencies must allow the public the opportunity to comment on 

the final report.58 (p. 153)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study. For information on the 

Administrative Procedure Act, see section 13.2.1.

API Energy (Doc. #0867.1)

13.168 (...) Moreover, stakeholders should be afforded the opportunity to review and offer 

detailed comment on the Connectivity Report once it has been published as a final report, 

inasmuch as EPA has stated that the technical basis for its definition of waters of the 

United States, and the supporting definition of significant nexus consistent with the 

Kennedy decision in Rapanos, is to be provided in this Science Advisory Board report.

(p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

13.169 The importance of affording the regulated community the opportunity to comment on the 

final Connectivity Report was recently underscored by EPA's Deputy Administrator 

Robert Perciasepe, who acknowledged that to date EPA has not adequately defined 

significant nexus , and stressed EPA's obligation to provide criteria for determining under 

what circumstances a nexus becomes significant for the purpose of establishing 

jurisdiction. The SAB has recently contemplated an approach for a decision making 

framework, but is struggling to develop this approach and specific, technically sound 

recommendations for EPA ("SAB Grapples with Gradient for Determining Waters' 

Significant Nexus," InsideEPA.com, April 29, 2014). In fact, the SAB has recently 

postponed previously planned June meetings to allow further time for deliberations. How 

the SAB's recommendations, once they have been developed and published in the final 

Connectivity Report, will affect EPA's proposed definition of jurisdictional waters is 

unclear and deserves to be subject to public review and comment. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

 

56 SAB Panel Comments on Proposed Rule at 6.

57 Id. at 7.

58 See 5 U.S.C. § 553(c).
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Interstate Mining Compact Commission (Doc. #1435)

13.170 (...) Also for consideration, the Agency previously stated that the final rule on Definition 

of "Waters of the United States" would be informed by the results of the currently 

ongoing Science Advisory Board (SAB) review of the Office of Research and 

Development's (ORD) report on Connectivity of Streams and Wetlands to Downstream 

Waters: A Review and Synthesis of the Scientific Evidence. It would be helpful for 

commenters to have access to the same information from the SAB review which the 

Agency will be taking into account in writing the final rule as we formulate our 

comments. Commenters may be able to provide valuable insight to the Agency on the 

subject and it would promote transparency in the important process of determining 

federal agencies' authority under the Clean Water Act. It is our understanding that the 

"Connectivity" study/report is not expected to be finalized until July 16. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

13.171 Given that we face two critical, overlapping, and complex issues that must be addressed 

simultaneously, and since the "Connectivity" report will not be finalized and available for 

review by commenters until at least July 16, we respectfully request a 60 day extension to 

the comment period on the proposed rule on Definition of "Waters of the United States" 

from July 21 to September 19, 2014. This extension will allow the states to fully evaluate

and provide meaningful input regarding both of these important actions. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study. 

American Exploration & Production Council (Doc. #2009.1)

13.172 (...) Our rationale for requesting an extension of the comment deadline is largely based 

on the fact that the Science Advisory Board (SAB) has yet to complete the Connectivity 

Report, which is to provide the scientific basis for the new definitions use in the Proposed 

Rule. It has been noted that the SAB has recently been trying to create a “gradient 

approach” and has been struggling to provide more clarity as to when water becomes a 

“water” and how long it remains a “water” for purposes of the Proposed Rule. In fact the 

SAB has only recently scheduled a public teleconference of the SAB Panel for the review 

of the Connectivity Report to be held on June 19, 2014. Given the scope of the Proposed 

Rule, AXPC simply needs more time to thoroughly assess the SAB’s findings and their 

implications for the Proposed Rule. (p. 1 – 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Marcellus Shale Coalition (Doc. #2039) 

13.173 In September 2013 the USEPA issued a draft scientific study, Connectivity of Streams 

and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence, 

for public comment. While the study serves as background information and justification 
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for the proposed rulemaking, the study is still undergoing peer review by the Science 

Advisory Board (SAB), which recently issued its second round of comments on the draft 

study (April 23,2014). The USEPA is still accepting Public Comments on the study (next 

teleconference is June 19, 2014), and has not issued formal responses to the comments 

received to date. The MSC recommends the USEPA extend the public comment period 

for the rulemaking until the scientific study has been finalized. The scientific study 

should have significant influence on how the proposed rulemaking is finalized and 

implemented. Accordingly, we respectfully request that the USEPA extend the public 

comment period to September 22, 2014. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Pulp and Paperworkers’ Resource Council (Doc. #4766)

13.174 A major concern of the PPRC members is that the rule continually references a report 

that is not yet finalized, entitled “Connectivity of Streams and Wetlands to Downstream 

Waters: A Review and Synthesis of the Scientific Evidence.” The draft rule states “The 

report is under review by the EPA’s Science Advisory Board (SAB) and the rule will not 

be finalized until that review and the final report are complete.” EPA announced on June 

10, 2014, that the public comment period will be extended for an additional ninety days, 

the PPRC cannot understand why the EPA has set the time clock ticking for the public 

and stakeholders affected by the proposed rule, while the EPA’s own SAB is still 

evaluating the scientific facts of the EPA’s connectivity report that serves as the scientific 

basis for the agencies proposed rule change. It is not fair to force the affected parties to 

retain legal counsel, technical experts and economic experts to pore through tons of 

technical, legal and economic materials on a limited schedule, while the scientific 

evidence is still being technically evaluated and analyzed by the SAB.

Therefore, The Pulp & Paperworkers’ Resource Council requests that the EPA and the 

CORPS suspend the current comment period and allow a one hundred eighty day 

comment period to begin after the SAB completes its review of the connectivity report, 

and the EPA takes action as necessary based on the SAB recommendations. (p. 2 – 3)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

National Stone, Sand and Gravel Association (Doc. #14412)

13.175 Moreover, the process followed by the agencies to develop the supporting science was 

fundamentally flawed. The scientific basis of the rule was still evolving during most of 

the comment period. Yet EPA's charge questions to the SAB focused exclusively on 

connectivity science and never asked the SAB to address the distinction between "any 

nexus" and "significant nexus."59 EPA sent the draft rule to OMB on the same day as 

 

59 "Connectivity of Streams and Wetlands to Downstream Waters; A Review and Synthesis of the Scientific

Evidence Technical Charge to External Peer Reviewers."
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release of the connectivity report and only recently decided to provide the proposed rule 

to the SAB.60 The agencies then extended the comment period from October 21, 2014, 

until November 14, 2014, following the release of the SAB's detailed comments on the 

proposed rule, which was simply too short a time period for the public to provide 

meaningful comments on the SAB's critique of the proposed rule. Thus, not only have the 

agencies improperly relied on science to control the legal test for jurisdiction, they also 

drew upon an incomplete report to support a vast expansion of their jurisdiction and then 

did not allow sufficient time to address the SAB's comments. (p. 16 – 17)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

CONSOL Energy, Inc. (Doc. #14614)

13.176 In September 2013, EPA published their Draft Connectivity of Streams and Wetlands to

Downstream Waters report. The report and its subsequent conclusions were used as the

foundation for the proposed rule. It is concerning that the proposed rule was published

prior to the availability of the Science Advisory Board's (SAB) review, being that the 

report is the primary justification for the proposed change. Such an expansion of 

jurisdiction should not be based on a report that does not address the fundamental 

questions related to the significance a hydrologic connection. Following their review, the 

SAB reached much the same conclusion in their review of the Draft Connectivity of 

Streams and Wetlands to Downstream Waters report. CONSOL believes that because the 

SAB review was not available at the time of the proposal, the premises with which 

determinations were made is flawed, and further scientific evaluation is needed for such a 

change to be considered. (p. 1 – 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Washington Forest Protection Association (Doc. #15030)

13.177 Proposal Lacks Adequate Science Review

Adoption of the proposal is premature due to the status of scientific review of applicable 

documents by the Scientific Advisory Board (SAB). The SAB peer review of the 

applicable science to justify the rule is not complete or finalized. The timing of the key 

report, Connectivity of Streams and Wetlands to Downstream Waters: A Review and 

Synthesis of the Scientific Evidence, and how it interacts with the proposed rule is

The process of simultaneously evaluating the science during the comment process is a 

major hurdle in providing substantive comments and recommendations regarding the 

scientific basis for the validity of the obligations established in the rule. WFPA 

recommends that the agencies wait to finalize and adopt the WOTUS rule until after the 

peer review is completed and the report is finalized. Adopting the proposal prior to the 

 

60 "EPA Science Advisors Plan Informal Review of CWA Jurisdictional Rule," BNA, June 20, 2014.
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final report being released is inappropriate and misses an opportunity to refine the 

proposal based on the scientific findings of the final connectivity report. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Edward Wisner Donation (Doc. #15438)

13.178 4. The proposed rule should not have been published until such time as the SAB issued 

its final Report.

EPA's Office of Research and Development ("ORD") had requested that EPA's Science

Advisory Board ("SAB") review the EPA's draft report titled, Connectivity of Streams 

and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence

(September of 2013) ("Report”). In response, SAB assembled an expert panel to review 

the Report. While instead of waiting for the review to be completed and the draft Report 

to be revised in accordance with SAB's comments, EPA instead went ahead and

published the proposed rule in the Federal Register on March 25, 2014. It would not be 

until October 17, 2014, nearly seven (7) months later, that SAB would issue its 

comments. In essence, EPA has placed the proverbial "cart before the horse," by issuing 

its rule before the scientific Report on which it was to be based, was finalized. (p. 4)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study. 

Georgetown Sand and Gravel (Doc. #19566)

13.179 The proposed rulemaking relies on a Connectivity Report that is not final. Even EPA's 

own Science Advisory Board reviewing the Report, has made statements regarding EPA's 

lack of transparency and true intent of proposing a rule before the Report is final. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Cattle Empire (Doc. #8416)

13.180 CONCERN REGARDING THE "REPORT" 

EPA admits that the "Report" that was mentioned above is under review by EPA's 

Science Advisory Board (SAB) as this proposed rule is on public notice, but that the rule 

will not be finalized until that review and the final Report are complete. How can EPA 

base a proposed rule on a report that has not even been reviewed? And based on the 

previous statement from the preamble, it leads me to believe that the Report is not even 

final itself. Furthermore, the preamble states that ERG convened a one-day meeting with 

EPA's SAB on January 31, 2012 in Washington, DC. The meeting was closed to the 

public and considered an internal EPA deliberative process. This leads us to question the

transparency of EPA's rulemaking process. How many other meetings have taken place 

without public input? On FR pg 22197 it states, "At the conclusion of the rulemaking 

process, the agencies will review the entirety of the completed administrative record, 
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including the final Report reflecting SAB review, and make any adjustments to the final 

rule that are appropriate based on this record." Will the rule be placed on public notice 

again after these "adjustments" are made? (p. 5)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

North Dakota Soybean Growers Association (Doc. #14121)

13.181 On the date that the agencies published the proposed WOTUS rule, the EPA's Science

Advisory Board had not completed its review of the report and, in fact, did not do so until

30 September 2014. Given the complex and controversial nature of the conclusions made

in the report, until the public is given an opportunity to fully evaluate the peer review

comments, the quality of the information in the report is unknown and cannot be relied on

for important public policy development. (p. 5)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study. 

Rose Acre Farms (Doc. #14423)

13.182 Reliance by the agency on the Connectivity of Streams and Wetlands to Downstream 

Waters: A Review and Synthesis of the Scientific Evidence (Washington, D.C.: U.S. 

Environmental Protection Agency, 2013) is without any supportable basis. The report had 

not been fully reviewed by the Scientific Advisory Board (SAB) and therefore EPA was 

not able to incorporate the SAB suggestions into the proposed rule. Furthermore, this 

meant there could be no meaningful public comment about the details in the final rule as 

they had not even been established at the time of publication of the proposed rule. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

California Association of Winegrape Growers (Doc. #14593)

13.183 Further, CAWG is concerned that EPA and the Corps (the “Agencies”) have engaged the 

SAB in a flawed process. First, sending a proposed rule to OMB before SAB completes 

its review of the underlying science suggests outcomes have been pre-determined. This 

approach is troubling for a number of reasons set forth in our comments below. CAWG 

also believes EPA’s Technical Charge to SAB is too general, does not ask the right 

questions, and will not yield the kind of information the Agencies need to form a 

scientific basis for determining whether these connections have regulatory significance.

As previously mentioned it is our understanding that EPA sent a proposed rule to OMB 

for interagency review on September 17, 2013 while simultaneously withdrawing the 

2011 Draft Proposed Rule and releasing the Report. It is also our understanding that the 

findings from the Report will be utilized as the scientific basis for final regulatory action 

pertaining to the proposed rule currently at OMB. Therefore, the Report has the potential 

for wide-ranging implications for many sectors of the economy including production 
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agriculture. CAWG is concerned that these activities are the result of a problematic and 

flawed regulatory process.

First, it is not clear why a proposed rule that will be based on the scientific findings of a 

draft Report would be submitted to OMB prior to the SAB conducting and completing its 

scientific review. Submittal to OMB prior to scientific review suggests that both the 

scientific and policy outcomes are already predetermined rather than basing a proposed 

rule on a set of prior scientific findings. The optics of this approach raises legitimacy 

questions of the rulemaking process and reduces public confidence that the science is in 

fact determining policy; not the other way around.

Additionally, it is our understanding that the SAB members have not been supplied with 

a copy of the proposed rule to date. Special terminology and various existing legal and 

regulatory concepts and classifications are utilized in making jurisdictional 

determinations on possible “waters of the United States.” Without a copy of the proposed 

rule, CAWG is concerned that unintended consequences will result a possible lack of 

understanding of the legal and regulatory framework within which the SAB’s review 

should be properly placed. CAWG requests that the proposed rule submitted to OMB be 

withdrawn to allow for SAB review of the draft Report. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Missouri Soybean Association (Doc. #14986)

13.184 General Concern #1 - The public record and the public comment process has been a 

moving target resulting in further loss of public trust. 

Connectivity Report - The proposed rule references EPA's draft scientific report entitled 

"Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis 

of the Scientific Evidence" (i.e. Connectivity Report). EPA has stated that the 

Connectivity Report, when finalized, will provide the scientific basis and support for the 

WOTUS rule. To date, the Connectivity Report is a draft report which has been 

undergoing an EPA Science Advisory Board (SAB) review. It is clear now that the 

Connectivity Report will not be completed and made final until after the WOTUS rule 

comment period has closed. Thus, the public will not be able to consider the final 

connectivity report in its WOTUS rule comments. We feel it is reasonable to expect the 

underlining science be final and settled before a proposed rule, particularly one of this 

magnitude, be developed and presented to the public for comment. This situation unfairly 

limits the public's ability to provide meaningful comments. 

Making the situation worse, the preliminary SAB review appears to suggest that the final 

connectivity report will include substantive changes and thus be something very different 

from the draft report made available during the public comment period. Therefore, these 

comments as well as other public comments will be prepared and based upon inaccurate 

and outdated information and science of which was placed in public record by EPA. This 

process and sequence of events will not achieve the desired clarity or provide the 

necessary transparency to gain public trust. Therefore, the proposed rule should be 
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withdrawn and re-proposed after the final Connectivity report is made available for the 

public to review. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Jensen Livestock and Land LLC (Doc. #15540)

13.185 Jensen Livestock and Land LLC. assert that the agencies cannot rely on EPA’s Report, 

Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of 

the Scientific Evidence, (Washington, DC: U.S. Environmental Protection Agency, 2013). 

The agencies failed to have their scientific arm focus on the most fundamental scientific 

matters that are inseparably linked to the legal limits of the law: “significance” of 

connectivity, and that connectivity to TNWs instead of “downstream waters.” 

Additionally, because the report was still under review when the proposed rule was 

published in the federal register, it is not a final document and therefore is subject to 

change and the public will not have a meaningful opportunity to comment on the final as 

the basis for this rule.

When the agencies crafted their proposed rule and requested its Office of Research and 

Development to develop this Connectivity report, the logical and fundament request to 

the researchers should have been to look at the importance (or “significance”) of 

connections of these smaller waters to TNWs. It is unclear to the cattle industry how and 

why the agencies failed to ask the most important question that science should have 

informed under this regulation, “what is significance.” The agencies response about that 

term being a legal question is weak at best. It is a legal term that requires scientific 

analysis. The agencies failure to even request an adequate and relevant analysis puts the 

entire report into the unusable category. Jensen Livestock and Land LLC assert that 

because the Connectivity report does not address the significance of connections it cannot 

be relied upon in the proposed rule.

The proposed rule states, “[t]he Report also concludes that wetlands and open waters in 

floodplains of streams and rivers and in riparian areas have a strong influence on 

downstream waters.” (Proposed Rule at 22196). Unfortunately, EPA did not request its 

Office of Research and Development to frame the report in terms of effects on 

Traditionally Navigable Waters (TNWs). The report focuses on “downstream waters.” It 

is unclear what that could entail exactly, but the broader interpretation could mean any 

water that is downstream from the water in question. Justice Kennedy’s concurring 

opinion referenced above only allows isolated waters to be federally jurisdictional if they 

are significantly connected to a TNW, not “a downstream water.” (Rapanos, J. Kennedy, 

concurring, at 10). This is an unwarranted expansion from the Kennedy opinion, and as 

he reiterates there is a limit to federal jurisdiction. His significant nexus test must be 

constrained to TNWs, instead of downstream waters, as the latter would obliterate any 

form of line describing the limit to federal jurisdiction under the CWA. The agencies 

cannot rely on the Connectivity report because it does not analyze the impacts to TNWs. 

Additionally, Jensen Livestock and Land LLC assert that the agencies cannot rely on the 

Connectivity report because it has not been fully reviewed by the Scientific Advisory 
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Board (SAB). At the time of publication in the federal register, the Connectivity report is 

a draft report, without incorporating the suggestions of the SAB panel. It is extremely 

troublesome that the agencies did not allow their own science to inform their rulemaking. 

It seems like the proposed rule was written before EPA’s ORD department even 

assembled the Connectivity report. If that were not the case then the agencies would have 

waited to propose a rule until the SAB review of the report was completed. As it stands, 

the public will not have a meaningful opportunity to comment on a proposed rule that 

was informed by the final Connectivity report. The only logical reason to do this is if the 

agencies knew they would not have a final report that was different from the draft report. 

This is a brave assumption from the agencies, and shows that more likely, the agencies 

had the proposed rule written and then fit the science to meet its proposed rule. Jensen 

Livestock and Land LLC strongly assert that the agencies cannot rely on the draft 

Connectivity report for the reasons described above to support their proposed rule. 

If the agencies incorporate a final Connectivity report in their final “waters of the U.S.” 

definition, it will be substantively different than the proposed rule, requiring the agencies 

to resubmit the proposed rule to the public for comments. As it stands, the public cannot 

meaningfully comment on the proposed rule. (p. 14 – 15)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study. For additional information on the 

final Connectivity Report and how this information was considered in the 

development of today’s rule, please see Compendium 9.

13.186 b. The Exclusions are Unclear and/or Undefined 

i. Ditches

The agencies exclusions under (b)(3) and (b)(4) are unclear and not adequate for the 

livestock industry. It is impossible to determine how many ditches would even fall into 

these categories because, like so many other times throughout this proposed rule, the 

agencies have failed to carry out their duty to define key legal terms. Central to this point 

are the definitions of “ditches,” “uplands” and “through another water.” Neither of these 

important terms are even attempted to be explained in the proposed rule. Extraneous 

documents placed on the agencies’ website outside of the proposed rule attempting to 

define uplands are not adequate nor legally binding. Any definitions the agencies create 

should be put out for public comment, before they are finalized. To not do so would be a 

violation of the APA.61 (p. 22)

Agency Response: This comment is not applicable to section 13.1. For information 

on ditches, see comment responses in Compendium 6.

Goehring Vineyards, Inc. (Doc. #19464)

13.187 I. The Proposed Rule Improperly Relies on the Connectivity of Streams Report

 

61 Supra Note 2.
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The Science Advisory Board’s (“SAB”) review of EPA’s synthesis of the available 

science relative to connectivity of streams and wetlands is of utmost importance to me 

given my use of the land to grow food and fiber. Unfortunately, in many respects, the 

Report diverges unnecessarily from existing law and usage, causing great concern. I have 

numerous concerns with the Draft Proposed Rule as it improperly expands federal 

jurisdiction under the Clean Water Act (“CWA”), substantially broadens all prior 

guidance documents and interpretations, and is inconsistent with existing federal law and 

case law.

Further, I am concerned that EPA and the Corps (the “Agencies”) have engaged the SAB 

in a flawed process. First, sending a proposed rule to OMB before SAB completes its 

review of the underlying science suggests outcomes have been pre-determined. This 

approach is troubling for a number of reasons set forth in our comments below. I also 

believe EPA’s Technical Charge to SAB is too general, does not ask the right questions, 

and will not yield the kind of information the Agencies need to form a scientific basis for 

determining whether these connections have regulatory significance.

As previously mentioned it is our understanding that EPA sent a proposed rule to OMB 

for interagency review on September 17, 2013 while simultaneously withdrawing the 

2011 Draft Proposed Rule and releasing the Report. It is also our understanding that the 

findings from the Report will be utilized as the scientific basis for final regulatory action 

pertaining to the proposed rule currently at OMB. Therefore, the Report has the potential 

for wide-ranging implications for many sectors of the economy including production 

agriculture. I am concerned that these activities are the result of a problematic and flawed 

regulatory process.

First, it is not clear why a proposed rule that will be based on the scientific findings of a 

draft Report would be submitted to OMB prior to the SAB conducting and completing its 

scientific review. Submittal to OMB prior to scientific review suggests that both the 

scientific and policy outcomes are already predetermined rather than basing a proposed

rule on a set of prior scientific findings. The optics of this approach raises legitimacy 

questions of the rulemaking process and reduces public confidence that the science is in 

fact determining policy; not the other way around.

Additionally, it is my understanding that the SAB members have not been supplied with a 

copy of the proposed rule to date. Special terminology and various existing legal and 

regulatory concepts and classifications are utilized in making jurisdictional 

determinations on possible “waters of the United States.” Without a copy of the proposed 

rule, I am concerned that unintended consequences will result a possible lack of 

understanding of the legal and regulatory framework within which the SAB’s review 

should be properly placed. I request that the proposed rule submitted to OMB be 

withdrawn to allow for SAB review of the draft Report. (p. 1 – 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.
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Martin Marietta Materials, Inc. (Doc. #6250)

13.188 Furthermore, EPA`s own Science Advisory Board (SAB) has not yet issued its analysis 

of the connectivity report which EPA indicated was to serve as the scientific basis to the 

proposal. EPA only recently sent the proposal to the SAB, contradicting agency claims 

that it would rely on the SAB analysis to develop the proposal, and raising concerns 

about the transparency of this particular rulemaking. (p. 1)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Pike County Highway Department (Doc. #6857)

13.189 I appreciate that EPA and the Corps are moving forward with a proposed rule, rather than 

a guidance document, as originally proposed. However, I have concerns with the process 

used to create this proposal, and specifically whether impacted state and local groups 

were adequately consulted throughout the process.

 Proposed rule should follow, not precede, draft science report

(...) In addition to the aforementioned issues, I am concerned with the sequence and 

timing of the draft science report, Connectivity of Streams and Wetlands to Downstream 

Waters: A Review and Synthesis of the Scientific Evidence, and how it fits into the 

proposed "waters of the U.S." rulemaking process, especially since the document will be 

used as a scientific basis for the proposed rule. Releasing the proposed rule before the 

connectivity report is finalized seems premature and the agencies may have missed a 

valuable opportunity to review comments or concerns raised in the final report that would 

inform development of the proposed rule. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study. 

13.190 (...) I respectfully request that the agencies consider suspending the current public 

comment period and re-releasing the proposal, with the updated economic analysis (based 

on the comments received), after the science-based connectivity report is issued. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study. For information on the economic 

analysis see comment responses in Compendium 11.

Ingram Barge Company (Doc. #14796)

13.191 Additionally, the rule improperly fails to account for the final scientific review of EPA's 

Scientific Advisory Board ("SAB") and thus denies the public a reasonable opportunity to 

evaluate the agencies' response to that review. At that time, the agencies sent the 

Proposed Rule to the Office of Management and Budget ("OMB") for review, and EPA 

released the SAB's draft scientific report on the connections of streams and wetlands to 
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large water bodies like rivers, lakes, and oceans.62 The agencies state that the rule will not 

be finalized until the completion of the final report, which will inform the final rule.63 

However, EPA indicates that the SAB 's final report will not be available until after the 

close of the public comment period on the rule. As EPA's draft scientific report has not 

yet been peer-reviewed or finalized, the Agencies' should extend the Proposed Rule's 

comment period until after the final report is issued to allow for proper review. (p. 4)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

California Farm Bureau Federation (Doc. #16399)

13.192 I. The Proposed Rule Improperly Relies on the Connectivity of Streams Report 

As stated in the Proposed Rule’s preamble, the Agencies will be utilizing the Scientific 

Advisory Board’s (“SAB”) review of the Connectivity of Streams and Wetlands to 

Downstream Waters Report (“Report”) as the scientific basis for any final regulatory 

action pertaining to the Proposed Rule. (79 Fed. Reg. 22,190 (April 21, 2014).) 

Therefore, the SAB’s review of this Report has the potential for wide-ranging 

implications for more sectors of the economy including production agriculture.

Farm Bureau is concerned that this activity is the result of a problematic and flawed 

regulatory process. First, it is not logical that the Agencies would prepare a draft rule 

before the foundational science for the proposal is reviewed and finalized. Second, 

sending a proposed rule to the Office of Management and Budget before the SAB 

completes its scientific review of the underlying science suggests outcomes have been 

pre-determined. It is our understanding that the SAB only recently completed their 

review of the Report on October 17, 2014.

The optics of this approach raise legitimacy questions of the rulemaking process and 

reduces public confidence that the science is in fact determining policy; not the other way 

around. Additionally, the public should be afforded the opportunity to comment on the 

final Report prior to the deadline to review and comment on the Proposed Rule. Given 

that this has not occurred, the Proposed Rule’s foundational reliance on the Connectivity 

of Streams Report is flawed. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study. For information on the economic 

analysis, see comment responses in Compendium 11.

BMG Marine, Inc. (Doc. #18855)

13.193 The proposed rulemaking violates the Administrative Procedure Act and various 

Executive Orders specifically as they relate to transparency and process. (p. 2)

 

62 EPA Office of Research & Development, Connectivity of Streams and Wetlands to Downstream Waters: A

Review and Synthesis of the Scientific Evidence (Sept. 2013).

63 79 Fed. Reg. at 22,189-90.
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Agency Response: For information on the Administrative Procedure Act, see 

summary response for section 13.2.1. 

American Public Gas Association (Doc. #18862)

13.194 Prejudges the Science

There are certain aspects of the NOPR that APGA finds very troubling from the 

standpoint of fundamental administrative law principles. The need to broaden the scope 

under the proposed rule is based on EPA's draft scientific study on the connectivity of 

waters "Connectivity of Streams and Wetlands to Downstream Waters: A Review and 

Synthesis of the Scientific Evidence." The EPA's Science Advisory Board panel is still in 

the process of peer-reviewing the draft connectivity report.

In addition, the Agencies base their analysis of "significant nexus"- a key phrase in the 

judicial history of the reach of CWA jurisdiction64 on a yet -to-be finished literature 

review which fails to examine what connections are "significant." The final report was 

not released during the comment period, which did not allow the affected parties 

adequate time to review and comment.

Moreover, it does not appear that the Agencies intend to give the public an opportunity to 

review the final connectivity report as part of the waters of the United States (WOTUS) 

rulemaking. There are numerous places throughout the preamble to the proposed rule 

wherein the Agencies have asked the public to provide specific information regarding the 

proposed rule's scientific justifications. The purpose of the Science Advisory Board 

(SAB) review of the draft connectivity study was to evaluate the "evolving scientific 

literature on connectivity of waters," and the public deserves the opportunity to comment 

on the conclusions of that review process. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Alabama Road Builders Association (Doc. #18913)

13.195 Additionally, and even further disconcerting, is the recently released report by the EPA's 

Science Advisory Board recommending that the rule go even further than as proposed. (p. 

1)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study. For additional information on the 

SAB process see compendium 9.

Florida water Environment Association (Doc. #0870)

13.196 The FWEA Utility Council respectfully requests that EPA provide a 180-day comment 

period and that this extended timeclock begin to tick only after the Science Advisory 

Board (SAB) releases its final report summarizing its analysis of the proposed rule's 

 

64 E.g., SWANCC. 531 U.S. at 167-68.
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underlying connectivity report and EPA incorporates the SAB' s recommendations into 

the rule proposal. This extension will enable the FWEA Utility Council to evaluate the 

hundreds of pages of proposed rule language and preamble as well as sift through the 

over 1,000 technical publications cited in the proposal. Additionally, delaying the 

comment period until after the SAB recommendations are incorporated will help ensure 

that the comments can incorporate the best scientific information available and are 

directed at the agency's latest thinking on the appropriate scope of federal jurisdiction 

over Florida waters. (p. 1 - 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

WateReuse Association (Doc. #1349) 

13.197 Given the significance of the proposed rule, the public should be permitted the 

opportunity to thoroughly review and comment on the EPA's proposed rule as well as its 

supporting documentation, including its lengthy Appendices (Appendix A- Scientific 

Evidence, Appendix B- Legal Analysis), Economic Analysis, and the Draft (and Final) 

Connectivity Report. We believe that additional time for comment on the proposed rule 

is warranted for many reasons, including the following:

The agencies must complete their review of the underlying science before the 

rulemaking can commence. Additional time is needed for the public to respond to 

this final review of the science in commenting on the proposed rule.

The EPA’s proposed rule purports to rely on the scientific conclusions of the EPA’s draft 

Connectivity Report, which is currently under review by the EPA Science Advisory 

Board (SAB). As we understand the current status of that review, the SAB is still 

questioning what proper criteria should be used for determining under which 

circumstances a connection amounts to a “significant nexus” for the purposes of 

establishing CWA jurisdiction.

The EPA has acknowledged publically that the SAB and the agency are still considering 

options for review of the adequacy of the science to support the proposed rule. Given the 

ongoing SAB review, and the fact that EPA has not yet determined how to review the 

adequacy of the science to support the proposed rule, commenters should have at least 

120 days from the time when EPA completes its review of the science and issues a final 

connectivity report to comment on the proposed rule.

Throughout the 300-plus page preamble to the proposed rule, tile agencies ask the public 

to provide complex technical information regarding the proposed rule's scientific 

justifications. We believe the purpose of the SAB Panel review of the draft connectivity 

study was to evaluate the state of the science evolving around the connectivity of water 

bodies, and the public deserves the opportunity to respond at the conclusion of the review 

process.

A significant amount of time and technical expertise will be required first to evaluate the 

final Connectivity Report from the SAB and the agencies' scientific conclusions and 

responses) and then to prepare substantive comments on the proposed rule. We believe 
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the comment period should be extended to give our members the additional time needed 

to review these lengthy, complex scientific analyses and provide meaningful feedback.

(p. 1 – 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Yakima Basin Joint Board (Doc. #1708.1)

13.198 I am respectfully requesting an extension of the public comment period for an additional 

90 days from the current due date of July 21, 2014, or for 90 days from the release of the 

final connectivity report by the EPA (whichever is later) on the Environmental Protection 

Agency and U.S. Army Corps of Engineers' Proposed Rule Defining "Waters of the 

United States" Under the Clean Water Act. 76 Fed. Reg. 22,188 (Apr. 21, 2014). (p. 1)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Colorado Wastewater Utility Council (Doc. #1744) 

13.199 The CWWUC is writing to urge you to extend the comment period for the proposed rule 

clarifying the definition of "Waters of the United States" under the Clean Water Act. The 

current comment period is 90 days. Given the importance of the proposed rule and its 

potential impact to the application of Clean Water Act requirements, we request the 

comment period be extended to 120 days after completion of the review of the report 

titled "Connectivity of Streams and Wetlands to Downstream Waters/A Review and 

Synthesis of the Scientific Evidence". (p. 1)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Palm Bech County MS4 NPDES Steering Committee (Doc. #1755.1)

13.200 It is our understanding that the rule as proposed by the U.S. Environmental Protection 

Agency (EPA) and the U.S. Army Corps of Engineers (ACOE) is being technically 

evaluated and analyzed by EM'S Science Advisory Board (SAB). 

The 90-day comment period is simply not enough time for MS4s to adequately review 

and evaluate the rule and the thousands of pages of supporting materials developed by the 

EPA and ACOE over a period of years, especially when the basis of the proposed rule is 

still being reviewed by the SAB.

The Palm Beach County MS4 permittees request that the agencies allow for an 1 80-day

comment period, and that the comment period not begin until the SAB completes its 

review and EPA takes action as necessary based on SAB recommendation. (p. 1 – 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.
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Littleton/Englewood Wastewater Treatment Plant (Doc. #3526)

13.201 Finally, we are concerned that the proposed new rule has been issued for comments 

before the SAB has concluded its review of EPA's connectivity study. This connectivity 

study is supposed to form part of the scientific basis for the regulation. Because the 

hydrology is fundamentally different in the arid West, we hope that this connectivity 

study will take into account these differences. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study. For additional information on the 

final Connectivity Report and how this information was considered in the 

development of today’s rule, please see Compendium 9, and 

http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=296414

Department of Public Works, City of Northglenn, Colorado (Doc. #14990)

13.202 The EPA has stated that it would conduct an exhaustive and peer reviewed scientific 

literature review to evaluate connectivity between various surface hydrologic features and 

downstream Traditional Navigable Waters (TNWs) prior to development of the Proposed 

Rule. However, the Agencies are on the path to finalizing the Proposed Rule while the 

Connectivity Report currently remains in draft form. Requesting comments on the 

Proposed Rule before the Connectivity Report is final is problematic. The purpose of the 

Connectivity Report should be to provide the science and technical foundation for the 

Proposed Rule. The Connectivity Report is a compilation of independent peer-reviewed 

scientific literature that, when finalized, is intended to provide the scientific justification 

for the Agencies' interpretation of when waters are subject to CWA jurisdiction. The 

chartered Science Advisory Board (SAB) is currently conducting quality reviews of its 

draft peer review reports on the Connectivity Report and is deliberating on the adequacy 

of the scientific and technical basis of the Proposed Rule.

Northglenn requests that any final regulatory action related to CWA jurisdiction be 

based upon a complete and validated version of the Connectivity Report. (p. 4 – 5)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

13.203 The City of Northglenn respectfully requests that the Agencies follow the proper course 

of action to ensure that the Proposed Rule is based upon a valid scientific and technical 

foundation:

(1) Revise the Connectivity Report based upon the comments and concerns expressed by 

Northglenn and other stakeholders;

(2) Finalize the Connectivity Report;

(3) Revise the Proposed Rule accordingly pursuant to the findings and recommendations 

in the Connectivity Report; and
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(4) Reissue the Proposed Rule for public comment. Following this expanded process will 

allow stakeholders to submit informed comments based on the best and most current 

available information. (p. 5)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Arizona Public Service Company (Doc. #15162)

13.204 A. Agencies’ Rulemaking Conducted Prior to Completion of Various Technical Analyses 

and Public Review of those Analyses 

The Agencies state that the draft Connectivity of Streams and Wetlands to Downstream 

Waters: A Review and Synthesis of the Scientific Evidence provides the scientific basis 

for the revised definition of WOTUS. The draft report is marked “Do Not Cite or Quote”; 

however, since EPA stated in the preamble to the proposal that the rule will not be 

finalized until the draft Connectivity Report is finalized, stakeholders have no choice but 

to use the draft Connectivity Report for purposes of filing their comments.65 The draft 

Connectivity Report is a compilation of peer-reviewed literature on the connectivity of 

tributaries, wetlands, adjacent open waters, and other open waters to downstream waters 

and EPA’s interpretation of the effect of the connections on chemical, physical, and 

biological integrity of downstream waters. SAB was tasked with reviewing the report and 

answering questions regarding its clarity and technical accuracy. As tasked, SAB focused 

on the scientific evidence and conclusions in the report; however, APS cautions that the 

science must be considered in light of Supreme Court precedent on jurisdiction.66 For 

example, Justice Kennedy’s caution that “the required nexus must be assessed in terms of 

the statute’s goals and purposes” has been ignored.67 (p. 3)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Utility Water Act Group (Doc. #0852)

13.205 The connectivity report is currently undergoing review by the Science Advisory Board 

(SAB) Panel for the Review of the EPA Water Body Connectivity Report. The SAB 

Panel has released a 74-page draft report of its initial recommendations and findings 

regarding EPA's connectivity report, but the SAB Panel has not yet issued a final report. 

Indeed, during two recent public teleconferences, the SAB Panel discussed several major 

changes that should be made to the connectivity report that the Panel will likely include 

in its final recommendations. As a result, the science that the agencies will rely on in the 

final rule is still likely to change. Accordingly, the agencies ought to extend the comment 

period for at least 90 days from EPA's issuance of the final connectivity report so that the 

 

65 79 Fed. Reg. at 22190.

66 See UWAG Comments on WOTUS, Section II – The Proposed Rule Exceeds the Agencies’ Authority Under the

Clean Water Act and Is Inconsistent with Supreme Court Precedent (Nov. 14, 2014).

67 Rapanos, 547 U.S., at 779.
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public can fully evaluate this critical scientific review before they must submit their 

comments. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

13.206 (...) Similarly, with the proposed rule's Appendix A, the connectivity report, and the 

SAB Panel's draft report, the agencies have provided a large amount of scientific 

information that must be reviewed. Recognizing the importance of careful review of that 

data, EPA has given the SAB members eight months to review the information and 

develop a report, albeit one responding to a very narrow list of questions. The public is 

entitled to no less an opportunity for review. Only by careful review and analysis of the 

large amount of scientific information available will UWAG be able to develop cogent 

and precise comments on the rule and its supporting documents. We will need much 

more time and assistance to understand all of the technical information and its 

implications for the agencies' decisions. For these reasons, additional time is warranted to 

allow the public to adequately address the proposed rule's economic impacts and 

underlying scientific support. (p. 3)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Duke Energy (Doc. #0855)

13.207 (...) Second, the connectivity report, which EPA and the Corps are relying on for the 

rule's scientific basis, is currently undergoing review by the Science Advisory Board 

(SAB) Panel [Review of the EPA Water Body Connectivity Report]. The SAB Panel 

released a 74-page draft report of its initial recommendations and findings regarding 

EPA's connectivity report, but the SAB Panel has not yet issued a final report. In a recent 

teleconference, the SAB Panel discussed several major changes that should be made to 

the connectivity report that it will likely include in its final recommendations report. As a 

result, the science that the agencies will rely on in the final rule is still likely to change. 

Accordingly, the agencies ought to extend the comment period for at least 90 days from 

EPA's issuance of the final connectivity report, so that the public can fully evaluate this 

critical scientific review before they must submit their comments. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study. 

Dynegy, Inc. (Doc. #1240) 

13.208 The proposed rule is purportedly based on the scientific conclusions of EPA’s 

connectivity report, but the report is still under review by the Science Advisory Board 

(SAB) panel and is likely to change significantly per the SAB panel’s recommendations.

(p. 2)
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Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Association of American Pesticide Control Officials (Doc. #1651)

13.209 (...) Specifically, AAPCO asks the agencies to extend the comment period for a 

minimum of 90 days with a target of 90 days after the EPA Science Advisory Board 

(SAB) finalizes its’ report on the “Connectivity of Streams and Wetlands to Downstream 

Waters” (“Connectivity Study”). (p. 1)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study. 

13.210 (...) The Connectivity Study, which the agencies have relied upon in the development of 

this proposal, remains to be finalized by EPA’s Science Advisory Board (SAB). FIFRA 

State Lead Agencies, our regulatory and/or technical assistance partners potentially 

impacted by this proposal will benefit greatly from the opportunity to review and 

evaluate the final work of the SAB. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Clearwater Watershed District, et al. (Doc. #9560)

13.211 The EPA's Science Advisory Board is still reviewing public comments on the Office 

of Research Development's report, Connectivity of Streams and Wetlands to 

Downstream Waters. 

We are concerned with the chronology in which the agencies have proposed this rule in 

relation to review and final publication of the U.S. EPA's Science Advisory Board's 

report on the connectivity of streams and wetlands to downstream waters, a synthesis of 

published peer reviewed scientific literature discussing the nature of connectivity and 

effects of streams and wetlands on downstream waters. 

Prefatory comments to the rule promise that the final rule will be informed by the final 

version of the Science Advisory Board's report. A significant number of public comments 

were submitted to the report, including comments from many of Minnesota's counties, 

watershed districts, and other local government units. This proposed rule comes at a time 

before the agency has reviewed, responded, and altered its report based on comments and 

concerns regarding unsound science, use of new terminology, and other important 

considerations. In the current rulemaking process, the public is afforded zero opportunity 

to review the final, scientific report to aid in its analysis of the proposed rule. 

While we appreciate the extension given to the comment period, we recommend that the 

public be given ample time to review the contents of the Science Advisory Board's final 

report before the comment period on the proposed rule is opened and closed. 

RECOMMENDATION: We recommend that the agencies indefinitely suspend current 

rulemaking on defining waters of the United States until the Connectivity of Streams and 
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Wetlands to Downstream Waters report is finalized and the public is afforded time to 

analyze its findings before the deadline for comments on the proposed rule. (p. 4 – 5)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study. 

Mohave Electric Cooperative, Inc. (Doc. #10953)

13.212 The proposed rule is predicated on a science report that is still in draft form.

The Proposed Rule is significantly informed by the EPA's conclusions in the Science 

Report entitled Connectivity of Streams and Wetlands to Downstream Waters: A Review 

of the Scientific Evidence (Report), which is described in the Proposed Rule as, "a draft 

peer-reviewed synthesis of published peer-reviewed scientific literature discussing the 

nature of connectivity and effects of streams and wetlands on downstream waters." 

However, by the Agencies' own admission, the Report was still in peer review by the 

Scientific Review Board (SRB) when the Proposed Rule was published in the Federal 

Register. While the Agencies state that the Proposed Rule will not be promulgated until 

the Report is finalized, publishing a draft rule when the scientific analysis upon which it 

is predicated has not been completed is illogical and inappropriate.

In addition to peer review by the SRB, the Agencies solicited comments from the public 

on the draft Report. The ultimate fate of those thousands of comments is unclear. Did 

they inform the draft Report that was presented to the SRB for peer review? Were they 

provided to the SRB for consideration in their review? It is assumed that the Agencies 

will provide a discussion of the comments, and their response, in the final rule, but the 

public needs some assurance that the peer review being completed by the SRB has 

somehow acknowledged these comments. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Duke Energy (Doc. #13029)

13.213 If the agencies had waited to develop the proposed rule subsequent the development of 

the SAB’s Final Recommendation Report and incorporation of their recommendations 

into the Final Connectivity Report, it could be reasonably anticipated that a different 

version of the proposed rule would have resulted, with potentially significant changes to 

wording, definitions or concepts for establishing jurisdiction of “waters of the United 

States.” However, with the agencies issuing the proposed rule for comment prior to the 

SAB reviewing and finalizing their recommendations to the scientific foundation of that 

rule, it leads one to conclude that the SAB’s recommendations will not be given adequate 

consideration in the rulemaking. (p. 70)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.
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Southern Company (Doc. #14134)

13.214 The Agencies Must Reissue a Proposed Rule for Public Review and Comment after EPA 

Finalizes Its Scientific Study

In their haste to finalize this rule, the agencies inexplicably issued the proposal before 

finalizing the foundational scientific study that forms the basis for the rule. Despite the 

appropriate decision by the agencies to extend the public comment period, this 

rulemaking has been flawed from the very beginning and has deprived the public of a 

meaningful opportunity to comment.

There is no justification for the flawed process the agencies have pursued. The current 

regulatory definition of “waters of the U.S.” has been in place for over 25 years and the 

most recent Supreme Court decision dealing with CWA jurisdiction was decided over 

eight years ago. Since this most recent CWA decision, the agencies have issued two 

significant guidance documents and proposed a third to clarify the current regulatory 

definition.68 Through this rulemaking, EPA has purportedly undertaken a comprehensive 

assessment of the science the agencies agree must inform any rule clarifying the scope of 

CWA jurisdiction—which with its Connectivity Report. See Draft Report, Connectivity 

of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific 

Evidence (Washington, DC: U.S. Environmental Protection Agency, September 2013) 

(Draft Connectivity Report). But instead of allowing the scientific review to take its 

course and properly conclude, thus benefiting from and allowing that review to inform 

the agencies’ decision on the best available science, the agencies plowed ahead with 

concurrent processes for finalizing the rule and the scientific study. Putting the cart 

before the horse, the agencies proceeded to build a proposal upon a flawed and 

incomplete scientific assessment, without sufficient peer-review, and in a manner that has 

deprived the public of a meaningful opportunity for notice and comment on many 

important aspects of the science supposedly underlying the rule. These would be shaky 

grounds for any rulemaking, but are especially shaky grounds for a rule of this magnitude 

of importance, and where the science and policy are so intrinsically linked.

EPA’s Science Advisory Board (SAB), which was tasked with reviewing the adequacy of 

the scientific and technical basis of the proposal, did not complete its review on this 

charge until September 30, 2014, leaving less than six weeks for the public to review and 

respond to the agencies’ proposal in light of the SAB’s review69. The final draft report 

from the SAB’s ad hoc panel charged with conducting a peer review of EPA’s Draft 

Connectivity Report (Connectivity Panel) was approved by the chartered SAB on 

September 26, 2014, yet the report was not finalized and submitted to EPA or the public 

for review until October 17, nearly a month later and less than a month before the 

 

68 See “Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. U.S. & Carabell 

v. U.S.,” Dec. 2, 2008, available at 

http://water.epa.gov/lawsregs/guidance/wetlands/upload/2008_12_3_wetlands_CWA_Jurisdiction_Following_Rapa

nos120208.pdf

69 See September 30 Letter from Dr. David Allen, Chair of SAB, to Administrator McCarthy.
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deadline for public comment.70 Although the SAB generally concluded that EPA’s Draft 

Connectivity Report is an adequate scientific basis for key components of the proposed 

rule, the SAB panelists have repeatedly raised serious concerns regarding definitions and 

approaches taken under the proposal, which strongly support scrapping the current 

proposal and starting all over. See generally, SAB Final Report; SAB Panel Memo; SAB 

Letter to EPA.

At present, EPA has yet to finalize its own Draft Connectivity Study, the purported 

foundation of the rulemaking. At best, this sequencing of events contravenes important 

public policy and administrative requirements required by law – which is especially 

troubling and problematic for such a significant and complex rulemaking. And at worst, 

the procedural leapfrogging here makes a charade of the public input and comment 

process.

Southern Company fails to see a compelling public interest warranting such a compressed 

and hasty time-frame. Alarmingly, even the agencies themselves have struggled at times 

to justify the urgency of this rulemaking.71 According to the agencies, the proposal would 

only expand the waters protected by three percent. Viewed another way, existing 

regulations and guidance protect 97 percent of the waters that would be protected by the 

current proposal. While we firmly disagree with the agencies’ three percent estimate (as 

discussed below), if correct, then the estimate most certainly undermines the agencies 

rush to regulate in this atypical, expedited manner. Whatever benefits the proposal might 

provide in terms of added protection over isolated and relatively insignificant waters 

certainly pale in comparison to the added costs it would impose on industry and federal 

and state regulatory agencies alike.

Indeed, there are several public interest bases requiring the agencies to take a more 

careful, sequential approach. To take just one example, acting well before guidance and 

input from the SAB, the agencies’ have woven into the heart of their proposal a 

categorical approach to defining connectivity. Now, however, the Connectivity Panel has, 

nearly seven months after the agencies’ first issued their proposal, released the SAB Final 

Report, which calls into question this very approach to defining connectivity, essentially 

the most critical concept underlying the proposal.

 

70 See October 17, 2014 Letter from Dr. Allen and Rodewald to Administrator McCarthy transmitting SAB’s 88-

page Final Report, available at 

http://yosemite.epa.gov/sab/sabproduct.nsf/fedrgstr_activites/AF1A28537854F8AB85257D74005003D2/$File/EPA

-SAB-15-001+unsigned.pdf (SAB Final Report); see also September 2, 2014 Memorandum from Dr. Amanda 

Rodewald to Dr. David Allen, Comments to the chartered SAB on the Adequacy of the Scientific and Technical 

Basis of the Proposed Rule Titled “Definition of ‘Waters of the United States’ Under the Clean Water Act,” 

available at 

http://yosemite.epa.gov/sab/sabproduct.nsf/F6E197AC88A38CCD85257D49004D9EDC/$File/Rodewald_Memoran

dum_WOUS+Rule_9_2_14.pdf (SAB Panel Memo).

71 See EPA Struggles To Identify Cases To Bolster Rule Defining Water Law's Reach, InsideEPA Article (May 22, 

2014), available with InsideEPA.com subscription at http://insideepa.com/201405222471692/EPA-DailyNews/Daily-News/epa-struggles-to-identify-cases-to-bolster-rule-defining-water-laws-reach/menu-id95.html?s=mu.
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Moreover, the agencies’ rushed proposal contravenes current law and basic principles of 

notice-and-comment rulemaking, as well as The Whitehouse Office of Management and 

Budget (OMB) guidelines governing administrative process.72 As stated above, these 

procedural deficiencies are especially concerning for a substantial rulemaking such as 

this one where the scientific and legal concepts are inextricably linked and where the 

sponsoring agencies rely heavily on a scientific basis for promulgating the regulatory 

scheme. As the House Committee on Science, Space and Technology rightly noted in an 

October 18, 2013 letter to EPA Administrator McCarthy, [a]ny attempt to issue a 

proposed rule before completing an independent examination by the Agency’s own 

science advisors would be to put the cart before the horse.... The Agency’s current 

approach to CWA jurisdiction appears to represent a rushed, politicized regulatory 

process lacking the proper consultation with scientific peer reviewers and the American 

people. Under the law, the advice of scientific experts is a pre-requisite, not an 

afterthought.

At present, although the SAB has concluded its review, the EPA has yet to revise and 

finalize its Draft Connectivity Report to account for the SAB’s extensive comments. Yet, 

as the SAB Final Report now reveals, EPA’s Draft Connectivity Report has major 

technical deficiencies and inaccuracies. Assuming the agencies proceed with finalizing 

this key feature underlying the proposal with additional changes based on the SAB Final 

Report, the public will have been denied an opportunity to review and comment on those 

changes. To, on the other hand, ignore this important scientific critique and simply plow 

ahead with finalizing the proposal in spite of it, would be equally unacceptable.

Among other serious shortcomings, the SAB Connectivity Panel expressed concern that 

EPA failed to explain EPA’s “weight of evidence” approach for screening, compiling, 

and synthesizing the peer-reviewed scientific literature. See SAB Final Report at 10. As 

the SAB noted, peer-reviewed literature is often subject to publication and selection bias, 

and EPA’s approach may suffer from the same bias and therefore the EPA needs to be 

more “transparent” in its process. See SAB Final Report at 2, 10. Toward this end, the 

SAB Final Report provides:

The extent to which an exhaustive literature review was performed should be clearly 

stated in the Report. The SAB recommends that the EPA report include a separate section 

 

72 See Information Quality Act, Pub.L.106-554 (2001); see also Guidelines for Ensuring and Maximizing the 

Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies, Office of Management 

and Budget (Feb. 22, 2002). Even viewing the process employed by the agencies through the most charitable lens, 

the proposal fails on so many levels to meet the basic tenets of administrative procedure. See also Environmental 

Research, Development and Demonstration Authorization Act of 1978, 42 USC § 4365:

The Administrator, at the time any proposed criteria document, standard, limitation, or regulation under the ... 

[CWA] ... is provided to any other Federal agency for formal review and comment, shall make available to the 

Board such proposed criteria document, standard, limitation, or regulation, together with relevant scientific and 

technical information in the possession of the Environmental Protection Agency on which the proposed action is 

based.

Significantly, the Environmental Research, Development and Demonstration Authorization Act goes on to explain 

that this process provides the Board with a critical opportunity to share with the Administrator "its advice and 

comments on the adequacy of the scientific and technical basis of the proposed criteria document, standard, 

limitation, or regulation." Id.
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that details methods used to identify, screen, compile and synthesize evidence from the 

literature. This should address both the studies used to derive “weight of evidence” 

conclusions and those used for illustrative case studies. This section should include, as 

applicable, details such as databases searched, keywords used, screening criteria applied, 

and additional approaches used to identify relevant literature. These and related details 

would help engender confidence that the report’s conclusions are based on an objective 

and systematic review of the available evidence.

SAB Final Report at 10. EPA should describe its process for selecting certain scientific 

studies over others, including its decision to focus solely on literature involving the 

connectivity of water features to traditional navigable waters (TNWs), as opposed to the 

role of ecosystems broadly, including upland buffer zones, in protecting water quality. 

Wetlands, for example, often serve as sinks to pollutants such as sediments, pesticides, 

nutrients, phosphorus, and mercury (see Draft Connectivity Report at 5-10, 5-12, and 5-

14); whereas, uplands help to filter out pollutants before they even reach a water body. 

EPA’s failure to include scientific literature on the role of non-jurisdictional uplands in 

protecting the biological, chemical and physical integrity of the nation’s water bodies 

reveals a clear selection bias. (p. 8 – 12)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study. For additional information on the 

final Connectivity Report and how this information was considered in the 

development of today’s rule, please see Compendium 9. This final rule interprets 

the CWA to cover those waters that require protection in order to restore and 

maintain the chemical, physical, or biological integrity of traditional navigable 

waters, interstate waters, and the territorial seas. This interpretation is based not 

only on legal precedent and the best available peer-reviewed science, but also on the 

agencies’ technical expertise and extensive experience in implementing the CWA 

over the past four decades. For additional information on the final Connectivity 

Report, see http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=296414

CropLife America (Doc. #14630)

13.215 CLA appreciates the extension of the comment deadline on this proposed rule to provide 

an opportunity to comment on the SAB’s response to the Connectivity Report, however, 

this does not cure the agencies’ failure to comply with the APA by publishing this 

proposed rule for comment before the final scientific report underlying this proposed rule 

is completed. “Under APA notice and comment requirements, [a]mong the information 

that must be revealed for public evaluation are the technical studies and data upon which 

the agency relies [in its rulemaking]."73 EPA should re-propose this rule by relying on the 

Final Connectivity report to provide the public meaningful opportunity to comment on a 

proposed rule based on science supported by substantial evidence, particularly in light of 

major concerns raised by the SAB.74 Furthermore, the APA requires that a final rule be a 

 

73 Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227, 236 (D.C. Cir. 2008) (citation omitted).

74 See generally SAB Review of the Draft EPA Report Connectivity of Streams and Wetlands to Downstream 

Waters: A Review and Synthesis of the Scientific Evidence on Proposed Rule (Oct. 17, 2014).
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“logical outgrowth” of an agency’s proposed rule.75 It will be extremely difficult for the 

agencies to account for the SAB panel’s recommendations in a final rule that is a “logical 

outgrowth” of this proposed rule. (p. 12)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study. For information on logical 

outgrowth, see section 13.2.1 on the Administrative Procedure Act. 

Metropolitan Water District of Southern California (Doc. #14637)

13.216 Metropolitan reiterates its request that the Agencies postpone the comment period for the 

proposed rule until at least 120 days following completion of the final version of the 

report, entitled Connectivity of Streams and Wetlands to Downstream Waters: A Review 

and Synthesis of the Scientific Evidence, (Washington, DC: U.S. Environmental streams 

and wetlands on downstream waters (Draft Connectivity Report). Due to the complexity 

and length of the Draft Connectivity Report, Metropolitan requests a postponement of the 

comment period for the proposed rule until at least 120 days following completion of the 

final version of the Draft Connectivity Report so that the regulated community has an 

opportunity to fully assess the implications of the rule.76

The proposed rule states that the Agencies' decision on how best to address jurisdiction 

over "other waters" in the final rule will be informed by the final version of the Draft 

Connectivity Report and other (unspecified) scientific information (79 Fed. Reg. 22189). 

The connectivity study is intended to provide information about the connectivity or 

isolation of streams and wetlands relative to large water bodies in order to understand 

such connections, the factors that influence them, and the mechanisms by which 

connected waters, singly or in aggregate, affect the function or condition of downstream 

waters. Therefore, this study will inform not just policy decisions related to "other 

waters," but also the Agencies' definition of significant nexus, a key concept addressed in 

the U.S. Supreme Court cases, Rapanos v. United States, 547 U.S. 715 (2006) (Rapanos), 

and Solid Waste Agency of Northern Cook County v. US. Army Corps of Engineers, 531 

U.S. 159 (2001) (SWANCC). The Science Advisory Board's recent review (dated October 

17, 2014) of the Draft Connectivity Report suggests a number of major revisions to this 

report that could significantly change the terminology and scope of the proposed rule. 

Therefore, we respectfully submit that soliciting comments on the proposed rule should 

follow completion of the final Draft Connectivity Report. (p. 3 – 4)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

 

75 Small Refiner Lead-Phase Down Task Force v. EPA, 705 F.2d 506, 543 (D.C. Cir. 1983).

76 Metropolitan submitted a comment letter to the Agencies on May 28, 2014, requesting an

extension of the current comment period for the proposed rule until at least 120 days following

completion of the final version of the Draft Connectivity Report (Enclosure 3).
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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109

Utility Water Act Group (Doc. #15016)

13.217 Indeed, the Proposed Rule was drafted by the Agencies without waiting for any of the 

technical analysis provided by the SAB panel or the public, drawing into question the 

extent to which the Agencies actually value the establishment of a valid scientific 

technical basis for tying jurisdictional limits in the Proposed Rule to measureable, 

objective connections to those “waters that were or had been navigable in fact or which 

could reasonably be so made,” and which thereby served as “Congress[’] . . . authority 

for enacting the CWA” SWANCC, 531 U.S. at 172. As such, the Proposed Rule should 

be withdrawn so that it can be revised in consideration of the comments that follow, the 

SAB’s and other parties’ criticisms of the Draft Connectivity Report, and other science 

cited by UWAG in Appendix A and by other regulated entities in response to the 

Proposed Rule. (p. 106)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Northern California Water Association (Doc. #17444)

13.218 We also believe that the underlying science of the proposed rule has not been fully vetted 

by the agencies with the public to allow for the rule to move forward. We would like to 

see a public comment period opened on the final Connectivity Report currently under 

review by the Science Advisory Board (SAB) of the EPA when the report is finalized 

with the SAB recommendations attached. The report should be finalized subject to a 

public comment period, prior to the closing of the comment period on the proposed rule.

(p. 2) 

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Protect Americans, Board of Directors (Doc. #12726)

13.219 The agencies rely heavily on the Scientific Report which provides “a context for 

considering the evidence of connections between downstream waters and their tributary 

waters, and to summarize current understanding about these connections, the factors that 

influence them, and the mechanisms by which the connections affect the function or 

condition of downstream waters.” Id. at 22,196. Incredibly, however, “[t]he Report is 

[still] under review by EPA’s Science Advisory Board” and, therefore, is incomplete. Id. 

at 22,190. Reliance on the draft Report is misguided. It is also very troubling given that 

the agencies have indicated it may support a determination that even more waters fall into 

the “jurisdiction by rule” categories. Id. at 22,198 (“The Report indicates that there is 

evidence of very strong connections to some subcategories that are not included as 

jurisdictional by rule. The agencies solicit comment on making such subcategories of 

waters with very strong connections jurisdictional by rule.”).

The general public cannot be expected to review, analyze and rely on a 330 page 

scientific report that serves as the scientific basis of much of the rule, particularly when 

said Report is an unfinished draft. (p. 13)
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Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Colorado Wastewater Utility Council (Doc. #13619)

13.220 Furthermore, we are concerned that the proposed new rule has been issued for comments 

before the SAB has concluded its review of EPA's connectivity study. This connectivity 

study is supposed to form part of the scientific basis for the regulation. Because the 

hydrology is fundamentally different in the arid West, we need assurances that this 

connectivity study will take into account these differences. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study. For additional information on the 

agencies consideration of the Connectivity Study see compendium 9, and Final 

Connectivity Report at: 

http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=296414 .

Coalition of Alabama Waterways (Doc. #15101)

13.221 At that time, the agencies sent the Proposed Rule to the Office of Management and

Budget (“OMB”) for review, and EPA released its draft scientific report on the

connections of streams and wetlands to large water bodies like rivers, lakes, and oceans.77

The agencies stated that the rule would not be finalized until the completion of the final 

connectivity report, which would inform the final rule.78 However, the draft report was 

under review by the EPA’s Scientific Advisory Board (“SAB”) during most of the 

comment period. EPA did not release the SAB’s final review of the connectivity report 

until October 17, 2014. The agencies provided four additional weeks after the close of the 

public comment period on the rule to allow stakeholders to consider the SAB’s final 

review.79 (p. 5)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

13.222 The Proposed Rule Reflects an Improper Disregard of Science

As noted above, EPA’s connectivity report, which the agencies purport to rely on as the

foundation of the Proposed Rule, has only recently undergone review at the SAB and is

not final. The data released after publication of the proposed rule is too complex and

voluminous to review during the time allowed, even with the four-week extension. At

least as important, EPA has not provided a formal response to the SAB’s review or

indicated its view as to the legal and regulatory significance of the SAB’s findings. That 

 

77 EPA Office of Research & Development, Connectivity of Streams and Wetlands to Downstream Waters: A 

Review and Synthesis of the Scientific Evidence (Sept. 2013).

78 79 Fed. Reg. at 22,190.

79 79 Fed. Reg. 63,594 (Oct. 24, 2014).
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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is critically important and something the agencies can and should publish for notice and 

comment prior to finalizing a rule.

The agencies’ rulemaking process is entirely disordered. The scientific analysis 

supporting a rulemaking should be conducted and finalized before the rule is proposed, 

particularly where, as here, the relevant scientific and legal concepts are intertwined. In 

this instance, the troubling conclusion is that the agencies set the policy goal of greater 

control of land use decisions first and only afterwards sought for a rationale. (p. 13)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Mobile Baykeeper (Doc. #16472)

13.223 The new rule should also not include a categorical exclusion for groundwater and waste 

treatment systems. Categorical exclusion of groundwater will lead to regulatory 

confusion and is not supported by sound science as described by numerous members of 

the SAB. Further, EPA lacks the authority to exempt waste treatment system 

impoundments that are otherwise waters of the U.S. from coverage under the CWA and 

EPA is doing so in violation of the Administrative Procedure Act. (p. 2)

Agency Response: For information on exclusions for groundwater and waste 

treatment systems, see comment responses in Compendium 7.

Upper Mississippi, Illinois, & Missouri Rivers Association (Doc. #19563)

13.224 Finally, the rule improperly fails to account for the final scientific review of EPA's 

Scientific Advisory Board (" AS") and thus denies the public a reasonable opportunity to 

evaluate the agencies' response to that review. (p. 1)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

13.225 The Proposed Rule Reflects an Improper Disregard of Science

As noted above, EPA' s connectivity report , which the agencies purport to rely on as the 

foundation of the Proposed Rule, has recently undergone review at the SAB and is not 

final. The data released after publication of the proposed rule is too complex and 

voluminous to review during the time allowed, eve n with the four-week extension. At 

least as important, PA has not provided a formal response to the SAB's review or 

indicated its view as to the legal and regulatory significance of the SAB's findings. That 

is critically important and something the agencies can and should publish for notice and 

comment prior to finalizing a rule.

The agencies ' rulemaking process is entirely disordered. The scientific analysis 

supporting a rulemaking should be conducted and finalized before the rule is proposed, 

particularly where, as here, the relevant scientific and legal concepts and intertwined. In 

this instance, the troubling conclusion of that the agencies set the policy goal of greater 

control of land use decisions first and only afterwards sought for a rationale. (p. 11)
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Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Mercatus Center at George Mason University (Doc. #12754)

13.226 The Science Has Not Been Peer-Reviewed

Because those promoting the new rule claim their argument is backed by scientific 

research, it is vital that the science be double-checked. With so much at stake, the 

agencies must be certain that their science is accurate, unbiased, and compared in relation 

to potential costs. We urge the agencies to release the scientific review upon which this 

new rule is based for public scrutiny and peer-review before making any final decisions. 

Peer-review and repeatability of conclusions is a vital part of the scientific method and 

one with which the agencies must comply if they wish to make such sweeping changes.

(p. 5)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Society of American Foresters (Doc. #15075)

13.227 The Proposal utilizes the not-yet-completed Connectivity Report as the basis for making 

these categorical determinations on significance (EPA 2013). The Report, however, fails 

to document the significance of physical, chemical, or biological connections, and instead 

focuses on the mere presence or absence of those connections. As a result, the Proposal 

makes categorical findings about connectivity that leave no room for case-by-case 

determinations of significance.

The Science Advisory Board (SAB) review on the scientific and technical accuracy of the 

Connectivity Report was published in the Federal Register on October 17, 2014 (EPASAB-15-001). Though the SAB found the Report to be a technically accurate review of 

the literature on the connectivity of streams and wetlands to downstream waters, 

substantial revisions were recommended and included: (1) a conceptual framework that 

integrates spatially continuous hydrological, chemical and biological flow paths that 

connect watersheds; (2) an interpretation of connectivity that reflects variation in the 

frequency, duration, magnitude and predictability of connections (i.e., gradient approach 

to defining connectivity); and (3) terminology and concepts that adequately describe the 

variable nature of connectivity (e.g., longitudinal, lateral, vertical, and temporal). These 

revisions, with an accompanying peer review process, are necessary before the Report 

should be cited to support regulatory definitions of “significance” applied to water 

features that would qualify as WOTUS. Furthermore, the Report is not comprehensive 

and the WOTUS framework will still need to provide an allowance for case-by-case 

determinations given the broad variation of “significance” in and among physical, 

chemical, or biological connections. (p. 2 – 3)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study. For additional information on the 
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final Connectivity Report and how this information was considered in the 

development of today’s rule, please see Compendium 9. This final rule interprets 

the CWA to cover those waters that require protection in order to restore and 

maintain the chemical, physical, or biological integrity of traditional navigable 

waters, interstate waters, and the territorial seas. This interpretation is based not 

only on legal precedent and the best available peer-reviewed science, but also on the 

agencies’ technical expertise and extensive experience in implementing the CWA 

over the past four decades. For additional information on the final Connectivity 

Report, see compendium 9 and 

http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=296414

American Legislative Exchange Council (Doc. #19468)

13.228 (...) WHEREAS, the justification for the scope of the proposed rule rests on a scientific 

analysis that is still under review and the proposing agencies decided to proceed with 

development of a proposed rule addressing issues associated with the connectivity of 

waters prior to being informed by the Science Advisory Board Review and the 

implications of its findings; and (...) (p. 4)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

National Association of Flood & Stormwater Management Agencies (Doc. #19599)

13.229 Scientific Advisory Board's peer review

The draft Connectivity of Streams and Wetlands to Downstream Waters: A Review and 

Synthesis of the Scientific Evidence report appears to be the basis for many conclusions 

in the proposed rule defining the scope of waters protected under the CWA rulemaking. 

Since the connectivity report was under review by EPA’s Scientific Advisory Board 

(SAB) when the proposed rulemaking was issued, NAFSMA believes circulation of the 

proposed rule for public comment at this time is premature. The Science Advisory Board 

panel on October 17, 2014, recommended significant changes to the connectivity report 

and, if EPA intends to be responsive to those concerns, the final connectivity report will 

differ substantially from the draft that has been made available to the public. NAFSMA 

requests EPA and the USACE to suspend the current public comment period and 

re‐release the proposed rulemaking after EPA has finalized the connectivity report. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study. 

Marcia L. Fudge, Member of Congress, 11th District, Ohio (Doc. #1376)

13.230 Furthermore, it gives me pause that the scientific report by your agency, titled 

Connectivity of Streams and Wetlands to Downstream Waters: A Review and Syntheses if 

the Scientific Evidence, underlying the proposed rule, has not been finalized. Also, the 

Science Advisory Board peer review for the report has yet to be completed. (p. 1)
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Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Senator John E. Walsh, United States Senate (Doc. #18021)

13.231 I understand that the Office of Research and Development has reviewed existing 

scientific literature that has already been peer reviewed. This review is to determine if the 

conclusions and interpretation of available scientific literature was complete and correct. 

I urge you to expedite completion of this revise, pending feedback from the EPA's 

Science Advisory Board, before finalizing the CWA rule in order to strengthen the basis 

of the CWA rule. Once the review is final, it is imperative that EPA integrate the findings 

and underlying science into the final rule. A rule that is not firmly structured around 

relevant scientific findings could improperly burden Montanans with regulatory 

restrictions that may not advance the water quality goals of the CWA. (p. 1 – 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study. For additional information on the 

scientific underpinning of the rule, see compendium 9.

13.3. RULEMAKING PROCESS

Summary of Rulemaking Process Comments

The majority of the comments in this section address the overall rulemaking process. The 

commenters expressed concern that the agencies violated a number of executive orders (e.g., 

12602, 12298, 12866, 13563, 12898, 13542) as well as the Regulatory Flexibility Act (RFA), the 

Administrative Procedure Act (APA), and the National Environmental Policy Act (NEPA). 

Some commenters did express support for moving forward with a rule rather than relying on 

guidance to define CWA jurisdiction but indicated that the rulemaking process needed to be 

transparent and include an extensive consultation process. 

The commenters challenged the overall transparency of the rulemaking process. A number of 

commenters felt that the agencies did not provide meaningful notice and comment periods. 

Commenters claimed that the agencies repeatedly issued and revised supporting documents that 

were critical to the rule. Specifically, commenters felt that the comment period was a moving 

target with new information being provided at different times. Many commenters suggested the 

proposed rule should be withdrawn or re-proposed. Some commenters also suggested because so 

many comments were submitted on the proposed rule, the rule should be re-proposed. In 

addition, commenters indicated that state and local groups were not adequately consulted during 

the rulemaking process and that the public meetings were used to provide information, not to 

accept comment. Commenters also expressed concern regarding the lack of the Corps 

involvement in the outreach process. 

In addition, a few commenters expressed concern that the proposed rule is an expansion of 

federal regulatory authority over waters historically maintained by states. Commenters indicated 

that the rule would place an undue burden on agriculture and do nothing to provide additional 
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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protections of our natural resources. Commenters felt that the rule would leave stakeholders 

confused and exposed to litigation. 

Agencies’ Summary Response to Rulemaking Process Comments

EPA’s action development process outlines both internal and external steps taken in this 

rulemaking including the processes established by executive orders. EPA follows the action 

development process to ensure that scientific, economic, and policy issues are adequately 

addressed at the right stages during the development of both the proposed and the final rule80.

The proposed rule was published on April 21, 2014 and provided a 90-day comment period. The 

90-day comment period was expected to close on July 21, 2014; however on June 24, 2014, EPA 

issued an extension through October 20, 2014. And then, again on October 14, 2014, EPA 

issued an additional extension of the comment period through November 14, 2014. As requested 

by many of the initial comments, the agencies provided two extension periods to the original 

comment period. In addition to the comment period, the agencies launched a robust outreach 

effort during April, May and June of 2014 holding discussions in multiple states around the 

country and gathering input from stakeholders to shape the final rule. Specifically, the agencies 

convened over 400 meetings nationwide with states, small businesses, farmers, academics, 

miners, energy companies, counties, municipalities, environmental organizations, other federal 

agencies, and many others to provide an enhanced opportunity to provide input on the proposed 

rule. EPA and the Corps attempted to attend as many meetings together as possible; however, 

there were meetings where only one agency could participate. EPA also voluntarily undertook 

federalism consultation for this rulemaking and met the terms of E.O. 13132 and EPA guidance 

for implementing the Order. EPA held a series of meetings and outreach calls in 2011 and 2014 

with state and local governments and their representatives soliciting input throughout this 

rulemaking process to define ‘‘waters of the United States.’’ For more detail see the section 

13.2.5 on Federalism.

The public outreach and consultation process for this rulemaking enhanced the development of 

the final rule by allowing the agencies to hear from landowners, business people, farmers, 

scientists, energy companies, conservationists, states and local governments, and others who 

have valuable experience, different perspectives, and important information. The final rule was 

developed after addressing and incorporating relevant comments from the public outreach 

efforts. The docket provides a detailed list of the outreach efforts conducted during this 

rulemaking process. Some commenters claimed the agencies did not fulfill the requirements of 

the APA because they did not conduct public outreach prior to the proposal. However, the APA 

does not require agencies to solicit input prior to the issuance of a proposed rule. Nonetheless, 

the agencies did voluntarily reach out to stakeholders to inform the development of the proposal. 

For more detail on these efforts, see the sections 13.2.5 on Federalism, 13.2.6 on Tribal 

Consultation, and 11.1 on RFA/SBREFA in Compendium 11. 

 

80 For information on EPA’s Action Development Process, see 

http://yosemite.epa.gov/sab%5CSABPRODUCT.NSF/5088B3878A90053E8525788E005EC8D8/$File/adp03-00-

11.pdf
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While several commenters viewed the agencies’ speeches, blogs, press releases, or other public 

outreach materials as new information used to revise the proposed rule, they in no way modified 

or affected the proposed rule, and were without regulatory effect. Rather, information was 

intended to help inform the public regarding the proposed rule and, given the technical and legal 

nature of the proposal, help explain the rule in easier-to-understand communications documents. 

This is a common practice for any major regulatory action taken by the EPA or any other federal 

agency. Such documents were used to help explain the proposed rule to the regulated public but 

did not substitute for it. Jurisdictional determinations are being made now under existing Corps 

and EPA regulations and guidance, and applicable case law, not under the proposed rule. Upon 

issuing the final rule, the agencies’ regulations and guidance, the Act, and applicable case law 

will continue to provide the legally binding criteria for CWA jurisdiction. 

Some commenters expressed concern with the timing and sequencing of the Connectivity report, 

suggesting that because the only the draft Connectivity report was made available for public 

comment, the public could not meaningfully review the scientific basis for the rule. However, 

Courts have recognized that “It is perfectly predictable that an administrative agency will collect 

new data during the comment period in a continuing effort to give the regulations a more 

accurate foundation; the agency should be encouraged to use such information in its final 

calculations without risking the requirement of a new comment period.” BASF Wyandotte Corp. 

v. Costle, 598 F.2d 637, 644-45 (1st Cir. 1979). Courts inquire whether “... the most critical 

factual material that is used to support the agency's position on review . . . [has] been made 

public in the proceeding and exposed to refutation.” Ass’n of Data Processing Service Orgs. v. 

Federal Reserve, 745 F.2d 677, 684 (D.C. Cir. 1984). Agencies may rely on studies developed 

after the proposal where those studies serve as additional support for the data and conclusions in 

the proposal. See, e.g., Tex. Office of Pub. Util. Counsel v. FCC, 265 F.3d 313, 326 (5th Cir. 

2001) (“while interested parties should be able to participate meaningfully in the rulemaking 

process, the public need not have an opportunity to comment on every bit of information 

influencing an agency’s decision”). When determining whether the agency gave adequate notice 

of the scientific studies and technical information underlying a rulemaking, the courts consider 

whether the new study provides “supplementary” data that “expands and confirms” the 

information contained in the rulemaking, whether the new information relied upon is prejudicial, 

and whether the new study is “critical” in the agency’s decision making. Solite Corp. v. EPA, 

952 F.2d 473, 484-85 (D.C. Cir. 1991). While agencies cannot rely on entirely new material that 

was not subjected to comment as the “sole, essential support” for the final rule, they can use 

additional supplemental data whose purpose is to “clarify, expand, or amend” other data that has 

been offered for comment. Chamber of Commerce v. SEC, 443 F.3d 890, 903 (D.C. Cir. 2006).

As explained in response to comments on compendium 9, revisions between the draft and final 

Science Report were based on comments from the Science Advisory Board. Those comments 

were developed over the course of deliberations that included multiple opportunities for public 

input. Moreover, the agencies extended the public comment on the rule to provide an 

opportunity for the public to review and comment on the SAB’s recommendations.

Most of the comments from the SAB, and as a result most of the changes between the draft and 

final report, dealt with the need for additional detail and suggestions for clarity and organization, 

rather than fundamental disagreements in the science. Indeed, in most respects part the SAB was 
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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supportive of the report and most of its conclusions. Therefore, the agencies did not have a duty 

to conduct a new round of notice and comment on the final Report

Some commenters indicated that the proposal was not specific enough for them to meaningfully 

provide comments. Specifically, commenters pointed to the number of topics on which EPA 

solicited comment. However, commenters suggesting that the proposal was vague and did not 

provide adequate notice are mistaken. 

In the proposed rule, the agencies provided meaningful notice of the substantive terms of the 

final rule, as well as an extensive description of the subjects and issues involved. Accordingly, 

the agencies fairly apprised the public of the content of the rulemaking, and the numerous 

detailed comments provide ample evidence that interested parties to the rulemaking understood 

the issues and potential outcomes of the rulemaking. Some commenters have expressed concern 

that once the agency considers the many comments received, the final rule will not be a “logical 

outgrowth” of the proposal. However, one of the key purposes of notice and comment is for 

agencies to consider “data, views, and arguments” from the public. APA § 553(c). As courts 

have frequently recognized, “Agencies often ‘adjust or abandon their proposals in light of public 

comments or internal agency reconsideration.’” Nat’l Mining Ass’n v. MSHA, 512 F.3d 696, 699 

(quoting Kooritzky v. Reich, 17 F.3d 1509, 1513 (D.C. Cir. 1994)); United Steelworkers of 

America, AFL–CIO–CLC v. Marshall, 647 F.2d 1189, 1221 (D.C. Cir. 1980) (‘‘a final rule may 

properly differ from a proposed rule and indeed must so differ when the record evidence 

warrants the change.”). Whether the agency provided sufficient notice depends on whether the 

final rule is a logical outgrowth of the proposal. In applying this test, “[a] final rule is considered 

the ‘logical outgrowth’ of the proposed rule if at least the ‘germ’ of the outcome is found in the 

original proposal.” NRDC v. Thomas, 838 F.2d 1224, 1242 (D.C. Cir. 1988). In determining 

whether the final rule is a logical outgrowth, courts have “taken into account the comments, 

statements and proposals made during the notice-and-comment period.” Nat’l Mining Ass’n, 512 

F.3d at 696.

The proposed and final rule need not be “coterminous.” Agape Church v. FCC, 738 F.3d 397, 

412 (D.C. Cir. 2013). A final rule satisfies the logical outgrowth test “if interested parties should 

have anticipated that the change was possible, and thus reasonably should have filed their 

comments on the subject during the notice-and-comment period.” Id. at 411. Courts have 

emphasized that a “final regulation that varies from the proposal, even substantially, will be valid 

as long as it is ‘in character with the original proposal and a logical outgrowth of the notice and 

comments.’” Envtl. Def. Ctr. v. EPA, 344 F.3d 832, 851 (9th Cir. 2003) (quoting Hodge v. 

Dalton, 107 F.3d 705, 712 (9th Cir. 1997)). Courts inquire “whether the notice given affords 

exposure to diverse public comment, fairness to affected parties, and an opportunity to develop 

evidence in the record.” Ass’n of Am. R.R. v. DOT, 38 F.3d 582 (D.C. Cir. 1994) (internal 

citations omitted). If agencies were required to renotice every change between the proposal and 

final rule, “the comment period would be a perpetual exercise rather than a genuine interchange 

resulting in improved rules.” Connecticut Light & Power Co. v. NRC, 673 F.2d 525, 533 (DC 

Cir. 1982). Hence, agencies are required to provide an additional round of notice and comment 

only “when the changes are so major that the original notice did not adequately frame the 

subjects for discussion.” Id.
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The proposal apprised the public of the range of options the agencies were considering and 

solicited input on these options to inform agency decision-making. Without seeing the final rule, 

some commenters have already objected that it is not a logical outgrowth of the proposed rule. 

However, the final rule is closely tied to the proposal and any changes the agencies made based 

on the public input could have been anticipated from the proposed rule. The proposal alerted 

stakeholders to the possibility of the changes adopted in the final rule.

The final rule interprets the CWA to cover those waters that require protection in order to restore 

and maintain the chemical, physical, or biological integrity of traditional navigable waters, 

interstate waters, and the territorial seas. This interpretation is based not only on legal precedent 

and the best available peer-reviewed science, but also on the agencies’ technical expertise and 

extensive experience in implementing the CWA over the past four decades. The Rule does 

nothing more than revise a definition, it does not itself regulate or impose any compliance burden 

on any entity. The rule does not include any waters that historically have not been covered under 

the Clean Water Act and places important qualifiers on some existing categories. In fact, the rule 

specifically reflects the more narrow reading of Clean Water Act jurisdiction established by the 

Supreme Court. Waters that have never been protected remain outside the scope of the Clean 

Water Act. As a result, the rule is deregulatory because fewer waters will fit within the definition 

and, thus, fewer waters will trigger regulatory requirements set out in other CWA regulations. 

The rule’s definitional change may make it more likely that a particular water will, or will not, be 

deemed a “water of the U.S.” Nonetheless, any compliance requirements applicable to actions 

impacting that water will be imposed by existing federal regulatory requirements, not this rule. 

The comments regarding consistency of the rule with various Executive Orders are addressed 

below.

Specific Comments

Committee on Space, Science and Technology (Doc. #16386)

13.232 V.Maps

Science Committee investigations revealed that the EPA assembled maps of waters and 

wetlands in all 50 states. The Agency has claimed that the maps have not yet been used 

for regulatory purposes. However, the EPA failed to explain why it paid a private 

contractor to create these maps, and the details of the arrangement remain murky. While 

the Agency marches forward with a rule that could fundamentally re-define Americans' 

private property rights, the EPA kept these maps hidden.

Consequently, when the EPA finally disclosed these maps, the Committee posted them 

on the Committee's website for public review. However, serious questions remain 

regarding the EPA's underlying motivations for creating such highly detailed maps. In 

light of the ongoing rulemaking and the obvious questions these maps raise, in an August 

27, 2014, letter to the EPA the Committee requested that the Agency immediately:

1. Provide all documents and communications related to the EPA's contract with INDUS 

Corporation to create these maps, including original contracts, specifications of work, and 

any internal or external exchanges regarding the October 2013 maps;
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2. In an unaltered and original form, enter these and any other previously undisclosed 

maps in the EPA's possession into the official rulemaking docket for public review and 

comment; and 

3. Keep the public comment period open for at least 60 days after the maps entry in the 

official rulemaking docket to provide adequate opportunity for public review and 

comment.

Similar to unanswered Questions for the Record referenced above, to date, the EPA has 

failed to reply or produce any of the related documentation. Consequently, the public has 

been deprived of adequate notice and an opportunity for meaningful comment. (p. 19 –

20)

Agency Response: As a part of the process to evaluate the indirect costs and 

benefits associated with the proposed rule, the agencies assessed the estimated 

increase in new Clean Water Act permits that could reasonably be expected as a 

result of the proposed regulation. This analysis did not, and could not, quantify the 

potential change in the geographic scope of the CWA. Because the agencies 

generally only conduct jurisdictional determinations at the request of individual 

landowners, we do not have maps depicting the geographic scope of the CWA. Such 

maps do not exist and the costs associated with a national effort to develop them are 

cost prohibitive and would require access to private property across the country. 

The U.S. Geological Survey and the U.S. Fish and Wildlife Service collect 

information on the extent and location of water resources across the country and 

use this information for many non-regulatory purposes, including characterizing the 

national status and trends of wetlands losses. This data is publicly available and 

EPA has relied on USGS and USFWS information to characterize qualitatively the 

location and types of national water resources. This information is depicted on 

maps but not for purposes of quantifying the extent of waters covered under CWA 

regulatory programs.

Senator Dave Kinskey, Senate District 22, Johnson County and Eastern Sheridan County, 

Wyoming (Doc. #6191)

13.233 The definition, as proposed is, in my estimate, violative of the commerce clause of the 

United States Constitution, as well as the framework and goals of the CWA, 

congressional intent in passage of the CWA, and Supreme Court Rulings. Each of the 

foregoing places a limit on federal jurisdiction over the nation’s water. The rule as 

proposed is violative of that limit. (p. 1)

Agency Response: The rule implements, and is consistent with, the interpretations 

of the Supreme Court in the Rapanos and SWANCC decisions because the rule only 

covers waters that have a significant nexus with traditional navigable waters, and 

therefore within federal authority over channels of interstate commerce.

Office of the Governor, State of Wyoming (Doc. #7181.1)

13.234 Several key concerns warrant this action. In a recent meeting with the U.S. 

Environmental Protection Agency (EPA) in Washington, D.C., (which included the 

Administrator and several key deputies) the EPA acknowledged that little was done to 
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solicit input specific to the proposed rule prior to publication. EPA staff indicated that the 

agency considered comment related to previously proposed and withdrawn guidance 

documents as a substitute. The EPA then acknowledged that additional consultation was 

needed, and in an attempt to rectify the lack of opportunity for comment, the agency has 

been working to visit stakeholders and provide information during an extended comment 

period.

This approach is problematic. These sessions are public meetings publicized as "not 

recorded, not for comments and only to provide information." Holding public information 

presentations is an inadequate alternative to public comment and the consultation process 

that should have occurred specific to this proposed rule. The EPA reached out for input 

on "guidance," and then plugged this unrelated input into a rulemaking process as 

comment. This is unacceptable. It invites questions about whether the agency has a predetermined goal and plans a course of action to arrive at that goal. The EPA's admission 

that it has little substantive change in preferred direction or content as guidance morphed 

into rule adds to the question. (p. 1)

Agency Response: See section 13.2 summary response for information regarding 

the rulemaking process. The agencies did not have a predetermined course of action 

in mind. Given that the public comment period on the guidance addressed many of 

the same issues as this rulemaking, consideration of those comments provided a 

good, preliminary picture of the public’s views on the issues in this rulemaking. 

Moreover, as explained in sections on Federalism, Tribal Consultation, and 

RFA/SBREFA, the agency did voluntary (i.e., not legally required) outreach prior to 

the proposed rule, and the extensive outreach, and extended comment period 

provided an unprecedented degree of public input, which was fully considered by 

the agencies in the rulemaking.

13.235 In public meetings, the EPA continues to assert that concerns with the content of the 

proposed rule are unfounded. In presentations a variety of interpretations for the proposed 

rule have been presented by the EPA. To be clear, the intent being expressed by the 

agency in verbal, non-recorded sessions, does not match the content of the proposed rule. 

The EPA is stating publicly that no new protections, expansion, broadening of coverage, 

or expanded jurisdiction of regulatory authorities is occurring. The conclusion is not 

borne out by the content of the rule or by the interpretation of the rule by outside agencies 

and states. The rule both expands authorities and discounts the narrowed reach directed 

by the United States Supreme Court in the Solid Waste Agency of Northern Crook 

County v. Army Corps of Engineers and Rapanos v. United States decisions.

The EPA has approached agriculture, industry, and government representatives to help 

"fix" problems being identified. The juxtaposition of assurance that there is no need for 

concern and hurried "fixing" is unsettling. Cobbling together "fixes" cannot address the 

significant deficiencies in clarity and content that underlie the proposal. Further, the 

EPA's information sharing does not meet the bar of consultation and is misleading at best.

The question is at what point does management responsibility shift from the states to the 

EPA? This cannot be pre-determined and is as much a question of policy as it is of 

science, arguably more so. I have growing concern with the EPA and other federal 

agencies. Decisions are being made without consultation or consideration of the states, 
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the public and outside experts. The current process is directed to justify decisions that 

have already been made. There is a closing window of opportunity for the EPA to rectify 

the problems with this rule and to proceed in a manner that is designed to work 

substantively with partners in regulation - the states.

The EPA should withdraw this proposed rule now. (p. 2)

Agency Response: See section 13.2 summary response for information regarding 

the rulemaking process. As explained in the preamble and TSD, the rule is entirely 

consistent with the statute and case law.

State of Iowa (Doc. #8377.1)

13.236 On April 21, 2014, concurrent with the issuance of the proposed rulemaking concerning 

the definition of "waters of the United States" for purposes of the Clean Water Act, the 

United States Environmental Protection Agency, along with the Army Corp of Engineers, 

announced the availability of a rule, already effective upon the regulated community, 

purporting to interpret or "clarify the scope" of the "normal farming activity" exemption 

found at § 404(f)(1)(A) of the Act. See, 79 Fed. Reg. 22276. Despite the Agencies' 

characterization, we do not believe this to merely be a non-legislative, interpretive rule. 

Rather, the rule appears to establish new policies intended to bind decision-making by the 

Agencies and influence actions of the regulated community. As such, its promulgation 

must comply with the rulemaking strictures of the Administrative Procedure Act. Indeed, 

the Agencies have promulgated regulations further detailing what farming activities are 

considered "normal." See, 40 C.F.R. 230 and 33 C.F.R. 320. (p. 1)

Agency Response: Pursuant to Congressional directive, the agencies have 

withdrawn the interpretive rule.

Texas Comptroller of Public Accounts (Doc. #10952)

13.237 The Agencies Have Not Followed a Transparent Process 

As an advocate for transparency in government, I have questions about the ambiguous 

manner in which the Agencies have developed this proposal. Similarly, I am concerned 

about the Agencies' reliance on incomplete scientific and economic data to create and 

analyze the proposal, as well as the potential impacts on stakeholders and important 

economic drivers. The Agencies have stated they are proposing this rule to provide 

increased certainty and consistency with recent legal rulings, including the two Supreme 

Court rulings in 2001 and 2006,81 by revising the existing definition of "Waters of the 

United States" (WOTUS) in the CWA. However, the proposal fails to accomplish these 

goals. The following outlines several of the most significant problems with the proposal 

and the non-transparent process used by the Agencies in this attempt to expand the 

regulatory reach of the CWA. I respectfully request the Agencies withdraw and 

reevaluate this proposal given the substantial issues and concerns described in more detail 

below. (p. 1)

 

81 Solid Waste Agency of Norther Cook County v. U.S. Army Corps of Engineers; and Rapanos v. United States.
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Agency Response: See section 13.2 summary response for information regarding 

the rulemaking process. For information on the economic analysis, see compendium 

11.

New Mexico Department of Agriculture (Doc. #13024)

13.238 Second Draft of the Proposed Rule

Because of the sheer quantity of requests for public input in the Federal Register notice 

for this proposed rule, a single draft for this proposed rule will not be sufficient. The 

Agencies have requested too much information from the public, and the potential for 

unintended consequences is high when taking into consideration every potential change 

to the rule resulting from public comments.

If the proposed rule is not withdrawn entirely, NMDA supports the publication of a 

second draft, listing the comments received and detailing EPA's responses to them. This 

will greatly increase transparency of the rulemaking process. (p. 19)

Agency Response: See section 13.2 summary response for information regarding 

the rulemaking process. 

Senate Natural Resource Committee, Garden City (Doc. #16427)

13.239 The record demonstrates EPA has not assessed impacts to small business or governments 

required by the Regulatory Flexibility Act, nor have they performed cost-benefit and 

analyses of alternatives required by Unfunded Mandates Act. For those concerned about 

impact WOTUS might have on disadvantaged, minorities and families, the requirements

of Executive Orders 12602 and 12298 have been systematically ignored. What about the 

potential for Fifth-Amendment property takes required to be studied by Executive Order 

12630? No attention whatsoever. (p. 2)

Agency Response: For information on RFA, see the comment response in 

Compendium 11.

Del Norte County, California (Doc. #8376)

13.240 We appreciate that EPA and the Corps (the agencies) are moving forward with a 

proposed rule, rather than a guidance document, as originally proposed. However, we 

have concerns with the process used to create this proposal, and specifically whether 

impacted state and local groups were adequately consulted throughout the process. (p. 2)

Agency Response: See section 13.2 summary response for information regarding 

the rulemaking process. 

City of Palo Alto, California (Doc. #12714)

13.241 After careful review of the proposed rule and thorough consideration of its potential 

impacts on our City, we urge the federal agencies to withdraw this rule and engage state 

and local governments and stakeholders in a rulemaking process that can feasibly

advance the goals of the Clean Water Act. (p. 1)

Agency Response: See section 13.2 summary response for information regarding 

the rulemaking process. 
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Big Horn County Commission (Doc. #13599)

13.242 We also agree that the appropriate tool for achieving this with respect to CWA 

jurisdiction is through an open rule- making process as opposed to agency guidance that 

cannot be challenged. Regrettably, the EPA's proposed rule fails both of the tests 

mentioned above, namely, the EPA did not engage counties and in particular Western 

counties in the development of this rule, nor does the proposed rule provide any clarity 

for counties on whether waters will or will not be considered jurisdictional. Further, the 

EPA has failed to adequately explain how its proposal does not significantly increase 

federal jurisdiction over waters historically and effectively maintained by Wyoming and 

its counties. (p. 2)

Agency Response: See section 13.2 summary response for information regarding 

the rulemaking process. For information on outreach to Western states and, please 

see the EPA’s documentation on regional headquarters outreach for the proposed 

rule in the docket.

Cochise County Board of Supervisors (Doc. #14541)

13.243 In addition, these alternatives have not been fully analyzed in the analysis of the potential 

costs and benefits associated with this action (under Executive Orders 12866 and 13563, 

page 22220), in the analysis of economic impact on a substantial number of small entities

(under the Regulatory Flexibility Act, page 22220), in the analysis of environmental 

justice in minority and low-income populations, especially for ranchers (under Executive 

Order 12898, page 22221), and in the analysis of environmental impacts (under the 

National Environmental Policy Act [NEPA], page 22222). All of the analyses would need 

to be rewritten and supplied for public comment prior to including the alternatives in a 

revised proposed rule supplied for public comment prior to issuing a final rule. (p. 2)

Agency Response: For information on RFA, see the comment response in 

Compendium 11.

CLUB 20 (Doc. #15519)

13.244 It is disingenuous at best to provide a far reaching rule such as the proposed WOTUS 

definition without adequate scientific data and definitive information regarding what 

water and which areas will be affected by the new rules and definitions. To ask for 

comments when complete information is not available, says that the EPA and the Corps 

of Engineers are not really interested in public comments, and that they will not give 

them full attention or review. (p. 2)

Agency Response: See section 13.2 summary response for information regarding 

the rulemaking process. 

National Association of Home Builders (Doc. #19540)

13.245 v. The Agencies have Manipulated the Rulemaking in Ways that are Designed to 

Prejudge its Outcome.

Throughout the entirety of the comment period, the Agencies have shown strong bias 

against the proposed rule’s critics and have unlawfully prejudged its outcome. EPA 

Administrator Gina McCarthy has attempted to delegitimize certain questions and 
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concerns about the proposal by publicly referring to them as “ludicrous” and “silly.”82

EPA has even gone so far as to create a website called “Ditch the Myth,” declaring the 

proposed rule “clarifies protection under the Clean Water Act . . .”83 EPA’s Office of 

Water has also suggested that those who “choose clean water” should support their 

proposed rule,84 thereby insinuating that the proposal’s critics oppose clean water. NAHB 

and its members have been advocates of the CWA since its inception and recognize the 

Act has helped our Nation make significant strides in improving the quality of our waters. 

To suggest we and any others who oppose this fundamentally flawed and unlawful 

proposal do not value clean water is insulting.

Additionally, EPA’s social media advocacy in favor of the propose rule prejudices the 

rulemaking process. EPA’s own staff have sought public support to influence the 

agency’s view of the proposed rule,85 and EPA Office of Water's Twitter account has 

essentially become a lobbyist for the proposal.86 It is hard to believe this rulemaking has 

been conducted in accordance with the APA and its objective that federal agencies 

"benefit from the expertise and input of the parties who file comments with regard to [a] 

proposed rule" and "maintain a flexible and open minded attitude toward its own rules87. 

What’s more, the Agencies' actions raise serious questions about compliance with the 

Anti-Lobbying Act.88 (p. 154 – 155)

Agency Response: See section 13.2.1 summary response for information 

regarding the Administration Procedure Act. 

The Anti-Lobbying Act does not prohibit the agencies from seeking input from the

public on a rulemaking or restrict the agencies from educating or informing the 

public on a rulemaking under development – i.e., the types of activities described by 

the commenter. As noted in a recent Comptroller General opinion, “agency officials 

have broad authority to educate the public on their policies and views, and this 

includes the authority to be persuasive in their materials” – e.g. persuasive 

statements in “individual social security statements mailed to over 140 million 

Americans,” and letters “encouraging prosecutors to work with legislators to update 

local marijuana laws”. B-325248, U.S. Comp. Gen., Sept. 9, 2014. See also B-

 

82 Chris Adams, EPA Sets Out to Explain Water Rule that’s Riled U.S. Farm Interests, McClatchy DC (July 9, 

2014), available at http://www.mcclatchydc.com/2014/07/09/232809_epa-sets-out-to-explain-water.html?rh=1

83 See http://www2.epa.gov/uswaters/ditch-myth

84 See Travis Loop, Do You Choose Clean Water? Greenversations: An Official Blog of the U.S. EPA (Sept. 9, 

2014), available at http://blog.epa.gov/blog/2014/09/do-you-choose-clean-water/

85 EPA's Office of Water launched a "Thunderclap" campaign entitled "I choose clean water" on Sept. 9,2014,

asking the public to support the proposed rule. See http://www.thunderclap.it/projects/16052-i-choose-clean-water.

86 '"'See https:twitter.comEPAwater.

87 McCloufh Steel Prod. Corn. v. Thomas. 838 F.2d 1317, 1325 (D.C. Cir. 1988) (internreth-e 5 U.S.C. 5 553;

internal quotations omitted).

88 See 18 U.S.C. 5 1913 (prohibiting the use of appropriated federal funds for the "personal service, advertisement,

telegram, telephone, letter, printed or written matter, or other service, intended or designed to influence in any

manner a Member of Congress, a jurisdiction, or an official of any government, to favor, adopt, or oppose, by vote

or otherwise, any legislation, law, ratification, policy, or appropriation").
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319075, U.S. Comp. Gen., April 23, 2010, and B-304715, U.S. Comp. Gen., April 27, 

2005.

Montana Wool Growers Association (Doc. #5843)

13.246 The Agencies should reform their rule-making procedures to better accommodate public 

interests. First, the Proposed Rule should be easily accessible and identifiable in the 

Federal Register, rather than appended to an 88-page document with no header or section 

name. Second, the Agencies should dispose of the twelve redundant definitions in the 

Code of Federal Regulations and publish instead a single regulation defining WOTUS for 

the entire CWA. Third, the Agencies should cite to the United States Code, not Public 

Law amendments. Finally, the Agencies should avoid joint rule making, particularly 

where one agency is responsible for all public outreach but both will be bound by the 

rule. Section V of this comment letter explains these recommendations in more detail. (p. 

2)

Agency Response: The agencies have considered the comments above in the 

development and publication of the final rule. The agencies process was consistent 

with APA procedures. Joint rulemaking is necessary and appropriate because the 

definition of waters of the United States governs the scope of Corps and EPA 

authorities.

13.247 The Proposed Rule does not reflect the Agencies' intent as purported in public outreach. 

The Proposed Rule, the Preamble, and public outreach should all be adjusted to avoid 

further misunderstandings.

The Agencies make numerous assertions about their intent for the Proposed Rule. 

However, courts will not look to the Agencies' intent unless the language of the Proposed 

Rule is ambiguous. If the Proposed Rule is found ambiguous, courts will rely on intent 

evidenced in published statements, such as the Preamble, not public statements. The 

Agencies may not plan to assert jurisdiction as often as the Proposed Rule would permit, 

but third parties can sue under the Proposed Rule to force the Agencies to regulate 

against their will. Such deference to third parties could prove harmful to agricultural 

entities and increase litigation under the CWA.

The following subsections respond to assertions made by the EPA on behalf of the 

Agencies' with examples of contradictory language in the Proposed Rule or Preamble. 

Subsection headers include a general topic (underlined) followed by assertions made by 

the EPA on the EPA's "Ditch the Myth" webpage (italicized) or other public statements 

(quotation followed by citation). The "Ditch the Myth" webpage is available at 

http://www2.epa.gov/uswaters/ditch-myth.

A. Public Outreach: I commit to you that if you raise an issue of concern, I will address 

it." Gina McCarthy, Adminstr., EPA, Speech, Remarks at the Agricultural Business 

Council of Kansas City on Clean Water Proposal, Prepared (July 10, 2014) (transcript 

available at http://www2.epa.gov/uswaters/ditch-mvth; select Read a speech by 

Administrator McCarthy).

1. The EPA responds to general assertions about the Proposed Rule on the "Ditch the 

Myth" webpage, in webinars, and in public meetings without supporting citations or 
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explanations of the Proposed Rule's language. Such broad assertions do not address the 

public's concerns, but rather force the public to rely on the EPA's interpretations as fact. 

In responding to critiques of, comments on, and questions about the Proposed Rule, the

Agencies should explain in detail why the Proposed Rule does what they allege and 

provide specific cites to the relevant language in the Proposed Rule, the Preamble, and 

the CWA.

2. The EPA's website presents a purely supportive face for the Proposed Rule. For 

instance, the website lists 34 op-eds and editorials to help educate the public about the 

Proposed Rule. EPA, Op-eds and Editorials, 

http://www2.epa.gov/sites/production/files/2014-07 /documents/opeds and editorials. pdf 

(accessed Aug. 18, 2014). Many of these articles are purely subjective, with no 

informative value. MWGA does not suggest the Agencies should criticize their own rule. 

However, MWGA does encourage the Agencies to acknowledge weaknesses in the 

Proposed Rule and address them openly. Public outreach should be an opportunity to 

understand and address public concerns, learn, and improve, not employ political 

campaign tactics, such as overcoming criticism with popularity by having viewers 

"Tweet the truth." EPA, Waters of the U.S., Ditch the Myth, 

http://www2.epa.gov/uswaters/ditch-myth (accessed Aug. 18, 2014). (p. 8 – 9)

Agency Response: See section 13.2 summary response for information regarding 

the rulemaking process. 

The Anti-Lobbying Act does not prohibit the agencies from seeking input from the 

public on a rulemaking or restrict the agencies from educating or informing the 

public on a rulemaking under development – i.e., the types of activities described by 

the commenter. As noted in a recent Comptroller General opinion, “agency officials 

have broad authority to educate the public on their policies and views, and this 

includes the authority to be persuasive in their materials” – e.g. persuasive 

statements in “individual social security statements mailed to over 140 million 

Americans,” and letters “encouraging prosecutors to work with legislators to update 

local marijuana laws”. B-325248, U.S. Comp. Gen., Sept. 9, 2014. See also B319075, U.S. Comp. Gen., April 23, 2010, and B-304715, U.S. Comp. Gen., April 27, 

2005.

13.248 The EPA and Corps promulgated the Proposed Rule jointly, but only the EPA has 

provided public guidance. MWGA worries the Corps will not adhere to the EPA's 

interpretation of the Proposed Rule. Notably, all three major United States Supreme 

Court cases addressing the WOTUS definition and leading to this Proposed Rule were 

cases brought by or against the Corps, not the EPA. Solid Waste Agency of Northern 

Cook County v. U.S. Army Corps of Engineers (SWANCC), 531 U.S. 159 (2001); 

Rapanos v. U.S., 547 U.S. 715 (2006); US. v. 13 Riverside Bayview Homes, Inc. 

(Riverside Bayview), 474 U.S. 121 (1985).

a. The Agencies should avoid future joint rulemakings and sever the current joint

rulemaking.
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Agency Response: Joint rulemaking is necessary and appropriate because the 

definition of waters of the United States governs the scope of Corps and EPA 

authorities.

13.249 b. The EPA and the Corps should take equal responsibility for public outreach, guidance,

and explanations of the Proposed Rule. (p. 13)

Agency Response: See section 13.2 summary response for information regarding 

the rulemaking process. 

New Mexico Department of Agriculture (Doc. #13024)

13.250 Concerns from Congress

The fact that several United States legislative bills (including S. 2496: "Protecting Water 

and Property Rights Act of 20 14,"89 S. 2613: "Secret Science Reform Act of 2014," 90

H.R. 5071: "Agricultural Conservation Flexibility Act of 2014," 91 and H.R. 

5078:"Waters of the U.S. Regulatory Overreach Protection Act of 20 14"92) have been 

filed at the federal legislative level that requests the withdrawal or revision of the 

proposed rule indicates there are major problems with this proposed rulemaking as 

presented . Several bipartisan letters from United States senators and representatives have 

also been submitted requesting clarification of the proposed rule. This includes a letter 

signed by 13 senators who have specific concerns about the proposed rule's impact on the 

agricultural community."93 (p. 17)

Agency Response: See section 13.2 summary response for information regarding 

the rulemaking process. The pendency of legislation that would amend the Clean 

Water Act does not obviate the need, as expressed by numerous stakeholders and 

members of the Supreme Court, to undertake rulemaking to clarify the scope of 

waters of the U.S.

Family Farm Alliance (Doc. #14788)

13.251 The EPA’s proposed rule purports to rely on the scientific conclusions of the EPA’s draft 

connectivity report, which is currently under review by the Science Advisory Board 

(SAB). Given this ongoing SAB Panel review of the adequacy of the science to support 

the proposed rule, commenters should have at least an additional 90 days from the time 

 

89 Protecting Water and Property Rights Act of 2014, S. 2496, 113 Cong. Sponsored by Sen. John Barrasso (WY). 

Introduced June 19, 2014,Available at: http://www.congress.gov/bill/13th-congress/senate-bill/2496/text.

90 Secret Science Reform Act of 2014, S. 2613, 113Cong. Sponsored by Sen. John Barrasso (WY). Introduced July 

16, 2014. Available at: https://www.congress.gov/bill/113th-congress/senate-bill/2613.

91 Agricultural Conservation Flexibility Act of20 14, H.R. 5071, 113Cong. Sponsored by Rep. Reid Ribble (WI). 

Introduced July 10, 2014.Available at https://www.congress.gov/bill/113th-congress/house-bill/507.

92 Waters of the U,S. Regulatory Overreach Protection Act of 2014, H.R. 5078, 113 Cong. Sponsored by Rep. Steve 

Southerland (FL). Introduced July 11, 2014, Available at: https://www.congress.gov/bill/113th-congress/housebill/5078.

93 United States Senate. Letter to U.S. Environmental Protection Agency Administrator Gina McCarthy, U.S. 

Department of the Army Secretary John McHugh, and US. Department of Agriculture Secretary Thomas Vilsack. 

Dated July 31, 2014. Available at: http://sustainableagriculture.net/blog/senate-wotus-letter/.
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when EPA completes its review of the science and issues a final connectivity report to 

comment on the proposed rule. 

There are numerous places throughout the preamble to the proposed rule wherein the 

agencies have asked the public to provide specific information regarding the proposed 

rule’s scientific justifications. The purpose of the SAB Panel review of the draft 

connectivity study was to evaluate the “evolving scientific literature on connectivity of 

waters,” and the public deserves the opportunity to comment on the conclusion of that 

review process. 

A significant amount of time and technical expertise will be required first to evaluate the 

report from the SAB Panel and agencies’ scientific conclusions and responses and then to 

prepare substantive and thoughtful responses. The comment period should be extended to 

give stakeholders that additional time needed to review these lengthy, complex scientific 

analyses and provide meaningful feedback. (p. 1 – 2)

Agency Response: See section 13.2 summary response for information regarding 

the rulemaking process. For more information regarding the Connectivity Report 

see section 13.1. 

Wisconsin Farm Bureau Federation (Doc. #16166)

13.252 Lastly, the method that EPA and the Corps have used in order to redefine the term 

“Waters of the United States” is contrary to the Congressional intent initially included in 

the Federal Water Pollution Control Act of 1948. There were exemptions for farms 

because of their importance to the economy, the necessity to have good stewards of our 

lands and natural resources as well as the unique challenges that each farm field presents; 

such as, soil type, water resources, land topography, etc. These concerns are just as 

relevant today as during the passage of the Federal Water Pollution Control Act in 1948 

and subsequent Clean Water Act of 1972.

Wisconsin stands at the forefront of conservation and stewardship of natural resources in 

the United States. Our state standards protect water quality for a variety of designations 

for our groundwater, streams, lakes and wetlands. The proposed rule is an expansion of 

federal regulatory authority. It places an undue burden on agriculture in Wisconsin and 

does nothing to provide additional protections of our natural resources. Instead, it leaves 

farmers confused and exposed to litigation and will ultimately lead to a decrease in 

voluntary conservation and stewardship.

The Wisconsin Farm Bureau Federation requests that the rule be withdrawn and any 

future discussions should begin with complete transparency and collaboration with states.

(p. 3)

Agency Response: See section 13.2 summary response for information regarding 

the rulemaking process. As explained in the preamble to the rule, nothing in the rule 

affects exemptions under 404(f).

Missouri Corn Growers Association (Doc. #16569)

13.253 General Concern #1: The public record and the public comment process has been a 

moving target resulting in further loss of public trust.
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Connectivity Report

The proposed rule references EPA’s draft scientific report entitled “Connectivity of 

Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific 

Evidence” (ie Connectivity Report). EPA has stated the Connectivity Report, when 

finalized, will provide the scientific basis and support for the WOTUS rule. To date, the 

Connectivity Report is a draft report which has been undergoing an EPA Science 

Advisory Board (SAB) review. It is clear the Connectivity Report will not be completed 

and made final until after the WOTUS rule comment period has closed. Thus, the public 

will not be able to consider the final connectivity report in its WOTUS rule comments. 

We feel it is reasonable to expect the underlining science be final and settled before a 

proposed rule, particularly one of this magnitude, be developed and presented to the 

public for comment. This situation unfairly limits the public’s ability to provide 

meaningful comments.

Guidance Documents

Throughout the public review period, the EPA has extensively relied upon its own hastily 

developed Q&A’s, fact sheets and talking points to explain the intent behind the rule. 

This sort of information should have been prepared in advance of the start of the public 

review period for the proposed rule. Instead, a piecemeal approach by EPA has created an 

ever moving target for the public to review, understand and provide meaningful 

commentary. Furthermore, these types of informal documents do not constitute 

regulation, cannot be enforced, will not stand the test of time and are the very sort of 

things that drove and justified the need for the rule in the first place.

USACE Absent from Process

The proposed rule was a joint effort of the EPA and the U.S. Army Corp of Engineers 

(USACE). It is important to note USACE staff does the vast majority jurisdictional 

determinations under this rule. USACE is an integral part of this process. Of the meetings 

and outreach events conducted by the EPA, we are unaware of any event in which the 

USACE was present and engaged. They were certainly not present at any event involving 

Missouri agricultural stakeholders. It was often stated by the EPA that the Corps was 

invited, but clearly little attempt was made at bringing them to the table. USACE’s 

absence is both puzzling and disappointing, especially considering most interactions 

between property owners and regulators will be with the USACE staff as they implement 

the federal 404 dredge and fill program. The USACE must play a more active and 

engaged role in the public participation process.

While the public and regulators may have honest disagreements on policy and even on 

science, the EPA must at all times provide the public with the information necessary to 

make meaningful and relevant comments on a proposed rule. As it stands, this basic 

public principle has not been respected or followed for the WOTUS rule and does not 

build public trust with the agencies or in the process. (p. 2)

Agency Response: See section 13.2 summary response for information regarding 

the rulemaking process. 
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13.254 Lack of clarity and greater uncertainty exposes farmers to greater legal liability Use of 

subjective terminology that requires interpretation through agency guidance or other 

means is scattered throughout the rule and must be addressed and made clear. Proving 

this point, EPA has themselves extensively relied on its own Q&A’s, fact sheets, the rule 

Preamble and agency talking points to explain the intent behind the rule - much of which 

constitutes EPA interpretation. These types of informal documents do not constitute 

regulation, cannot be enforced, will not stand the test of time and frustrating moving 

target for farmers and other stakeholders in their review and has hampered their ability to 

comment. More importantly, this situation will have the same negative effect after the 

rule is finalized as farmers are left blindly navigating and making assumptions on its 

complex meaning. This results in farmers taking what would be otherwise avoidable risks 

that could jeopardize their operation and ultimately agriculture’s public trust. The fact is 

this rule represents a definition and principles that are, at its very core, foundational to 

nearly every federal and state regulatory program involved in water - both now and into 

the foreseeable future. To that end, the actual text and phrases within the rule should be 

clear, concise and self-explanatory to the public. (p. 4 – 5)

Agency Response: See section 13.2 summary response for information regarding 

the rulemaking process. Also, normal farming activities are subject to the 404(f) 

exemptions; the agencies have made revisions in the final rule to enhance clarity and 

the final provides greater specificity and clarity by adding, for example, definitions 

to the final rule.

New Salem Township (Doc. #8365

13.255 I have concerns with the process used to create this proposal, and specifically whether 

impacted state and local groups such as townships were adequately consulted throughout 

the process. (p. 1)

Agency Response: See section 13.2 summary response for information regarding 

the rulemaking process. 

Dynegy, Inc. (Doc. #1240)

13.256 Additionally, on May 19, 2014 the EPA released the Final 316(b) rule, which is 

applicable to the “Waters of the United States”. Given that the 316(b) rule has been 

released in the middle of the comment period for the proposed “Waters of the United 

States” rule, it’s imperative that the comment deadline be extended to allow for sufficient 

understanding of how each rule impacts the other. (p. 2)

Agency Response: There is no need to delay promulgation of this rule in light of 

the section 316(b) rule. That regulation established performance standards for 

cooling water intake structures, and this rule does not address any issues related to 

standards under the Act, only the scope of the statute.

Colorado Water Congress Federal Affairs Committee (Doc. #14569.1)

13.257 Given the lack of involvement of state and local governments, regulated parties and the 

environmental community in the initial crafting of the proposal, the misdirected efforts of 

the scientific community, and the polarization existing in the legislative arena, the Water 
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Congress would recommend that the agencies follow a new path towards the goal line. In 

particular, the agencies should:

1. Hold the current proposal in abeyance;

2. Seek input on the proposal from state and local governments, including those state and 

local agencies responsible for water quality regulatory compliance and the provision of 

water supplies;

3. Assemble representatives of the NGO stakeholder community, including the 

agricultural, municipal, industrial, business, utility, special district and environmental 

interests, for purposes of identifying “key” concerns and narrowing the scope of 

disagreement. The first step in this process would be to “bundle” or categorize key 

concerns as found in the comments submitted to date, along with the preparation of a 

short but substantive response of the agencies thereto. Thought could be given to the 

establishment of a Federal Advisory Committee. (p. 8 – 9)

Agency Response: See section 13.2 summary response for information regarding 

the rulemaking process. 

Audubon Florida and Audubon of the Western Everglades (Doc. #15251)

13.258 One additional process comment is that AF and AWE are confident that the current 

rulemaking process is the most efficient, science-based and equitable way to achieve 

long-awaited clarification of the definition of waters of the U.S. Alternatives that have 

been suggested by members of Congress, the agricultural industry and others to abandon 

this rulemaking in favor of a public dialogue led by the fifty states are not useful for 

establishing consensus on a national standard, and will be delayed for years by competing 

interests among the states and the implementing agencies for the CWA. (p. 1 – 2)

Agency Response: See section 13.2 summary response for information regarding 

the rulemaking process. 

United States Congress (Doc. #13992)

13.259 The House of Representatives has spoken on this issue and passed H.R. 5078, "The 

Waters of the United States Regulatory Overreach Protection Act." This legislation 

upholds the current federal-state partnership to regulate the Nation's waters, prohibiting 

the EPA and the Corps of Engineers from following the unilateral approach imagined by 

this rule. If implemented, this rule would open many new waters and private property to 

federal regulation. This includes ditches, man-made ponds, floodplains, riparian areas, 

and seasonally-wet areas. H.R. 5078 was passed in a bi-partisan fashion, on a vote of 

262-152 because the House believes that this rulemaking process is improper and illconceived. I am hopeful that this legislation, or something similar, will soon advance in 

the Senate.

The House Committee on Natural Resources, a committee on which I sit, held a hearing

on this rule on June 24) of this year. Though Administration officials were invited to 

come and take questions from Members of Congress on the rule and its effects — they 

declined to even show up. This is important, because the Environmental Protection 

Agency continues to claim that this rule contains "exemptions" for all sorts of 

"agricultural activities" that my constituents care about. I was hoping to get some 
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clarification on these exemptions at the hearing, as many commentators have described 

them as so broad and ill-defined as to be meaningless. Unfortunately the rule's 

proponents could not be bothered to make an appearance.

If the agencies tasked with implementing this proposed rule cannot be bothered to explain

it to the House Committee on Natural Resources in an open and public hearing — how 

can we trust them to work with my constituents on the many issues that would arise with 

its implementation? I for one do not, and I would once again urge the EPA to abandon 

this rulemaking and go back to the drawing board. (p. 1 – 2)

Agency Response: Although the agency was not able to attend the hearing on 

“Regulatory Overreach”, EPA provided responses to the committee’s questions for 

the record in a letter to the ranking committee member, Honorable Timothy H. 

Bishop, on December 17, 2014. 

13.3.1. Compliance with APA

Summary of APA Comments

The majority of the comments in this section address the requirements established by the 

Administrative Procedure Act (APA). A number of the commenters expressed concern that the 

regulatory process established by the agencies violated or failed to meet the requirements of 

APA. Commenters criticized the overall transparency of the rulemaking process and felt that the 

agencies did not provide meaningful notice and comment periods. Commenters indicated that 

the agencies repeatedly issued and revised supporting documents that were critical to the rule,

making it difficult to produce a final rule that would be a direct outgrowth of the proposed rule. 

Many commenters specifically called out the request for comment on the proposed rule by the 

agencies prior to producing the Final Connectivity Report. Commenters indicated that the public 

cannot be expected to provide meaningful comment on a moving target. Ultimately, 

commenters requested the agencies extend, re-propose, stay, or suspend the rulemaking process. 

Some commenters also criticized the agencies for their outreach and communication through, for 

example, social media, as reflecting bias and that the agencies had prejudged the outcome of the 

rulemaking, and that the agencies’ actions raised “serious questions” about compliance with the 

Anti-lobbying Act.

Agencies’ Summary Response to APA Comments

The Administrative Procedure Act (APA) governs the process by which federal agencies develop 

and issue regulations. The APA requires agencies to publish a notice of proposed rulemaking in 

the Federal Register and provides an opportunity for the public to comment on notices of 

proposed rulemaking. The proposed rule was published on April 21, 2014 with a 90-day 

comment period. The 90-day comment period was expected to close on July 21, 2014; however 

on June 24, 2014, EPA issued an extension through October 20, 2014. And then, again on 

October 14, 2014, EPA issued an additional extension of the comment period through November 

14, 2014. As requested by many of the initial comments, the agencies provided two extension 

periods to the original comment period. The agencies did not feel it was necessary to extend the 
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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public comment period beyond November 14, 2014. The agencies received over one million 

public comments to help inform the final rule. 

In addition to the comment period, the agencies launched a robust outreach effort during April, 

May and June 2014, holding discussions in multiple states around the country and gathering 

input from stakeholders to shape the final rule. The public meetings were announced on the 

agencies’ websites as well as through mass email distributions to known stakeholders. 

Specifically, the agencies convened over 400 meetings nationwide with states, small businesses, 

farmers, academics, miners, energy companies, counties, municipalities, environmental 

organizations, other federal agencies, and many others to provide an enhanced opportunity for 

input on the proposed rule. EPA and the Corps attempted to attend as many meetings together as 

possible; however, there were meetings where only one agency could participate. EPA also 

voluntarily undertook federalism consultation for this effort and met the terms of E.O. 13132 and 

EPA guidance for implementing the Order. EPA held a series of meetings and outreach calls 

with state and local governments and their representatives soliciting input throughout this 

rulemaking process to define ‘‘waters of the United States.’’ For more detail see the section 

13.2.5 on Federalism.

The public outreach and consultation process for this rulemaking enhanced the development of 

the final rule by allowing the agencies to hear from landowners, business people, farmers, 

scientists, energy companies, conservationists, states and local governments, and others who 

have valuable experience, different perspectives, and important information. The final rule was 

developed after addressing and incorporating relevant comments from the public outreach 

efforts. The docket provides a detailed list of the outreach efforts conducted during this 

rulemaking process. 

To help inform the public regarding the proposed rule, during the public comment period the 

EPA had taken steps to translate the legal language and scientific principles of the proposed rule 

into easier-to-understand communications documents. This is a common practice for any major 

regulatory action taken by the EPA or any other federal agency. Such documents (ex. speeches, 

blogs, press releases, or other public outreach) were used to help explain the proposed rule to the 

regulated public but did not substitute for it. Upon issuing the final rule, the agencies’ 

regulations and guidance, the Act, and applicable case law will continue to provide the legally 

binding criteria for CWA jurisdiction. 

The Agencies’ outreach during the rulemaking was perfectly appropriate and does not reflect 

“bias” and prejudgment by the agencies. The activities cited by some commenters reflected 

EPA’s efforts to communicate with the public to promote an accurate understanding of the 

agencies’ rulemaking and its importance to ensuring effective administration of the statute. . 

Moreover, The Anti-Lobbying Act does not prohibit the agencies from seeking input from the 

public on a rulemaking or restrict the agencies from educating or informing the public on a 

rulemaking under development – i.e., the types of activities described by the commenter. As 

noted in a recent Comptroller General opinion, “agency officials have broad authority to educate 

the public on their policies and views, and this includes the authority to be persuasive in their 

materials” – e.g. persuasive statements in “individual social security statements mailed to over 

140 million Americans,” and letters “encouraging prosecutors to work with legislators to update 
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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local marijuana laws”. B-325248, U.S. Comp. Gen., Sept. 9, 2014. See also B-319075, U.S. 

Comp. Gen., April 23, 2010, and B-304715, U.S. Comp. Gen., April 27, 2005.

Specific Comments

Alaska State Legislature, Alaska State Leadership (Doc. #7494.1)2q$

13.260 Frequently, the expanded scope occurs via "regional supplements" beyond the procedural 

requirements established by the Administrative Procedure Act94 (“APA”). Over 

objections, Alaska, infamously, was subjected to the 2007 Final Alaska Regional 

Supplement to the 1987 Wetland Delineation Manual.95 (p. 3)

Agency Response: The Regional Supplements to the 1987 Wetland Delineation 

Manual are outside the scope of this rulemaking effort. The rule defines “waters of 

the U.S.” under the Clean Water Act and does not change the definition of 

“wetland,” the three parameters required to meet the definition of “wetland,” the 

1987 Manual, or the Regional Supplements to the Manual. The Regional 

Supplements went out on public notice for public comment and are based on 

science, technical skills, field data collection, and agency experience. The Regional 

Supplements are not agency regulation and do not require rulemaking under the 

Administrative Procedure Act for their publication. The Regional Supplements did 

not expand scope of jurisdiction; they merely provide a method of identifying 

wetlands’ three parameters in order to delineate their boundaries. Wetland 

delineation does not equate to the determination of their jurisdictional status under 

the Clean Water Act.

State of Iowa (Doc. #8377)

13.261 Further, numerous stakeholders have expressed concerns that the Federal government is 

thwarting important requirements of the Administrative Procedure Act (APA) and 

undermining the public’s opportunity for meaningful comment by repeatedly issuing and 

revising, outside of the APA process, explanations and information critical to the rule. (p. 

2)

Agency Response: See section 13.2.1 summary response for information 

regarding the rulemaking process Administrative Procedure Act.

Energy Producing States Coalition (Doc. #11552)

13.262 Further, over 60 organizations have expressed their concerns that continued ad hoc 

regulatory interpretations and revisions in guidance documents - through the media and 

blog posts rather than the formal rulemaking process - violate the spirit and letter of the 

Administrative Procedure Act by skirting public notification and input requirements. 3 

Adding to this troubling record, we have been informed that the Administration’s cost 

benefit analysis of the underlying proposal relied on 20-year old data that had not been 

 

94 Many were frustrated when the Corps did not use the formal Administrative Procedure Act ("APA") process when

it approved the Alaska regional supplement on October 26,2007. EPA-HQ-OW-2011-0880 provides an opportunity

to clarify some terms relevant to the state including (the definition of wetlands as it relates to permafrost).

95 See http://www.usace.army.milIPortalsl21docs/civilworkslregulatorylreg_supplalaska_spn-2006-445-final.pdf.
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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adjusted for inflation and did not fully examine the wide-ranging implications of 

additional CWA compliance. (p. 2 – 3)

Agency Response: See section 13.2.1 summary response for information 

regarding the rulemaking process Administrative Procedure Act.

New Mexico Department of Agriculture (Doc. #13024)

13.263 EPA has been unable to present consistent interpretations of the changes in the 

definitions of Waters of the U.S., in spite of claims that the document's purpose is to 

increase clarity. To this point, the U.S. House of Representatives Committee on Science, 

Space, and Technology recently requested maps that show jurisdictional waters under the 

CWA.96 In a response letter from EPA, Administrator Gina McCarthy states," I wish to 

be clear that EPA is not aware of maps prepared by any agency, including the EPA, of 

waters that are currently jurisdictional under the CWA or that would be jurisdictional 

under the proposed rule."97

Because many newly proposed definitional changes rely on waters (s) (I) through (4), 

NMDA requests maps of these waters. From these maps stakeholders will be given the 

opportunity to more easily determine waters that may be included in wasters (s) (5) 

through (7) of the proposed rule. Providing clear and thorough maps of jurisdictional 

waters will assist in increasing transparency, accountability, and clarity in this 

rulemaking. (p. 15)

Agency Response: As a part of the process to evaluate the indirect costs and 

benefits associated with the proposed rule, the agencies assessed the estimated 

increase in new Clean Water Act permits that could reasonably be expected as a 

result of the proposed regulation. This analysis did not, and could not, quantify the 

potential change in the geographic scope of the CWA. Because the agencies 

generally only conduct jurisdictional determinations at the request of individual 

landowners, we do not have maps depicting the geographic scope of the CWA. Such 

maps do not exist and the costs associated with a national effort to develop them are 

cost prohibitive and would require access to private property across the country. 

The U.S. Geological Survey and the U.S. Fish and Wildlife Service collect 

information on the extent and location of water resources across the country and 

use this information for many non-regulatory purposes, including characterizing the 

national status and trends of wetlands losses. This data is publicly available and 

EPA has relied on USGS and USFWS information to characterize qualitatively the 

location and types of national water resources. This information is depicted on 

maps but not for purposes of quantifying the extent of waters covered under CWA 

regulatory programs.

 

96 Chairman Lamar Smith, U.S. House of' Representatives Committee on Science, Space, and Technology. Letter to 

U.S. Environmcntal Protection Agency Administrator Gina McCarthy. Dated August 27, 2014. Available at

http://science.house.gov/epa-maps.state.2013

97 Administrator Gina McCarthy, U.S. Environmental Protection Agency. Letter to Chairman Lamar Smith, U.S. 

House of Representatives Committee on Science, Space, and Technology. Dated July 28, 2014. Available at: 

http://science.house.gov/epa-maps-state-2013
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13.264 EPA has claimed extensive outreach to state and local agencies before the development 

of the proposed rule.98 For instance, the Federal Register states," ... EPA held numerous 

outreach calls with state and local government agencies seeking their technical input. 

More than 400 people from a variety of state and local agencies and associations, 

including the Western Governors ' Association, the Western States Water Council, and 

the Association of State Wetland Managers participated in various calls and meetings" 

(79 FR 22221). NMDA has been party to conversations with multiple state and local 

agencies throughout the West - including the Wyoming Department of Agriculture, Utah 

Department of Agriculture and Food, Idaho State Department of Agriculture, Colorado 

Department of Agriculture, and New Mexico Environment Department - and has been 

unable to locate even a single one indicating outreach from EPA. If public records of this 

outreach exist, NMDA requests this information he published.

During telephone conversations and webinars EPA and the Corps hosted after the 

publication of the proposed rule, EPA has maintained a defensive tone.99 100 Rather than 

either address concerns raised by the public or state that comments would be taken 

seriously in the revision of the proposed rule, the Agencies merely restated that the intent 

of the rule is to increase clarity. NMDA maintains that stakeholders with concerns do, in 

fact, understand the implications of this rule and implores that EPA consider the concerns 

brought up by this and other state and local agencies and revise the proposed rule 

accordingly. (p. 16)

Agency Response: All comments provided from the public have been considered 

in development of the final rule. 

Maine Department of Environmental Protection (Doc. #14624)

13.265 The Agencies should provide the opportunity for public participation on the revised 

regulatory proposal.

After the U.S. Supreme Court struck down the Agencies' overreach of jurisdiction in the 

SWANCC decision, the Agencies developed guidance in 2008 to determine the extent to 

which waters are classified as "Waters of the United States" and therefore can be 

regulated under the Clean Water Act. This guidance more appropriately reflected: (1) the 

nexus of "other waters" to TNWs and (2) the need for site-specific determinations 

regarding the significance of a nexus of "other waters" to TNW. This guidance did not 

undergo notice and opportunity for public participation pursuant to the Administrative 

Procedure Act ("APA") (5 U.S.C. Subchapter II). To the extent that Maine has the

delegated authority to administer many of the provisions of the CWA, Maine supports 

efforts of EPA to ensure that the definition of WOTUS has been developed pursuant to 

 

98 U.S. Environmental Protection Agency. "EPA Summary of the Discretional Small Entity Outreach for Planned 

Proposed Revised Definition of 'Waters of the U S.'" Available at: http://www2.epa.gov/uswaters/epa-summarydiscretionary-small-entity-outreach-planned-proposed-revised-definition-waters.

99 University of Nebraska Livestock and Poultry Environmental Learning Center. "Waters of the U.S. Proposed Rule 

Webinar" Hosted 6/20/14. Archived at: http://www.extension.org/pages/71028/epas-proposed-waters-of-the-usregulations#.VC8F7xYa5F8.

100 U.S, Environmental Protection Agency. "Waters of the U.S.: Clarifying Misconceptions." Hosted 7/16114.

http://www2.epa.gov/uswaters/waters-united-states-webinar-clarifying-misconceptions.
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the APA. Guidance which has not gone through the APA is not judicially enforceable 

under Maine law. (5 M.R.S.A. §8002(9)). Maine requests that the proposal be revised and 

re-posted for public comment. (p. 5)

Agency Response: See section 13.2.1 summary response for information 

regarding the rulemaking process Administrative Procedure Act.

State of Alaska (Doc. #19465)

13.266 Muddled Process and Failure to comply with the Administrative Procedure Act (APA). 

The proposed rule is based on the Connectivity Report, which was developed without 

consultation with state, local, or tribal governments, or industry. The report has not been 

completed, and lacks regional examples, including for Alaska. Yet, EPA has inexplicably 

pressed forward with its rulemaking. The rulemaking must be founded on a reasonable 

schedule, explore all potential consequences to the federal and state agencies, as well as 

the regulated community. (p. 5)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study. For information on consultation see 

sections 13.2.5 on Federalism, 13.2.6 on Tribal Consultation, and 11.1 on 

RFA/SBREFA in compendium 11. 

13.267 C. The rulemaking fails to comply with applicable rulemaking requirements and results 

in a muddled and confusing rule that generates enormous uncertainty.

Despite EPA and the Corps’ claim that the proposed rule promotes “transparency, 

predictability, and consistency,”101 the numerous difficulties in implementing the rule and 

the severe consequences it will wreak have not been adequately considered. The 

rulemaking fails to comply with the APA41 and Executive Order 13563,42 in large part 

because the federal agencies have not adequately considered the likely impacts of the 

rulemaking, nor allowed for meaningful public comment or review of the data the 

agencies rely upon. (p. 12)

Agency Response: See section 13.2.1 summary response for information 

regarding the Administrative Procedure Act.

Hinsdale Colorado Board of County Commissioners (Doc. #1768)

13.268 A Guidance Document is not the Correct Path Forward. While the Draft Guidance states 

that it is a non-binding document, we believe the practical effect of the document on all

stakeholders will be more like a rule. We believe that EPA and Corps regional offices 

will inappropriately rely on this Draft Guidance to claim federal jurisdiction over bodies 

of water that are currently not under federal jurisdiction. We believe the wiser course 

involving a change as controversial as determining federal jurisdiction under the "waters 

of the U.S" definition is to look to the rulemaking process, which under the 

Administrative Procedure Act (APA) offers an open and transparent means of proposing 

and establishing regulations and ensures that state, local and private entity concerns are 

 

101 77 Fed. Reg. at 22190.
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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fully considered and properly addressed. We urge EPA and the Corps to move forward 

with a process consistent with the AP A's rulemaking process. (p. 1)

Agency Response: Thank you for your comment. Based on comments like these 

from stakeholders on the Draft Guidance in 2011, the agencies have moved forward 

with today’s final rule. 

Beaver County Commission (Doc. #9667)

13.269 (...) Recommendation: Withdraw the proposed rule. If the Agencies feel the need to 

expand their jurisdictional authority and the scope of waters protected by the CWA, they 

must work within the bounds of already established federal and case law. Furthermore, 

they must work within established constitutional process, as well as with state and local 

elected officials and a broad cross section of the American public in developing changes 

to their mission and scope of authority. (p. 6)

Agency Response: For concerns regarding expanded jurisdiction, see section 13.2 

summary response for information regarding the rulemaking process. 

13.270 Issue 6: Failure to list all supporting documents.

Reference: FR page 22188, column 2. All documents in the docket are listed in the 

http://www.regulations.gov index.

Discussion: FR page 22188, column 1 states that the proposed rule is published "in light 

of'court cases. Column 3 of the same page refers to the SWANCC and Rapanos court 

cases. The SWANCC and Rapanos decisions are crucially important to understanding 

the whole reason the Agencies contend that the proposed rule is necessary, yet the 

Agencies have not made them available in the docket under "Supporting & Related 

Material. This is not only unfair to the public, but it is also a false statement made in the 

proposed rule.

Recommendation: Provide links to the SWANCC and Rapanos court cases as well as any 

other caselaw "in light of' their important connection to the proposed rule. (p. 12)

Agency Response: Weblinks to SWANCC and Rapanos court cases are available 

on the agencies websites http://www2.epa.gov/cleanwaterrule/documents-relatedproposed-definition-waters-united-states-under-clean-water-act The rule 

implements, and is consistent with, the interpretations of the Supreme Court in the 

Rapanos and SWANCC decisions because the rule only covers waters that have a 

significant nexus with traditional navigable waters, and therefore within federal 

authority over channels of interstate commerce.

Pocahontas County, Indiana (Doc. #13666)

13.271 Concern about the violation of administrative procedures: We agree with the many cries 

of objection heard from across the country that the USEPA has violated the terms of the 

Administrative Procedure Act in the promulgation of the rule. We do not understand why 

the USEPA appears to treat this very serious matter as if it were a political campaign. 

Telling the truth and genuinely hearing the concerns being presented, such as ours here,

should be who you are! (p. 2)
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Agency Response: See section 13.2.1 summary response for information 

regarding the Administrative Procedure Act.

Palo Alto County Board of Supervisors (Doc. #14095)

13.272 Concern about the violation of administrative procedures. We agree with the many 

cries of objection heard from across the country that the USEPA has violated the terms of 

the Administrative Procedure Act in the promulgation of the rule. We do not understand 

why the USEPA appears to treat this very serious matter as if it were a political 

campaign. Telling the truth and genuinely listening to concerns such as ours would be a 

very welcome change.

Withdraw the proposed rule. On behalf of all of the taxpayers and property owners of 

Palo Alto County we strongly object to the proposed rule to expand the definition of 

jurisdictional waters. The potential adverse impacts have not been fully vetted and are 

grossly understated or are not accounted for at all. The administrative procedures have 

also been compromised to the point that we cannot trust that our concerns will be 

properly vetted and accounted for in the development of the final rule. We join the many 

units of government from across the country who call for the complete recall of the 

proposed rule. (p. 2)

Agency Response: See section 13.2.1 summary response for information 

regarding the Administrative Procedure Act.

Waters of the United States Coalition (Doc. #14589)

13.273 It is imperative that the EPA get the Proposed Rule right because of the limited recourse 

that property owners and public agencies have in the event of a misapplication of the rule. 

The Fifth Circuit Court of Appeals recently held that a jurisdictional determination, 

alone, issued by the ACOE is not subject to judicial review under the Administrative 

Procedure Act. (Belle Company, LLC v. U.S. Army Corps of Engineers, No. 13-30262, 

slip op. (5th Cir. July 30, 2014).)

If the Fifth Circuit’s decision stands, a party who disagrees with a notice that property 

contains waters of the United States must complete a potentially expensive permitting 

process, or risk an enforcement action, before seeking judicial review of the underlying 

jurisdictional determination. An over-inclusive or otherwise poorly drafted rule therefore 

poses a substantial risk to public agencies who may be operating facilities that are 

reclassified as waters of the United States, or who are planning projects in areas that 

would similarly be reclassified as a result of the Proposed Rule. (p. 9 – 10)

Agency Response: For the reasons explained in the Belle Company decision, a 

jurisdictional determination does not impose any obligations on any party, but 

simply informs the party of the agency’s views of the applicability of the statute. 

Moreover, by drawing regulatory lines, the final rule will reduce the need for 

jurisdictional determinations and therefore simplify and reduce the expense of the 

regulatory process.

New Mexico Association of Commerce and Industry (Doc. #5610)

13.274 Additionally, ACI believes that the EPA and the Corps are pursuing rulemaking requests 

in a blatant attempt to circumvent a deliberative, fair, and transparent regulatory process. 
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Instead, the agencies are seeking a hurried and predetermined outcome through 

rulemaking requests. The EPA and the Corps have continued to pursue this course of 

actions despite failing to 1) conduct a statutorily-required small business analysis and 

outreach pursuant to the Regulatory Flexibility Act (RFA), 2) appropriately consult with 

affected states, and 3) allow for the completion of the Science Advisory i3oard review of 

the so-called "Connectivity Report". (p. 1 – 2)

Agency Response: See section 13.2.1 summary response for information 

regarding the Administrative Procedure Act. For information regarding the 

Connectivity Report, see Section 13.1. For information on RFA see section 11.1 in 

compendium 11. 

13.275 The proposed rule is in fact a regulation and therefore by federal statute must be 

promulgated under the Administrative Procedure Act. (p. 2)

Agency Response: See section 13.2.1 summary response for information 

regarding the Administrative Procedure Act. 

Water Advocacy Coalition (Doc. #7981)

13.276 We, the Waters Advocacy Coalition102 (WAC or Coalition), 1 write to raise serious 

concerns with the rulemaking process associated with the proposed rule to define '·waters 

of the United States" under the Clean Water Act (CWA), 79 Fed. Reg. 22,188 (Apr. 21, 

2014). The U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of 

Engineers (Corps) (the Agencies) are thwarting important requirements of the 

Administrative Procedure Act (APA) and frustrating the public's opportunity for 

meaningful notice and comment by repeatedly issuing and revising, outside of the APA 

process, ad hoc explanations an d other documents critical to the rule.

Within the last month alone, outside of the rulemaking process and just one month before 

comments are due, the Agencies have released the following:

• A series of agency blog posts that provide new interpretations of the proposed rule's 

language;

• New Corps reports that detail national challenges with defining the term "ordinary 

high water mark," the most critical term for defining "tributary" under the proposed 

rule;

• Science Advisory Board comments pointing out problems with the Connectivity 

Report and the rule;

• USGS maps that depict perennial, intermittent, and ephemeral waters across the 

nation; and

• A late invitation for select small business entities to attend a meeting with the 

Agencies on the proposed rule.

 

102 WAC is a coalition representing the nation's construction, real estate, mining, agriculture , transportation,

forestry, manufacturing. and energy sectors, as well as wildlife conservation and recreation interests. See Attached

List of WAC Members.
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The APA does not allow the Agencies to keep altering the regulatory landscape 

throughout the rulemaking process. Indeed, the public cannot be expected to provide 

meaningful comment on a moving target. As such, we call on the Agencies to 

immediately withdraw the proposed rule for the following important reasons:

1. The Agencies Continue To Issue New Materials Explaining the Proposed Rule 

Throughout the Comment Period, Creating a Moving Target for Public 

Comment.

Since the proposed rule was issued on April 21, 2014, the Agencies have continued to 

issue new documents, blog posts, Q&A documents, and webinars, offering new 

explanations of key terms in the proposed rule and new reasoning to support the proposed 

assertions of CWA jurisdiction. Much of this ad hoc information is inconsistent with 

material provided in the official rulemaking docket. It is very difficult for the public to 

comment on the proposed rule when the Agencies keep changing their story and adding 

new (and often conflicting) information as the comment period progresses. 

For example, the term "upland" is not defined in the proposed rule, but its meaning is 

critical to understanding whether a ditch is excluded from the definition of "waters of the 

United States" under the proposed rule. In stakeholder discussions throughout the 

comment period, the Agencies have acknowledged that they have not proposed a 

definition of "upland." Now, a recent Q&A document, issued by the Agencies on 

September 9, 2014, provides a new definition of "upland:" "Under the rule, an 'upland' is 

any area that is not a wetland, stream, lake, or other waterbody. So, any ditch built in 

uplands that does not flow year-round is excluded from CWA jurisdiction."103 This new 

definiion of "upland" is not included in the preamble, proposed regulatory text, or 

anywhere else in the rulemaking docket. Is the public now to assume that this key 

definition is part of the rulemaking? Is the public responsible for tracking the Agencies' 

blog posts and ad hoc statements to piece together the meaning of key regulatory 

terms?104

Similarly, the EPA-prepared economic impact analysis located in the rulemaking docket 

estimates that "the proposed rule increases overall jurisdiction under the CW A by 2. 

7%."105 Now, in the Sept. Q&A document, the Agencies back away from that estimate, 

and instead refer to a completely different calculation, claiming, "When the proposed rule 

is compared to the agencies' existing regulations, however, the proposed rule reflects a 

substantial reduction in waters protected by the CWA ... "106 Worse still, at other times 

 

103 EPA and U.S. Army Corps of Engineers, Questions and Answers- Waters of the U.S. Proposal at 5 (Sept.

9, 2014), http://www2.epa.gov/sites/production/files/2014-09/documents/q_a_wotus.pdf (hereinafter, Sept. Q&A

document).

104 Likewise, although the preamble defines "perennial flow" in terms of the presence of water ("water that is

present in a tributary year round when rainfall is normal or above normal"), 79 Fed. Reg. at 22,203, the Sept. Q&A

document focuses on .flow ("flow[s] year-round"). Neither of these definitions provides the necessary clarity on

"perennial" flow. And the conflicting information from the Agencies renders it impossible for the public to

meaningfully comment.

105 EPA, Economic Analysis of Proposed Revised Definition of Waters of the United States, at 12 (March

20 14), a vailable at http://www.regulations.gov/#!documentDetail ;D=EPA-HQ-OW-20 ll-0880-0003.

106 Sept. Q&A at 3.
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the Agencies have relied on multiple other baselines in their outreach,107 again creating 

a moving target for commenters. How is the public to comment on the implications of the 

proposed rule if the Agencies keep changing the point of reference to avoid addressing 

direct concerns? If the Agencies are disregarding the EPA Economic Analysis in the 

rulemaking docket, should the public do the same? Again, how is the public to comment? 

In addition to releasing new information, the Agencies continue to revise and remove 

previous blog posts and statements released throughout the comment period. On June 30, 

2014, EPA released a blog post by Nancy Stoner and an accompanying Q&A 

document.108 Now, without any indication or notice that the June 30 Q&A has been 

revised, the Stoner blog post links to a different Q&A document in which some of the 

previous information has been removed and many of the responses have been revised. 

For example , under the heading "The proposed rule does NOT mean that previous 

decisions about jurisdiction will have to be revisited ," the June 30 Q&A document 

provided, "Any existing jurisdictional determination issued by the Corps will continue to 

be valid, and we will not re-review existing, valid determinations." This entire section, 

including the statement about existing jurisdictional determinations, has now vanished in 

the revised Q&A document. Have the Agencies changed their position on revisiting 

previous determinations? How is the public to rely on these Q&A documents when their 

content is only temporary? As another example, in discussing "ordinary high water mark" 

(OHWM), the June 30 Q&A document provided, "Features that flow extremely rarely 

would not exhibit these characteristics and would not be jurisdictional." (emphasis 

added). Now, the document has been revised to state, "Water features that don't flow 

frequently enough or with enough volume to exhibit these characteristics would not be 

jurisdictional." (emphasis added). Not only are these sentences not accurate, but the 

meanings are different. Again, the Agencies are changing their story without explanation 

or notice. Have the Agencies changed their position on OHWM? How is the public to 

comment when the Agencies keep revising their stance on important issues without 

notice? (p. 1 – 4)

Agency Response: See section 13.2.1 summary response for information 

regarding the Administrative Procedure Act. 

As a part of the process to evaluate the indirect costs and benefits associated with 

the proposed rule, the agencies assessed the estimated increase in new Clean Water 

Act permits that could reasonably be expected as a result of the proposed 

regulation. This analysis did not, and could not, quantify the potential change in the 

geographic scope of the CWA. Because the agencies generally only conduct 

jurisdictional determinations at the request of individual landowners, we do not 

have maps depicting the geographic scope of the CWA. Such maps do not exist and 

 

107 See, e.g., Remarks of Gina McCarthy at Agricultural Business Council of Kansas City on Clean Water

Proposal (July l 0 , 2014 ), available at http: //go.usa.gov/Xm vh ("EPA feels confident that, under this proposal, fewer

waters will be jurisdictional than under President Reagan."); Nancy Stoner blog entry, Setting the Record Straight

on Waters of the U.S. (June 30. 2014) ("[The rule protects fewer waters than prior to the Supreme Court cases." ).

108 http://blog.epa. go v/epaconnect/20 14/06/setting-the-record -straight-on-wous/ (June 30, 20 14).
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the costs associated with a national effort to develop them are cost prohibitive and 

would require access to private property across the country. 

The U.S. Geological Survey and the U.S. Fish and Wildlife Service collect 

information on the extent and location of water resources across the country and 

use this information for many non-regulatory purposes, including characterizing the 

national status and trends of wetlands losses. This data is publicly available and 

EPA has relied on USGS and USFWS information to characterize qualitatively the 

location and types of national water resources. This information is depicted on 

maps but not for purposes of quantifying the extent of waters covered under CWA 

regulatory programs.

13.277 2. Without Public Notice or Opportunity for Comment, the Agencies Are Developing

Policies on Key Components of the Proposed Rule, Such as Ordinary High Water Mark.

In August 2014, the Corps Engineer and Research Development Center (ERDC) released 

two new guidance documents regarding OHWM: (1) A Guide to Ordinary High Water 

Mark OHWM) Delineation for Non-Perennial Streams in the Western Mountains, 

Valley, and Coast Region of the United States, and (2) A Review of Land and Stream 

Classifications in Support of Developing a National Ordinary High Water Mark

(OHWM) Classification.109 OHWM is the lynchpin concept of the proposed rule's 

"tributary" definition, but the meaning of this key term is still in flux. 

Separate from the proposed rulemaking, the Agencies are redefining OHWM without the 

required public notice and comment. The preamble asserts that the 33 C.F.R. § 328.3(e) 

definition of OHWM "is not changed by [the] proposed rule."110 Yet, the two August 

2014 OHWM guidance documents indicate that the Agencies are developing a new O 

HWM standard. These guidance documents essentially ignore the regulatory definition 

at§ 328.3(e) and create a new method for determining OHWM based on the delineation 

of an "active channel signature" through the use of three primary indicators-topographic 

break in slope, change in sediment characteristics, and change in vegetation 

characteristics. In effect, other physical indicators explicitly referenced in§ 328.3(e) are 

superfluous under this new methodology. This is a clear change in regulatory practice and 

will have a substantial effect on how CW A jurisdiction is interpreted. Any efforts to 

redefine OHWM, a key term in the Agencies ' proposed ''waters of the United States" 

definition, should be part of this rulemaking. The Agencies may not segment key 

components of the proposed "waters of the United States" definition and address them 

separately to avoid APA notice-and-comment requirements.

 

109 Matthew K . Mersel and Robert W. Lichvar, U .S. Army Engineer Research and Development Center

(ERDC), A Guide to Ordinary High Water Mark (OHWM) Delineation for Non-Perennial Streams in the Western

Mountains, Valley, and Coast Region of the United States (August 2014),

hup: //acwc.sdp.sirsi.net/ client/search/asselfl 036027 (hereinafter, Western Mountains OHWM Guidance); Matthew

K. Mersel, Lindsey E. Lefebvre, and Robert W. Lichvar, U.S. Army Engineer Research and Development Center

(ERDC), A Review of Land and Stream Classifications in Support of Developing a National Ordinary High Water

Mark (OHWM) Classification (August 2014), http://acwc.sdp.sirsi.nelfclient/search/ asset/ l 0360? 6 (hereinafter,

National OHWM Review).

110 79 Fed. Reg. at 22,202.
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Moreover, a review of the OHWM guidance documents issued by the Corps 

demonstrates that, contrary to the Agencies' statements in the context of the "waters of 

the United States" rule, determination of the OHWM is anything but simple or clear. In 

various blog posts, stakeholder calls, and statement s released by the Agencies during 

the comment period, the Agencies have touted the OHWM as "well-known" and " easy 

to observe and document."111 But the recent Corps statements and publications paint a 

different picture. In March 2014, the Corps recognized that OHWM is a "vague 

definition," leading to "inconsistent interpretation of [the] OHWM concept," and 

"inconsistent field indicators and delineation practices."112 Likewise, the Corps' Western 

Mountains OHWM Guidance states that "OHWM delineation in non-perennial (i.e., 

intermittent and ephemeral) streams can be especially challenging" and notes that "it is 

often difficult to determine what constitutes ordinary high water and to interpret the 

physical and biological indicators established and maintained by ordinary high water 

flows."113 For these reasons, the Corps' National OHWM Review recognizes the "need 

for nationally consistent and defensible regulatory practices" and suggests that "a 

comprehensive framework is needed."114 

In light of the confusion surrounding OHWM definition, it is difficult to understand why 

the Agencies would rely on OHWM as a determinative measure of CWA jurisdiction 

over tributaries.115 Indeed, the Science Advisory Board (SAB) panel questioned the 

proposed rule's use of OHWM as part of the "tributary" definition, and panel members 

were “concerned about the definition of tributary being anchored in something as 

regionally variable" as the OHWM concept.116 There is a serious disconnect between the 

Agencies' statements that the OHWM is easy to determine and the Corps' guidance 

documents and recent statements to the contrary. These mixed messages from the 

Agencies make it difficult for the public to provide meaningful comment on the proposed 

rule. (p. 4 – 5)

Agency Response: The agencies are not redefining “ordinary high water mark.” 

See paragraph (c) of the final rule for the definition of “ordinary high water mark.” 

Assertions that the Corps ordinary high water mark manuals were required to go 

through rulemaking are outside the scope of this rulemaking effort. Because the 

rulemaking addresses many issues by reference to existing regulations, there is 

necessarily some overlap between the rulemaking and ongoing agency 

implementation of current regulations. Administration of the current regulations 

 

111 See, e.g. , Tom Reynolds, Mapping the Truth, EPA Connect Blog (Aug. 28, 2014),

http:/ lbl og.epa. go v/epaconnect/20 14/08/mappi ng -the-truth/.

112 Presentation by Matthew K. Mersel, U.S. Army Engineer Research and Development Center,

Development ofNat ional OHWM Delineation Technical Guidance (March 4, 2014),

113 Corps Western Mountains OHWM Guidance at 1-2.

114 National OHWM Review at 1-2.

115 These concerns are not new. In Rapanos, Justice Kennedy criticized the Agencies' use of OHWM to

determine whether tributaries are jurisdictional, because he was concerned that such a standard was overbroad and

would leave room for the Agencies to assert jurisdiction over waters that do not have a significant nexus to

traditional navigable waters. Rapanos v. United States, 547 U.S. 715, 781-82 (2006) (Kennedy, J., concurring).

116 See Bridget DiCosmo, lnside EPA. com, EPA Appears to Reject SAB Calls to Clarify Controversial

"Waters" Proposal (Aug. 22, 2014).
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must obviously continue during this rulemaking, and the Corps is continually 

seeking to improve and refine its practice through issuance of technical guidance 

that assists Corps field staff and the regulated public. 

Since the ordinary high water mark is an important component of the identification 

of jurisdictional tributaries under the final rule the agencies felt that including its 

definition in the final rule was appropriate. The final rule definition of ordinary 

high water mark is the same as the definition that has been in Corps regulations and 

implemented by the Corps to identify the lateral extent of tributary jurisdiction for

decades. The agencies acknowledge that the identification of the ordinary high 

water mark can be challenging in certain regions and certain types of streams which 

is the impetus for the manuals to assist in the identification in such challenging 

scenarios. The manuals, such as the manual for the arid West, provide a technical 

means for an efficient, effective, and consistent identification and delineation of the 

ordinary high water mark using indicators such as changes in vegetation, breaks in 

slope, and changes in the substrate texture. The agencies also recognize that there is 

regional variation in ordinary high water mark delineation; there are a suite of 

indicators that may be used in ordinary high water mark identification and certain 

indicators are more reliable in certain regions than others. 

Because the rulemaking addresses many issues by reference to existing regulations, 

there is necessarily some overlap between the rulemaking and ongoing agency 

implementation of current regulations. Administration of the current regulations 

must obviously continue during this rulemaking, and the Corps is continually 

seeking to improve and refine its practice through issuance of technical guidance 

that assists Corps field staff and the regulated public. 

Regarding, the commenter’s reference to the SAB input, the agencies fully 

considered the SAB’s comments on use of OHWM as part of the definition of 

tributary and for the reasons explained in the preamble and/or TSD, decided to 

retain the term in the final rule. 

13.278 3. The Science Advisory Board Has Raised Concerns with Significant Components of the 

Proposed Rule, and EPA Has Not Released a Final Connectivity Report. 

We reiterate our concern, raised in the Coalition's May 13, 2014, letter, with the 

Agencies' preparation of a draft rule before the foundational science, the "Connectivity 

Report," is peer reviewed and final. The SAB panel has recommended significant 

changes to the Connectivity Report and, if EPA intends to be responsive to those 

concerns, the final Connectivity Report will substantially differ from the draft that has 

been made available to the public. To comply with the APA, the Agencies must allow the 

public the opportunity to comment on the final report. 

Moreover, on September 2, 2014, the SAB panel released comments on the adequacy of 

the scientific and technical basis of the proposed rule.117 The SAB panel members 

 

117 Memorandum from Dr. Amanda D. Rodewald, Chair, Science Advisory Board Panel for the Review of

the EPA Water Body Connectivity Report, to Dr. David Allen, Chair, EPA Science Advisory Board, Comments to

the chartered SAB on the adequacy of the scientific and technical basis of the proposed rule titled "definition of
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raised a number of serious concerns about the proposed rule's definitions and categories 

of regulation. For example, “Panel members generally found that the term 'significant 

nexus' was poorly defined ... and that the use of the term 'significant' was vague."118 

Panel members also questioned the adequacy of scientific support for several of the rule's 

definitions and exclusions. For instance, "Panelists generally agreed that many research 

needs must be addressed in order to discriminate between ditches that should be excluded 

and included."119 And, as recently as September 26, 2014, a member of the chartered 

SAB questioned why neither the Connectivity Report nor the SAB review assessed the 

level of importance of connectivity. He stated, "EPA scientists should consider where 

along the connectivity gradient there is an impact of sufficient magnitude to impact 

downstream waters," and noted that, although there is a continuum, scientists are 

depended upon to make determinations of significant or critical effects.120 Substantial 

changes to the proposed rule and the Connectivity Report are needed to address these 

important concerns raised by the SAB. The public must be given the opportunity to 

review and comment on any such revisions. (p. 6)

Agency Response: See section 13.2.1 summary response for information 

regarding the Administrative Procedure Act. For information on the Connectivity 

Report, see the summary response for section 13.1. 

13.279 Land and Waters Subject to Federal CW A Jurisdiction Under the Proposed Rule. 

During the comment period, there has been significant discussion over EPA maps that 

rely on data from the U.S. Geological Survey (USGS) and appear to depict the scope of 

CWA jurisdiction.121 The Coalition commends Rep. Lamar Smith and the U.S. House of 

Representatives Committee on Science, Space, and Technology, for making these maps 

publicly available and requesting that EPA enter the maps and related information into 

the rulemaking docket.122 Unfortunately, these maps are just the tip of the iceberg, as 

they depict only a fraction of the land and waters that would be subject to federal CWA 

jurisdiction under the proposed rule. 

In yet another blog post, EPA states that these maps “do not show the scope of waters ... 

proposed to be covered under EPA's proposed rule" and “cannot be used to determine 

Clean Water Act jurisdiction - now or ever."123 But why not? The proposed rule 

effectively provides that the Agencies intend to treat all perennial, intermittent, and 

 

'waters of the United States' under the Clean Water Act," (Sept. 2, 2014),

http://yosemite.epa.gov/ sab/sabproduct.nst/F6E 197 AC88A3 8CCD85257D49004D9EDC/$Fi le/Rodewald 

Memorandum WOUS+Rule 9 2 14.pdf(hereinafter, SAB Panel Comments on Proposed Rule).

118 SAB Comments on Proposed Rule at 6.

119 Id. at 7.

120 U.S. EPA Science Advisory Board Quality Review Teleconference (Sept. 26, 2014) (Statements of Dr.

Michael Dourson).

121 See http://science.house.gov/ epa-maps-state-20 13#overlay-context.

122 See Letter from the Honorable Lamar Smith, Chairman, U.S. House of Representatives Committee on

Science, Space, and Technology, to the Honorable Gina McCarthy, Administrator, U.S. EPA (Aug. 27, 2014),

http://science. house.gov/sites/republicans.science.house.gov / file s/ documents/08-27-

20 14 %20Science%20Committee%20Chairrnan% 20Smith%20to% 20Administrator"/o 20McCarthy _ O.pdf

123 Tom Reynolds, Mapping the Truth, EPA Connect Blog (Aug. 28 , 2014) ,

http: / fbiog.epa.gov/epaconnect/20 14/08/mapping -the-truth/.
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ephemeral streams asperse jurisdictional (no case-specific analysis), and the preamble 

indicates that the Agencies will identify tributaries using USGS maps and other 

appropriate information.124 How, then, can the Agencies claim that these maps do not 

show the scope of streams subject to federal CWA jurisdiction under the proposed rule? 

Indeed, these maps indicate a total of approximately 8.1 million miles of perennial, 

intermittent, and ephemeral streams across the 50 states, all of which would be 

categorically regulated as tributaries under the proposed rule. And, these maps show only 

a subset of the land and waters that would be jurisdictional under the proposed rule, 

because they do not depict all of the other features, such as ditches and adjacent ponds, 

that would be categorically jurisdictional, or "other waters" that could be jurisdictional if 

the Agencies find a significant nexus. These USGS maps, and EPA's casual dismissal of 

their significance, demonstrate that, as suggested by Rep. Lamar Smith, the public is 

"getting the run-around" and has not been provided with significant information needed 

to meaningfully comment on the proposed rule. (p. 7)

Agency Response: As a part of the process to evaluate the indirect costs and 

benefits associated with the proposed rule, the agencies assessed the estimated 

increase in new Clean Water Act permits that could reasonably be expected as a 

result of the proposed regulation. This analysis did not, and could not, quantify the 

potential change in the geographic scope of the CWA. Because the agencies 

generally only conduct jurisdictional determinations at the request of individual 

landowners, we do not have maps depicting the geographic scope of the CWA. Such 

maps do not exist and the costs associated with a national effort to develop them are 

cost prohibitive and would require access to private property across the country. 

The U.S. Geological Survey and the U.S. Fish and Wildlife Service collect 

information on the extent and location of water resources across the country and 

use this information for many non-regulatory purposes, including characterizing the 

national status and trends of wetlands losses. This data is publicly available and 

EPA has relied on USGS and USFWS information to characterize qualitatively the 

location and types of national water resources. This information is depicted on 

maps but not for purposes of quantifying the extent of waters covered under CWA 

regulatory programs.

13.280 4. The USGS Maps Recently Released by Rep. Smith Depict Only a Portion of the U.S. 

Chamber of Commerce (Doc. #14115)

Agency Response: The U.S. Geological Survey and the U.S. Fish and Wildlife 

Service collect information on the extent and location of water resources across the 

country and use this information for many non-regulatory purposes, including 

characterizing the national status and trends of wetlands losses. This data is 

publicly available and EPA has relied on USGS and USFWS information to 

characterize qualitatively the location and types of national water resources. This 

information is depicted on maps but not for purposes of quantifying the extent of 

waters covered under CWA regulatory programs.

 

124 79 Fed. Reg. at 22,202.
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13.281 Administrative Procedure Act

Under the notice and comment rulemaking provisions of the Administrative Procedure 

Act, 5 U.S.C. § 553, in order to obtain “meaningful” participation from the public, courts 

have held that the Notice of Proposed Rulemaking (NPRM) must “fairly apprise 

interested persons” of the issues in the rulemaking.125 The Agencies’ proposal clearly 

fails to provide this adequate notice. Because of the vague and confusing nature of the 

new and existing definitions in the proposal, and the unknown ways these definitions will 

be applied in combination, even Clean Water Act experts are hard pressed to understand 

the full reach of this proposal. Major regulatory concepts are not explained. The Agencies 

provide no examples of how they would apply the new definitions, or real-world 

examples of how the exemptions would work. On the contrary, the Agencies simply 

assert that the proposal would have no regulatory effect. The NPRM is so vague and nontransparent that it does not ‘fairly apprise interested persons’ that they will be likely to

face new federal regulatory requirements if the proposal were to be finalized. For this 

reason, the WOTUS rulemaking must be withdrawn. (p. 36)

Agency Response: See section 13.2.1 summary response for information 

regarding the Administrative Procedure Act. For additional information on 

implementation of this rule, see comment responses in compendium 12.

Golf Course Superintendents Association of America et al. (Doc. #14902)

13.282 The EPA and Corps must comply with the federal Administrative Procedure Act (5 

U.S.C. §§ 551 et seq.), and the golf industry reserves its rights to require full federal 

compliance with this law. (p. 2)

Agency Response: See section 13.2.1 summary response for information 

regarding the Administrative Procedure Act.

National Association of Convenience Stores (Doc. #15242)

13.283 Finally, by repeatedly releasing new materials relevant to the rulemaking after opening 

the comment period, the Agencies are undermining the goals of the APA to protect the

public’s right to a meaningful notice and comment process.126 For example, since issuing 

the Proposal in April 2014, the Agencies have published support documents, Q&A 

documents, webinars, and blog posts that have attempted to simplify the Proposal and 

otherwise support the Agencies’ positions.127 By continually altering the regulatory 

 

125 United Steelworkers v. Marshall, 647 F.2d 1189, 1221 (D.C. Cir. 1980); see also American Iron & Steel Inst. v. 

EPA, 568 F.2d 284, 293 (3d Cir. 1977), MCI Telecomm. Corp. v. FCC, 57 F.3d 1136 (D.C. Cir. 1995)(NPRM 

provides inadequate notice to interested parties when the only reference to a major new regulatory burden on an 

industry segment under proposal is mentioned only in a single footnote.).

126 See, e.g., National Black Media Coalition v. FCC, 791 F.2d 1016 (1986); Forester v. Consumer Product Safety

Commission, 559 F.2d 774, 787 (D.C. Cir. 1977)(describing the “meaningful opportunity” to participate).

127 See, e.g., EPA and Corps, Questions and Answers – Waters of the U.S. Proposal (Sept. 9, 2014),

http://www2.epa.gov/sites/production/files/2014-09/documents/q_a_wotus.pdf; EPA, Webinar: Clarifying

Misconceptions (July 16, 2014), available at http://www2.epa.gov/uswaters/documents-related-proposeddefinitionwaters-united-states-under-clean-water-act; Nancy Stoner blog entry, Setting the Record Straight on 

Waters of the U.S. (June 30, 2014).
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landscape throughout the rulemaking process, the Agencies are not complying with the 

APA and foiling the right of the public to engage in the rulemaking process.128 (p. 6)

Agency Response: See section 13.2.1 summary response for information 

regarding the Administrative Procedure Act.

Federal Water Quality Coalition (Doc. #15822.1)

13.284 VII. The Agencies’ Procedural Errors Render the Proposed Rule Invalid.

A. The Proposed Rule Fails to Meet the Requirements of the Administrative 

Procedure Act.

The Administrative Procedure Act (APA) requires agencies to provide the public with the 

opportunity to comment on their actions. 5 U.S.C. 553(c). In order to provide for 

meaningful public comment under the APA, agencies must disclose the data or other 

material that the agency relies on to make a final decision. Participation is not meaningful 

if an agency bases its action on information that is not available to the public. United 

States v. Nova Scotia Food Prods. Corp., 568 F.2d 240 (2d. Cir. 1977).

As discussed above, the entire basis for the agencies’ determination that categories of 

waters are per se waters of the U.S. is the Draft Connectivity Report. The SAB Panel 

charged with reviewing that report released their comments on October 17, 2014, and 

recommended extensive changes, including a recommendation to evaluate connectivity 

along a gradient that recognizes that connectivity is a function of frequency, duration, 

magnitude, predictability, and consequences.129

The proposed rule that is out for public comment does not reflect these recommendations. 

As noted by Dr. Fennessy, one of the SAB Panel members who reviewed the proposed 

rule:

[ ] I was surprised about the release date of the draft rule, and to see that it does

not reflect the many suggestions made by the SAB panel to strengthen the EPA

Connectivity Report. While I understand the timing of the release is typical, it

possibly weakens the value of the SAB process, which is designed to strengthen

the scientific basis upon which the draft rule is based. I hope the draft rule can be

modified to reflect the work of the SAB panel. A second, related issue is that the

report does not use the connectivity gradient framework that was suggested by the

SAB panel. Establishing the framework early in the draft rule would aid in the

discussions about what constitutes a significant degree of connectivity, which

could help define jurisdictional waters.130

 

128 5 U.S.C § 500 et seq.

129 This recommendation, as well as the limitations discussed above of the studies cited in the Draft Connectivity

Report, undermines the agencies’ conclusion that all “tributaries” (as defined in the proposal) and all “adjacent

waters” (as defined in the proposal) have sufficient connection to navigable water to be considered “waters of the

U.S.”

130 SAB Rule Review, at 29.
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The agencies have promised to issue a revised Connectivity Report before they issue a 

final rule.131 If the final report addresses the comments of the SAB Panel (including 

comments noting that connectivity is not a binary function) it will be significantly 

different from the draft report. Further, if the final rule is amended based on a revised 

final report, then material that the agencies will rely on to make a final decision will not 

be available during the public comment period. This means that the public will not have a 

meaningful opportunity to comment on the rule, violating the APA.

The agencies’ plan to rely on guidance relating to the definition of OHWM, floodplain, 

and other terms used in the proposed rule also would violate the APA because the 

agencies would be changing federal jurisdiction without notice and comment.132 (p. 59 –

61)

Agency Response: See section 13.2.1 summary response for information 

regarding the Administrative Procedure Act. As stated in the preamble for the final 

rule, The agencies’ determination that categories of waters are per se waters of the 

U.S. based not only on legal precedent and the best available peer-reviewed science, 

but also on the agencies’ technical expertise and extensive experience in 

implementing the CWA over the past four decades. 

Water Advocacy Coalition (Doc. #17921.1)

13.285 V. The Agencies Have Not Complied with APA and Other Procedural Requirements for 

this Rulemaking.

A. Review of Adequacy of the Science Supporting the Proposed Rule Is Ongoing.

The APA requires that an agency give notice of a proposed rule setting forth “either the 

terms or substance of the proposed rule or a description of the subjects and issues 

involved,” 5 U.S.C. § 553(b), and “give interested persons an opportunity to participate in 

the rule making through submission of written data, views, or arguments . . .,” id. § 

553(c). Under APA notice and comment requirements, “[a]mong the information that 

must be revealed for public evaluation are the technical studies and data upon which the 

agency [relies in its rulemaking].” American Radio Relay League, Inc. v. F.C.C., 524 

F.3d 227, 236 (D.C. Cir. 2008) (internal quotations omitted). As courts have recognized, 

“[i]t is not consonant with the purpose of a rulemaking proceeding to promulgate rules on 

the basis of inadequate data, or on data that, to a critical degree, is known only to the 

agency.” Portland Cement Ass’n v. Ruckelshaus, 486 F.2d 376, 393 (D.C. Cir. 1973). 

Rather, the “most critical factual material” used by the agency must be subjected to 

informed comment to “ensure that agency regulations are tested through exposure to 

public comment . . . .” American Radio Relay League, 524 F.3d at 236. By publishing 

and taking comment on the proposed rule before the Connectivity Report, which is touted 

 

131 79 Fed. Reg. at 22197 (“At the conclusion of the rulemaking process, the agencies will review the entirety of the

completed administrative record, including the final Report reflecting SAB review, and make any adjustments to the

final rule that are appropriate based on this record.”).

132 See, e.g., General Electric v. EPA, 290 F.3d 377 (D.C. Cir. 2002) (guidance that creates legal obligations is a

legislative rule).
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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as the underlying scientific support for the proposed rule, is final, the agencies have not 

complied with this critical APA requirement.

The agencies have assured the public that the final regulatory action related to CWA 

jurisdiction will be based on the final version of the Connectivity Report. See 79 Fed. 

Reg. at 22, 190, 22,222. But throughout the comment period, the draft Connectivity 

Report was undergoing review by the SAB Panel. In late September 2014, the chartered 

SAB performed a quality review of the SAB Panel’s draft conclusions on the draft 

Connectivity Report and submitted a letter with recommendations to the EPA 

Administrator.133 On October 17, 2014, th SAB submitted final recommendations for 

revisions to the Connectivity Report, which incorporated the final report of the SAB 

Panel, to EPA Administrator Gina McCarthy. EPA now has the opportunity to make 

changes to the Connectivity Report based on the SAB’s recommendations. Through its 

comments and report, the SAB Panel has recommended numerous substantive changes to 

the Connectivity Report.134 This process will not be completed in time for the public to 

review and comment on the final Connectivity Report in their comments on the proposed 

waters of the United States rule. The agencies should have taken a coordinated and 

reasoned approach to develop a proposed rule following the SAB’s peer review of the 

report and EPA’s release of a final Connectivity Report.

Even the SAB Panel members are baffled by the agencies’ decision to proceed with a rule 

before review of the underlying science is complete. Dr. Mark Murphy of the SAB Panel 

explained:

I must say I am puzzled as to why EPA has decided to release the Proposed Rule 

before receipt of our review of the Connectivity Report . . . . The usual protocol in 

science is not to release a report before the review is complete, the purpose being 

to allow a frank and honest appraisal of the work before positions are ‘hardened’. 

. . The sequence employed by EPA suggests to the public that there is no critical 

input needed by the SAB -- just a few minor additions. . . . In point of fact, the 

SAB Review suggested that some major additions be made to the Connectivity 

Report.135

Other members of the SAB Panel echoed this concern. Dr. Siobhan Fennessy, for 

example, noted,

I was surprised by the release date of the draft rule and to see that it does not 

reflect many of the suggestions made by the SAB panel to strengthen the EPA 

Connectivity Report. . . .[T]he timing of the release . . . possibly weakens the 

value of the SAB process, which is designed to strengthen the scientific basis 

upon which the draft rule is based.136

 

133 Letter from David T. Allen, Chair SAB, to Gina McCarthy, Adm’r EPA (Sept. 30, 2014), available at

http://yosemite.epa.gov/sab/sabproduct.nsf/0/518D4909D94CB6E585257D6300767DD6/$File/EPA-SAB-14-

007+unsigned.pdf.

134 See SAB Panel Review of Connectivity Report, Exhibit 5.

135 SAB Panel Member Comments on Proposed Rule, Exhibit 7 at 89 (comments of Dr. Mark Murphy).

136 Id. at 29 (comments of Dr. Siobhan Fennessy).
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To allow informed and meaningful public comment on the proposed rule and report as 

required by the APA, and to fulfill its prior assurances, EPA should re-propose a rule that 

is informed by the final Connectivity Report and allow the public to comment on the final 

report. (p. 82 – 84)

Agency Response: See section 13.2.1 summary response for information 

regarding the Administrative Procedure Act. See section 13.1 summary response for 

information regarding concerns about timing/overlap of the science document and 

review process, SAB review of the rule, and the Connectivity Study.

13.286 D. The Final Rule Must Be a Logical Outgrowth of the Proposed Rule.

A proposed rule must be sufficiently clear to allow meaningful public comment. The 

APA requires that the final rule must be a “logical outgrowth” of the proposed rule. Small 

Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 547 (D.C. Cir. 1983). “If a 

final rule deviates too sharply from the proposal, affected parties will be deprived of 

notice and an opportunity to respond to the proposal.” Id. at 547. There are several issues 

that cause concern with the agencies’ ability to comply with this APA requirement.

First, as discussed throughout these comments, there are numerous legal infirmities and 

substantive issues with the proposed rule’s categories and definitions. Addressing all of 

these issues will require significant revision to the proposed rule and its framework for 

defining “waters of the United States.” If the agencies take public comment into account 

and address these numerous concerns, as we recommend, they will need to re-propose the 

rule.

Second, because the outcome of the rulemaking will be based on the “final version” of 

the Connectivity Report, the agencies will likely need to revise the rule to reflect changes 

to the report. In particular, the SAB Panel made numerous substantive recommendation, 

including that the rule address connectivity on a gradient and provide metrics for 

determining significant nexus. To account for the SAB Panel’s recommendations and the 

final Connectivity Report, the agencies will likely need to significantly revise the rule and 

re-propose it for another round of public comment to comply with the APA’s logical 

outgrowth requirement.

Third, throughout the comment period, the agencies have continued to issue new 

materials explaining the proposed rule, creating a moving target for public comment.137

Since the proposed rule was issued on April 21, 2014, the agencies have continued to 

issue new documents, blog posts, Q&As, and webinars throughout the comment period, 

offering new explanations of key terms in the proposed rule and new reasoning to support 

the proposed assertions of CWA jurisdiction. Much of this ad hoc information is 

inconsistent with material provided in the official rulemaking docket. It is very difficult 

for the public to comment on the proposed rule when the agencies keep changing their 

story and adding new (and often conflicting) information as the comment period 

progresses. For example, as discussed above, the term “upland” is not defined in the 

proposed rule, but its meaning is critical to understanding whether a ditch is excluded. 

 

137 See WAC Letter to Administrator McCarthy and Secretary McHugh (Sept. 29, 2014), Exhibit 20, and 

incorporated by reference herein.
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Now, a recent Q&A document issued by the agencies on September 9, 2014, provides a 

new definition of “upland.”138 This new definition of “upland” is not included in the 

preamble, proposed regulatory text, or anywhere else in the rulemaking docket. Is the 

public now to assume that this key definition is part of the rulemaking? Is the public 

responsible for tracking the Agencies’ blog posts and ad hoc statements to piece together 

the meaning of key regulatory terms? Likewise, as discussed above, OHWM is the 

lynchpin concept of the proposed rule’s “tributary” definition, but the agencies are now in 

the process of developing new guidance on OHWM, and the meaning of this key term is 

still in flux.139 This continual stream of new information from the agencies prevents the 

public from having adequate notice and opportunity to respond to key aspects of the 

proposal and results in a “critical defect in the decisionmaking process.” See Portland 

Cement Ass’n v. Ruckelshaus, 486 F.2d 376, 392 (D.C. Cir. 1973) (finding APA 

violations where a rule was promulgated based on data that “is only known to the 

agency.”). The agencies’ failure to disclose this information at the outset of the comment 

period has resulted in a lack of opportunity to comment on the proposed rule and its key 

concepts. See id. at 402. 

Finally, the preamble’s treatment of “other waters” indicates that the agencies may adopt 

a brand new approach to regulating “other waters” that is a significant departure from the 

proposed rule. Although the agencies have proposed a case-by-case analysis, the 

preamble discusses several other options for regulating other waters, including 

determining that certain “other waters” are categorically jurisdictional based on 

ecoregions or other subcategories. See 79 Fed. Reg. at 22,215-17. The preamble states 

that the agencies “might adopt any combination of today’s ‘other waters’ proposal and 

the alternative options for the final rule, after considering public comment and the 

evolving scientific literature on connectivity of waters.” 79 Fed. Reg. at 22,215. But the 

preamble does not provide enough information on or scientific support for these alternate 

approaches that would allow the public to meaningfully comment. Publishing a final rule 

that adopts an “other waters” approach allowing for categorical jurisdiction over “other 

waters,” even if only in certain subcategories, would run afoul of APA requirements.

In sum, because the final rule must follow logically from the proposed rule, and the 

agencies must make substantial changes to bring the proposed rule in line with case law 

and available science, the agencies should withdraw the current proposed rule and start 

afresh, in dialogue with States and the regulated community. (p. 89 – 90)

Agency Response: See section 13.2.1 summary response for information 

regarding the Administrative Procedure Act. For information on ditches and the use 

 

138 Sept. Q&A document at 5 (“Under the rule, an ‘upland’ is any area that is not a wetland, stream, lake, or

other waterbody. So, any ditch built in uplands that does not flow year-round is excluded from CWA jurisdiction.”).

139 Matthew K. Mersel and Robert W. Lichvar, U.S. Army Engineer Research and Development Center

(ERDC), A Guide to Ordinary High Water Mark (OHWM) Delineation for Non-Perennial Streams in the Western

Mountains, Valley, and Coast Region of the United States (August 2014),

http://acwc.sdp.sirsi.net/client/search/asset/1036027; Matthew K. Mersel, Lindsey E. Lefebvre, and Robert W.

Lichvar, U.S. Army Engineer Research and Development Center (ERDC), A Review of Land and Stream

Classifications in Support of Developing a National Ordinary High Water Mark (OHWM) Classification (August

2014), http://acwc.sdp.sirsi.net/client/search/asset/1036026.
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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of term “uplands” see the comment response in compendium 6. For information on 

other waters see the comment response in compendium 4. 

13.287 I. The Agencies’ Rulemaking Process Has Not Been Transparent or Open.

This Administration has committed itself to public participation and transparency.140 But 

EPA and the Corps did not solicit meaningful public participation in the development of 

the proposed rule. Some members of industry did meet with EPA to express their 

concerns about the potential impacts of the 2011 Draft Guidance and any proposed rule 

that would track that guidance, but the proposed rule does not address any of the concerns 

raised in this limited outreach. Only after the rule was developed, drafted, and proposed 

did the agencies seek more extensive outreach with industry groups, State and local 

organizations, and other members of the public. Instead of trying to understand the 

public’s concerns with the potential breadth of the rule, the agencies have dug in their 

heels and repeated their mantra that this proposed rule will not change the scope of CWA 

jurisdiction. Moreover, the agencies have not been transparent during their outreach. For 

example, the agencies have held calls with numerous stakeholders, but those calls are 

initiated only by emails from the agencies to a select list of participants. There is no 

publicly available list of the meetings the agencies have conducted. Nor is there any 

advance notice of these meetings for the public. For example, in one of the few instances 

that the agencies did publicly announce a meeting with stakeholders, they did so after the 

fact – the notice of the meeting of the Local Government Advisory Committee in St. Paul 

on May 28 was published in the Federal Register on May 29. See 79 Fed. Reg. 30,787.

Given the critical importance of this issue, which has broad application and affects 

myriad stakeholders, the agencies should have made the rulemaking process more 

collaborative and more open. They should withdraw the proposed rule and conduct 

outreach the proper way, giving advance notice to the public of all meetings, and 

consulting with stakeholders before the rule is developed. (p. 97)

Agency Response: See section 13.2.1 summary response for information 

regarding the Administrative Procedure Act. In addition to extending the public 

comment period on the proposal for a total of over six months and providing 

outreach materials on agency websites, the agencies responded to hundreds of 

requests from stakeholders. For additional information on public outreach events, 

see the docket. The agencies published notice of outreach meetings with LGAC in 

the Federal Register prior to each meeting. The agencies also encouraged 

organizations to include information on outreach meetings to their members and 

where possible in their newsletters. 

 

140 See, e.g., Memorandum from President Barack Obama to the Heads of Executive Departments an

Agencies on Transparency and Open Government (Jan. 21, 2009),

http://www.whitehouse.gov/the_press_office/TransparencyandOpenGovernment (encouraging public, State, and

local participation in the creation of policy; and instructing agencies to take steps to ensure that the government is

transparent, participatory, and collaborative).
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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North Houston Association et al. (Doc. #8537)

13.288 The proposed rule reaches too broadly and exceeds the reach of the Commerce Clause of 

the U.S. Constitution. The current regulation defining "Waters of the United States" 

clearly recognizes the Commerce Clause in defining the reach of the federal authority 33 

C.F.R. 328.3(a). The proposed definition divorces itself from any basis in the Commerce 

Clause. As such the proposed rule, if adopted, would be arbitrary and capricious and not 

otherwise in accordance with law pursuant to the Administrative Procedure Act. Simply 

put, the proposed rule exceeds the authority given the United States and is not a reasoned 

interpretation of the CWA. (p. 1)

Agency Response: The final rule deletes reference to interstate commerce in order 

to conform with the decisions in Rapanos and SWANCC. Because the rule, 

consistent with those decisions is consistent with the statutory interpretation of those 

decisions and is tied to federal authority over channels of interstate commerce, it is 

constitutionally valid.

Pennsy Supply, Inc. (Doc. #15255)

13.289 The proposed rulemaking violates the Administrative Procedure Act and various 

Executive Orders specifically as they relate to transparency and process. (p. 2)

Agency Response: See section 13.2.1 summary response for information 

regarding the Administrative Procedure Act.

National Association of Home Builders (Doc. #19540)

13.290 iii. EPA Unlawfully Intercepted Questions Congress Posed to the Science Advisory 

Board.

In addition to the procedural flaws associated with proposing a rule before the supporting 

science was reviewed, EPA unlawfully intercepted questions posed to the SAB by the 

House Science Committee. In his opening statement at the July 9, 2014 House Science 

Committee hearing entitled “Navigating the Clean Water Act: Is Water Wet?”, Chairman 

Lamar Smith (R-Texas) stated, “The EPA wrote its new ‘waters of the U.S.’ rule without 

even waiting for the expert advice of the Agency’s own Science Advisory Board. The 

Science Advisory Board exists to provide independent advice to the EPA and to 

Congress. It is the job of these experts to review the underlying science. Not only did the 

EPA publish its rule before the [Science Advisory] Board had an opportunity to review 

the report, but when [the House Science] Committee sent official questions to the 

[Science Advisory] Board as its review began, the EPA stepped in to prevent the experts 

from responding.” 141Questioning EPA Deputy Administrator Robert Perciasepe, 

Chairman Smith stated, “[The House Science Committee] submitted several questions to 

the Science Advisory Board that were intercepted by the EPA, and the Science Advisory 

Board was not allowed to answer our questions. That’s not the way I read the law. We 

don’t have to get the EPA’s permission for the Science Advisory Board to give us 

answers to our questions . . . The law doesn’t allow you to screen the Science Advisory 

 

141 Statement of Chairman Lamar Smith (R-Texas) Hearing on Navigating the Clean Water Act: Is Water Wet? (July 

9, 2014).
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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Board’s answers or to intercept our questions . . .”142 This Administration has consistently 

touted the importance of science and transparency in its operations, yet today’s proposal 

abandons any precept of openness in exchange for expediency. Ignoring the SAB, 

refusing to answer the House Science Committee’s questions, and issuing a proposed rule 

prior to SAB’s review of the Connectivity Report certainly gives the impression that the 

Agencies have inappropriately predetermined the outcome of this rulemaking. Such an 

outcome serves no one. The Agencies must coordinate open and transparent lines of 

communication between the SAB and those who will be impacted by the proposed rule, 

including providing opportunities for meaningful comment. (p. 149)

Agency Response: For additional information on the final Connectivity Report 

and how this information was considered in the development of today’s rule, please 

see Compendium 9.

13.291 X. The Agencies Failed to Comply with Key Procedural Requirements.

Among the myriad of Constitutional, statutory, judicial, scientific, economic, and 

practical concerns surrounding the proposed rule, the Agencies have failed to comply 

with key procedural rulemaking requirements, including the Administrative Procedure 

Act, the Regulatory Flexibility Act, Executive Order 12,866, Executive Order 13,132, 

and Executive Order 13,536. Additionally, the Agencies have violated the Data Quality 

Act.

a. The Agencies Failed to Comply with the Administrative Procedure Act.

The Agencies are thwarting important requirements of the Administrative Procedure Act 

(APA) and frustrating the public’s opportunity for meaningful notice and comment by 

proposing the rule prior to finalizing the Connectivity Report and repeatedly issuing, 

outside of the APA process, ad hoc explanations and other documents critical to the rule.

Within the last three months of the comment period alone, the Agencies have released the 

following:

 a series of agency blog posts that provide new policy interpretations of the

proposed rule’s language;

 new Corps reports that detail policies and national challenges associated with 

defining the term “ordinary high water mark,” the most critical term for defining 

“tributary” under the proposed rule;

 Science Advisory Board comments pointing out problems with the draft 

Connectivity Report and the rule; and

 USGS maps that depict perennial, intermittent, and ephemeral streams across the 

nation.

The APA does not allow the Agencies to keep altering the regulatory landscape 

throughout the rulemaking process. Indeed, the public cannot be expected to provide 

 

142 Rep. Lamar Smith (Chairman, House Committee on Science, Space, and Technology) statements during House 

Science Committee Hearing “Navigating the Clean Water Act: Is Water Wet?” (July 9, 2014).
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meaningful comment on a moving target. Additionally, a federal agency shall “maintain a 

flexible and open minded attitude toward its own rules,”143 and yet EPA and the Corps 

have prejudged the proposal’s outcome. As such, NAHB calls on the Agencies to 

immediately withdraw the proposed rule for the following important reasons:

i. The Agencies Continue to Issue New Materials Explaining the Proposed Rule, 

Creating a Moving Target for Public Comment.

Since the proposed rule was issued on April 21, 2014, the Agencies have continued to 

issue new documents, blog posts, Q & A documents, and webinars offering new 

explanations of key terms in the proposed rule and new reasoning to support their 

proposed assertions of CWA jurisdiction. To make matters worse, much of this ad hoc 

information is inconsistent with the material provided in the official rulemaking docket. It 

is very difficult for the public to comment on the proposed rule when the Agencies keep 

changing their story and adding new (and often conflicting) information as the comment 

period progresses.

For example, the term “upland” is not defined in the proposed rule, but its meaning is 

critical to understanding whether a ditch is excluded from the definition of “waters of the 

United States.” In stakeholder discussions throughout the comment period, the Agencies 

have acknowledged that they have not proposed a definition of “upland.” Now, a recent 

Q & A document, issued by the Agencies on September 9, 2014, provides a new 

definition of “upland:” “Under the rule, an ‘upland’ is any area that is not a wetland, 

stream, lake, or other waterbody. So, any ditch built in uplands that does not flow yearround is excluded from CWA jurisdiction.”144 This new definition of “upland” is not 

included in the preamble, proposed regulatory text, or anywhere else in the rulemaking 

docket. Is the public now to assume that this key definition is part of the rulemaking? It is 

unrealistic and inappropriate to hold the public responsible for tracking the Agencies’ 

blog posts and ad hoc statements to piece together the meaning of key regulatory terms 

under the proposed rule.

Similarly, the EPA-prepared economic impact analysis located in the rulemaking docket 

estimates that “the proposed rule increases overall jurisdiction under the CWA by 

2.7%.”145 Now, in the September 2014 Q & A document, the Agencies back away from 

that estimate and provide a conflicting analysis based on an entirely new baseline, stating, 

“When the proposed rule is compared to the agencies’ existing regulations, however, the 

proposed rule reflects a substantial reduction in waters protected by the CWA . . . .”146

Despite this new estimate, it is not evident that the Agencies have revised their economic 

impact analysis since they decided that the relevant baseline of comparison is “the 

existing regulations.” If the Agencies are disregarding EPA’s Economic Analysis in the 

rulemaking docket, should the public do the same? Again, how is the public to comment?

 

143 McClouth Steel Prod. Corp. v. Thomas, 838 F.2d 1317, 1325 (D.C. Cir. 1988) (interpreting 5 U.S.C. § 553; 

internal quotations omitted).

144 September 2014 Q & A at 5.

145 EPA Economic Analysis at 12.

146 September 2014 Q & A at 3.
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The APA requires federal agencies, when undertaking a proposed rulemaking, to provide 

the public with an adequate description of the subjects and issues to be addressed under 

the proposed rule within the Federal Register notice.147 However, EPA has continued to 

change its position on key elements of the proposed rule (e.g., providing an ad hoc 

definition for “upland” and releasing statements that contradict the findings contained 

within the agency’s own economic analysis on potential increases in federal jurisdiction). 

Because EPA has taking these actions after publishing the proposed rule in the Federal 

Register, the public is effectively unable to understand the proposal’s true scope or 

impact. The APA requires federal agencies to provide this information to the public 

within the proposed rule itself.148 (p. 149 – 151)

Agency Response: See section 13.2.1 summary response for information 

regarding the Administrative Procedure Act. The agencies disagree that they have 

failed to comply with key procedural rulemaking requirements. See the section in 

the preamble on Related Acts of Congress, Executive Orders, and Agency Initiatives 

for further discussion about compliance with rulemaking requirements. 

The agencies received many helpful comments in response to the proposed rule 

which led to changes in the final rule for improved clarity for the agencies and the 

regulated public. The term “upland” was removed from the final rule language in 

the ditch exclusion language, in response to comments received. Many commenters 

were confused by the term “uplands” and did not feel the term had a common 

understanding. The ditch exclusions now focus on flow regime and on whether the 

ditch is excavated in or relocated a tributary.

The Economic Analysis provides information regarding predicted changes in 

jurisdiction reflected in the final rule language.

13.292 ii. Without Public Notice or Opportunity for Comment, the Agencies Are Developing 

Policies on Key Components of the Proposed Rule, Such as the Ordinary High Water 

Mark, through Other Efforts.

The identification of an OHWM is the lynchpin concept of the proposed rule’s 

“tributary” definition, but the meaning of this key term is still in flux. Despite the 

uncertainty within the proposal, in August 2014, the Corps’ Engineer and Research 

Development Center (ERDC) released two new guidance documents regarding “ordinary 

high watermark” (OHWM): (1) A Guide to Ordinary High Water Mark (OHWM) 

Delineation for Non-Perennial Streams in the Western Mountains, Valley, and Coast 

Region of the United States, and (2) A Review of Land and Stream Classifications in 

Support of Developing a National Ordinary High Water Mark (OHWM) Classification.149

Separate from the proposed rulemaking, the Agencies are redefining OHWM without the 

required public notice and comment. The proposed rule’s preamble asserts that the 33 

 

147 5 U.S.C. § 553(b).

148 5 U.S.C. § 553(c).

149 Matthew K. Mersel and Robert W. Lichvar, U.S. Army Engineer Research and Development Center (ERDC), A 

Guide to Ordinary High Water Mark (OHWM) Delineation for Non-Perennial Streams in the Western Mountains, 

Valley, and Coast Region of the United States (August 2014), http://acwc.sdp.sirsi.net/client/search/asset/1036027
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C.F.R. § 328.3(e) definition of OHWM “is not changed by [the] proposed rule.”150 Yet, 

the two August 2014 OHWM guidance documents indicate that the Agencies are 

developing a new OHWM standard. These guidance documents essentially ignore the 

regulatory definition at § 328.3(e) and create a new method for determining OHWM 

based on the delineation of an “active channel signature” through the use of three primary 

indicators—topographic break in slope, change in sediment characteristics, and change in 

vegetation characteristics. In effect, the other physical indicators explicitly referenced in 

§ 328.3(e) are superfluous under this new methodology. This is a clear change in 

regulatory practice and will have a substantial effect on how CWA jurisdiction is 

interpreted. Given the fact that these guidance documents were issued during the 

proposal’s comment period demonstrates that their timing was not a coincidence. Any 

efforts to redefine OHWM or any other key term in the Agencies’ proposed “waters of 

the United States” definition must be part of this rulemaking. The Agencies may not 

segment key components of the proposed “waters of the United States” definition and 

address them separately to avoid APA notice-and-comment requirements.

Moreover, a review of the OHWM guidance documents issued by the Corps 

demonstrates that, contrary to the Agencies’ statements in the context of the “waters of 

the United States” rule, determination of the OHWM is anything but simple or clear. In 

various blog posts, stakeholder calls, and statements released by the Agencies during the 

comment period, the Agencies have touted the OHWM as “well-known” and “easy to 

observe and document.”151 But, as described in Section VI. c. iv. 3. a., the recent Corps 

statements and publications paint a different picture. In March 2014, the Corps 

recognized that OHWM is a “vague definition,” leading to “inconsistent interpretation of 

[the] OHWM concept,” and “inconsistent field indicators and delineation practices.”152

Likewise, the Corps’ Western Mountains OHWM Guidance states that “OHWM 

delineation in non-perennial (i.e., intermittent and ephemeral) streams can be especially 

challenging” and notes that “it is often difficult to determine what constitutes ordinary 

high water and to interpret the physical and biological indicators established and 

maintained by ordinary high water flows.”153 For these reasons, the Corps’ National 

OHWM Review recognizes the “need for nationally consistent and defensible regulatory 

practices” and suggests that “a comprehensive framework is needed.”154 NAHB agrees, 

but such a framework should only be developed through the proper channels, including 

APA compliance. (p. 151 – 152)

Agency Response: The agencies are not redefining “ordinary high water mark.” 

See paragraph (c) of the final rule for the definition of “ordinary high water mark.” 

Assertions that the Corps ordinary high water mark manuals were required to go 

through rulemaking are outside the scope of this rulemaking effort. Because the 

 

150 79 Fed. Reg. at 22,202.

151 See, e.g., Tom Reynolds, Mapping the Truth, EPA Connect Blog (Aug. 28, 2014). Available online: 

http://blog.epa.gov/epaconnect/2014/08/mapping-the-truth/

152 Presentation by Matthew K. Mersel, U.S. Army Engineer Research and Development Center, Development of 

National OHWM Delineation Technical Guidance (March 4, 2014)

153 Western Mountains OHWM Guidance at 1-2.

154 National OHWM Review at 1-2.
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

160

rulemaking addresses many issues by reference to existing regulations, there is 

necessarily some overlap between the rulemaking and ongoing agency 

implementation of current regulations. Administration of the current regulations 

must obviously continue during this rulemaking, and the Corps is continually 

seeking to improve and refine its practice through issuance of technical guidance 

that assists Corps field staff and the regulated public. 

Since the ordinary high water mark is an important component of the identification 

of jurisdictional tributaries under the final rule the agencies felt that including its 

definition in the final rule was appropriate. The final rule definition of ordinary 

high water mark is the same as the definition that has been in Corps regulations and 

implemented by the Corps to identify the lateral extent of tributary jurisdiction for 

decades. The agencies acknowledge that the identification of the ordinary high 

water mark can be challenging in certain regions and certain types of streams which 

is the impetus for the manuals to assist in the identification in such challenging 

scenarios. The manuals, such as the manual for the arid West, provide a technical 

means for an efficient, effective, and consistent identification and delineation of the 

ordinary high water mark using indicators such as changes in vegetation, breaks in 

slope, and changes in the substrate texture. The agencies also recognize that there is 

regional variation in ordinary high water mark delineation; there are a suite of 

indicators that may be used in ordinary high water mark identification and certain 

indicators are more reliable in certain regions than others. 

Because the rulemaking addresses many issues by reference to existing regulations, 

there is necessarily some overlap between the rulemaking and ongoing agency 

implementation of current regulations. Administration of the current regulations 

must obviously continue during this rulemaking, and the Corps is continually 

seeking to improve and refine its practice through issuance of technical guidance 

that assists Corps field staff and the regulated public. 

The agencies fully considered the SAB’s comments on use of OHWM as part of the 

definition of tributary and for the reasons explained in the preamble and/or TSD, 

decided to retain the term in the final rule. 

13.293 iv. The USGS Maps Recently Released Depict Only a Portion of the Land and Waters 

Subject to Federal CWA Jurisdiction Under the Proposed Rule.

During the comment period, there has been significant discussion over EPA maps that 

rely on data from the U.S. Geological Survey (USGS) and appear to depict the scope of 

CWA jurisdiction.155 NAHB commends Rep. Lamar Smith and the U.S. House of 

Representatives Committee on Science, Space, and Technology, for making these maps 

publicly available and requesting that EPA enter the maps and related information into 

the rulemaking docket.156

 

155 See http://science.house.gov/epa-maps-state-2013#overlay-con

156 See Letter from the Hon. Lamar Smith, Chairman, U.S. House of Representatives Committee on Science, Space, 

and Technology, to the Hon. Gina McCarthy, Administrator, U.S. EPA (Aug. 27, 2014
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

161

Unfortunately, these maps are just the tip of the iceberg, as they depict only a fraction of 

the land and waters that could be deemed categorically jurisdiction under the proposed 

rule.

In yet another blog post, EPA states that these USGS maps “do not show the scope of 

waters . . . proposed to be covered under EPA’s proposed rule” and “cannot be used to 

determine Clean Water Act jurisdiction—now or ever.”157 But why not? The proposed 

rule explicitly states that the Agencies intend to treat all perennial, intermittent, and 

ephemeral streams as per se jurisdictional (no case-specific analysis), and the preamble 

indicates that the Agencies will identify tributaries using USGS maps and other 

appropriate information.158 How, then, can the Agencies claim that these USGS maps do 

not show the scope of streams subject to federal CWA jurisdiction under the proposed 

rule?

Indeed, these maps indicate a total of approximately 8.1 million miles of perennial, 

intermittent, and ephemeral streams across the 50 states, all of which could be 

categorically regulated as tributaries under the proposed rule. What’s more, these maps 

show only a subset of the land and waters that would be jurisdictional, because they do 

not depict all of the other features, such as ditches and adjacent ponds, that would be 

categorically jurisdictional, or “other waters” that could be jurisdictional if the Agencies 

find a significant nexus. These USGS maps, and EPA’s casual dismissal of their 

significance, demonstrate that, as suggested by Rep. Lamar Smith, the public is “getting 

the run-around” and has not been provided with significant information needed to 

meaningfully comment on the proposed rule. (p. 153 – 154)

Agency Response: As a part of the process to evaluate the indirect costs and 

benefits associated with the proposed rule, the agencies assessed the estimated 

increase in new Clean Water Act permits that could reasonably be expected as a 

result of the proposed regulation. This analysis did not, and could not, quantify the 

potential change in the geographic scope of the CWA. Because the agencies 

generally only conduct jurisdictional determinations at the request of individual 

landowners, we do not have maps depicting the geographic scope of the CWA. Such 

maps do not exist and the costs associated with a national effort to develop them are 

cost prohibitive and would require access to private property across the country. 

The U.S. Geological Survey and the U.S. Fish and Wildlife Service collect 

information on the extent and location of water resources across the country and 

use this information for many non-regulatory purposes, including characterizing the 

national status and trends of wetlands losses. This data is publicly available and 

EPA has relied on USGS and USFWS information to characterize qualitatively the 

location and types of national water resources. This information is depicted on 

maps but not for purposes of quantifying the extent of waters covered under CWA 

regulatory programs.

 

157 See Tom Reynolds, Mapping the Truth, EPA Connect Blog (Aug. 28, 2014), available at 

http://blog.epa.gov/epaconnect/2014/08/mapping-the-truth/.

158 79 Fed. Reg. at 22,202.
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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162

Snyder Associated Companies, Inc. (Doc. #18825)

13.294 The proposed rulemaking violates the Administrative Procedure Act and various 

Executive Orders specifically as they relate to transparency and process. (p. 2)

Agency Response: See section 13.2.1 summary response for information 

regarding the Administrative Procedure Act.

Georgetown Sand and Gravel (Doc. #19566)

13.295 The proposed rulemaking violates the Administrative Procedure Act and various 

Executive Orders specifically as they relate to transparency and process. (p. 2)

Agency Response: See section 13.2.1 summary response for information 

regarding the Administrative Procedure Act.

Pennsylvania Aggregates and Concrete Association (Doc. #16353)

13.296 2. There is a Lack of Compliance with the Administrative Procedure Act (APA) and 

Other Procedural Requirements fo.r this Rulemaking.

a. The Administrative Procedure Act (APA)159 is the federal statute that governs the way 

in which administrative agencies of the federal government of the United States may 

propose and establish regulations.160 APA requires that agencies inform the public of the 

data and technical studies they relied on in their rulemaking, indicating the “most critical 

factual material” used by an agency must “ensure that agency regulations are tested 

through exposure to public comment . . .”161

In the proposed rulemaking, the Agencies have assured the public that this final 

regulatory action will be based on the final version of the EPA Science Advisory Board’s 

(SAB) Connectivity of Streams and Wetlands to Downstream Waters: A Review and 

Synthesis of the Scientific Evidence (September, 2013 External Review Draft 

(EPA/600/R–11/098B) (Connectivity Report)162. However, because the proposed rule has 

been published, and EPA and the Corps are taking comments on the proposed rule before 

the Connectivity Report review is final, and because the Agencies have stated the 

Connectivity Report is the underlying scientific support for the proposed rule, the 

Agencies have not complied with this critical APA requirement.

In the SAB’s Connectivity Report review comments, they have indicated disappointment 

by the Agencies’ decision to proceed with a rule before their review of the Connectivity 

Report is complete. Their comments suggest that the “sequence employed by EPA 

suggests to the public that there is no critical input needed by the SAB...”, but in fact, the 

 

159 Pub.L. 79–404, 60 Stat. 237, enacted June 11, 1946.

160 Found at http://www.archives.gov/federal-register/laws/administrative-procedure/.

161 Ibid.

162 79 FR 22190. 
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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163

SAB Review suggested that there are major additions that should be made to the 

Connectivity Report.163 (p. 2)

Agency Response: See section 13.2.1 summary response for information 

regarding the Administrative Procedure Act. See section 13.1 summary response for 

information regarding the Connectivity Report. 

Alameda County Cattlewoman (Doc. #8674)

13.297 The Proposed Rule Would Violate the APA Because the Public has Not had an 

Opportunity to Provide Meaningful Comment 

The Administrative Procedure Act (APA) requires federal agencies to ensure public 

participation in the rulemaking process by providing a meaningful opportunity for the 

public to comment on the rule’s content.164 The agencies have failed to provide the data 

the rule is based upon.165 There are a vast number of missing pieces in the proposed rule 

and throughout the rulemaking process that have precluded the public from receiving a 

meaningful comment period. And, it has been obvious that the Corps of Engineers did not 

share equally in developing this rule. It has been frustrating to attend stakeholder 

outreach meetings where one of the jointly proposing agencies is not in attendance. One 

example is the small entities meeting that took place on Oct. 15, 2014 at EPA 

Headquarters. It was stated by EPA officials that the Corps was invited but did not 

choose to participate in the meeting. This is deeply disappointing, especially considering 

the regulator-landowner interactions that the Corps has the lead role in under some of the 

major programs. (p. 1 – 2)

Agency Response: See section 13.2.1 summary response for information 

regarding the Administrative Procedure Act.

13.298 ACCW would like to provide the agencies with more extensive comments on the 

proposed rule. Unfortunately, there are too many significant legal holes throughout the 

document to be able to meaningfully comment on the scientific and legal extent of the 

proposed rule. As such, we provide comments on what is in the proposed rule, but cannot 

provide comments on that which is not included. Therefore, ACCW assert that the 

proposed rule prevents the American public from being able to provide meaningful 

comments on the proposed rule, thereby violating the APA.166 To correct this fatal flaw 

the agencies must withdraw the rule and possibly at a later date fill in the gaping holes 

and provide the public with the information to make meaningful comments. (p. 2)

 

163 SAB Panel Comments on Proposed Rule found at: 

http://yosemite.epa.gov/sab/sabproduct.nsf/fedrgstr_activites/AF1A28537854F8AB85257D74005003D2/$File/EPA

-SAB-15-001+unsigned.pdf .

164 5 U.S.C. § 553 (b)-(c); American Med. Ass'n v. Reno, 57 F.3d 1129, 1132-33 (D.C. Cir. 1995); Engine Mfrs. 

Ass'n v. EPA, 20 F.3d 1177, 1181 (D.C. Cir. 1994); Connecticut Light & Power Co. v. Nuclear Regulatory Comm'n, 

673

165 Engine Mfrs. Ass'n, 20 F.3d at 1181 ("[T]he Administrative Procedure Act requires the agency to make available 

to the public, in a form that allows for meaningful comment, the data the agency used to develop the proposed 

rule.").

166 Supra Note 1.
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

164

Agency Response: See section 13.2.1 summary response for information 

regarding the Administrative Procedure Act.

13.299 (...) Next, the agencies failed to provide the public with relevant maps that were 

available to the agency that detail the stream systems and wetlands across the U.S.167 

The proposed rule includes a definition of “tributary” that includes anything connected to 

an otherwise jurisdictional water that has a bed, bank and Ordinary High Water Mark 

(OHWM) as a jurisdictional water.168 A map of the U.S. stream systems would be 

extremely relevant in illustrating the types of streams that the agencies propose to 

regulate. The agencies have not identified which waters located on the maps are not 

jurisdictional under their proposed rule. Instead of attempting to be transparent and 

actually clarify which streams and ditches across the country the agencies intend to 

regulate under this proposed rule, the agencies have withheld vital information that the 

public would have used to evaluate the proposal. ACCW assert that the agencies have 

inappropriately withheld relevant maps showing the nation’s streams and wetlands in 

violation of the APA.

Without providing maps or more information in some form, the public has been left to 

comment on a proposed rule that is unintelligible. At outreach meetings and in 

presentations, agency officials have refused to articulate how the rule would be 

interpreted on the ground and refused to answer hypothetical situations. Without doing so 

the agencies have failed to provide the public with a clear picture of what they propose to 

regulate, thereby depriving the public of a meaningful opportunity to provide comment. If 

the agencies cannot articulate on maps or through other means a clear picture of what 

they propose to regulate how is the American public supposed to comment on what they 

cannot possibly understand?

Finally, there are over forty places in the proposed rule where the agency has requested 

comments. Many of these requests ask for new ideas and approaches relative to the topic 

because the agency has failed to provide a proposed approach. As an example the 

agencies’ request comments on:

“... specific options for establishing additional precision in the definition of 

‘‘neighboring’’ through: explicit language in the definition that waters connected by 

shallow subsurface hydrologic or confined surface hydrologic connections to an (a)(1) 

through (a)(5) water must be geographically proximate to the adjacent water; 

circumstances under which waters outside the floodplain or riparian zone are 

jurisdictional if they are reasonably proximate; support for or against placing geographic 

limits on what waters outside the floodplain or riparian zone are jurisdictional; 

determining that only waters within the floodplain, only waters within the riparian area, 

or only waters within the floodplain and riparian area (but not waters outside these areas 

with a shallow subsurface or confined surface hydrologic connection) are adjacent; 

identification of particular floodplain intervals within which waters would be considered 

 

167 House Science Committee, EPA State and National Maps of Waters and Wetlands, (accessed on Sept. 2, 2014),

available at http://science.house.gov/epa-maps-state-2013#overlay-context.

168 Proposed Rule at 22199.
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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165

adjacent; and any other scientifically valid criteria, guidelines or parameters that would 

increase clarity with respect to neighboring waters.” (Proposed Rule at 22209).

If the agencies receive public comments on these extremely important criteria and 

circumstances and finalize a rule that establishes criteria and obligations on landowners 

by selecting a certain interval of floodplain or circumstances based on a public comment, 

the agencies must then allow the public at large to comment on the approach the agencies 

have selected. These issues are too important for the agency to leave blank in the 

proposal, choose a suggestion made by one public commenter and then finalize a rule 

based on such selection. The public will not have had an opportunity to comment on the 

basis of EPA’s selection of such an approach. Instead, the agencies should select an 

approach gathered from public commenters and then re-propose the rule to allow for 

meaningful comments on such approach. As it currently stands the agencies have failed 

to adequately define what approach they are proposing in order to receive meaningful 

comments on how that approach will impact the public. 

EPA and the Corps must provide the public with the information they need to make 

meaningful comments on the proposed rule. As it stands, the agencies have gone out of 

their way to prevent the public from accessing relevant information in the agencies’ 

possession, and have no intent of allowing the public to comment on the final scientific 

basis. (p. 3 – 4)

Agency Response: As a part of the process to evaluate the indirect costs and 

benefits associated with the proposed rule, the agencies assessed the estimated 

increase in new Clean Water Act permits that could reasonably be expected as a 

result of the proposed regulation. This analysis did not, and could not, quantify the 

potential change in the geographic scope of the CWA. Because the agencies 

generally only conduct jurisdictional determinations at the request of individual 

landowners, we do not have maps depicting the geographic scope of the CWA. Such 

maps do not exist and the costs associated with a national effort to develop them are 

cost prohibitive and would require access to private property across the country. 

The U.S. Geological Survey and the U.S. Fish and Wildlife Service collect 

information on the extent and location of water resources across the country and 

use this information for many non-regulatory purposes, including characterizing the 

national status and trends of wetlands losses. This data is publicly available and 

EPA has relied on USGS and USFWS information to characterize qualitatively the 

location and types of national water resources. This information is depicted on 

maps but not for purposes of quantifying the extent of waters covered under CWA 

regulatory programs.

13.300 II. The Proposed Rule Does Not Provide Additional Clarity

ACCW are disappointed in the proposed rule’s lack of clarity due to ambiguous or 

undefined terms and phrases. This section describes in detail the terms and phrases 

throughout the proposal that were left undefined or whose definition is left so ambiguous 

that farmers and ranchers will be left wondering, with no possible way of determining, 

whether waters on their property will be jurisdictional or not. The agencies have failed in 

their stated purpose of providing clarity to the regulated community and the public at 
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

166

large. The proposed rule only increases confusion. ACCW encourage the agency to 

withdraw the proposed rule, continue to fill in the blanks and only re-propose a new 

definition when those gaps have been filled. As it stands, it is extremely unclear how far 

the agencies intend federal jurisdiction to extend and if taken to the maximum extent 

possible the proposed rule wraps in virtually every feature across the nation, which 

contravenes not only the CWA itself but also the Commerce Clause of the U.S. 

Constitution.

a. Ambiguous Terms and Phrases

ACCW assert that the vast instances of undefined terms and phrases throughout the 

proposed rule make meaningful comments on the proposed rule impossible. ACCW 

cannot provide comments on the impact of a proposed definition that does not exist, or 

has a wide range of interpretations. This section attempts to identify those legally 

important terms and phrases that the agencies have failed to adequately describe. 

However, ACCW assert that unless the agencies re-propose the definition with 

adequately defined terms and phrases for these legally significant terms that the public 

can comment on, they have not satisfied the notice and comment requirements under the 

APA.

i. Dry Land

The agencies use the phrase “dry land(s)” numerous times throughout the proposed rule, 

yet never defined the phrase.169 It is unclear to ACCW where a water ends and “dry land” 

begins. EPA and the Corps should define the term to allow the public to fully understand 

the proposed rule and its extent.

ii. Uplands

The term “uplands” is used throughout the proposed rule. It is a very significant legal 

term, especially as it applies to ditches and ponds, yet the agencies have failed to provide 

any sort of description of this important legal term. At one point, an EPA official, while 

looking at an ephemeral stream jumped on the bank of the stream and said “if it doesn’t 

jiggle, it’s an upland.” This is woefully inadequate. The legal description of an upland 

should already have been included in the proposed rule. ACCW would like the 

opportunity to comment on it, but the agencies have failed to provide it and therefore it is 

impossible to meaningfully comment.

ACCW strongly criticize the agencies for failing to notice such regulatory requirements. 

The regulated public cannot possibly be aware of their obligations if the agencies fail to 

define what they mean. This regulation is one of the largest in the history of the Office of 

Water. It is beyond comprehension how the definition of “uplands” along with others in 

this section were innocently “overlooked.” ACCW assert that the agencies must withdraw 

the proposed rule, provide the necessary legal definitions of terms and phrases throughout 

the proposal, and repropose it to the public, so that we can meaningfully comment. As it 

stands, ACCW believe it is impossible for our members to understand the impacts of the 

proposed rule and therefore cannot provide the agencies with educated feedback.

 

169 Proposed Rule at 22193, 22199, 22218-19, 22263-74.
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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167

iii. “Through Another Water”

Under the definition for tributary as well as the exclusions for ditches the agencies have 

used the phrase “through another water.” (Proposed Rule at 22199). Yet, the agencies 

have neglected to explain what this phrase means. When an important regulatory term or 

phrase is left undefined the regulated community will look at the broadest logical 

meaning of the term or phrase to determine the scope of their liability. In this case the 

phrase “through another water” could mean through ground water or through a nonjurisdictional ditch. If the agency does find that a ditch lacks a surface water connection 

to any other jurisdictional water, but does have some groundwater connection to a 

jurisdictional water, that water can now fall outside the exclusions for ditches, and now is 

a tributary by rule.

ACCW assert that the agencies should have known they needed to provide a definition 

for such significant regulatory terms, and their failure to provide a definition prohibits 

ACCW from being able to meaningfully comment on the proposed rule. The agencies 

must re-propose the rule with such definitions included so that the regulated public may 

provide comments on its scope. ACCW assert that including groundwater in the phrase 

“through another water” is inappropriate and fails to recognize that there is a limit to 

federal jurisdiction under the CWA.

iv. “Shallow Subsurface Flow”

The agencies have failed to adequately distinguish “shallow subsurface flow” (or 

“shallow subsurface connection”) from groundwater, and through its use of the phrase 

has raised the question whether groundwater is truly excluded from the category of 

“waters of the U.S.” or not (Proposed Rule at 22207). What is Shallow Subsurface Flow? 

How shallow is it? And how is a landowner supposed to know whether the wetland in his 

pasture is connected through shallow subsurface flow?

The proposed rule states, “The term neighboring, for purposes of the term “adjacent,” 

includes waters located within the riparian area or floodplain of a water identified in 

paragraphs (a)(1) through (5), or waters with a shallow subsurface hydrologic connection 

or confined surface hydrologic connection to such a jurisdictional water.” (Id., emphasis 

added). The agencies use of the term “or” in this definition means that even 

geographically isolated waters outside of a floodplain and riparian area, but that have 

such shallow subsurface hydrologic connection, are automatically jurisdictional. It seems 

this definition is in direct conflict with the Supreme Court’s decision striking down the 

“any hydrologic connection” rule of jurisdiction because this definition allows automatic 

jurisdiction over waters that have only a hydrologic subsurface connection.

When “waters with a shallow subsurface hydrologic connection” to (a)(1) through (5) 

waters are jurisdictional simply by virtue of that connection, without any consideration of 

the significance of that connection. Because EPA and the Corps have not excluded any 

types of water from the term “waters” it could have the meaning of puddles, wetlands, 

ditches, or possibly damp depressions in a pasture. If that damp depression does have a 

shallow subsurface hydrologic connection it appears by the language of the proposed rule 

to be a jurisdictional water.
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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168

Based on the intent of Congress to only regulate surface water via the CWA, it follows 

that the agencies should not use shallow subsurface flow, shallow subsurface hydrologic 

connections or the like to serve as the basis for determining jurisdiction. Regulating the 

surface water that has this “groundwater” flow is the same as regulating the groundwater 

connection. Is it the agencies’ position that a citizen could inject pollutants into this 

“shallow subsurface hydrologic connection” without running afoul of the CWA? If the 

answer is no then the agencies are regulating groundwater, running afoul of their stated 

exclusion of groundwater.

There are also additional questions regarding this phrase. How deep must a landowner 

dig to discover whether his pond is connected to another water via “shallow subsurface 

flow”? At what depth must he dig to know whether it is groundwater instead of “shallow 

subsurface flow?” The agencies stated intent in providing this proposed rule was to 

provide clarity to everyone, including landowners. ACCW assert that the agencies’ 

decision to find adjacent waters with “shallow subsurface hydrologic connections” 

jurisdictional by rule puts an enormous burden on landowners to have surveys and 

analysis done on each and every “water” on their property to determine whether they 

have this type of connection and whether they can utilize their waters or must ask 

permission from the government to conduct numerous activities near these waters.

ACCW strongly encourage the agencies to consider not looking at groundwater as the 

source of any connection, as there is too much confusion regarding whether it is part of 

the regulated water. Additionally, there is no logical way for landowners to know 

whether these connections exist, unfairly placing them squarely in the sites of a 

regulatory enforcement action without any knowledge.

v. Exclusively

The agencies have failed to provide clarity or certainty regarding livestock ponds. The 

proposed rule states, “Specifically, the agencies propose that the following are not 

‘‘waters of the United States’’ notwithstanding whether they would otherwise be 

jurisdictional under section (a):...Artificial lakes or ponds created by excavating and/or 

diking dry land and used exclusively for such purposes as stock watering, irrigation, 

settling basins, or rice growing.” (Proposed Rule at 22218 (emphasis added)). 

Under the exclusion for artificial ponds the agency has failed to extrapolate on and 

clearly define the extent of the agencies’ meaning in using the word “exclusively.” The 

livestock industry heavily utilizes artificial stock ponds to deliver water to our animals. 

The exclusion of such ponds only when they are “exclusively” used for watering of 

livestock raises many questions. Does the term mean for commercial purposes? Does it 

mean 90 percent of the time what is the purpose for which it is used? If the pond is also 

used as a water retention system, does it lose its excluded status. If the livestock 

producers’ children swim in the pond occasionally does that mean it is sometimes used 

for recreation and loses its excluded status? If, as many stock ponds provide, they are 

used by wildlife does that negate its excluded status? ACCW assert the agencies should 

have provided an explanation about the extent of the qualification that only artificial 

ponds used exclusively for stock watering are excluded.
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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169

The Merriam-Webster definition of “exclusive” (root word) means “not shared: available 

to one person or group.”170 As used in the exclusion for artificial ponds and lakes, it is 

apparent the only purpose that an artificial livestock pond can ever have is livestock 

watering. If at any time it is used for fishing, swimming, ice skating, water retention, or 

any other purpose it would be removed from the excluded category and make it a “water 

of the U.S.” ACCW are extremely disappointed that the agencies have once again failed 

to adequately define what their exclusions actually mean, calling into question whether 

any water will actually fall into such categories. ACCW believe that due to the subjective 

nature of the artificial ponds and lakes exclusion, very few livestock ponds will be 

excluded from the category of “waters of the U.S.” ACCW submit that the agencies 

should exclude from “waters of the U.S.” “all ponds used for livestock watering.”

vi. Floodplain

The definition of “floodplain” is also addressed in Sec. I. b. above. The definition of 

floodplain in the proposed rule has been left overly broad by the agencies, providing 

maximum administrative flexibility for regulators, while leaving livestock owners 

guessing whether water features on their property are or are going to be within the 

floodplain designated by a regulator. Additionally, it is unclear from the proposed rule 

whether the entire floodplain itself is a “water of the U.S.”

According to the U.S. Geological Service the Mississippi River floodplain includes over 

30 million acres.171 The proposed rule does not prevent a regulator from determining that 

every open water within the 30 million acres that make up the entire Mississippi River 

floodplain is jurisdictional. Within those 30 million acres are numerous natural ponds, 

perennial ditches, isolated wetlands, and isolated prairie potholes. Based on the proposed 

rule, the regulator decides using their “best professional judgment” the size and scope of 

the floodplain.172 The proposed rule continues that it can be the same as the FEMA 100-

year floodplain, but does not have to be. (Id. at 22236).

ACCW assert this does not provide clarity, but expands the type and number of waters 

that are jurisdictional under the CWA, and flies in the face of the Supreme Court 

decisions that clearly stated there is a limit to federal jurisdiction.173 The definition of 

floodplain in the proposed rule recognizes no limit when, and with the stroke a 

regulator’s pen, every water within a 30 million acre plot would become federal waters. 

Should the agencies choose a floodplain frequency such as 100-year, 50-year, or 5-year, 

ACCW would make specific comments to that frequency. Because the agencies failed to 

provide any sort of specificity for the regulated community, we cannot meaningfully 

comment on every possibility the agency might choose. Instead, the agencies should 

withdraw the proposed rule, fill in the many gaps that are prevalent throughout the 

proposal and re-propose the rule.

 

170 Merriam-Webster Dictionary, available at http://www.merriam-webster.com/dictionary/exclusive.

171 USGS, available at http://www.umesc.usgs.gov/reports_publications/psrs/psr_1997_02.html.

172 Proposed rule at 22209; “When determining whether a water is located in a floodplain, the agencies will use best

professional judgment to determining which flood interval to use.”.

173 SWANCC at 172; “We cannot agree that Congress’ separate definitional use of the phrase “waters of the United

States” constitutes a basis for reading the term “navigable waters” out of the statute.”.
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The agencies’ proposed rule also is unclear to the floodplain itself, leaving open the 

interpretation that the floodplain itself is a “water of the U.S.” If every open water in a 

floodplain is a “water of the U.S.,” then it could mean that when the water is out of its 

bank and covering the land in the floodplain, that is an “open water” and automatically a 

“water of the U.S.” And of course, just like tributaries, just because the water recedes and 

is not present does not mean that jurisdiction ends. Can the agencies clarify this 

confusion for the public. We understand that the agency stated in the proposed rules, 

“Absolutely no uplands located in ‘‘riparian areas’’ and ‘‘floodplains’’ can ever be 

‘‘waters of the United States’’ subject to jurisdiction of the CWA,” (Proposed Rule at 

22207), but if the floodplain itself is a “water of the U.S.” then there is actually no 

“uplands” located within it. It is also unclear from the proposal what the agencies mean 

by “uplands,” making the proposal even more perplexing. ACCW believe that 

floodplains should not be “waters of the U.S.” and the agencies should make that clear in 

a new proposed rule.

ACCW encourage the agencies to re-think their proposal to make all open waters in a 

floodplain or riparian area jurisdictional by rule. It is limitless. The agencies must find a 

way to limit their jurisdiction to within the bounds set for it by SWANCC and Rapanos.

vii. Riparian Area

The proposed rule expands its “adjacent wetlands” category to include all “adjacent 

waters,” which now wraps every water within a floodplain or riparian in as a “water of 

the U.S.” by rule. While ACCW disagree that this category should be expanded as such, 

we also disagree with the agencies vague description of “riparian area.” The agencies 

state, 

“The term neighboring, for purposes of the term “adjacent,” includes waters 

located within the riparian area or floodplain of a water identified in paragraphs 

(a)(1) through (5), or waters with a shall subsurface hydrologic connection or 

confined surface hydrologic connection to such a jurisdictional water. The term 

riparian area means an area bordering a water where surface or subsurface 

hydrology directly influence the ecological processes and plant and animal 

community structure in that area.” (Proposed Rule at 22207).

ACCW would like the agencies to explain how a livestock producer should know 

whether a natural pond, or puddle in his pasture lies within an area where the “surface or 

subsurface hydrology directly influences the ecological processes and plant and animal 

community structure in that area?” The agencies have again failed miserably in providing 

any clarity to the public, its field personnel, or anyone else. All the agencies have done is 

provide themselves enough flexibility to find any water (however broad that term can be 

expanded) to be a “water of the U.S.” ACCW assert that the agencies definition of 

“riparian area” is vague at best and does not articulate any discernible limit to their 

authority, violating both the CWA itself and the Commerce Clause of the Constitution.

viii. Similarly Situated

The agencies use of “aggregation” of “similarly situated” waters erases any limit that the 

agencies have claimed their proposed rule places on them. This ill-defined phrase can be 

used to group as many waters as a regulator can imagine together to find a “significant 
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nexus” to an (a)(1) through (a)(3) water. (Proposed Rule at 22211). If a water is not 

categorically a jurisdictional water by rule like those in categories (a)(1) through (a)(6), 

and even if it by itself has no significant nexus to a TNW, it still could be a federal water 

if after a regulator “aggregates” it together with “similarly situated” waters “in the 

region” and find a significant nexus to an (a)(1) through (a)(3) water. (Id). The proposed 

rule states:

“Waters are similarly situated where they perform similar functions and are 

located sufficiently close together or when they are sufficiently close to a 

jurisdictional water. How these ‘other waters’ are aggregated for a case-specific 

significant nexus analysis depends on the functions they perform and their spatial 

arrangement within the ‘region’ or watershed.” (Id).

The proposed rule goes on to state that their landscape position within the watershed is 

generally the determinative factor for aggregating water in a significant nexus analysis, 

and the description of watershed is “the region.” (Id). It seems clear by the language in 

the proposed rule that a regulator has the power to aggregate all similar waters in a 

watershed, yet does not define the term watershed. In other words, once again, the 

agencies have used terms and phrases that provide the agencies with enough flexibility to 

find jurisdiction over any water, and provided the cattle industry with more confusion and 

even less clarity.

In summary, the terms and phrases in (i) through (vii) above bring ACCW to the 

conclusion that the lack of clarity is an orchestrated attempt by the agencies to write the 

word “navigable” completely out of the CWA. The agencies cannot do this without a 

clear mandate from Congress, and Congress has had ample opportunities to do so and has 

refused. Let us be clear, ACCW assert that the agencies failure to clearly define anything 

throughout their proposed rule renders this comment period meaningless. The regulated 

public cannot meaningfully comment on the proposed rule until these fatal flaws are 

fixed, and to do that the agencies must withdraw this proposed rule, fill in the numerous 

gaping holes, and re-propose the rule. (p. 15 – 21)

Agency Response: Based on the feedback received from public comments, the 

agencies have removed key terms such as “uplands” and “shallow subsurface 

hydrologic connection” from the rule language. The agencies have refined other 

terms as proposed to simplify them and more clearly articulate what these terms 

represent and their role on defining “waters of the US”. For information on how 

the final rule addresses technical issues associated with adjacent waters, other 

waters, ditches, exclusions, and tributary, see compendiums 3, 4, 6, 7, and 8, 

respectively. 

The rule implements, and is consistent with, the interpretations of the Supreme 

Court in the Rapanos and SWANCC decisions because the rule only covers waters 

that have a significant nexus with traditional navigable waters, and therefore within 

federal authority over channels of interstate commerce.

Nebraska Cattlemen (Doc. #13018.1)

13.301 Nebraska Cattlemen is unable to provide meaningful comments on the proposed rule. 

The Administrative Procedure Act (APA) requires an agency when publishing a proposed 
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rulemaking to include “either the terms of the substance of the proposed rule or a 

description of the subjects and issued involved.” See 5 U.S.C. § 553(b)(3). “An agency 

commits a serious procedural error when it fails to reveal a portion of the technical basis 

for a proposed rule in time to allow for meaningful commentary.” Connecticut Light & 

Power Co. v. Nuclear Regulatory Commission, 673 F.2d 525, 531 (D.C. Cir. 1982). 

a. Nebraska Cattlemen is unable to provide meaningful comments on the proposed 

rule because of significant legal holes resulting from the use of broad and 

ambiguous terminology or complete lack of definition of terms.

There are a multitude of legally significant terms and phrases which were left undefined 

or are so ambiguous Nebraska’s farmers and ranchers are unable to know with any 

certainty or clarity what waters on their property will be jurisdictional or not under the 

CWA. In order to satisfy the notice and comment requirements under the APA, the 

Environmental Protection Agency (EPA) must withdraw the proposed rule, provide the 

necessary legal definitions for all significant terms and phrases and re-propose the rule in 

order for the public to have the opportunity to provide meaningful comment. (p. 1)

Agency Response: See section 13.2.1 summary response for information 

regarding the Administrative Procedure Act.

13.302 (...) The failure of EPA to define legally significant terms and phrases and the use of 

broad and ambiguous terminology when defining others leaves Nebraska Cattlemen 

without the ability to provide meaningful comments on the proposed rule. The ability to 

provide meaningful commentary is an essential requirement under the APA and EPA 

must withdraw the proposed rule, provide the necessary legal definitions and re-propose 

the rule in order to satisfy this statutory obligation. (p. 4)

Agency Response: See section 13.2.1 summary response for information 

regarding the Administrative Procedure Act.

13.303 b. Nebraska Cattlemen is unable to provide meaningful comments on the proposed rule

because of EPA’s failure to articulate what regulatory approach will be used when 

determining extremely important legal criteria and circumstances under the CWA.

There are countless instances in the proposed rule where EPA has requested comments 

from the public for submission of entirely new ideas and approaches that EPA may utilize 

in its regulatory approach to determine which waters are jurisdictional under the CWA. 

Two examples include:

“The agencies therefore request comment whether there are other reasonable options for 

providing clarity for jurisdiction over waters with these types of [adjacent] connections. 

Options could include asserting jurisdiction over all waters connected through a shallow 

subsurface hydrologic connection or confined surface hydrologic connection regardless 

of distance; asserting jurisdiction over adjacent waters only if they are located in the 

floodplain or riparian zone of a jurisdictional water; considering only confined surface 

connections but not shallow subsurface connections for purposes of determining 

adjacency; or establishing specific geographic limits for using shallow subsurface or 

confined surface hydrological connections as a basis for determining adjacency, the bankto-bank width of the water to which the water is adjacent.” (Proposed rule at 22208).
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“The agencies seek comment on specific options for establishing additional precision in 

the definition of ‘‘neighboring’’ through: explicit language in the definition that waters 

connected by shallow subsurface hydrologic or confined surface hydrologic connections 

to an (a)(1) through (a)(5) water must be geographically proximate to the adjacent water; 

circumstances under which waters outside the floodplain or riparian zone are 

jurisdictional if they are reasonably proximate; support for or against placing geographic 

limits on what waters outside the floodplain or riparian zone are jurisdictional; 

determining that only waters within the floodplain, only waters within the riparian area, 

or only waters within the floodplain and riparian area (but not waters outside these areas 

with a shallow subsurface or confined surface hydrologic connection) are adjacent; 

identification of particular floodplain intervals within which waters would be considered 

adjacent; and any other scientifically valid criteria, guidelines or parameters that would 

increase clarity with respect to neighboring waters.” (Proposed Rule at 22209).

What regulatory approach is used to define “adjacency” or “neighboring” makes a water 

jurisdictional by rule under the CWA in the proposed rule. These are just two examples 

of legally important criteria and circumstances that EPA has left entirely open to 

significant modification in a final rule. If EPA receives public comments on these and 

other extremely important criteria and circumstances for determining jurisdiction and 

finalizes a rule encompassing one or more of these with a new regulatory approach the 

agency must allow the public to comment on the specific regulatory approach chosen. 

These issues are too important for EPA to leave blank and Nebraska Cattlemen is 

completely unable to provide meaningful comment as a result. EPA may select a 

regulatory approach gathered from public comments under this proposal; however, it 

must then re-propose the rule to allow for the statutorily obligated meaningful comment 

on the regulatory approach it will be utilizing to determine jurisdiction. (p. 4 – 5)

Agency Response: See section 13.2.1 summary response for information 

regarding the Administrative Procedure Act. For additional information on the 

rulemaking process, see section 13.2.

13.304 c. Nebraska Cattlemen is unable to provide meaningful comment as a result of EPA’s 

failure to publicly disclose USGS data maps used to develop the proposed rule.

Since publication of the proposed rule it has come to light EPA failed to make publicly 

available USGS maps utilized by the agency in creating the proposed rule. The House of 

Representatives Committee on Science, Space and Technology had to call EPA before 

Congress and require they be turned over as part of full public disclosure. These maps 

were finally released to the public in August 2014 and clearly show the proposed rule, 

with its vague, overly broad or lack of definitions will regulate many new water features 

and vast amounts of private property. See http://science.house.gov/epa-maps-state-2013.

Again, it is a “serious procedural error” for an agency to fail to reveal any portion of the 

technical basis behind a proposed rulemaking. It is deplorable EPA failed to make this 

data publicly available and they have utterly failed in their obligation to provide an 

opportunity for Nebraska Cattlemen to provide meaningful commentary under the APA.

(p. 5)
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Agency Response: As a part of the process to evaluate the indirect costs and 

benefits associated with the proposed rule, the agencies assessed the estimated 

increase in new Clean Water Act permits that could reasonably be expected as a 

result of the proposed regulation. This analysis did not, and could not, quantify the 

potential change in the geographic scope of the CWA. Because the agencies 

generally only conduct jurisdictional determinations at the request of individual 

landowners, we do not have maps depicting the geographic scope of the CWA. Such 

maps do not exist and the costs associated with a national effort to develop them are 

cost prohibitive and would require access to private property across the country. 

The U.S. Geological Survey and the U.S. Fish and Wildlife Service collect 

information on the extent and location of water resources across the country and 

use this information for many non-regulatory purposes, including characterizing the 

national status and trends of wetlands losses. This data is publicly available and 

EPA has relied on USGS and USFWS information to characterize qualitatively the 

location and types of national water resources. This information is depicted on 

maps but not for purposes of quantifying the extent of waters covered under CWA 

regulatory programs.

13.305 (...) Furthermore, EPA's Connectivity Report, has not been fully reviewed by the 

Scientific Advisory Board at the time of publication of the proposed rule in the federal 

register. Thus, none of the suggestions or modifications of the Scientific Advisory Board 

have been incorporated in to the proposed rule which is extremely problematic. Without 

such guidance EPA has entirely failed to consider relevant and important scientific data 

that it should have relied upon when taking action. For this reason as well, the use of the 

Connectivity Report and reliance by EPA on it is arbitrary, capricious, an abuse of 

discretion or otherwise not in accordance with the law. (p. 7)

Agency Response: See section 13.1 summary response for information regarding 

the Connectivity Report. 

13.306 III. EPA issuance of the proposed rule is in excess of statutory jurisdiction, authority, or 

limitations because it unlawfully expands the scope of federal agency jurisdiction under 

the CWA.

Under the APA a Court shall set aside agency action which is “not in accordance with the 

law” or “in excess of statutory jurisdiction, authority or limitations.” See 5 U.S.C. 

§706(2)(A),(C). “[T]he judiciary, not the agency is the final authority on issue of 

statutory construction,” and will “reject any administrative constructions contrary to this

clear congressional intent.” Massachusetts v. Dep’t of Transp., 93 F.3d 890,893 (D.C. 

Cir. 1996)(internal quotation marks and citations omitted).

a. The proposed rule supersedes a 2003 Legal Memorandum and a 2008 Joint 

Guidance Memorandum which were limited to CWA § 404 determinations thereby 

wrongfully expanding the scope of federal agency jurisdiction under the CWA.

The proposed rule represents the EPA and the U.S. Army Corps of Engineers (Corps) 

interpretation of the current jurisdictional reach of the CWA. The proposed rule will 

supersede a 2003 Joint Memorandum which provided clarifying guidance on the 

Supreme Court’s Solid Waste Agency of Northern Cook County v. US Army Corps of 
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Engineers (SWANCC) and a 2008 Joint Guidance memo issued after another Supreme 

Court case of Rapanos v. United States (Rapanos), (collectively “Existing Guidance”). 

Both of those cases involved wetlands issues with the Corps under §404.

As noted, the proposed rule addresses the definition of “waters of the United States” for 

all CWA purposes. And yet, the model for the regulatory approach here is the Existing 

Guidance which was limited on its face to §404 deteinations.

One stated purpose of the proposed rule is to reduce the use of the Corps’ Wetlands 

Delineation Manual of 1987 and its supplements. The Manual is the tool the agencies use 

to determine whether water bodies are subject to CWA jurisdiction on a case-by-case 

basis. Case-by-case determinations using the Manual are frequently difficult, time 

consuming, and bureaucratic.

Nebraska Cattlemen do not argue that the current §404 permitting process needs to be 

reformed. Time delays and regulatory uncertainty does exist. However, there is at least a 

current level of predictability with jurisdictional determinations. And, there is at least the 

ability for Corps field staff to apply common sense and flexibility when there may be a 

close call. However, the proposed rule will not only take that away for §404 

determinations, it will also bring under regulation many new water features and land uses 

that are subject to jurisdiction categorically because the proposed rule applies to the 

entirety of the CWA, not just § 404.

Land use features such as ditches, waterways, and dry creek beds which rarely carry 

water will now categorically be under federal jurisdiction. Isolated wetlands and other 

waters outside of these areas may still be subject to CWA jurisdiction after a Corps 

determination of significant nexus. The EPA states that the purpose and intent of this 

proposed rule is to provide clarity and certainty to the current analysis and decisionmaking under §404. In reality though, the proposed rule will dramatically and wrongfully 

expand the scope of federal jurisdiction beyond the understanding of the current, Existing 

Guidance.

EPA should withdraw the proposed rule, fix the current bureaucratic nightmare of §404 

permitting and re-propose a rule that is in line with Supreme Court case law and 

appropriately limited on its face to §404 determinations. (p. 7 – 8)

Agency Response: See the Technical Support Document Section I for a summary 

of the legal basis for the final rule. The scope of regulatory jurisdiction in this rule 

is narrower than that under the existing regulation. Fewer waters will be defined as 

“waters of the United States” under the rule than under the existing regulations, in 

part because the rule puts important qualifiers on some existing categories such as 

tributaries. The updated Economic Analysis provides additional information on 

predicted changes in jurisdiction.

The agencies understand the definition of “waters of the U.S.” applies to all CWA 

programs. The agencies modified the final rule from the proposed rule in response 

to comments received in order to ensure unintended effects to those other CWA 

programs were reduced or eliminated. The agencies received many helpful 

comments on the proposed rule which resulted in refinement of the final rule to 

provide further clarity and certainty to the regulated public. The agencies note that 
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the final rule provides for certain categories of waters that are jurisdictional by rule, 

which will result in a more efficient process. 

The substantive requirements of the Section 404 permitting program is outside the 

scope of this rulemaking effort. None of the existing procedures, permitting 

mechanisms, efficient permitting tools such as general permits, or activity 

exemptions will be modified as a result of this rulemaking; therefore, existing 

procedures should not be further complicated by this rule.

Certain waters will require case-specific significant nexus determinations to 

determine whether they are jurisdictional under the Clean Water Act. Certain 

waters which may have been determined “isolated” under the 2003 guidance may 

now fall under (a)(7) or (a)(8) waters under the final rule and would require a casespecific significant nexus determination. See the section in the preamble “CaseSpecific Waters of the U.S.” for additional information. 

The final rule includes exclusions under paragraph (b) for certain ditches and 

erosional features, including ephemeral waters that do not meet the definition of 

tributary. 

13.307 V. Conclusion

Nebraska Cattlemen appreciates the opportunity to offer comments. However, Nebraska 

Cattlemen cannot provide meaningful comment because of the complete lack of 

definition, clarity and provision of essential scientific information within the proposed 

rule. Furthermore, the proposed rule violates the Administrative Procedure Act as it is 

arbitrary and capricious and in excess of statutory authority granted to EPA by the CWA. 

Lastly, EPA has failed to comply with their congressional obligations under the 

Regulatory Flexibility Act. For these reasons and those articulated in more detail above 

the proposed rule must be withdrawn. (p. 18)

Agency Response: See section 13.2.1 summary response for information 

regarding the Administrative Procedure Act.

Missouri Agribusiness Association (Doc. #13025)

13.308 Science Advisory Board (SAB) Review of EPA’s Water Body Connectivity Report:

First concerning the process relating to the SAB’s review of the draft connectivity report, 

EPA has not complied with the Administrative Procedure Act (APA) by publishing the 

proposed rule prior to the final connectivity report. EPA should have incorporated the 

SAB’s comments into the draft connectivity report, published a final connectivity report, 

and then published a proposed rule. The process actually followed does not allow for 

public comment after a final connectivity report. The process actually followed is flawed.

(p. 9)

Agency Response: See section 13.2.1 summary response for information 

regarding the Administrative Procedure Act. See section 13.1 summary response for 

information regarding the Connectivity Report. 
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North Dakota Soybean Growers Association (Doc. #14121)

13.309 The Administrative Procedure Act, U.S.C 553, and the Notice of Proposed Rulemaking 

must fairly appraise interested persons about issues for the rulemaking process. The 

vague and confusing nature of the proposal’s new and existing definitions, coupled with 

the unknown and unexplained ways these definitions will be applied, separately or in 

combination, makes it difficult, even for CWA experts, to comprehend the true impact of 

the proposal. Major regulatory concepts are not adequately explained. The agencies 

provide no example for how they perceive that these new definitions would be applied or 

the magnitude of the changes’ impact. On the contrary, the agencies simply assert that the 

proposal will have no regulatory effect that differs from what exists today. (p. 5)

Agency Response: See section 13.2.1 summary response for information 

regarding the Administrative Procedure Act. Based on the feedback received from 

public comments, the agencies have refined several terms as proposed to simplify 

them and more clearly articulate what these terms represent and their role on 

defining “waters of the US”. For more information see the preamble.

Western Growers Association (Doc. #14130)

13.310 D. Agencies’ Process Violates the Administrative Procedure Act

Enacted in 1946, the Administrative Procedure Act (APA) governs the way in which 

administrative agencies of the federal government may propose and establish regulations. 

As the agencies well know creating the APA was a painstaking process that involved 

years of background work compiled in hundreds of pages of documents used to craft the 

statute’s various provisions. A fundamental purpose of the APA is to keep the public 

informed and allow for “public participation in the rulemaking process".174 Indeed as the 

courts have interpreted these fundamental requirements they have stated that "the 

Administrative Procedure Act requires the agency to make available to the public, in a 

form that allows for meaningful comment, the data the agency used to develop the 

proposed rule."175

Critically, the scientific basis the agencies rely upon to support their proposed rule, the 

Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of 

the Scientific Evidence report was released when it was not final.176 How can the 

members of the public accurately comment upon the proposed rule when the scientific 

analysis upon which the rule is built is not finished? This flies in the face of the 

requirements found under the APA which would seemingly require the public to see, and 

be made aware of the final scientific analysis that underlies a proposed rule. Western 

Growers contends that the agencies should withdraw the rule pending the final 

completion of the Connectivity report. Only once that report is final should the proposed 

rule be submitted for public comment. (p. 10 – 11)

 

174 U.S. Department of Justice, Attorney General's Manual on the Administrative Procedure Act, I. Fundamental 

Concepts, 1947; see 5 U.S.C. § 553 (b)-(c).

175 Engine Mfrs. Ass'n v. EPA, 20 F.3d 1177, 1181 (D.C. Cir. 1994).

176 Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific 

Evidence, Washington, DC: U.S. Environmental Protection Agency, (2013).
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Agency Response: See section 13.2.1 summary response for information 

regarding the Administrative Procedure Act. See section 13.1 summary response 

for information regarding the Connectivity Report. 

Kansas Farm Bureau (Doc. #14408)

13.311 Opportunities to Comment:

The agencies have failed to meet the requirements of 40 C. F. R pt 25.10 which requires 

EPA to provide the maximum amount of information possible to the public with regard to 

proposed regulations that are significant and controversial. These proposed rules are very 

significant and controversial as they seek to redefine key terms of the CWA that dictate 

which waters are regulated and which are not. Definitional changes may greatly impact a 

particular water body and its surrounding lands and what activities may or may not be 

done on or near such water body by landowners. 

Unfortunately, EPA and the Corps have not held ANY hearings in Kansas. 

Representatives from agricultural organizations were invited to attend a roundtable 

discussion with EPA Region 7 Administrator Karl Brooks on April 29, 2014. In late 

summer, Administrator Gina McCarthy made a presentation to the Agricultural Business 

Council of Kansas City but the general public was not in attendance. These meetings do 

not meet the requirements of the regulations for open public participation. The process 

has not allowed potential affected parties to inquire as to the extent and impact of the 

proposed regulations. As noted in the preamble of the proposed regulation, the economic 

analysis and the scientific methodologies used to show interconnectivity of water bodies 

are still under review.177 Without these critical pieces of information, the public is 

effectively left to its own expertise to evaluate the proposed regulations. The public is 

entitled to know the basis for agency decisions. In addition to these deficiencies, the 

agencies have limited the time for comment. The proposed regulation was published on 

April 21, 2014, and even with an extension (to November 14, 2014) the regulated 

community was only given approximately seven months to respond. Proposed regulations 

with the potential to impact millions of acres of private lands demand longer periods for 

comment. Without clear opportunities to question and review documentation in support 

of the regulations, the agencies have failed to meet the administrative procedures for 

significant rule promulgation.

Kansas Farm Bureau respectfully requests that EPA and the Corps, prior to adoption of 

the proposed rules, extend the comment period and host a hearing in Kansas so that 

agricultural producers, state legislators, and representatives from any industry engaged in 

activities that affect land or water are informed of the proposed regulations. (p. 2 – 3)

Agency Response: The commenter is incorrect that the rulemaking process did 

not “meet the requirements of the regulations for open public participation.” Under 

the APA, EPA is required to take comment on the rule through written submissions 

but is not required by statute or regulation to hold public meetings. However, EPA 

voluntarily engaged in extensive outreach, and through that process held two 

stakeholder meetings in Topeka, KS on April 29, 2014. For more information on 

 

177 79 Fed. Reg. 22190
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these and other outreach events hosted nationwide, see the summary of public 

outreach found in the docket.

Kansas Agriculture Alliance (Doc. #14424)

13.312 Not only does it exceed the agencies jurisdictional authority under the CWA, but its 

interpretive terms are conflicting and ambiguous such that the agency cannot sufficiently 

amend the proposed rule in a final rule to comport with the requirements of the 

Administrative Procedure Act (APA).178 Additionally, the rule was advanced without 

consultation with the states and thus, is contrary to the CWA. We respectfully request the 

agencies withdraw this proposal, in total, along with the previously released interpretive 

rule.179 If additional clarification for administering the CWA is contemplated, the 

agencies must do so in coordination with the states, using properly defined terms that 

comport with the jurisdictional limits placed on the agencies by Congress and the U.S. 

Supreme Court. (p. 1)

Agency Response: See the summary response for information regarding APA. 

This final rule interprets the CWA to cover those waters that require protection in 

order to restore and maintain the chemical, physical, or biological integrity of 

traditional navigable waters, interstate waters, and the territorial seas. This 

interpretation is based not only on legal precedent and the best available peerreviewed science, but also on the agencies’ technical expertise and extensive 

experience in implementing the CWA over the past four decades. The scope of 

regulatory jurisdiction in this rule is narrower than that under the existing 

regulation. Fewer waters will be defined as “waters of the United States” under the 

rule than under the existing regulations, in part because the rule puts important 

qualifiers on some existing categories such as tributaries.

13.313 Proposed Rule Prejudges the Science

The EPA and U.S. Army Corps of Engineers (the agencies) posit that the determinations 

made in its proposed rule are based on EPA’s September 2013 draft report, Connectivity 

of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific 

Evidence (EPA Connectivity Report). This connectivity report is argued by EPA to serve 

as the scientific basis for the proposed rule. However, EPA released its proposed rule 

before the EPA’s Science Advisory Board. 

As a practical matter, the very process of issuing the proposed rule before the final SAB 

report was issued distorts the process of having a full and fair public comment period as 

required by the Administrative Procedure Act.

180 (p. 10)

Agency Response: See section 13.1 summary response for information regarding 

the Connectivity Report. 

 

178 5 U.S.C. § 500 et seq.

179 U.S. Environmental Protection Agency and U.S. Department of the Army Interpretive Rule Regarding the 

Applicability of Clean Water Act Section 404(f)(1)(A), 79 Fed. Reg. 22276 (notice of availability April 21, 2014).

180 Administrative Procedure Act, 5 U.S.C. § 500 et seq., as amended.
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Tennessee Farm Bureau Federation (Doc. #14978)

13.314 Public Advocacy Violated Administrative Procedures

The unprecedented public advocacy activities of the Agencies during this comment 

period was inappropriate. We have never observed the level of promotion used by EPA to 

garner support for this rule. Public notice and comment is to allow public input so the 

Agencies can make the best decisions when crafting rules. Public notice and comment is 

not for the purpose of marketing rules and shaping public policy. Rather, public notice 

and comment is to ensure rules are written in compliance with the Congressional action 

which authorized it. There have been multiple fact sheets, Q&A sheets, government 

blogs, and all types of statements providing new interpretations and details. This 

campaign caused confusion. How can the U.S and Tennessee citizens, including farmers 

of Tennessee, provide meaningful comments when the Agencies are misleading by 

confronting and belittling those who have a different viewpoint on the proposed rule?

We believe the "Ditch the Myth" webpage was extremely misleading to farmers and was 

full of mistruths about what this rule does. Please consider the first "Myths" and "Facts" 

listed on the page:

"MYTH: The rule would regulate all ditches, even those that only flow after 

rainfall.

TRUTH: The proposed rule actually reduces regulation of ditches because for the 

first time it would exclude ditches that are constructed through dry lands and don't 

have water year-round."

We have provided you a picture of a "ditch" the Army Corps of Engineers already 

considers a jurisdictional water because they have recently started regulating ephemeral 

streams much like the proposed rule prescribes. We cannot imagine where a ditch 

constructed through dry lands and only flowing in dry lands would be. All ditches are 

interconnected. This proposed rule makes no distinction where a dry land ditch ends and 

a ditch in a floodplain begins. We have counties in Tennessee where a majority of the 

land is located within a class of floodplain. This proposal does not specify if the 

floodplain is a 25 year, 100 year, 500 year, or 1,000 year storm event. So yes, based on 

our knowledge of this state and the Agencies' proposal the rule would regulate all ditches.

Consider the next example:

"MYTH: Ponds on the farm will be regulated.

TRUTH: The proposed rule does not change the exemption for farm ponds that 

has been in place for decades. It would for the first time specifically exclude stock 

watering and irrigation ponds constructed in dry lands."

This proposal expands the jurisdiction of the Agencies by including ephemeral drainages 

and isolated wetlands. This is where ponds are built in Tennessee. Literally thousands of 

ponds are built to impound a drainage in a low area of the drainage. The Agencies use of 

the term "Dry Land" excludes ephemeral features and isolated wetlands. The Agencies 

make this exemption for farm ponds meaningless by expanding jurisdiction. You have 

told farmers they have an exemption in places that do not exist in Tennessee.
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

181

We disapproved of the way EPA used comments from 2008 regarding the proposed 

guidance for Clean Water Act jurisdiction after Rapanos. In the document Persons and 

Organizations Requesting Clarification of "Waters of the United States By Rulemaking, it 

listed the Tennessee Farm Bureau and included an excerpt from comments submitted in 

2008. Even though EPA included a disclaimer saying a request for rulemaking did not 

imply support it still appeared this organization was in favor of the policies contained in 

this rule. This should not have been included in the "Ditch the Myth" site which was 

established to market the policies in this proposed rule. This could easily be misleading to 

our members. We asked the Agencies to use the rulemaking process to address changes 

needed after the Rapanos case instead of using a guidance document. We were not in 

favor of the policies contained in the guidance document and did not support using a 

guidance document to change regulations. However, by including the Tennessee Farm 

Bureau on the "Ditch the Myth" site it could infer we support the policies contained in 

this proposal. We ask EPA to remove the Tennessee Farm Bureau from this document.

(p. 7 – 8)

Agency Response: See section 13.2.1 summary response for information 

regarding the Administrative Procedure Act. 

National Milk Producers Federation (Doc. #15436.1)

13.315 Administrative Procedure Act

Some of the confusion created by the IR may have been alleviated had EPA issued the IR 

as a proposed rule and given stakeholders a chance to comment on the rule before it was 

made effective. Doing so would have met the requirements of the law. Under 5 U.S.C. 5 

551(4) of the Administrative Procedure Act, a rule is defined as:

"the whole or a part of an agency statement of general or particular applicability and 

future effect designed to implement, interpret, or prescribe law or policy 

Rules are required to be published in accordance with the procedures specified at 5 

U.S.C. g 553." 

The agency statement of policy contained in the IR is a rule that is required to be 

published in accordance with § 553. The statement is of general applicability and future 

effect and prescribes a new, detailed procedure for securing an exemption from the 

requirements of section 404 of the CWA. EPA is not relieved of this duty because the 

procedure is arguably voluntary. Moreover, there are potential adverse legal 

consequences for those members of the public who fail to comply with the procedure. As 

such, it affects the substantive interests of the public, further strengthening the obligation 

of EPA to issue the rule in compliance with the law. (p. 5 – 6)

Agency Response: The Interpretive Rule has been withdrawn. All comments on 

the Interpretive Rule are outside of the scope of this rulemaking.

Jensen Livestock and Land LLC (Doc. #15540)

13.316 The Proposed Rule Would Violate the APA Because the Public has Not had an 

Opportunity to Provide Meaningful Comment
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

182

The Administrative Procedure Act (APA) requires federal agencies to ensure public 

participation in the rulemaking process by providing a meaningful opportunity for the 

public to comment on the rule’s content.181 The agencies have failed to provide the data 

the rule is based upon.182 There are a vast number of missing pieces in the proposed rule 

and throughout the rulemaking process that have precluded the public from receiving a 

meaningful comment period. And, it has been obvious that the Corps of Engineers did 

not share equally in developing this rule. It has been frustrating to attend stakeholder 

outreach meetings where one of the jointly proposing agencies is not in attendance. One

example is the small entities meeting that took place on Oct. 15, 2014 at EPA 

Headquarters. It was stated by EPA officials that the Corps was invited but did not 

choose to participate in the meeting. This is deeply disappointing, especially considering 

the regulator-landowner interactions that the Corps has the lead role in under some of the 

major programs.

First, the agencies only included in the proposed rule a draft scientific report entitled 

Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of 

the Scientific Evidence (Connectivity report).183 The agencies have indicated that the 

Connectivity report will not be completed until after the comment period has closed and 

therefore will not be available for the public to comment.184 EPA’s website states, “This 

report, when finalized, will provide the scientific basis needed to clarify CWA 

jurisdiction...,” (emphasis added).185 Second, the agencies have failed to provide the 

public with relevant maps created for the agencies by the U.S. Geological Service 

detailing vast networks of streams across the United States that would become 

jurisdictional under the proposed rule. Third, the proposed rule contains a vast number of 

requests for methods of regulating the public under this rule without providing the 

agencies’ proposed option, leaving the public to wonder what the agency is even 

considering and not allowing comments on any specific proposal. 

Jensen Livestock and Land LLC would like to provide the agencies with more extensive 

comments on the proposed rule. Unfortunately, there are too many significant legal holes 

throughout the document to be able to meaningfully comment on the scientific and legal 

extent of the proposed rule. As such, we provide comments on what is in the proposed 

rule, but cannot provide comments on that which is not included. Therefore, Jensen 

Livestock and Land LLC assert the proposed rule prevents the American public from 

being able to provide meaningful comments on the proposed rule, thereby violating the 

APA186. To correct this fatal flaw the agencies must withdraw the rule and possibly at a 

 

181 5 U.S.C. § 553 (b)-(c); American Med. Ass'n v. Reno, 57 F.3d 1129, 1132-33 (D.C. Cir. 1995); Engine Mfrs. 

Ass'n v. EPA, 20 F.3d 1177, 1181 (D.C. Cir. 1994); Connecticut Light & Power Co. v. Nuclear Regulatory Comm'n, 

673 F.2d 525, 530-31 (D.C. Cir. 1982).

182 Engine Mfrs. Ass'n, 20 F.3d at 1181 ("[T]he Administrative Procedure Act requires the agency to make available 

to the public, in a form that allows for meaningful comment, the data the agency used to develop the proposed 

rule.").

183 Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence, 

Washington, DC: U.S. Environmental Protection Agency, (2013).

184 EPA website, http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=238345 (accessed on Sept. 3, 2014).

185 Id.

186 Supra Note 1.
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

183

later date fill in the gaping holes and provide the public with the information to make 

meaningful comments. 

First, the Connectivity report is a draft report. On the same day the report was released to 

the public, the proposed rule was sent to the Office of Management and Budget (OMB) 

for interagency review. Numerous officials at numerous times have indicated that the 

final report will not be made available for the public to comment on. This is inappropriate 

and prevents the public from being able to provide meaningful comments on the 

proposed rule. The Connectivity report is the scientific basis the agencies rely on to 

support their proposed rule. The science should be final before a proposed rule is 

developed. Should a final report be completed that is different from the draft report, the 

public will have been prohibited from commenting on the validity of such science. This 

flies in the face of this Administration’s assertion of transparency and in the face of the 

APA, which requires that the data (or science) the rule is based on to be presented to the 

public for comment Jensen Livestock and Land LLC the proposed rule must be either 

withdrawn or re-proposed with the final Connectivity report available for the public to 

review. Recently the agencies extended the public comment period with the justification 

to allow the public to comment on the Scientific Advisory Board’s final report.187 This 

extension fails to rectify the procedural failures of the agencies for not providing a final 

report in the proposed rule for comment for a number of reasons. First, the extension is 

for an additional 25 days, which is hardly enough time to review a technical scientific 

report (should the agencies put out a final report between Oct. 20 and Nov. 14). Providing 

the public with the opportunity to comment on the SAB report is not the same as allowing 

the public to comment on the final Connectivity report and therefore the procedural fouls 

with this rulemaking remain unresolved. 

Next, the agencies failed to provide the public with relevant maps that were available to 

the agency that detail the stream systems and wetlands across the U.S.188 The proposed 

rule includes a definition of “tributary” that includes anything connected to an otherwise 

jurisdictional water that has a bed, bank and Ordinary High Water Mark (OHWM) as a 

jurisdictional water.189 A map of the U.S. stream systems would be extremely relevant in 

illustrating the types of streams that the agencies propose to regulate. The agencies have 

not identified which waters located on the maps are not jurisdictional under their 

proposed rule. Instead of attempting to be transparent and actually clarify which streams 

and ditches across the country the agencies intend to regulate under this proposed rule, 

the agencies have withheld vital information that the public would have used to evaluate 

the proposal. Jensen Livestock and Land LLC assert that the agencies have 

inappropriately withheld relevant maps showing the nation’s streams and wetlands in 

violation of the APA. 

Without providing maps or more information in some form, the public has been left to 

comment on a proposed rule that is unintelligible. At outreach meetings and in 

 

187 EPA Desk Statement, available at http://blogs.cq.com/cqblog-assets/govdoc-4559957.

188 House Science Committee, EPA State and National Maps of Waters and Wetlands, (accessed on Sept. 2, 2014),

available at http://science.house.gov/epa-maps-state-2013#overlay-context.

189 Proposed Rule at 22199.
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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presentations, agency officials have refused to articulate how the rule would be 

interpreted on the ground and refused to answer hypothetical situations. Without doing so 

the agencies have failed to provide the public with a clear picture of what they propose 

to regulate, thereby depriving the public of a meaningful opportunity to provide 

comment. If the agencies cannot articulate on maps or through other means a clear 

picture of what they propose to regulate how is the American public supposed to 

comment on what they cannot possibly understand? 

Finally, there are over forty places in the proposed rule where the agency has requested 

comments. Many of these requests ask for new ideas and approaches relative to the topic 

because the agency has failed to provide a proposed approach. As an example the 

agencies request comments on: 

“... specific options for establishing additional precision in the definition of 

‘‘neighboring’’ through: explicit language in the definition that waters connected 

by shallow subsurface hydrologic or confined surface hydrologic connections to 

an (a)(1) through (a)(5) water must be geographically proximate to the adjacent 

water; circumstances under which waters outside the floodplain or riparian zone 

are jurisdictional if they are reasonably proximate; support for or against placing 

geographic limits on what waters outside the floodplain or riparian zone are 

jurisdictional; determining that only waters within the floodplain, only waters 

within the riparian area, or only waters within the floodplain and riparian area (but 

not waters outside these areas with a shallow subsurface or confined surface 

hydrologic connection) are adjacent; identification of particular floodplain 

intervals within which waters would be considered adjacent; and any other 

scientifically valid criteria, guidelines or parameters that would increase clarity 

with respect to neighboring waters.” (Proposed Rule at 22209). 

If the agencies receive public comments on these extremely important criteria and 

circumstances and finalize a rule that establishes criteria and obligations on landowners 

by selecting a certain interval of floodplain or circumstances based on a public comment, 

the agencies must then allow the public at large to comment on the approach the agencies 

have selected. These issues are too important for the agency to leave blank in the 

proposal, choose a suggestion made by one public commenter and then finalize a rule 

based on such selection. The public will not have had an opportunity to comment on the 

basis of EPA’s selection of such an approach. Instead, the agencies should select an 

approach gathered from public commenters and then re-propose the rule to allow for 

meaningful comments on such approach. As it currently stands the agencies have failed 

to adequately define what approach they are proposing in order to receive meaningful 

comments on how that approach will impact the public. 

EPA and the Corps must provide the public with the information they need to make 

meaningful comments on the proposed rule. As it stands, the agencies have gone out of 

their way to prevent the public from accessing relevant information in the agencies’ 

possession, and have no intent of allowing the public to comment on the final scientific 

basis. (p. 1 - 4) 

Agency Response: See section 13.2.1 summary response for information 

regarding the Administrative Procedure Act. 
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

185

13.317 The agencies should also map the sheer expanse of their proposed definition and respond 

to maps presented to the agencies from industry showing our projection and interpretation 

of their proposed definition. It is our understanding that the agencies were provided these 

types of maps by the U.S. Geological Service (USGS), but the agencies failed to provide 

this important information to the American public, which would have provided a clear 

picture to everyone exactly what the expansion of the proposed rule would be. Because 

the maps were not provided to the public by EPA in a timely manner, the public has not 

had adequate time to analyze and ultimately, comment on them. Precluding the public 

from having the ability to meaningfully comment is a violation of the APA.190 (p. 10)

Agency Response: See section 13.2.1 summary response for information 

regarding the Administrative Procedure Act.

As a part of the process to evaluate the indirect costs and benefits associated with 

the proposed rule, the agencies assessed the estimated increase in new Clean Water 

Act permits that could reasonably be expected as a result of the proposed 

regulation. This analysis did not, and could not, quantify the potential change in the 

geographic scope of the CWA. Because the agencies generally only conduct 

jurisdictional determinations at the request of individual landowners, we do not 

have maps depicting the geographic scope of the CWA. Such maps do not exist and 

the costs associated with a national effort to develop them are cost prohibitive and 

would require access to private property across the country. 

The U.S. Geological Survey and the U.S. Fish and Wildlife Service collect 

information on the extent and location of water resources across the country and 

use this information for many non-regulatory purposes, including characterizing the 

national status and trends of wetlands losses. This data is publicly available and 

EPA has relied on USGS and USFWS information to characterize qualitatively the 

location and types of national water resources. This information is depicted on 

maps but not for purposes of quantifying the extent of waters covered under CWA 

regulatory programs.

Flathead Joint Board of Control (Doc. #19537)

13.318 Further, as expressed by the Water Advocacy Coalition in its September 29, 2014 

Objections, the rule making process itself as it relates to the Proposed Rule has been 

severely flawed and in all likelihood is in direct violation of the Federal Administrative 

Procedure Act and the 14th Amendment to the United States Constitution. (p. 2)

Agency Response: See section 13.2.1 summary response for information 

regarding the Administrative Procedure Act.

Iowa Poultry Association (Doc. #19589)

13.319 I. Procedural Flaws

Specific rules are imposed on a federal agency’s rulemaking process by the 

Administrative Procedure Act (APA), including a requirement that the public is provided 

 

190 Supra Note 2.
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

186

a meaningful opportunity for the public to comment on the content and substance of the 

rule. Most importantly, the EPA and Corps failed to provide the full scientific 

background and support for the proposed rule, instead only a draft scientific report 

entitled Connectivity of Streams and Wetlands to Downstream Waters: A Review and 

Synthesis of the Scientific Evidence (Connectivity Study) was released prior to notice of 

the proposed rule. However, the full connectivity study will not be available until after 

the close of the comment period on the proposed rule, therefore denying the public a 

meaningful opportunity to analyze and comment on the full Connectivity Study and 

therefore the science purported to be the basis for the proposed rule. If the proposed rule 

is to be based on the full report, it is critical that the agencies follow proper protocol by 

releasing the final and full Connectivity Study, providing the public an opportunity to 

comment on the final Connectivity Study and then and only then drafting a proposed rule. 

IPA urges EPA and the Corps to withdraw the proposed rule until the final Connectivity 

Study is available and make any necessary changes to the proposed rule based on the 

findings of the final report.

Secondly, the agencies have failed to provide adequate information and maps to show the 

waters and streams that would fall within the jurisdiction of the Corp under the proposed 

rule. Without this important information, it is difficult if not impossible to provide 

meaningful comment when neither the language of proposed rule nor the agencies can 

provide any clear guidance as to which waters would become jurisdictional under the 

proposed rule and how the proposed rule would be interpreted by the federal agencies. If 

the federal agencies drafting these rules cannot provide guidance on the waters to be 

jurisdictional under the rule, or interpretation and implementation of the proposed rule, 

how is the public to know which of their activities will be regulated by the proposed rule 

and how they may need to alter their practices in order to comply? (p. 2 – 3)

Agency Response: See section 13.1 summary response for information regarding 

the Connectivity Report. 

As a part of the process to evaluate the indirect costs and benefits associated with 

the proposed rule, the agencies assessed the estimated increase in new Clean Water

Act permits that could reasonably be expected as a result of the proposed 

regulation. This analysis did not, and could not, quantify the potential change in the 

geographic scope of the CWA. Because the agencies generally only conduct 

jurisdictional determinations at the request of individual landowners, we do not 

have maps depicting the geographic scope of the CWA. Such maps do not exist and 

the costs associated with a national effort to develop them are cost prohibitive and 

would require access to private property across the country. 

The U.S. Geological Survey and the U.S. Fish and Wildlife Service collect 

information on the extent and location of water resources across the country and 

use this information for many non-regulatory purposes, including characterizing the 

national status and trends of wetlands losses. This data is publicly available and

EPA has relied on USGS and USFWS information to characterize qualitatively the 

location and types of national water resources. This information is depicted on 

maps but not for purposes of quantifying the extent of waters covered under CWA 

regulatory programs.
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

187

Association of American Railroads (Doc. #15018.1)

13.320 E. EPA Has Violated Fundamental Administrative Procedure Act Requirements

A basic and fundamental requirement of the Administrative Procedure Act and 

rulemaking under the CWA is the requirement to follow APA and CWA procedures. 

Where not followed, a reviewing court may set aside agency action that has failed to 

observe those “procedure[s] required by law.” § 706(2)(D).191

The Agencies have issued various interpretations of the proposed rule through blogs, 

press releases, phone conferences, and other means. It is impossible to determine the 

precise record upon which the proposed rule was issued, and impossible to determine 

which of the varying interpretations propounded by the Agencies in these various forums 

are the official and proper interpretation upon which to submit comment. Accordingly, 

the Agencies have violated the basic and fundamental requirements of notice and 

comment rulemaking. Since those procedures have not been followed, the proposed rule 

must be withdrawn. (p. 15)

Agency Response: See section 13.2.1 summary response for information 

regarding the Administrative Procedure Act.

BMG Marine, Inc. (Doc. #18855)

13.321 The proposed rulemaking violates the Administrative Procedure Act and various 

Executive Orders specifically as they relate to transparency and process. (p. 2)

Agency Response: See section 13.2.1 summary response for information 

regarding the Administrative Procedure Act.

Alabama Road Builders Association (Doc. #18913)

13.322 First, allow me to object to the process related to this proposed rule. The Administrative 

Procedure Act (APA) sets forth the process and requirements your agency must follow in 

the rulemaking process. Ignoring the requirements and obfuscating the process 

diminishes severely any interested party from providing adequate input. To say it is a 

moving target is an understatement which speaks volumes to complexity of the issue and 

unintended consequences and expense associated with this proposal.

I've recently read the Waters Advocacy Coalitions lengthy comments, which specifically 

addresses, point by point, the deficiencies readily apparent in the process. ARBA echoes 

these concerns and implores you to address this hap-hazardous approach to such a 

monumental shift to this definition. (p. 1)

Agency Response: See section 13.2.1 summary response for information 

regarding the Administrative Procedure Act.

 

191 Iowa League of Cities v. E.P.A., 711 F.3d 844, 855 (8th Cir. 2013). Prof'ls & Patients for Customized Care, 56 

F.3d at 596 (quoting United States v. Picciotto, 875 F.2d 345, 347 (D.C.Cir.1989)); see also City of New York v. 

Permanent Mission of India to United Nations, 618 F.3d 172, 201 (2d Cir.2010). 
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

188

Florida Water Environment Association (Doc. #0870)

13.323 Notice and comment rulemaking under the U.S. Administrative Procedure Act requires 

both adequate notice (i.e. full disclosure) of the nature of and basis for the proposed 

agency action and an adequate opportunity to affect the agency's decision-making. 5 

U.S.C. § 553(c). Specifically, "section 553(c) requires agencies to afford interested 

persons an opportunity to participate in public rule making through submission of written 

data, views, or arguments," and it "requires consideration of whatever data and views are 

submitted." Mortgage Investors Corp. of Ohio v. Gober, 220 F.3d 1375, 1379 (Fed. Cir. 

2000). In order to achieve the requirement of an open and transparent rulemaking process

with meaningful public participation, the FWEA Utility Council respectfully requests that 

EPA extend the comment period to 180 days, beginning after the incorporation of the 

SAB's recommendations on the proposed rule's connectivity report. (p. 2)

Agency Response: See section 13.2.1 summary response for information 

regarding the Administrative Procedure Act. See section 13.1 summary response for 

information regarding the Connectivity Report. 

Arizona Public Service Company (Doc. #15162)

13.324 II. DESPITE AN EXTENDED PUBLIC COMMENT PERIOD, AGENCIES FAILED 

TO PROVIDE ADEQUATE REVIEW OF RELEVANT DOCUMENTS

APS has identified several specific concerns below regarding how the Agencies failed to 

provide adequate opportunity for review of relevant documents. To support and expand 

upon our comments below, APS specifically incorporates by reference UWAG’s 

comments regarding the Agencies’ flawed rulemaking process in violation of the 

Administrative Procedure Act. As noted by UWAG, the underlying technical document 

upon which the Agencies relied for the rulemaking was not finalized, and other 

documents were not made available to the public in a timely manner.192 (p.2)

Agency Response: See section 13.2.1 summary response for information 

regarding the Administrative Procedure Act.

Duke Energy (Doc. #13029)

13.325 In light of the numerous deficiencies with the proposed rule, as detailed in these and other 

industry comments, Duke Energy recommends that the agencies withdraw the proposed 

rule. Before finalizing any proposed rule, the agencies must first finalize their scientific 

report, and then engage in meaningful dialogue with the regulated community and States 

about more reasonable, focused, and clear changes to existing regulations to address the 

significant areas of conflict or uncertainty. Only then may the agencies issue a new 

proposal is clear, consistent, and does not unlawfully claim jurisdiction. (p. 11)

Agency Response: See section 13.2.1 summary response for information 

regarding the Administrative Procedure Act.

 

192 See UWAG Comments on WOTUS, Section X – The Agencies’ Flawed Process of Issuing a Proposed Rule 

Before Completing the Underlying Science Is Unsupportable and Cuts Out Regulated Industry (Nov. 14, 2014).
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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189

Utility Water Act Group (Doc. #15016)

13.326 X. The Agencies’ Flawed Process of Issuing the Proposed Rule Before Completing the 

Underlying Science Is Unsupportable and Cuts Out Regulated Industry.

In addition to the substantive concerns with the Draft Connectivity Report, procedurally, 

the sequence of the Agencies’ actions – drafting and proposing a rule before the SAB 

review of the Draft Connectivity Report (which serves as the basis for the Proposed Rule) 

was complete – makes little sense and raises serious Administrative Procedure Act 

(“APA”) concerns.

The Agencies put the regulatory cart before the horse by issuing a proposed rule based on 

a scientific report that was still undergoing the SAB review. The Agencies have stated 

that the final WOTUS rule (if finalized)193 would be based on the final version of the 

Draft Connectivity Report. Throughout the comment period on the Proposed Rule, the 

Draft Connectivity Report was undergoing SAB review. As discussed above, the SAB 

has recommended substantial changes and additional research and review of scientific 

literature. As one SAB panelist, Dr. Mark Murphy, explained:

I must say I am puzzled as to why EPA has decided to release the Proposed Rule 

before receipt of our review of the Connectivity Report . . . . The usual protocol in 

science is not to release a report before the review is complete, the purpose being 

to allow a frank and honest appraisal of the work before positions are “hardened.” 

. . . The sequence employed by EPA suggests to the public that there is no critical 

input needed by the SAB—just a few minor additions. . . . In point of fact, the 

SAB Review suggested that some major additions be made to the [Draft] 

Connectivity Report.

SAB Panel Comments on Proposed Rule at 89 (emphasis in original). Indeed, the 

Agencies have prejudged the outcome of the scientific review by drafting and issuing a 

proposed rule before the SAB review of the Draft Connectivity Report was complete. 

Moreover, the public will not have the opportunity to comment on the final Connectivity 

Report in comments on the Proposed Rule.

Not only is the Agencies’ decision “puzzling,” but it is also in violation of the APA. The 

APA requires that an agency give notice of a proposed rule setting forth “either the terms 

or substance of the proposed rule or a description of the subjects and issues involved,” 5 

U.S.C. § 553(b)(3), and “give interested persons an opportunity to participate in the rule 

making through submission of written data, views, or arguments with or without 

opportunity for oral presentation,” id. § 553(c). Under APA notice and comment 

requirements, “[a]mong the information that must be revealed for public evaluation are 

the technical studies and data upon which the agency [relies in its rulemaking].”194 The 

 

193 As noted throughout these comments, UWAG opposes finalization of the Proposed Rule. Instead, the Agencies 

should withdraw the Proposed Rule and issue a re-proposal that addresses the problems and concerns presented in 

these comments, the WAC Comments, and the FWQC Comments.

194 Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227, 236 (D.C. Cir. 2008) (internal

quotation marks omitted) (citing Chamber of Commerce v. SEC, 443 F.3d 890, 899 (D.C. Cir.

2006)).
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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“most critical factual material” used by the agency must be subjected to informed 

comment to “ensure that agency regulations are tested through exposure to public 

comment . . . .”195 If finalized, this rule would be based on the “final version” of the 

Connectivity Report, which is not complete and was never made available for public 

comment during the comment period for the Proposed Rule. Therefore, the Agencies 

have not made technical studies available at the proposed rule stage, as required by the 

APA.

Moreover, to comply with the APA, the final rule must be a “logical outgrowth” of the 

proposed rule.196 As explained above, the Proposed Rule is not supported by science. The 

SAB made extensive substantive recommendations for revising the Draft Connectivity 

Report and the Proposed Rule. If the Agencies make substantial revisions in accordance 

with the SAB recommendations, the final rule would not be a “logical outgrowth” of the 

Proposed Rule as required under the APA. But, if the Agencies ignore the SAB’s 

recommendations, the rule would continue to be unsupported by the science.

Similarly, to address the concerns that UWAG and other industry groups have raised 

about the Proposed Rule, the Agencies will need to make substantial modifications, 

essentially rewriting the proposal. Again, such changes could not be a “logical 

outgrowth” of the badly flawed Proposed Rule. Instead, they must be introduced in a new 

proposal or advance notice of proposed rulemaking in order to satisfy the APA 

requirements.

In their haste to publish the Proposed Rule, the Agencies have ignored applicable 

requirements and some of the most basic tenets of administrative rulemaking.197 The only 

way to resolve all of these procedural issues is to withdraw the proposal and issue a reproposal that does not suffer from the same procedural APA defects that this Proposed 

Rule does. (p. 135 – 137)

Agency Response: See section 13.2.1 summary response for information 

regarding the Administrative Procedure Act. See section 13.1 summary response 

for information regarding the Connectivity Report. 

Basin Electric Power Cooperative (Doc. #16447)

13.327 Agencies Fail to Comply with Administrative Procedure Act (APA)

The overall rulemaking process is flawed because the Agencies failed to follow the APA. 

New documents, new explanations of key terms, and new reasoning to support the 

 

195 Id. (internal quotations omitted); see also Conn. Light & Power Co. v. Nuclear

Regulatory Comm’n, 673 F.2d 525, 530 (D.C. Cir. 1982) (“In order to allow for useful criticism,

it is especially important for the agency to identify and make available technical studies and data

that it has employed in reaching the decisions to propose particular rules.”).

196 Small Refiner Lead-Phase-Down Task Force v. EPA, 705 F.2d 506, 543 (D.C. Cir.

1983) (citations omitted).

197 UWAG also noticed, and disapproves of, the Agencies’ incorporation of a slew of supporting materials into the 

docket within one month of the twice-extended comment deadline. See EPA-HQ-OW-2011-0880-8549 and -8591 

(listing added references). This late release of references, without any explanation as to how the materials support 

the Proposed Rule, deprives the public of a meaningful opportunity to review them and/or understand the Agencies’ 

rationale for this Proposed Rule.
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

191

Agencies' jurisdictional assertions have been issued throughout the rulemaking. This new 

or revised information creates a moving target, making meaningful public comment 

difficult. For example, the U.S. Army Corps of Engineers recently issued new documents 

regarding Ordinary High Water Mark (OHWM), a key component of determining 

jurisdiction. These documents were issued without proper public notice and opportunity 

for comment. Another key piece of information with direct impact on the rulemaking 

(Final Connectivity Report) was also only recently released to the public. The Agencies 

have severely impacted the public's opportunity for meaningful review and comment by 

issuing this important new information extremely late in the rulemaking process. (p. 2)

Agency Response: See section 13.2.1 summary response for information 

regarding the Administrative Procedure Act. See section 13.1 summary response on 

the use of the Connectivity Report. 

The comment related to other guidance documents issued by the Corps, is outside 

the scope of this rulemaking.

The Center for Rural Affairs (Doc. #15029)

13.328 Stakeholder Engagement

The agencies have come under fire throughout the rulemaking process for their 

communication with stakeholders. Some have argued that the EPA has been defensive or 

noncommittal when responding to stakeholder concerns, or that the Corps has been 

largely absent from efforts to reach out to the regulated community. While we agree that 

more can be done to engage stakeholders, we commend the agencies for some of their 

efforts to address concerns among those in the agricultural community. Administrator 

McCarthy’s visit to Missouri is a good example. It showed that the EPA is committed to 

getting out of Washington and understanding how the rule will impact farmers on the 

ground. A primary complaint throughout the agricultural community is that the EPA does 

not recognize the impact regulations have on farming families in rural America. More 

visits by high level EPA administrators like McCarthy’s trip to Missouri would be a step 

toward building a stronger, more productive rapport between the agency and farmers. 

Furthermore, the agencies could jumpstart their coordination with NRCS by hosting 

regional events bringing together regional EPA, Corps, and NRCS representatives to 

interact with stakeholders.

Additionally, the EPA’s WOTUS Question & Answer document, issued in September 

2014 in response to key concerns made apparent during the public comment period, is 

helpful in that it provides clear answers to stakeholder concerns. We urge the agency to 

continue releasing documents and additional information on the proposed rule and its 

implementation. Critics of the WOTUS rule have argued that the agency has been unable 

to verify which waters would be jurisdictional when asked. We recognize that speaking in 

hypotheticals around a regulation is challenging, but complaints that the agency is 

unclear on the scope of its own rule could be addressed by releasing in depth case studies 

or examples of what would constitute a water of the United States under the proposed 

rule.

Finally, the agencies should work with farmer and community based organizations at the 

regional, state, and local levels as part of their outreach efforts. Community based 
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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192

organizations, especially farmer based organizations or associations with personal 

relationships to farmers, can provide a valuable, rational voice to this issue. The Center 

for Rural Affairs is a leader in rural America and in the sustainable agriculture 

movement, together with our member groups located throughout the country. We would 

gladly help facilitate connections between the agencies and regional and local sustainable 

agricultural interests in any way possible.

Recommendation: Continue to promote stakeholder engagement through visits to rural 

farms, publication of case studies, and work with regional, state, and local level 

community based organizations. (p. 9 – 10)

Agency Response: The agencies note your support for the outreach efforts during 

the public comment period for the proposed rule, especially with the agricultural 

community.

The agencies are developing guidance to facilitate effective, consistent, and efficient 

implementation of the final rule once it becomes effective. The agencies strive to 

achieve consistency across the country in all districts and regions in application of 

the rule for jurisdictional determinations. The agencies also recognize that there 

are variations that occur in geography, hydrology, climate, etc., which affect 

jurisdictional determinations. The initial phase of implementing the rule will 

require education and training for agency staff as well as other stakeholders and the 

regulated public. The Corps is exploring options to provide joint training with 

other agencies such as EPA and NRCS. 

There will be outreach and communication on the final rule to ensure the widest 

dissemination of information to the regulated and interested public.

The agencies note the offer of the commenter to coordinate connections between 

agencies and regional/local agricultural interests.

13.329 Helping Beginning Farmers Navigate the Rule

The agencies have an opportunity to improve stakeholder engagement and potentially 

build support for the rule by increasing outreach to beginning farmers. A targeted 

outreach effort by the EPA and the Corps to beginning farmers and ranchers, including a 

guide to the rule targeted toward beginning farmers that lays out background information 

and the impacts of the rule, would provide a valuable resource. The Center for Rural 

Affairs is happy to offer assistance on this issue. Recommendation: Target outreach 

efforts to address concerns and deliver accurate information to beginning farmers. (p. 10)

Agency Response: For information on targeted outreach to farmers and other 

agricultural stakeholders, see the summary of public outreach found in the docket. 

Environmental Integrity Project, et al. (Doc. #15376)

13.330 EPA is prohibited from codifying the waste treatment exclusion without providing notice 

and an opportunity for public comment.

EPA may not codify the waste treatment exclusion without following notice and 

comment requirements. The Clean Water Act requires that public participation in the 

development, revision, and enforcement of any regulation, standard, effluent limitation, 
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

193

plan, or program established by the Administrator any State under this Act shall be 

provided for, encouraged, and assisted by the Administrator and the States 33 U.S.C. 5 

1251(e). Under the Administrative Procedure Act, EPA must provide for public 

participation for agency actions that create law (i.e. legislative rules or substantive rules), 

See, e.g. Gibson Wine Co. v Snyder. 194 F.2d 329,331 (D.C. Cir. 1952). Courts at all 

levels have stressed the importance of public participation in rulemaking, and the D.C. 

Circuit has determined that notice and comment works"(1) to ensure that agency 

regulations are tested via exposure to diverse public comment, (2) to ensure fairness to 

affected parties, and (3) to give affected parties an opportunity to develop evidence in the 

record to support their objections to the rule and thereby enhance the quality of judicial 

review." International Union, United Mine Workers of Am V. Mine Safety & Health 

Admin., 407 F.3d 1250, 1259 (D.C. Cir. 2005). Yet thirty-four years after promising to 

promptly publish a proposed rule setting forth a revised definition of "waste treatment 

system," EPA and the Army Corps are attempting to circumvent the Administrative 

Procedure Act and Clean Water Act by codifying the illegal waste treatment system 

exclusion without notice and comment rulemaking. (p. 4 – 5)

Agency Response: See section 13.2.1 summary response for information 

regarding the Administrative Procedure Act. The agencies are not codifying waste 

treatment exclusions in this rule. The rule does not affect longstanding exemptions 

in the CWA for farming, silviculture, ranching and other activities and does not 

change regulatory exclusions for waste treatment systems and prior converted 

cropland. Therefore, these comments are outside the scope of this rulemaking.

The rule makes clear that municipal separate storm sewer system structures - water 

recycling structures created in dry land, retention and detention basins built for 

wastewater recycling, ground water recharge basins, and percolation ponds built for 

wastewater recycling, and water distributary structures built for wastewater 

recycling. are not waters of the United States. All existing exclusions from the 

definition of “waters of the United States” are retained, and several exclusions 

reflecting longstanding agencies’ practice (ex. puddles) are added to the regulation 

or further clarified (ex. all erosional features, groundwater). 

13.331 EPA's proposed waste treatment system exclusion and codification of the suspension is a 

legislative rule. 

There can be no doubt that the proposed waste treatment system exclusion and 

codification of the suspension is a legislative rule subject to notice and comment under 

the Clean Water Act and the Administrative Procedure Act. To determine a regulatory 

action constitutes promulgation of a regulation, [courts] look to three factors: (1) the 

Agency's own characterization of the action; (2) whether the action was published in the 

Federal Register. . . .; and (3) whether the action has binding effects on private parties or 

on the agency.” Iowa League of Cities v. EPA, 711 F.3d 844, 862 (8th Cir. 2013) (citing 

Molycorp, Inc. v. EPA, 197 F.3d 543, 545 (D.C. Cir. 1999)).

In the proposed rule, EPA expressly identified the action as a regulation (as opposed to an 

interpretive rule or general statement of policy). 79 Fed. Reg. at 22,217 ("The agencies' 

longstanding regulations exclude waste treatment systems designed to meet the 

requirements of the CWA . . . ."). The action was published in the Federal Register. Id.at 
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194

22,188. Finally, the / action has had and will continue to have a binding effect on both 

dischargers and the EPA. Industrial operators will arguably have a right to discharge into 

waste treatment impoundments - - created by impounding waters of the U.S. without a 

NPDES permit so long as the impoundments i are "designed to meet the requirements of 

the Clean Water Act." Id. at 22,268. Accordingly, the regulation will confer rights or 

obligations on private parties and the agency. Thus, the waste treatment system exclusion 

is subject to public review and comment.

Notably, EPA must follow public notice and comment procedures under the 

Administrative Procedure Act not only when it enacts a rule, but when it repeals a rule as 

well. Nat'l Parks Conservation Ass'n v. Salazar, 660 F. Supp. 2d 3,5 (D.D.C. 2009). As 

discussed previously, in spite of its promise, EPA has never provided notice and 

comment on the suspension even though the suspension of the last sentence alters the 

definition and is akin to an actual repeal of a portion of the final rule. See 45 Fed. Reg. at 

48,620. Thus, EPA must follow public participation requirements for the waste treatment 

system exclusion. (p. 5)

Agency Response: See section 13.2.1 summary response for information 

regarding the Administrative Procedures Act. The agencies are not codifying waste 

treatment exclusions in this rule. The rule does not affect longstanding exemptions 

in the CWA for farming, silviculture, ranching and other activities and does not 

change regulatory exclusions for waste treatment systems and prior converted 

cropland. Therefore, these comments are outside the scope of this rulemaking.

The rule makes clear that municipal separate storm sewer system structures - water 

recycling structures created in dry land, retention and detention basins built for 

wastewater recycling, ground water recharge basins, and percolation ponds built for 

wastewater recycling, and water distributary structures built for wastewater 

recycling are not waters of the United States. All existing exclusions from the 

definition of “waters of the United States” are retained, and several exclusions 

reflecting longstanding agencies’ practice (ex. puddles) are added to the regulation 

or further clarified (ex. all erosional features, groundwater).All existing exclusions 

from the definition of “waters of the United States” are not affected (being outside 

the scope of the rule).

13.332 The waste treatment system exclusion is not an interpretative rule or general statement of 

policy exempt from notice and comment requirements.

The proposed regulation is not an interpretive rule or general statement of policy exempt 

from notice and comment requirements. See 5 U.S.C. § 553 (b)(3)(A) (stating that notice 

and comments is not required for interpretive rules or a general statement of policy). 

First, the regulation is not an interpretative rule because it grants substantive rights to 

private parties. See, e.g., Brown Exp., Inc. v. US., 607 F.2d 695,700 (5th Cir. 1979) 

(noting that rules that grant substantive rights are not interpretative rules). As discussed, 

the exclusion arguably works to allow persons to discharge into waters of the U.S. 

without a permit so long as it is a waste treatment system designed to meet the 

requirements of the Clean Water Act. Id. at 22,268.
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Further, the mere fact that an agency action amends an existing legislative rule may 

disqualify it from qualification as an interpretative rule. Gunderson v. Hood, 268 F.3d 

1149, \ 1154 (9th Cir 2001) ("If a rule is inconsistent with or amends an existing 

legislative rule, then it cannot be interpretive."). EPA's suspension of the limits to the 

waste treatment system exception, whether "temporarily" on July 21, 1980 or again on 

April 21,2014, amends the legislative rule finalized on July 18, 1980. Thus, because it 

amends an existing legislative rule, the waste treatment system exclusion cannot be an 

interpretative rule. 

EPA knows how to classify an action as an interpretative rule when it intends to do so. 

For example, in the current proposed rule, EPA included a section on "discharges of 

dredged or infill material associated with certain agricultural conservation practices . . ." 

and identified it as an 1 interpretative rule. 79 Fed. Reg. at 22,194. EPA is unequivocal 

that it intends this latter section to be an interpretive rule rather than a substantive rulementioning "interpretive rule" five times over the course of a single paragraph. EPA 

never suggests the waste treatment system exemption is an interpretative rule in the 

proposal. 

Second, the proposed regulation is not a general statement of policy. General statements 

of policy are "statements issued by an agency to advise the public prospectively of the 

manner in which the agency proposes to exercise a discretionary power. Brown, 607 F.2d 

at 701 (citing U.S. Department of Justice, Attorney General's Manual on the 

Administrative Procedure Act 30n. 3 (1947)). In this case, it is clear the definition of the 

waste treatment system definition is not a general statement of policy. In conclusion, the 

waste treatment system exclusion is not an interpretative rule or general statement of 

policy. 

For all of these reasons, EPA must follow the public participation requirements set forth 

in the Clean Water Act and Administrative Procedure Act. EPA cannot bootstrap a 

procedurally deficient regulation into the current rulemaking and evade public 

participation requirements. (p. 6)

Agency Response: See section 13.2.1 summary response for information 

regarding the Administrative Procedures Act. 

The agencies are not codifying waste treatment exclusions in this rule. The rule does 

not affect longstanding exemptions in the CWA for farming, silviculture, ranching 

and other activities and does not change regulatory exclusions for waste treatment 

systems and prior converted cropland. Therefore, these comments are outside the 

scope of this rulemaking.

The rule makes clear that municipal separate storm sewer system structures - water 

recycling structures created in dry land, retention and detention basins built for 

wastewater recycling, ground water recharge basins, and percolation ponds built for 

wastewater recycling, and water distributary structures built for wastewater 

recycling are not waters of the United States. All existing exclusions from the 

definition of “waters of the United States” are retained, and several exclusions 

reflecting longstanding agencies’ practice (ex. puddles) are added to the regulation 

or further clarified (ex. all erosional features, groundwater).All existing exclusions 
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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196

from the definition of “waters of the United States” are not affected (being outside 

the scope of the rule).

Guardians of the Range (Doc. #14960)

13.333 These are some of the objections we have to this proposed rulemaking. However, in 

conclusion we want state that we hold this proposed rulemaking to be in violation of the 

Administrative Procedure Act. It contends that "in the normal course of making 

jurisdictional determinations, information derived from the field observations is not 

always required in cases where a 'desktop' analysis furnishes sufficient information to 

make the requisite findings. This blanket decision making framework lends itself to 

cookie cutter decisions. Justice Kennedy clearly addressed "significant nexus" test which 

has been ignored by the Connectivity Report used in this proposed rulemaking. (p. 2)

Agency Response: See section 13.2.1 summary response for information 

regarding the Administrative Procedure Act. For information on “significant 

nexus”, see compendium 5.

National Association of Convenience Stores (Doc. #15242)

13.334 B. The Agencies Have Not Complied with the Administrative Procedure Act and did not 

Sufficiently Consider the Proposal’s Impact on Small Businesses.

Both the Proposal and the entire rulemaking process surrounding it have been plagued 

with procedural flaws.

By repeatedly skirting correct procedure, the Agencies have not complied with the 

Administrative Procedure Act (“APA”) during this rulemaking process.198 This faulty 

process began on September 17, 2013 when the Agencies released their Proposal to the 

Office of Management and Budget (“OMB”) for interagency review before the Scientific 

Advisory Board (“SAB”) had reviewed the connectivity report, the primary scientific 

supporting document underlying the Proposal.199 In fact, the SAB’s final peer review of 

the EPA Connectivity Report was only made available to the public on October 24th—

just three weeks before the comment deadline.200 (p. 5)

Agency Response: See section 13.2.1 summary response for information 

regarding the Administrative Procedure Act. See section 13.1 summary response for 

information regarding the Connectivity Report.

 

198 5 U.S.C § 500 et seq.

199 U.S. Environmental Protection Agency, Office of Research and Development, Connectivity of Streams and

Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence, External Review Draft.

EPA/600/R-11-098B (Sept. 2013), available at

http://yosemite.epa.gov/sab/sabproduct.nsf/0/7724357376745F48852579E60043E88C/$File/WOUS_ERD2_Sep201

3.pdf.

200 Definition of “Waters of the United States” Under the Clean Water Act Proposed Rule, Notice of Availability, 79

Fed. Reg. 63,594 (Oct. 24, 2014). NB: the SAB panel members published a memorandum on September 2, 2014,

where the panel raised concerns about various definitions used in the report. See Dr. Amanda Rodewald, Chair,

Science Advisory Board for the Review of the EPA Water Body Connectivity Report, Letter from Sept. 2, 2014,

available at

http://yosemite.epa.gov/sab/sabproduct.nsf/F6E197AC88A38CCD85257D49004D9EDC/$File/Rodewald_Memoran

dum_WOUS+Rule_9_2_14.pdf.
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197

Missouri and Associated Rivers Coalition (Doc. #15528)

13.335 Should the Agencies seek to proceed with the proposed rule, we ask that the following 

specific comments be addressed in accordance with the rulemaking process under the 

APA. 

1. Key terms necessary to understanding the "definition of Waters of the U. 5." And 

applying the proposed rule are not supplied. 

Application of the proposed rule relies on understanding what "upland means, a term not 

defined in the proposed rule. A questioning of agency regulatory officials yielded 

different interpretations. Some defined the term "upland" through physical characteristics 

that 1 could be identified in the field. Others expressed its intent to mean "upland of" as 

in "beyond the limits of jurisdiction” of the CWA. This term is especially important with 

respect to the jurisdictional determination of ditches and also with respect to the 

management of stormwater systems, including those presently covered by MS4 permits.

Outside of the rulemaking process and the requirements of the APA a definition of 

"upland has been supplied by the Agencies in a Q&A document. While the Q&A sheet, 

should one happen upon it, may be seen to supply a definition for this key term, "upland" 

is not defined by the proposed rule, it is not included in the preamble, proposed 

regulatory text, or anywhere else in the rulemaking docket. Just as the public cannot 

reasonably rely on a Q&A sheet as an authoritative source for defining a key term used in 

rulemaking, nor can the Agencies use a Q&A sheet in place of the requirements of 

rulemaking as intended \ by the APA. There are other key terms left undefined, such as 

perennial, yet used in the n: proposed rule; their meaning and impact too are left unclear. 

For example, the references to floodplains and riparian areas may be a means by which 

the Agencies can impose unnecessary Federal oversight over state and local land use 

decisions and many non-Federal projects. (p. 2 – 3)

Agency Response: See section 13.2.1 summary response for information 

regarding the Administrative Procedure Act. Based on the feedback received from 

public comments, the agencies have removed key terms such as “uplands” and 

“shallow subsurface hydrologic connection” from the rule language. The agencies 

have refined other terms as proposed to simplify them and more clearly articulate 

what these terms represent and their role on defining “waters of the US”. See the 

preamble for more information on the revisions made to the final rule. 

United States Senate (Doc. #1378)

13.336 We also take issue with EPA's reckless disregard for the science that will apparently 

underpin this ruling. The report, titled Connectivity of Streams and Wetlands to 

Downstream Wafers: A Review and Synthesis of the Scientific Evidence, has not been 

finalized, and Science Advisory Board peer review for the report is not yet complete. For 

EPA to propose a rule without the supposed foundational, scientific document firmly in 

place both violates the spirit of the Administrative Procedure Act, as well as OMB and 

agency circulars. It is our belief that EPA should withdraw this proposed ruling until such 

time as the Science Advisory Board completes its review of the Report and the Report is 

finalized. Failure to do so puts the legitimacy of the Report, and thus, the underlying 
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Requirements

198

science of the rule, in doubt, and creates the impression that the EPA intends to finalize 

this rule on its own whims, rather than on the validity of the science. (p. 1 – 2)

Agency Response: See section 13.2.1 summary response for information 

regarding the Administrative Procedure Act. See section 13.1 summary response for 

information regarding the Connectivity Report. 

United States Senate, Committee on Environment and Public Works (Doc. #4907)

13.337 Equally important, we believe EPA and the Corps should immediately cease in their 

proclamations that the agencies' proposal is a justified response to various calls for a 

CWA rulemaking.201 In fact, EPA and the Corps are using rulemaking requests as an

excuse to pursue a rushed, predetermined agenda, as opposed to engaging in a 

deliberative, fair, and transparent regulatory process. EPA and the Corps chose to release 

their proposed rule despite failing to 1) sufficiently consult with affected states; 2) allow 

for completion of the Science Advisory Board review of the so-called "Connectivity 

Report"; and 3) conduct a statutorily-required small business analysis and outreach 

pursuant to the Regulatory Flexibility Act (RFA), among other mandatory procedures. 

EPA and the Corps' decision to proceed despite the numerous concerns identified by 

lawmakers and stakeholders is incredibly disappointing. (p. 1 – 2)

Agency Response: See section 13.2.1 summary response for information 

regarding the Administrative Procedure Act. See section 13.1 for information on the 

Connectivity Report. See section 11.1 for information on RFA/SBREAFA in 

compendium 11. 

United States Senate (Doc. #15083)

13.338 Bias Factor #5: EPA's Social Media Advocacy in Favor of the Proposed "Waters of the 

United States" Rule Prejudices the Rulemaking Process.

EPA staff are asking the public to influence the agency's view of the proposed "waters of 

the United States" rule. In fact, the Twitter account for EPA's Office of Water is now 

essentially a lobbyist for the proposed rule. A few months ago, EPA established a website 

called "Ditch the Myth," which declares that the proposed rule "clarifies protection under 

the Clean Water Act for streams and wetlands that form the foundation of the nation's 

water resources."202 The agency has now gone so far as to solicit others to seek to 

influence EPA regarding the proposed rule, urging social media users to "show their 

 

201 See Nancy Stoner, Input Critical lo Rule on Waters of the U. S., EPA Connect (March 25,20 1 4) ("In large part, 

it

was public input that led us to propose a rule. Since 2008, EPA and the Corps have received numerous requests for a

rulemaking to provide clarity on protections under the Clean Water Act from members of Congress, state and local

officials, industry, agriculture, environmental groups, scientists, and the public."),

http://blog.epa.gov/epaconnectl2140/ 03linput-critical-to-rule-on-waters-of-the-u-s

202 DITCH THE MYTH, http://www2 .epa.gov/uswaters/ditch-myth.
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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199

support for clean water and the agency's proposal to protect it.''203 These actions raise 

serious questions about compliance with the Anti-Lobbying Act.204

The integrity of the rulemaking process is in jeopardy, if not already tainted. EPA's social 

media advocacy removes any pretense that the agency will act as a fair and neutral arbiter 

during the rulemaking. Why should any landowner believe that EPA will seriously and 

meaningfully examine adverse comments regarding the proposed rule's impact on 

ditches, for example, when the agency has already pronounced that the proposed rule 

"reduces regulation of ditches"?205 Why should state officials believe that their concerns 

with the proposed rule will be fully considered, when EPA has already determined that 

the proposed rule "fully preserves and respects the effective federal-state partnership . . . 

under the Clean Water Act"?206

EPA's social media advocacy is a firm indicator that adverse comments will receive scant 

attention during the rulemaking period. We question whether the "waters of the United 

States" rulemaking can be conducted in accordance with the Administrative Procedure 

Act and its objective that agencies "benefit from the expertise and input of the parties 

who file comments with regard to [a] proposed rule" and "maintain a flexible and open 

minded attitude towards its own rules"?207

We are dismayed that the Administration has failed to adhere to its impartial obligations 

under the law. Moreover, this bias has been reflected in comments from NWs as well. 

Based on similar statements from groups such as Organizing for Action, Natural 

Resources Defense Council, and Clean Water Action, it is as though the Administration 

and its environmentalist allies are of one mindset, eager to paint the proposed rules critics 

as anything other than concerned citizens.

At the same time, although the above groups are entitled to have a misguided and flawed 

perspective on the proposed "waters of the United States" rule, the Administration owes 

the American people a higher level of discourse. To date, however, this rulemaking has 

been plagued by administrative bias and prejudicial grandstanding. It is therefore 

incumbent on EPA and Corps to reverse course, withdraw the proposed rule, and commit 

to working more cooperatively with interested stakeholders in future regulatory 

proceedings. (p. 4 – 5)

 

203 U.S. Environmental Protection Agency, Water Headlines for the Week of September 9, 2014,

http://water.epa.gov/aboutow/ownews/waterheadineay-6-2014-Issue.cfm

204 See 18 U.S.C. 8 191 3 (prohibiting the use of appropriated federal funds for the "personal service, advertisement,

telegram, telephone, letter, printed or written matter, or other device, intended or designed to influence in any

manner a Member of Congress, a jurisdiction, or an official of any government, to favor, adopt, or oppose, by vote

or otherwise, any legislation, law, ratification, policy, or appropriation").

205 See DITCH THE MYTH, supra note 1 1.

206 See id.

207 McCIouth Steel Prod. Corp. v. Thomas, 838 F.2d 13 17, 1325 @.C. Cir. 1988) (interpreting 5 U.S.C. i 553;

internal quotations omitted). See aha Letter from Waters Advocacy Coalition to EPA Administrator Gina

McCarthy and Secretary of the Army John M. McHugh re: Proposed Rule to Define Waters of the United States"

(Sept. 29,2014) (''The [Administrative Procedure Act] does not allow [EPA and the Corps] to keep altering the

regulatory landscape throughout the r d d i n g process, Indeed, the public cannot lx expected to provide

meaningful comment on a moving target."), available at http://www.fb.org/tmp/uploads/wacletter092914.pdf.
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

200

Agency Response: See section 13.2.1 summary response for information 

regarding the Administrative Procedure Act. 

The Anti-Lobbying Act does not prohibit the agencies from seeking input from the 

public on a rulemaking or restrict the agencies from educating or informing the 

public on a rulemaking under development – i.e., the types of activities described by 

the commenter. As noted in a recent Comptroller General opinion, “agency officials 

have broad authority to educate the public on their policies and views, and this 

includes the authority to be persuasive in their materials” – e.g. persuasive 

statements in “individual social security statements mailed to over 140 million 

Americans,” and letters “encouraging prosecutors to work with legislators to update 

local marijuana laws”. B-325248, U.S. Comp. Gen., Sept. 9, 2014. See also B319075, U.S. Comp. Gen., April 23, 2010, and B-304715, U.S. Comp. Gen., April 27, 

2005.

13.3.2. Executive Order 12866: Regulatory Planning and Review; and Executive Order 

13563: Improving Regulation and Regulatory Review

Summary of Comments on Executive Orders 12866 and 13563

The comments in this section address the Agency’s compliance with Executive Order 12866 -

Regulatory Planning and Review and Executive Order 13563 - Improving Regulation and 

Regulatory Review. A number of the commenters expressed concern that the regulatory process 

established by the agencies violated or were not consistent with the two Executive Orders. 

Commenters challenged the overall transparency of the rulemaking process and expressed 

concern that the language and definitions used in the proposed rule are ambiguous and create 

confusion over regulatory authority. These concerns led many to interpret the rule as an 

expansion of federal jurisdiction with the agencies’ interpretation of the Clean Water Act 

(CWA). A number of the commenters also indicated that the rule was missing a Retrospective 

review plan per EO 13563. Ultimately, commenters requested the agencies extend, re-propose, 

stay, or suspend the rulemaking process. 

Agencies’ Summary Response to Comments on Executive Orders 12866 and 13563 

Executive Order 12866 - Regulatory Planning and Review – directs agencies to submit 

significant regulatory actions to the Office of Information and Regulatory Affairs (OIRA) in the 

Office of Management and Budget (OMB) for review. Executive Order 13563- Improving 

Regulation and Regulatory Review- directs agencies to provide timely online access to the 

rulemaking docket for proposed and final rules, along with any relevant scientific and technical 

findings, on regulations.gov, and to afford the public the opportunity to comment on proposed 

regulations through the Internet. 

The agencies have fully complied with both of these Executive Orders. The proposed rule was 

submitted to the Office of Management and Budget, and as discussed in more detail in 

Compendium 11, the agencies conducted an analysis of indirect costs and benefits of the rule. 
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

Requirements

201

Rulemaking Process and Public Outreach

The proposed rule was published in the Federal Register on April 21, 2014 and provided a 90-

day comment period. The 90-day comment period was expected to close on July 21, 2014;

however on June 24, 2014, EPA issued an extension through October 20, 2014. On October 14, 

2014, EPA issued an additional extension for comment, through November 14, 2014. In addition 

to the extended comment period, the agencies launched a robust outreach effort during April, 

May and June, holding discussions in multiple states around the country and gathering input 

from stakeholders to shape the final rule. The public meetings were announced on the agencies’ 

website as well as through mass email distributions to known stakeholders. Ultimately, the 

agencies convened over 400 meetings nationwide with states, small businesses, farmers, 

academics, miners, energy companies, counties, municipalities, environmental organizations, 

other federal agencies, and many others to provide an enhanced opportunity to provide input on 

the proposed rule. 

The public outreach and consultation process for this rulemaking enhanced the development of 

the final rule as it allowed the agencies to hear from landowners, business people, farmers, 

scientists, energy companies, conservationists, states and local governments, and others who 

have valuable experience, clear perspectives, and important information. The final rule was 

developed after addressing and, as appropriate, incorporating comments from the public outreach 

efforts. The docket provides a detailed list of the outreach efforts conducted during this 

rulemaking process. 

Assessing the Impact of the Clean Water Rule:

The final rule interprets the CWA to cover those waters that require protection in order to restore 

and maintain the chemical, physical, or biological integrity of traditional navigable waters, 

interstate waters, and the territorial seas. This interpretation is based not only on legal precedent 

and the best available peer-reviewed science, but also on the agencies’ technical expertise and 

extensive experience in implementing the CWA over the past four decades. While many 

commenters assert that the rule broadens the scope of waters that would be covered under the 

Clean Water Act, the rule does nothing more than revise a definition, and does not itself regulate 

or impose any compliance burden on any entity. The rule does not include any waters that 

historically have not been covered under the Clean Water Act and places important qualifiers on 

some existing categories. In fact, the rule specifically reflects the more narrow reading of Clean 

Water Act jurisdiction established by the Supreme Court. Waters that have never been protected 

remain outside the scope of the Clean Water Act. As a result, the rule is deregulatory because 

fewer waters will fit within the definition and, thus, fewer waters will trigger regulatory 

requirements set out in other CWA regulations. 

The final rule does not establish regulatory requirements and, therefore, does not impose direct 

costs on any entity. Instead, it is a definitional rule that clarifies the scope of “waters of the 

United States.” Therefore, regulatory impact analysis is not needed for this rule. However, in 

compliance with EPA’s guidance on Executive Order 12866, the EPA and the Corps prepared an 

analysis of the potential costs and benefits associated with this action to better understand the 

incremental costs and benefits that may result from any change in the number of positive 
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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jurisdictional determinations208 associated with CWA programs relying on the definition of 

“waters of the United States.” This analysis is contained in ‘‘Economic Analysis of the EPAArmy Rule Clean Water Rule” (Docket Id No EPA-HQ-OW-2011-0880).

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is a ‘‘significant 

regulatory action.’’ Accordingly, the EPA and the Corps submitted this action to the Office of 

Management and Budget (OMB) for review under Executive Orders 12866 and 13563 (76 FR 

3821, January 21, 2011). Any changes made in response to OMB recommendations have been 

documented in the docket for this action. 

Executive Order 13563 directs agencies to “consider how best to promote retrospective analysis 

of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to 

modify, streamline, expand, or repeal them in accordance with what has been learned” and to 

“develop . . . a preliminary plan, . . . under which the agency will periodically review its existing 

significant regulations to determine whether any such regulations should be modified, 

streamlined, expanded, or repealed so as to make the agency’s regulatory program more effective 

or less burdensome in achieving the regulatory objectives.” It does not direct agencies to include 

a retrospective review plan in each rule is issues. Information on EPA’s retrospective reviews 

can be found at: http://yosemite.epa.gov/opei/RuleGate.nsf/.

Specific Comments

Northern Counties Land Use Coordinating Board (Doc. #3317)

13.339 EPA analysis under Executive Orders 12866 and 13563 as reflected in the April 21 

Federal Register appear superficial and inconsistent with the intent of these Executive 

Orders. E.O. 12866 states at Section 1(b)S: "... each agency shall consider incentives for 

innovation, consistency, predictability, the cost of enforcement and compliance(to the 

government, regulated entities, and the public), flexibility, distributive impacts and 

equity." Given the NCLUCB region's landscape, demography, and economy, it would be 

helpful to review a disparate impact analysis consistent with the distributive impact and 

equity mandate in E.O. 12866. The local governments and small businesses in this region 

are frequently regulated entities under federal and state water regulations due to the scale 

of our wetland resources. Our roads, housing developments, small business expansions, 

and public works projects are confronted with significant transaction costs associated 

with temporal, multi-jurisdictional, and hydrologic complexity.

The EPA's assertion that "the proposed rule will not have a significant economic impact 

on a substantial number of small entities" underlines the need for a more thorough 

analysis of distributive impacts and equity. (p. 2)

Agency Response: See the summary response and the Regulatory Flexibility Act 

response in Compendium 11.1. 

 

208 A “positive jurisdictional determination” is a decision to assert CWA jurisdiction over a particular water. The 

alternative is a “negative jurisdictional determination” which is a decision not to assert CWA jurisdiction over a 

particular water. It is important to note that the purpose of the economic analysis is not to estimate the change in the 

numbers of waters subject to jurisdiction.
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13.340 The publication: "Economic Analysis of Proposed Revised Definition of Waters of the 

United States" written to comply with E.O. 12866 appears to contradict assertions from 

the Federal Registry. For example, the Federal Registry at page 22220 states: "The scope 

of regulatory jurisdiction in this proposed rule is narrower than that under the existing 

regulations." While in the Economic Analysis, EPA analysts state that the potential 

regulation of "other waters" which are not now regulated would expand federal 

jurisdiction under the Clean Water Act. The Economic Analysis also suggests that 

"Benefits may also be realized from more comprehensive enforcement efforts that could 

result from the proposed rule." (p. 10)

Agency Response: As explained in the Agencies’ Economic Analysis, there are two 

potential ways of viewing the “baseline” for evaluating the impacts of this rule. 

When determining waters covered by the CWA today, the agencies are making 

jurisdictional determinations consistent with the law, existing regulations and 

policy, and the Supreme Court rulings in 2001 and 2006. This scope of waters 

covered by the CWA today is considerably smaller than the scope of waters 

historically covered prior to the 2001 and 2006 Supreme Court decisions. Based on 

the reduction in the scope of CWA jurisdiction, the agencies conclude that the new 

rule would impose no additional costs when compared to historic application of the 

regulation it replaces. 

For purposes of its economic analysis, however, the agencies evaluated costs and 

benefits associated with the difference in jurisdictional determinations between the 

new rule and current field practice, which is based on the 2008 EPA and Corps 

jurisdiction guidance. This policy guidance has been implemented by the agencies 

since 2008 and reflects the Supreme Court decisions that limited assertion of CWA 

jurisdiction for some types of waters. Compared to this baseline, the agencies 

anticipate the new rule will result in an increase in the number of positive 

jurisdictional determinations and an associated increase in both costs and benefits 

that derive from the implementation of CWA programs.

13.341 In an op-ed article posted on March 25, 2014, EPA Administrator Gina McCarthy

illustrates this same internal contradiction by stating: "Our proposed rule will not add to 

or expand the scope of waters historically protected under the Clean Water Act" and 

"we're proposing a Clean Water Act rule that clarifies which waters are protected- with 

an eye toward those critical waters upstream."(italics added) As an organization that 

represents eight upstream counties, it is difficult to interpret these two statements as 

anything but self-contradictory. 

A ninety day extension of the comment period would give federal regulators the

opportunity to resolve this apparent contradiction and assist members of the regulated 

community, both private and public, to better understand the breadth of jurisdiction 

proposed therein. The time extension may even assist federal regulators in achieving one 

of the General Principles of Regulation cited in E.O. 13563: to ... " promote predictability 

and reduce uncertainty" in proposed regulations. (p. 2 – 3)

Agency Response: See section 13.1.1 summary response for information 

regarding Executive Order s for Regulatory Planning (12866) and Review and 

Improving Regulation and Regulatory Review (13563).
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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Kansas Senate Committee on Natural Resources (Doc. #4904)

13.342 Executive Orders 12291 and 12866 require EPA to prepare a Regulatory Impact (RI), 

cost-benefit analysis which describes all alternatives, including No Action, for those 

Major Federal Actions under consideration. The RI analysis is to include demonstration 

of the net aggregate benefit of each alternative(s) and how such analyses were 

coordinated with local and state governments. Please provide the RI analysis your agency 

performed for each Kansas County affected by the proposed WOTUS Rule, along with a 

summary of how EPA has worked with local Kansans in preparing the WOTUS Rule. (p. 

1)

Agency Response: See section 13.1.1 summary response for information 

regarding Executive Order s for Regulatory Planning (12866) and Review and 

Improving Regulation and Regulatory Review (13563).

Board of Douglas County Commissioners, Castle Rock, Colorado (Doc. #8145)

13.343 (...) Based upon our review of the above-referenced documents and our assessment of 

the impact the Proposed Rule may have on Douglas County if implemented in its current 

form, Douglas County respectfully requests that the EPA and United States Army Corps 

of Engineers (USACE) (collectively “Agencies”): (1) stay the current rulemaking process 

until the scientific assessment is final and the credibility of the Connectivity Report is 

established and the Agencies have the necessary scientific and technical foundation for 

the Proposed Rule; (2) stay the rulemaking process until the EPA’s Economic Analysis is 

revised and the EPA is able to conduct a complete cost-benefit study; then (3) revise the 

Proposed Rule based upon the findings and recommendations of the Connectivity Report 

and Economic Analysis and the comments submitted by stakeholders, and finally; (4) 

conduct a negotiated rulemaking process. (p. 3)

Agency Response: See section 13.1 summary response for more information 

regarding the Connectivity Report. See Compendium 11 for response to comments 

regarding cost/benefit analysis. 

13.344 The Proposed Rule is Not Ripe for Public Comment and Finalization 

1) A Final and Valid Connectivity Report is Necessary to Justify the Proposed Rule

The EPA has stated that it would conduct an exhaustive and peer reviewed scientific 

literature review to evaluate connectivity between various surface hydrologic features and 

downstream Traditional Navigable Waters (TNWs) prior to development of the Proposed 

Rule. However, the Agencies are on the path to finalizing the Proposed Rule while the 

Connectivity Report currently remains in draft form. Requesting comments on the 

Proposed Rule before the Connectivity Report is final is problematic. The purpose of the 

Connectivity Report should be to provide the science and technical foundation for the 

Proposed Rule. The Connectivity Report is a compilation of independent peer-reviewed 

scientific literature that, when finalized, is intended to provide the scientific justification 

for the Agencies’ interpretation of when waters are subject to CWA jurisdiction. The 

chartered Science Advisory Board (SAB) is currently conducting quality reviews of its 

peer review reports on the Connectivity Report and is deliberating on the adequacy of the 

scientific and technical basis of the Proposed Rule. Any final regulatory action related to 
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CWA jurisdiction must be based upon a complete and validated version of the 

Connectivity Report.

There are significant issues with the current draft Connectivity Report that requires the 

Agencies’ attention before continuing with the rulemaking process. First, the 

Connectivity Report does not evaluate connectivity in a regulatory context, i.e., what 

connections are sufficient to be considered a “significant nexus”. The Connectivity 

Report fails to establish any scientific basis for determining the existence of a 

“significant nexus,” and thus fails to provide a scientific basis for any rule defining 

federal jurisdiction. Instead, the report identifies only the presence of connections, 

without considering the significance of those connections. Second, the Connectivity 

Report does not address how the Agencies plan to conduct case-by-case reviews for 

determining jurisdiction of water bodies located outside floodplains. Finally, the 

Connectivity Report ignores the law—that the Supreme Court has rejected that the idea 

that a “significant nexus” is established by any hydrological connection. The report does 

not identify how the existing connectivity literature will guide the Agencies in 

determining and justifying the idea of a “significant nexus” and therefore the expansion 

of the scope of their jurisdiction under the CWA. According to law established by recent 

decisions by the Supreme Court, the CWA regulates navigable water and certain other 

waters with a “significant nexus” to navigable waters. All other water must be left to the 

states to regulate. Douglas County respectfully requests that the Agencies follow the 

proper course of action to ensure that the Proposed Rule is based upon a valid scientific 

and technical foundation: (1) revise the Connectivity Report based upon the comments 

and concerns expressed by Douglas County and other stakeholders; (2) finalize the 

Connectivity Report; (3) revise the Proposed Rule accordingly pursuant to the findings 

and recommendations in the Connectivity Report; and (4) reissue the Proposed Rule for 

public comment. Following this expanded process will allow stakeholders to submit 

informed comments based on the best and most current available information. See 

Executive Order 12866, Regulatory Planning and Review, September 30, 1993 and 

Executive Order 13563, Improving Regulation and Regulatory Review, January 19, 2011 

(agency should seek the involvement of State, local, and tribal officials and should afford 

the public a meaningful opportunity to comment). (p. 3 – 4)

Agency Response: See section 13.1 summary response for information regarding 

the Connectivity Report. For additional information on the final Connectivity 

Report and how this information was considered in the development of today’s rule, 

please see Compendium 9.

13.345 2) The Economic Analysis Does Not Conform to Executive Order 13563 

Agency Response: The CWA regulates “navigable waters,” defined as “waters of 

the United States.” 33 U.S.C. §§1344, 1362(7). The CWA was enacted pursuant to 

Congress' authority to regulate interstate commerce under Article 1, section 8 of the 

Constitution. As a result, regulatory agencies violate the Constitution when their 

enforcement of the act extends beyond the regulation of interstate commerce. 

Congress did not intend for the CWA to cover all waters. When it enacted the 

CWA, Congress explicitly “recogniz[ed], preserv[ed], and protect[ed]” the States’ 

primary authority and responsibility over local land and water resources. 33 U.S.C. 
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§1251(b). Overreaching interpretations of the CWA “result in a significant 

impingement of the States’ traditional and primary power over land and water 

use.” Rapanos, 547 U.S. at 738 (quoting SWANCC, 531 U.S. at 174). Executive 

Order 13563 (EO 13563) includes several key instructions to Federal Agencies, 

including requirements that they should propose or adopt a regulation only upon a 

reasoned determination that its benefits justify its costs and should tailor regulation 

to impose the least burden on society. In doing so, EO 13563 requires that the 

Agencies use the best available techniques to quantify costs and benefits as 

accurately as possible. While Douglas County appreciates the willingness of the EPA 

offices to participate in teleconference calls to discuss the Proposed Rule, we must 

stress that information sharing does not equate to meaningful consultation. The 

Agencies should pursue an authentic partnership with the states representatives and 

local communities. (p. 4)

“The agencies have carefully tailored this rule based on the legal strictures of the 

statute and the governing caselaw. With regard to the comment that the agencies 

failed to tailor the regulation to be least burdensome on society, it misapprehends 

the nature of this rule, which is definitional only; any burdens are imposed by the 

Act and permitting regulations under it. In any case, the agencies have evaluated 

indirect costs associated with this rule and the rule is justified in ensuring that the 

regulations are consistent with the statute, available science and the caselaw.

13.346 (...) The inclusion of this additional cost in the Economic Analysis is a necessary 

component for a complete review of the Proposed Rule to ensure the Proposed Rule is 

not impeding standard public safety operations. Moreover, more information is required 

in the Economic Analysis to allow local units of governments such as Douglas County to 

determine actual objective impacts to MS4s and public rights-of-ways. The current draft 

Economic Analysis does not provide enough information wherein Douglas County can 

conclude that the Proposed Rule will not fiscally limit it from conducting standard 

operating procedures to construct and repair infrastructure to protect the public. 

Stakeholders cannot provide meaningful comment on the Proposed Rule without being 

afforded the opportunity to review and comment on a comprehensive Economic Analysis 

prior to the finalization of the Proposed Rule. (p. 9 – 10)

Agency Response: See section 13.1.1 summary response for information 

regarding Executive Order s for Regulatory Planning (12866) and Review and 

Improving Regulation and Regulatory Review (13563).

Douglas County’s Request to Expand the Rulemaking Process 

13.347 Douglas County respectfully requests that the Agencies follow the proper course of 

action to ensure that the Proposed Rule is based upon a valid scientific assessment and 

the Proposed Rule is enacted lawfully: (1) revise the Connectivity Report based upon the 

comments and concerns expressed by Douglas County and other stakeholders; (2) 

finalize the Connectivity Report; (3) revise the Proposed Rule accordingly 

pursuant to the findings and recommendations in the Connectivity Report; and (4) reissue 

the Proposed Rule for public comment. Following this expanded process will allow 

stakeholders to submit informed comments based on the best and most current available 

information.
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1) Revise and Validate the Connectivity Report 

The Connectivity Report is the scientific foundation the Agencies are required to have to 

justify the need for the Proposed Rule. However, to date, the EPA has identified only the 

presence of connections between stream, wetlands and downstream waters. Douglas 

County requests further study by EPA on specific literature references and with 

assistance from the SAB Panel for the Peer Review of the Connectivity Report to identify 

the strength of connectivity impacts. Further, connections should be evaluated to the 

degree that when altered, they significantly affect downstream waters. For example, an 

ephemeral tributary can transport sediment to downstream waters, but if the receiving 

TNW is the South Platte River and the tributary, in combination with other tributaries, 

transports an insignificant quantity of sediment, it does not appear consistent with the 

U.S. Supreme Court’s rulings to capture those ephemeral tributaries into the scope of 

WOUS. 

By proceeding with the rulemaking process before obtaining a final validated 

Connectivity Report, the Agencies are effectively jumping ahead to the final rule and are 

undermining the importance of the scientific assessment and rulemaking process. The 

Agencies are avoiding making the suggested changes in the Connectivity Report by 

publishing the rule before the report is final. Moreover, the Agencies are undermining the 

rulemaking process. By pushing forward with the rulemaking before the Connectivity 

Report is finalized, the Agencies are asserting that the rule, as-is, is a final decision, 

despite the fact that the rule may be based on unsound science. Finally, if enacted into 

law, the Proposed Rule will have the effect of establishing categorical federal jurisdiction 

over all tributary systems, riparian areas, and floodplains. Without the scientific basis, 

technical foundation, and costs-benefit analysis in place to support the Proposed Rule, the 

Agencies are acting arbitrarily and capricious in asserting such categorical jurisdiction.

(p. 12 – 13)

Agency Response: See section 13.1 summary response for information regarding 

the Connectivity Report. 

13.348 The Agencies’ and Stakeholders will Benefit from a Negotiated Rulemaking Process

As the Agencies are aware, the Proposed Rule is not widely supported and the Agencies 

have been subject to great criticism and, in some cases, resentment. Under the typical 

rulemaking process under the Administrative Procedure Act, agencies write a rule, 

publish the rule, accept comments from the public, then adopt the rule as they see fit. In 

Douglas County’s opinion, rules produced in this way often lack the support of concerned 

parties, which can hamper their effectiveness. 

Negotiated rulemaking is a realistic alternative to this adversarial administrative process. 

The negotiated rulemaking process allows affected interests to have greater control over 

the content of agency rules while ensuring fairness and balanced participation to all 

involved. The negotiated process also permits agencies to obtain a more accurate 

understanding of the impacts to interested parties, costs and benefits of rule, and 

alternatives than if the agencies are left to digest voluminous records of testimonial and 

documentary evidence presented in adversarial hearings.
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Rules drafted by negotiation have been found to be more pragmatic and more easily 

implemented at an earlier date, thus providing the public with the benefits of the rule 

while minimizing the negative impact of a poorly conceived or drafted regulation. See,

Environmental Protections Agency’s Policy on Alternative Dispute Resolution, 65 FR 

81858 December 18, 2000. Douglas County asks that the Agencies consider conducting a 

negotiated rulemaking process for the next revised draft of the Proposed Rule. This 

process will allow representatives of all interests that will be affected by the rule, 

including, but not limited to, the rulemaking agency, the regulated entities, public-interest 

groups, and concerned individuals to sit at a table and craft creative solutions to the 

problem that led to the Agencies determination that a rule is needed. (p. 15 – 16) 

Agency Response: The negotiated rulemaking process is used as a pre-proposal 

mechanism to develop a rule. It is most effective when affected parties have 

conflicting positions on what provisions should be in a rule and where a negotiated 

process could lead to consensus language for the rule. The process for developing 

this rule included pre-proposal opportunities for affected parties to provide input to 

the agencies (for detailed information see the sections on 13.2.5 on Federalism, 

13.2.6 on Tribal Consultation, and 11.1 on RFA/SBREFA in compendium 11). Since 

the rule has been proposed and the Agencies have received over one million 

comments, it would be inappropriate to ignore all of those comments to restart the 

rulemaking through a negotiated rulemaking process.

Beaver County Commission (Doc. #9667)

13.349 Issue 5: Failure to comply with Executive Orders 12866 (1993) and 13563 (2011)

References: FR page 22188, column 1. This proposal would enhance protection for the 

nation's public health and aquatic resources, and increase CWA program predictability 

and consistency by increasing clarity as to the scope of "waters of the United States" 

protected under the Act.

FR page 22189, column 1. ... the agencies request comment on alternate approaches to 

determining whether "other waters" are similarly situated and have a "significant nexus" 

to a traditional navigable water, interstate water, or the territorial seas.

FR page 22189, column 1. In particular, the agencies are interested in comments, 

scientific and technical data, caselaw, and other information that would further clarify, 

which "other waters" should be considered similarly situated for purposes of a casespecific significant nexus determination.

FR page 22189, column 2. The agencies also solicit comment on whether the legal, 

technical and scientific record would support determining limited specific subcategories 

of waters are similarly situated, or as having a significant nexus sufficient to establish 

jurisdiction.

FR page 22189, column 2. ... the agencies also request comment on determining which 

waters should be determined non-jurisdictional.

FR page 22189, column 2. The agencies seek comment on how inconclusiveness of the 

science relates to the use of case specific determinations. As the science develops, the 

agencies could determine that additional categories of "other waters" are similarly 
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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situated and have a significant nexus and are jurisdictional by rule, or that as a class they 

do not have such a significant nexus and might not be jurisdictional.

FR page 22189, column 2. The agencies pose the questions because of the strong intent to 

provide as much certainty to the regulated public and the regulators as to which waters 

are and are not subject to CWA jurisdiction. These comments on alternate approaches 

will inform the agencies in addition to the comments on the case-specific determination 

proposed in the rule.

FR page 22190, column 1. This notice also solicits information and data from the general 

public, the scientific community, and tribal, state and local resource agencies on the 

aquatic resource, implementation, and economic implications of a definition of "waters of 

the United States" as described in the proposal. The goal of the agencies is to ensure the 

regulatory definition is consistent with the CWA, as interpreted by the Supreme Court, 

and as supported by science, and to provide maximum clarity to the public, as the 

agencies work to fulfill the CWA's objectives and policy to protect water quality, public 

health, and the environment

Discussion: Executive Orders 12866 Regulatory Planning and Review (1993) and 13563 

Improving Regulation and Regulatory Review (2011) require that the federal regulatory 

system ensure, among other things, regulations that are consistent, written in plain 

language, and easy to understand. The proposed rule fails on all counts.

The stated purpose of this proposed rule, as evidenced by its title, is to define the "Waters 

of the United States" under the Clean Water Act, and as stated elsewhere (see above 

references), to increase clarity as to the scope of "waters of the United States". As has 

already been addressed, above, that term does not need to be defined. The CWA and the 

Supreme Court have already very adequately provided a definition. However, the 

proposed rule goes on to request comments that address so many other issues, and in such 

a self-referential and circular manner, that the proposed rule becomes nearly impossible 

to understand.

The Agencies have not published a proposed rule, but rather a request for the public to do 

the Agencies' own work. Rather than publish a proposed rule that presents definitions of 

terms and alternatives to those definitions in a consistent and easy to understand manner 

for the public to analyze and evaluate, the Agencies have created a rule that goes back 

and forth between confusing definitions scattered throughout the document and soliciting 

additional comments about definitions of terms that are not found anywhere near the 

request for comments. (See Issue 1 above, "bait and switch" discussion).

In the midst of all the confusion, it is difficult to understand precisely how the alleged 

purpose of clarification of scope actually would be achieved by complying with the 

proposed rules requests for comments. In fact, these many requests (only some of which 

are cited, above) are actually extremely loaded questions based on undisclosed 

presumptions meant to limit direct replies to only those that serve the Agencies' agenda.

Nowhere in the proposed document is it stated, in plain and direct language, that the 

result of defining the terms for the various waters would be that all waters so defined 

would automatically fall within the scope of jurisdictional authority of the Agencies. As 

has been mentioned in several comments prior to this one, this amounts to "mission 
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creep", which is enabled by not complying with the Executive Orders directives on 

regulatory planning. 

Recommendation: Withdraw the proposed rule. It is inappropriate and in violation of 

Executive Orders on regulatory planning. (p. 10 – 12)

Agency Response: See section 13.1.1 summary response for information 

regarding Executive Order s for Regulatory Planning (12866) and Review and 

Improving Regulation and Regulatory Review (13563).

Southwest Quay Soil and Water Conservation District (Doc. #19560)

13.350 SW Quay, as a governmental subdivision of the state of New Mexico, did not receive 

notice of impending rulemaking by EPA/COE per the following Executive Orders 12866 

and 13132 or the Clean Water Act requiring federal agencies to cooperate with state and 

local agencies. (p. 3)

Agency Response: The agencies conducted extensive outreach and fully complied 

with the executive orders. See section 13.1.1 summary response for information 

regarding Executive Order s for Regulatory Planning (12866) and Review and 

Improving Regulation and Regulatory Review (13563).

Water Advocacy Coalition (Doc. #17921.1)

13.351 H. The Proposed Rule Does Not Comply with Other Mandatory Statutory and 

Regulatory Requirements.

1. The agencies have not complied with E.O. 13563 (Improving Regulation and 

Regulatory Review).

The proposed rule fails to comply with Executive Order No. 13,563, titled “Improving 

Regulation and Regulatory Review” (E.O. 13,563). 76 Fed. Reg. 3,821 (Jan 21, 2011). 

That order provides: “Our regulatory system must protect public health, welfare, safety, 

and our environment while promoting economic growth, innovation, competitiveness, 

and job creation.” It adds that regulatory agencies must (1) base their requirements on the 

best available science, (2) promote predictability and reduce uncertainty, and (3) propose 

or adopt regulatory requirements only upon a reasoned determination that their benefits 

justify their costs. See E.O. 13563 §§ 2, 5. Also, the President has commanded the 

agencies to tailor their regulations to impose the least burden on society, consistent with 

obtaining its regulatory objectives, taking into account the costs of cumulative 

regulations, and to identify and assess available alternatives to direct regulation. See id. § 

1(b).

In drafting the proposed rule to define “waters of the United States,” it appears that the 

agencies chose to ignore or avoid their obligations under E.O. 13563. Specifically, as 

noted in section V.B., the proposed rule is not supported by the science. And 

fundamentally, as noted throughout these comments, the proposed rule will not provide 

predictability or reduce uncertainty. Moreover, there is no evidence that the agencies 

made a reasoned determination that the proposed rule’s environmental benefits (if any) 

will justify its jobs, development, and consumer cost burdens. To the contrary, as 

explained in section V.C. above, the agencies’ Economic Analysis fails to provide a 

reasonable assessment of the proposed rule’s costs and benefits, and grossly 
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underestimates the rule’s impacts. Moreover, it is clear that the agencies have not tailored 

the proposed rule to impose the least burden on society, taking into account the cost of 

cumulative regulations affecting stakeholders. Ultimately, the proposed rule is riddled 

with ambiguities and prospective implementation problems. The agencies have not 

crafted a revised definition of “waters of the United States” that “imposes the least 

burden on society” as required by E.O. 13563. (p. 96)

Agency Response: See section 13.1.1 summary response for information 

regarding Executive Order s for Regulatory Planning (12866) and Review and 

Improving Regulation and Regulatory Review (13563). For information on 

cost/benefit analysis, see Compendium 11.

Also, the Rule does nothing more than revise a definition, it does not itself regulate 

or impose any compliance burden on any entity. This final rule interprets the CWA 

to cover those waters that require protection in order to restore and maintain the 

chemical, physical, or biological integrity of traditional navigable waters, interstate 

waters, and the territorial seas. This interpretation is based not only on legal 

precedent and the best available peer-reviewed science, but also on the agencies’ 

technical expertise and extensive experience in implementing the CWA over the past 

four decades. 

With regard to the comment that the agencies failed to tailor the regulation to be 

least burdensome on society, it misapprehends the nature of this rule, which is 

definitional only; any burdens are imposed by the Act and permitting regulations 

under it. In any case, the agencies have evaluated indirect costs associated with this 

rule and the rule is justified in ensuring that the regulations are consistent with the 

statute, available science and the caselaw.

13.352 2. The rulemaking does not comply with E.O. 12866 (Regulatory Planning and Review).

The proposed rule fails to comply with Executive Order No. 12,866 of September 30, 

1993, titled “Regulatory Planning and Review” (E.O. 12,866). 58 Fed. Reg. 51,735. 

Pursuant to E.O. 12866, each agency “shall identify and assess available alternatives to 

direct regulation” and “alternative forms of regulation.” E.O. 12,866 at §§ 1(b)(3), 

1(b)(8). An agency also has a duty to “assess both the costs and benefits of the intended

regulation” and “propose or adopt a regulation only upon a reasoned determination that 

the benefits of the intended regulation justify its costs.” Id. § 1(b)(6). Moreover, E.O. 

12,866 requires an agency to base its regulatory decisions “on the best reasonably 

obtainable scientific, technical, economic, and other information concerning the need for 

and consequences of the intended regulation.” Id. § 1(b)(7). The EO requires an agency 

to tailor its regulations “to impose the least burden on society.” Id. § 1(b)(11). As 

discussed in section V.C., the Economic Analysis for the proposed rule is cursory and 

grossly underestimates the impacts of the proposed rule.209 As Professor Sunding’s 

review demonstrates, the Economic Analysis is not based on the best reasonably 

obtainable economic information. The agencies have not provided a true, comprehensive 

 

209 Indeed, a recent GAO report noted that EPA’s economic analyses are often limited in their usefulness

because the agency fails to monetize key benefits and costs, such as water quality effects. GAO 14-519, at 29 .
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analysis of the burdens that this proposed rule will impose on the regulated public. And, 

as explained in the GEI Report, the rule is not supported by the best reasonably 

obtainable scientific information.

Finally, E.O. 12866 requires an agency to “draft its regulations to be simple and easy to 

understand, with the goal of minimizing the potential for uncertainty and litigation arising 

from such uncertainty.” Id. § 1(b)(12). As discussed throughout these comments, the 

language of the proposed regulation is anything but clear. To the contrary, it is vague and 

ambiguous, and invites litigation arising from such uncertainty. In sum, the agencies have 

not complied with E.O. 12866 for this proposed rulemaking, and should withdraw and 

revise the rule to address these concerns. (p. 95 – 96)

Agency Response: See section 13.1.1 summary response for information 

regarding Executive Order s for Regulatory Planning (12866) and Review and 

Improving Regulation and Regulatory Review (13563). See summary response on 

cost/benefit and the Economic Analysis in Compendium 11.

National Association of Home Builders (Doc. #19540)

13.353 c. The Agencies Failed to Comply with Executive Order 12,866.

The proposed rule fails to comply with Executive Order (E.O.) 12,866, entitled 

“Regulatory Planning and Review,”210 which lays out the basic processes and 

considerations for federal rulemakings. Pursuant to E.O. 12866, each agency is to identify 

and assess available alternatives to direct regulation and alternative forms of regulation to 

reduce costs and burdens. Agencies must also assess the costs and benefits of proposed 

regulations and only adopt those whose benefits justify their costs. Importantly, E.O. 

12866 also requires agencies to base regulatory decisions “on the best reasonably 

obtainable scientific, technical, economic, and other information concerning the need for 

and consequences of the intended regulation.”211

Unfortunately, the proposal falls short on all counts. EPA’s Economic Analysis for the 

proposed rule, for example, is cursory, grossly underestimates the costs, and is not based 

on the best reasonably obtainable economic information. Likewise, as discussed in 

Section IX., the proposed rule is not based on the best reasonably obtainable scientific 

information. Equally troubling, despite the Order’s clear directive that agencies’ avoid 

undue interference with state, local, and tribal governments, the proposal meddles with 

the federal/state balance and confuses the question of which entity ultimately has 

authority over any given water.

E.O. 12866 also requires each agency to “draft its regulations to be simple and easy to 

understand, with the goal of minimizing the potential uncertainty and litigation arising 

from such uncertainty.”212 As highlighted throughout these comments, the language of 

the proposed rule is far from clear. It is vague and ambiguous and invites litigation 

arising from the substantial uncertainty and agency deference.

 

210 58 Fed. Reg. 51,735 (Sept. 30, 1993).

211 Id. § 1(b)(7).

212 Id. § 1(b)(12).
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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The Agencies have not complied with E.O. 12866 and must withdraw and revise the 

proposed rule to meet its requirements. (p. 159)

Agency Response: See section 13.1.1 summary response for information 

regarding Executive Order s for Regulatory Planning (12866) and Review and 

Improving Regulation and Regulatory Review (13563). For information on 

cost/benefit, see the summary response on and the Economic Analysis in 

Compendium 11. 

Lyman-Richey Corporation (Doc. #14420)

13.354 As President Clinton made clear in Executive Order 12866, “The American people 

deserve a regulatory system that works for them, not against them[.]” The Order also 

demands: “Each agency shall tailor its regulations to impose the least burden on society, 

including individuals, businesses of differing sizes, and other entities (including small 

communities and governmental entities), consistent with obtaining the regulatory 

objectives ... .”213 The Agencies have failed in this regard, in part, because they have 

improperly circumvented their duties under the RFA, as amended. As discussed above, 

the Proposed Rule’s categorical treatment of various waters results in a massive burden 

shift from the regulator to the regulated community. Whereas previously the Agencies 

would have had to prove that waters were jurisdictional before requiring or enforcing a 

permit, the Proposed Rule will now require members of the regulated community to 

prove their way out of a permit requirement. These and other stifling burdens imposed by 

the Proposed Rule have been ignored. Absent a proper RFA analysis, the Proposed Rule 

will remain legally and factually deficient.214 (p. 10 – 11)

Agency Response: See section 13.1.1 summary response for information 

regarding Executive Order s for Regulatory Planning (12866) and Review and 

Improving Regulation and Regulatory Review (13563). For information on 

cost/benefit, see the summary response on and the Economic Analysis in 

Compendium 11. 

Also, the Rule does nothing more than revise a definition, it does not itself regulate 

or impose any compliance burden on any entity. 

National Lime Association (Doc. #14428)

13.355 E. The Proposed Rule’s Ambiguity and Deficiencies Deprive the Public of a Meaningful 

Opportunity to Comment.

(...) As discussed in detail above, the rule as currently proposed is ambiguous and 

significantly deficient in setting forth many, much-needed details in its regulatory text. 

Given the Agencies’ stated objectives for this rulemaking, however, NLA assumes that 

the Agencies will not only agree with the concerns expressed in these comments, but will 

also agree with and undertake to make the revisions we have recommended. However, 

even if the Agencies were to make some or all of the recommendations NLA 

 

213 Id., Section 1(b)(11).

214 Compare letter April 9, 2014 from members of the Senate Committee on Environment and Public Works, urging

the agencies to conduct a proper RFA analysis. (Exhibit E)
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recommends, it remains to be seen exactly how significant the changes would be when 

compared with the current proposal, and how the revised regulatory text would be 

worded. Under such circumstances, it is questionable whether the public will, in fact, 

have been given a meaningful opportunity to comment on the proposed rule. In NLA’s 

opinion, because of the significant ambiguity of the current proposed rule and its many 

deficiencies, the answer at the present time has to be “No.”

As we have stated throughout these comments, the proposed rule needs to be withdraw, 

rewritten and re-proposed. Doing so is the only way for the Agencies to ensure that the 

public has, indeed, been given the requisite meaningful opportunity to review and 

comment on the significant revisions to the proposed rule which are clearly needed. (p. 

19)

Agency Response: See section 13.1.1 summary response for information 

regarding Executive Order s for Regulatory Planning (12866) and Review and 

Improving Regulation and Regulatory Review (13563).

National Federation of Independent Business (Doc. #1653)

13.356 Finally, we believe granting an extension is consistent with President Obama’s Executive 

Order 13563, “Improving Regulation and Regulatory Review,” signed on January 18, 

2011. In particular, this executive order calls for “an opportunity for public comment on 

all pertinent parts of the rulemaking docket, including relevant scientific and technical 

findings.” We believe the information in the NFIB Legal Center’s FOIA request fits the 

criteria for technical findings. (p. 2)

Agency Response: See section 13.1.1 summary response for information 

regarding Executive Order s for Regulatory Planning (12866) and Review and 

Improving Regulation and Regulatory Review (13563).

Mercatus Center at George Mason University (Doc. #12754)

13.357 In addition to this proposed rule, the agencies promulgated an associated rule 

interpretation in a manner that may allow important elements to slip under the radar in 

terms of analysis. The agencies should fully comply with Executive Order 12866 and 

prepare a regulatory impact analysis for all significant regulatory actions. (p. 2)

Agency Response: See section 13.1.1 summary response for information 

regarding Executive Order s for Regulatory Planning (12866) and Review and 

Improving Regulation and Regulatory Review (13563). For additional information 

cost/benefit analysis see the comment response on Economics in compendium 11.

George Washington University Regulatory Studies Center (Doc. #13563)

13.358 Planning for Retrospective Review

The Agencies have failed to incorporate a retrospective review plan into their rule 

pursuant to presidential executive order and sound policy. (p. 10)

Agency Response: See section 13.1.1 summary response for information 

regarding Executive Order s for Regulatory Planning (12866) and Review and 

Improving Regulation and Regulatory Review (13563).
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13.359 (...) The Agencies’ Economic Analysis attempts to evaluate the impact of the proposed 

rule on affirmative assertions of jurisdiction using a baseline of 2009 – 2010 field 

practices.215 But nowhere in this document, nor in the proposed rule itself, do the 

Agencies outline a plan of retrospective review or for evaluating the outcomes of any 

expansion or increase in jurisdictional coverage of CWA regulations brought about by 

their undefined process of establishing significant nexus. (p. 13)

Agency Response: See section 13.1.1 summary response for information 

regarding Executive Order s for Regulatory Planning (12866) and Review and 

Improving Regulation and Regulatory Review (13563). For additional information 

cost/benefit analysis see the comment response on Economics in compendium 11.

13.360 (...) Given the Agencies’ stated goals of increasing transparency, predictability and 

consistency, each one should be linked with specific measures going forward.

Measurement Criteria & Measuring Linkages

In order to measure the success of this proposed rule, over time, following 

implementation, it is necessary for the Agencies to define what constitutes success. Thus, 

defining metrics of success is an important element of this rule. Any stated metrics of 

success should be linked to the problems identified, and they should demonstrate that the 

proposed standards actually accomplish the stated end goal. Regrettably, the Agencies do

not outline a plan for retrospective review post promulgation; rather, as quoted above, 

they state that “the purposes of the proposed rule are to ensure protection of our nation’s 

aquatic resources and make the process of identifying ‘waters of the United States’ less 

complicated and more efficient.”216 

Throughout the proposed rule and its economic analysis217 the Agencies list a number of 

new outputs, or direct and measurable effects of the proposed rule. These effects (positive 

and negative), along with our recommended metrics for assessing them, are listed below:

 Decreases in number of floods and flood damages218

 Metric: Changes in the number and/or severity of floods per year and 

accompanying changes in monetary values of flooding damages.

 Increases in jurisdictional determinations219

 Metric: Number of jurisdictional determinations and area under 

jurisdiction.

 Changes in litigation surrounding definitions and jurisdictional determinations.220

 Metric: Agency and private expenditures on relevant litigation matters; 

number of staff involved in litigation matters.

 

215 Economic Analysis at page 2 and 12.

216 79 FR 22190

217 EPA and USACE (2014). “Economic Analysis of Proposed Revised Definition of Waters of the United States.”

218 Economic Analysis at page 9

219 Economic Analysis at page 12

220 Economic Analysis at page 18
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 Effects on CWA program applications

o Metric: Reduction/increase in the number of permits sought under the 

various CWA permits, not just section 404

 Indeterminate changes in the private cost of obtaining a permit221

o Metric: Average permit cost, total permit cost

 Increased administrative costs222

o Metric: Agency expenditure on administrative expense; number of staff 

involved in administrative process.

These practical metrics could help the Agencies conduct a meaningful retrospective 

review. The Agencies also list a number of more general yet still quantifiable expected 

outcomes, which are listed below, along with some example metrics for the Agencies’ 

use:

 Reinforcement of ecosystem services and water quality223

o Metric: Changes in affected fish and shellfish populations; changes in 

water contamination levels.

 Better transparency, predictability, consistency, effectiveness, and efficiency

 Improved level of certainty for investors.224

o Metric: Amount of relevant investment undertaken controlling for 

economic conditions.

The metrics above are not exhaustive and are meant to be heuristic only. The following 

section, Information Collection, provides recommendations to the Agencies on how to 

best collect the data necessary to use these metrics. The Agencies should consult with the 

Office of Management and Budget (OMB) to formulate a plan of retrospective review 

that aligns with the purposes of their rule defining the Waters of the United States. (p. 14 

– 15)

Agency Response: See section 13.1.1 summary response for information 

regarding Executive Order s for Regulatory Planning (12866) and Review and 

Improving Regulation and Regulatory Review (13563).

13.361 Timeframe

Since the Agencies have not included a plan of retrospective review in this proposed rule, 

it follows that there is no timeframe for such an evaluation in it at this moment.

The Agencies’ Economic Analysis does use a baseline of 2009 – 2010 from which data 

was collected on assertions of jurisdiction. The data were then loaded into models to 

 

221 Economic Analysis at page 14

222 Economic Analysis at page 18

223 Economic Analysis at page 8

224 Economic Analysis at page 10
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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predict future assertions of jurisdiction, say, over “other waters.” The Agencies may want 

to solicit further comment on what baseline or baselines should be used post 

promulgation. Given the resort, over the past, to interim guidances and now invalidated 

rules, multiple baselines may be useful to policy-makers in the future who need to 

evaluate alternative regulatory regimes and their impact on regulated entities.

In any final rule including such a “lookback” plan, the Agencies should identify a 

timeframe for such a review and indicate, with sufficient specificity, how soon after 

implementation it will begin to measure the progress of its stated metrics. That said, data 

collection should begin immediately at the inception date of the rule with a view toward 

ensuring accurate evaluations of definitional impacts on the assertion of jurisdiction by 

the Agencies, in the field, and reducing reliance on modeling. Monitoring of these 

metrics should occur throughout the implementation period and for several years 

afterward. 

Recommendation

The Agencies should include a plan of retrospective review as outlined in these 

comments above. (p. 16 - 17)

Agency Response: See section 13.1.1 summary response for information 

regarding Executive Order s for Regulatory Planning (12866) and Review and 

Improving Regulation and Regulatory Review (13563).

13.362 Conclusion

These comments are offered to assist the Agencies 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:

 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. (p. 17)

Agency Response: See section 13.1.1 summary response for information 

regarding Executive Order s for Regulatory Planning (12866) and Review and 

Improving Regulation and Regulatory Review (13563). The agencies appreciate this 

commenter’s suggestions about how the agencies could measure the effectiveness of 

this rule going forward. To the extent the commenter is asserting that the Executive 

Order directs EPA to develop a retrospective review plan in the rulemaking itself, 

this is incorrect. Rather the EO directs agencies to conduct a retrospective review 

of existing regulations, not new ones as they are promulgated.
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13.3.3. Paperwork Reduction Act

Summary of Paperwork Reduction Act Comments

The comments in this section address the Paperwork Reduction Act. One commenter expressed 

concern that the agencies misrepresented the impacts of the proposed rule on paperwork 

collection. The commenter expressed concern that the action will increase paperwork and be a 

burden to the public. The other comment in this section suggests that the agencies collected key 

metrics data (e.g., environmental and administrative cost data) after completion of the final rule. 

Agencies’ Summary Response to Paperwork Reduction Act Comments

The Paperwork Reduction Act (PRA) was enacted to minimize the paperwork burden for 

individuals; small businesses; educational and nonprofit institutions; Federal contractors; State, 

local and tribal governments; and other persons resulting from the collection of information by or 

for the federal government. The Act generally provides that every federal agency must obtain 

approval from the Office of Management and Budget (OMB) before using identical questions to 

collect information from 10 or more persons.

This rulemaking will not impose any information collection burden under the provisions of the 

Paperwork Reduction Act, 44 U.S.C. 3501 et seq See, 5 CFR 1320.3(b). It is important to note 

that, under the PRA, the meaning of the term “paperwork” is limited. It applies only to 

information required to be provided to the federal government. This rule does not impose an 

information collection, because it does not require any entity to “generate, maintain or provide” 

information to the Agencies. In other words, the rulemaking does not impose a collection of 

information that triggers the PRA. Specifically, there are no new approval or application 

processes required as a result of this rulemaking that necessitate a new Information Collection 

Request (ICR). If EPA collects information when it conducts a retrospective review of this rule, 

the PRA may be triggered at that time.

In development of this final rule the agencies have collected new data and information from 

comments provided during the rulemaking process. Thus, the agencies do not currently plan to 

collect additional data that would trigger the need for an ICR and approval from OMB. 

Specific Comments

Uintah County, Utah (Doc. #12720)

13.363 IV. Related Acts of Congress, Executive Orders, and Agency Initiatives

B. Paperwork Reduction Act - The Agencies have misrepresented the impacts of the 

proposed rule on paperwork collection. The Agencies are representing that the proposed 

rule change will not impose any information collection burden. The Agencies also assert 

that there is no new approval or application processes required as a result of this rule.

Perhaps this is simply a function of bureaucratic jargon, but it is entirely unlikely that this 

rule won't cause more paperwork. While the County agrees that the exact wording of the 
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proposed rule doesn't require additional paperwork, the implementation of those 

definitions will require significant new paperwork. The Agencies admit as much on page 

22198, when they acknowledge a case-specific analysis will be required for the 

significant nexus determination.

It seems most likely that the Agencies have yet to determine exactly what the impact of 

the new rule will be with respect to new paperwork. Clearly, the definition changes will 

result in more paperwork if for no other reason than the number of waters of the US 

could increase greatly. The Agencies may be trying to separate the proposed rule from 

the implementing manuals, handbooks and policies.

In either event, the statement in the proposed rule will be a burden to the common citizen.

(p. 5)

Agency Response: See section 13.2.3 summary response for information 

regarding the Paperwork Reduction Act.

George Washington University Regulatory Studies Center (Doc. #13563)

13.364 Information Collection

Consistent with the requirements of the Paperwork Reduction Act, the Agencies should 

commit to collecting the information, or analyzing the raw data and information already 

collected, needed to measure the rule’s success. Two distinct types of necessary 

information are available for a retrospective review of this rule: environmental data and 

administrative data. A third type is compliance costs of the regulated community in 

seeking permits, though this information is generally less accessible to the Agencies. The 

Agencies should consider collecting these data to better measure the effects of their rule.

As previously mentioned, specific environmental effects of the proposed rule include a 

reduction in flooding and reinforcement of ecosystem services. Measurement of flood 

incidence damages already occurs through the Federal Emergency Management Agency 

(FEMA). FEMA measures significant flood events, which are flooding events with at 

least 1,500 losses paid by the National Flood Insurance Program (NFIP).225FEMA also 

measures all policy and claim statistics by calendar year.226 The Agencies may utilize 

future FEMA and NFIP statistics to determine if, in retrospect, there was indeed less 

incidence of flooding following enactment of the proposed rule.

Reinforcement of ecosystem services is a broad outcome and is thus difficult to measure 

precisely. However, selection of proxy variables allows for benchmarking and tracking of 

changing outcomes. Two suggested proxy variables are fish and/or shellfish populations 

and water contamination level. Although these statistics are not tracked at the national 

level, the Agencies can aggregate various local data sets to the extent necessary.

The second type of information the Agencies should consider collecting is administrative 

cost data. As previously mentioned, the proposed rule will affect permit application costs, 

 

225 Federal Emergency Management Agency, “Significant Flood Events.” http://www.fema.gov/significant-floodevents.Updated August 31, 2014.

226 Federal Emergency Management Agency. “Statistics by Calendar Year.” https://www.fema.gov/statisticscalendar-year
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and the Agencies will bear new administrative costs to process these applications. The 

Corps Cost Engineering and Resource Management Offices as well as the EPA Inspector 

General and Resource Management Offices should track changes in these costs. In 

addition, these offices should coordinate with their legal and counselor’s offices to track 

litigation expenses arising from jurisdictional changes and other unforeseen issues 

associated with the proposed rule. (p. 15 – 16)

Agency Response: See section 13.2.3 summary response for information 

regarding the Paperwork Reduction Act.

13.3.4. Unfunded Mandates Reform Act

Summary of Unfunded Mandates Reform Act Comments

A number of commenters stated that the rule would create a significant regulatory and financial 

burden resulting in an unfunded mandate for state and local governments. In addition, several 

commenters expressed that the proposal was not evaluated according to UMRA and explicitly 

recommended that the proposed rule be withdrawn, vetted with stakeholders and evaluated in a 

manner consistent with the UMRA. Finally, a number of commenters indicated that EPA failed 

to conduct impact analyses to assess the direct and indirect costs or savings this rule may have on 

state, local, and county governments, as required by Unfunded Mandate reform Act (UMRA).

Agencies’ Summary Response to Unfunded Mandates Reform Act Comments

This action does not contain an unfunded mandate under the regulatory provisions of Title II of 

the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1531-1538), and does not 

significantly or uniquely affect small governments. Specifically, UMRA is triggered by the 

imposition of a “Federal mandate” that may result in the expenditure of funds by State, local, or 

tribal governments, in the aggregate, or by the private sector of $154 million or more in any one 

year. A “Federal mandate” is defined under UMRA as a provision of a Federal statute or 

regulation that would “impose an enforceable duty on State, local, or tribal governments, or the 

private sector.” This action imposes no enforceable duty on any state, local, or tribal 

governments, or the private sector, and does not contain regulatory requirements that might 

significantly or uniquely affect small governments. Rather, those enforceable duties are imposed 

by the CWA and existing CWA regulations. The definition of “waters of the United States” 

applies broadly to CWA programs. It does not itself directly regulate or impose any compliance 

burden on any entity. Entities whose actions impact waters of the U.S. are subject to legal 

obligations imposed by the Clean Water Act and existing implementing regulations. The rule 

does not alter those obligations.

This proposed rule contains no Federal mandates (under the regulatory provisions of Title II of 

the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-1538) for state, local, or tribal 

governments or the private sector. And, it does not directly regulate or affect any entity. 

Therefore, it is not subject to the requirements of sections 202 and 205 of UMRA.
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In addition, the agencies determined that this proposed rule contains no regulatory requirements 

that might significantly or uniquely affect small governments. The proposed definition of 

“waters of the United States” applies broadly to CWA programs. Any compliance requirements 

applicable to actions impacting that water will be imposed by existing federal regulatory 

requirements, not this rule.

Thus, this rule does not significantly affect small governments. Similarly, the entities affected 

by existing CWA programs are not limited to small governments. Thus, the rule does not 

uniquely affect small governments. Because the rule does not significantly or uniquely affect

small governments, it is not subject to the Small Government Agency Plan requirements of 

section 203 of UMRA.

Specific Comments

Kansas House of Representatives Committee on Energy & Environment (Doc. #4903)

13.365 On page 6 of the QAD, EPA claims the economic benefit of the Rule to range from $390 

- $510 Million, while citing costs that range from $160 - $278 M. As I know you are 

aware, the Unfunded Mandates Act227 (UMA) requires EPA to conduct impact analyses 

to the budget of individual local governments through published analysis before Federal 

Rules are proposed. Please provide this Committee with all UMA-related economic 

studies your agency is required to produce for each of the 105 Kansas counties and all 

Kansas rivers, streams and/or tributaries potentially affected by the proposed WOTUS 

rule. (p. 2)

Agency Response: See section 13.2.4 summary response for information 

regarding Unfunded Mandates. For information for economic analysis, see 

compendium 11.

Kansas Senate Committee on Natural Resources (Doc. #4904)

13.366 In Page 6 of the Q&A Document EPA cites the economic benefit ($390 - $510 M) of the 

WOTUS Rule to be "about double the potential costs" ($160M - $278M). The Unfunded 

Mandates Act (UMA) requires EPA to conduct impact analyses to the budgets of 

individual local governments through published analysis before proposed Rules. 

Specifically, EPA is required to prepare a county-by-county analysis of the direct and 

indirect costs or savings the proposed WOTUS Rule might have across our State - and by 

virtue of the values espoused in the Q&A Document, it appears your agency may have 

done so. Please provide this Committee with electronic and hard copies of the analysis 

required by UMA. Similarly, we would like to receive the UMA requirements presented 

in the context of all Kansas Rivers, streams and/or tributaries affected by the proposed 

WOTUS Rule. (p. 1)

Agency Response: See section 13.2.4 summary response for information 

regarding Unfunded Mandates. For information for economic analysis, see 

compendium 11.

 

227 2 USC §§1501(7)(B). 
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Illinois House of Representatives (Doc. #7978)

13.367 There is significant concern that additional federal revenue or assistance in the future to 

help meet the cost of this rule will not be forthcoming. Expansion of federal jurisdiction 

under the Clean Water Act will in fact be an unfunded mandate on the public and private 

sectors. Much of the anticipated cost of this rule would be financed from state and 

municipal resources and will divert limited resources from other essential public services.

(p. 2)

Agency Response: See section 13.2.4 summary response for information 

regarding Unfunded Mandates.

U.S. Chamber of Commerce (Doc. #14115)

13.368 Unfunded Mandates Reform Act

In the preamble to the proposal, the Agencies state that ‘[t]his proposed rule contains no 

Federal mandates (under the regulatory provisions of Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA),228 for state, local or tribal governments or the private 

sector. This proposed rule does not directly regulate or affect any entity and, therefore, is 

not subject to the requirements of sections 202 and 205 of UMRA.”229 In light of the 

wide variety of impacts on state and local governments discussed above—which will be 

imposed directly on these governments by the Agencies themselves—the Agencies had 

no valid basis to avoid meeting their obligations under UMRA. For this reason, the 

proposed rule should be withdrawn so that the Agencies can comply with their UMRA 

responsibilities. (p. 40)

Agency Response: See section 13.2.4 summary response for information 

regarding Unfunded Mandates.

Federal Water Quality Coalition (Doc. #15822)

13.369 C. The Proposed Rule Fails to Comply with the Unfunded Mandates Control Act.

The agencies also certified that: “This proposed rule contains no Federal mandates (under 

the regulatory provisions of Title II of the Unfunded Mandates Reform Act of 1995 

(UMRA), 2 U.S.C. 1531–1538 for state, local, or tribal governments or the private 

sector.”171 According to the agencies, the proposed rule does not directly regulate or 

affect any entity and, therefore, is not subject to the requirements of sections 202 and 205 

of UMRA.

As noted above, the proposed rule will require state, local, and tribal governments to take 

actions due to the expansion of jurisdiction, just as it will require small businesses, 

landowners, and the entire regulated community to take actions. The failure to consider 

local government impacts is another reason the agencies must withdraw the rule and issue 

a reproposal. (p. 61)

Agency Response: See section 13.2.4 summary response for information 

regarding Unfunded Mandates.

 

228 2 U.S.C. 1531-1538.

229 79 Fed. Reg. 22,220 (April 21, 2014).
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North Dakota Soybean Growers Association (Doc. #14121)

13.370 The preamble to the proposal states that “this proposed rule contains no Federal mandates 

(under the regulatory provisions of Title II of the Unfunded Mandates Reform Act of 

1995 (UMRA)” 230 for state, local or tribal governments or for the private sector. “This 

proposed rule does not directly regulate or affect any entity and, therefore, is not subject 

to the requirements of sections 202 and 205 of UMRA.” In light of the wide variety of 

impacts on state and local governments, which will be imposed directly, the agencies 

have no valid basis to avoid meeting their obligations under UMRA. (p. 6)

Agency Response: See section 13.2.4 summary response for information 

regarding Unfunded Mandates.

The Mosaic Company (Doc. #14640)

13.371 3.4 Distribution of Impacts Federal guidance documents establish that evaluating the 

distribution of impacts is an important component of an economic analysis. Most 

prominently, The Unfunded Mandates Reform Act of 1995 (UMRA) requires an 

examination of the potential disproportionate impacts on state, local, and tribal 

governments; urban or rural or other types of communities; or particular segments of the 

private sector. OMB Best Practices require that when distributional effects are thought to 

be important, the analysis should include their magnitude, likelihood, and incidence of 

effects on particular groups. The EPA Study does not address the distribution of 

compliance costs associated with incremental Section 404 permits required under 

proposed CWA jurisdiction on the private sector. Because the EPA Study projects the 

incremental increase in permits for the United States as a whole, the fact that certain 

regions may be characterized by higher or lower degrees of isolated wetlands and other 

waters was not taken into consideration.231 Projecting the incremental impact acreage 

based on the hydrologic, development and industry characteristics of each state or region, 

the study would provide at a minimum, a discussion about the likely distribution of 

incremental Section 404 compliance costs across affected private industry. In addition, 

because state jurisdiction is required to be at least as inclusive as federal jurisdiction, 

states with the highest incidence of impact and the least inclusive jurisdiction will bear a 

disproportionate share of costs to state regulatory agencies. (p. 50)

Agency Response: See section 13.2.4 summary response for information 

regarding Unfunded Mandates. For information on cost/benefit and the Economic 

Analysis in Compendium 11.

Airports Council International – North America (Doc. #16370)

13.372 The Proposed Rule’s extension of jurisdiction into natural and/or manmade intermittent 

streams, some ditches and previously unregulated wetlands carries significant regulatory 

and financial burden and is akin to an unfunded mandate to an industry that is already 

heavily regulated. (p. 7)

 

230 2 U.S.C. 1531--‐1538.

231 While Exhibit 31 to the EPA Study purports to report incremental wetland (acres) and stream (feet) mitigation in 

each state, the estimates are determined by allocating the national estimates of incremental impacted acreage to 

individual states in proportion to the number of positive JDs for wetland aquatic resources in FY 2009-10.
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Agency Response: For information on streams and ditches, see comment 

responses for Tributary in compendium 8, and ditches in compendium 6. 

13.373 V. Conclusion

Based on the information herein, it is highly likely that the Proposed Rule will result in 

the expenditure of funds by state, local, or tribal governments (SLTG), in the aggregate, 

or by the private sector of $100 million or more in any one year. We are requesting that 

the Proposed Rule be vetted with stakeholders and evaluated in a manner consistent with 

the Unfunded Mandates Reform Act. As such, prior to final rulemaking the Agency 

should:

 Prepare a written statement that includes:

o the legal authority for the rule,

o a cost-benefit assessment,

o a description of the macro-economic effects, and

o a summary of SLTG concerns and how they were addressed.

 Consider a reasonable number of regulatory alternatives and select the least 

costly, least burdensome, or most cost-effective option that achieves the 

objectives of the Proposed Rule, or explain why the Agency did not make such a 

choice.

o Consult with elected officers of SLTG (or their designated employees with 

authority to act on their behalf) to provide meaningful and timely input in 

the development of proposed rules containing significant federal 

intergovernmental mandates. (p. 8)

Agency Response: See section 13.2.4 summary response for information 

regarding Unfunded Mandates. For additional information on costs/benefits, see the 

economic analysis in compendium 11.

13.3.5. Executive Order 13132: Federalism

Summary of Federalism Comments

The comments received assert that the rule expands federal authority and diminishes state 

authority. Commenters also expressed that the agencies have not complied with the EO for 

Federalism, threatening the Federal-State partnership for implementation of the CWA’s 

cooperative federalism. A number of commenters disagreed with the agencies’ finding that the 

Federalism E.O. did not apply.

Some comments indicated that neither States, as co-regulators, nor local government entities 

were provided a meaningful opportunity to participate in the formulation of the draft rule or the 

review of EPA’s scientific rationale. Commenters stated that the Corps should have participated 

in the consultation process for this joint-agency rule and requested that the rule be withdrawn 

while agencies initiate a process of state and local engagement.
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A number of commenters stated that the agencies’ cost analysis contradicts the notion that there 

are no federalism concerns or that the agencies have failed to properly assess the impacts of this 

rule on state and local government implementation programs. Commenters also expressed 

concerns that the direct and indirect costs of this rule create a significant impact on state, local, 

and county governments. Several commenters expressed the opinion that an act of Congress 

would be necessary in order for the rule’s changes to take effect.

Agency Summary Response to Federalism Comments

Federalism Finding

The Agencies do not agree with commenters that this rule triggers Executive Order 13132. 

Agencies have determined that this rule does not have federalism implications as set out in 

Executive Order 13132. Under the Executive Order, a rule has federalism implications if it has 

“substantial direct effects on the States, on the relationship between the national government and 

the States, or on the distribution of power and responsibilities among the various levels of 

government.” E.O. 13132, section 1. Generally, if a rule imposes substantial compliance costs 

(unless it is expressly required by statute or there are federal funds available to cover the Stage or 

local compliance costs) or the rule preempts state or local law, it will have federalism 

implications. This rule does not impose any direct compliance costs or preempt State or local 

laws. This rule only revises a definition, it does not itself regulate or impose any direct impacts 

or quantifiable compliance burden on any entity. Entities whose actions impact waters of the 

U.S. are subject to legal obligations imposed by the Clean Water Act and existing implementing 

regulations. The rule does not alter those obligations. As to preemption, section 510 of the 

Clean Water Act expressly preserves States’ authority to impose more stringent requirements and 

nothing in this rule affects that authority reserved to States. As explained in the Agency’s 

Economic Analysis, this rule narrows jurisdiction as compared with current regulations, but for 

information purposes the agencies have prepared an Economic Analysis that projects some areas 

that were not jurisdictional may be found so under the rule. Regardless, even if the rule did 

expand the scope of the CWA, that does not have federalism implications because it does not 

have a substantial direct effects on the States, on the relationship between the national 

government and the States, or on the distribution of power and responsibilities among the various 

levels of government. The responsibility to issue permits rests with the Corps, unless a State 

wishes to assume the permitting program under section 404(g); therefore the rule imposes no 

administrative burdens on the States or local governments. Moreover, States remain free to 

regulate, or not, any waters covered by the rule and while States and their subdivisions are 

subject to the permitting requirements of the CWA to the same extent as private parties (see 

CWA 313), the mere duty to comply with this requirement does not itself have federalism 

implications (and in any case derives from the statute, not this rule). Accordingly, Executive 

Order 13132 (64 FR 43255, August 10, 1999) does not apply to this action. Accordingly, 

Executive Order 13132 (64 FR 43255, August 10, 1999) does not apply to this action. 

Consultation

Even though this rule does not have federalism implications such that EO 13132 applies, in 

keeping with the spirit of Executive Order 13132 and consistent with the agencies’ policy to 
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promote communications with state and local governments, the agencies consulted with state and 

local officials throughout the process and solicited their comments on the proposed action and on 

the development of the rule. 

For this rule State and local governments were consulted at the onset of rule development in 

2011, and following the publication of the proposed rule in 2014. In addition to engaging key 

state and local government organizations (i.e. the Big 10), the agencies sought feedback on this 

rule from a broad audience of stakeholders through extensive outreach to numerous State and 

local government organizations.

Early in the rulemaking process, in the fall and winter of 2011, EPA held two in-person meetings 

and two phone calls with entities representing state and local governments. In addition, the 

Agencies held many calls and meetings with state and local governments and their associations, 

in preparation for the development of a proposed rule. Organizations involved included the 

National Governors Association, the National Conference of State Legislatures, the Council of 

State Governments, the National Association of Counties, the National League of Cities, the U.S. 

Conference of Mayors, the County Executives of America, the National Associations of Towns 

and Townships, the International City/County Management Association, and the Environmental 

Council of States. Additionally, the National Association of Clean Water Agencies and the 

Association of Clean Water Administrators were invited to participate. 

Similar to the outreach conducted prior to the development of the rule, the agencies committed 

themselves to providing a transparent, comprehensive, and effective process for taking public 

comment on the proposed rule. As part of this outreach, EPA held a meeting on May 13, 2014,

to seek technical input on the proposed rule from the largest national representative organizations 

for State and Local governments. During this process the Agencies also extended their focused 

outreach to include a series of meetings with the Local Government Advisory Committee, and 

the Environmental Council of States in conjunction with the Association of Clean Water 

Administrators and the Association of State Wetland Managers. In addition to engaging these 

key organizations, the agencies sought additional feedback on the proposed rule through broader 

public outreach to state and local government organizations during the public comment period.

The agencies have included a detailed narrative of intergovernmental concerns raised during the 

course of the rule’s development and a description of the agencies’ efforts to address them with 

the final rule. [See Final Report of the Discretionary Consultation and Outreach to State, Local, 

and County Governments for the Revised Definition of Waters of the United States (Docket Id. 

No. EPA-HQ-OW-2011-0880). This document is available in the docket for this rule.] The 

agencies will continue to work closely with the States to implement the final rule. 

State Authority

This rule recognizes the unique role of states related to water quantity and as confirmed by 

section 101(g) of the CWA. The rule is consistent with Congressional policy not to supersede, 

abrogate, or otherwise impair the authority of each state to allocate quantities of water within its 

jurisdiction, and neither does it affect the policy of Congress that nothing in the CWA shall be 
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construed to supersede or abrogate rights to quantities of water which have been established by 

any state. 

States and tribes, consistent with the CWA, retain full authority to implement their own CWA 

programs to more broadly or more fully protect the waters in their state. Under section 510 of 

the Act, unless expressly stated in the CWA, nothing in the Act precludes or denies the right of 

any state or tribe to establish more protective standards or limits than the Federal CWA. Many 

states and tribes, for example, protect groundwater, and some others protect wetlands that are 

vital to their environment and economy but which are outside the regulatory jurisdiction of the 

CWA. Nothing in this rule limits or impedes any existing or future state or tribal efforts to 

further protect their waters. In fact, providing greater clarity regarding what waters are subject to 

CWA jurisdiction will reduce the need for permitting authorities, including the states and tribes 

with authorized section 402 and 404 CWA permitting programs, to make jurisdictional 

determinations on a case-specific basis.

The agencies have included a detailed narrative of intergovernmental concerns raised during the 

course of the rule’s development and a description of the agencies’ efforts to address them with 

the final rule. [See Final Report of the Discretionary Consultation and Outreach to State, Local, 

and County Governments for the Revised Definition of Waters of the United States (Docket Id. 

No. EPA-HQ-OW-2011-0880) is available in the docket for this rule.] The agencies will 

continue to work closely with the states to implement the final rule. 

Specific Comments

State of Idaho (Doc. #9834)

13.374 Consultation:

Idaho believes EPA and the Corps failed to adequately consult with the states prior to 

development of the Proposed Rule. Effective consultation could have addressed many of 

Idaho's concerns and avoided much of the confusion that now exists. EPA and the Corps' 

failure to include the states in the formulation process effectively missed an opportunity 

to build consensus with the primary implementing entities and prevent controversy.

As a result, there now is an even greater need, and opportunity, to enter into sustained 

dialogue and consultation with the states to revise the Proposed Rule. Such consultation 

should treat the states as co-regulators, separate and apart from the general public, as 

envisioned by the CWA's framework of cooperative federalism and as required by 

Executive Order 13132.

To facilitate consultation and sustained dialogue with Idaho and other states, a statefederal workgroup should be established between EPA, the Corps and the states to revise 

the Proposed Rule. Although it is unlikely such a workgroup would reach a consensus on 

every issue, it would facilitate the dialogue, collaboration and relationship-building 

needed to create a more workable and effective rule. One productive example of such an 

approach is the workgroup EPA established with the Environmental Council of the States 

and the Association of Clean Water Administrators to discuss revisions to the National 
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Pollutant Discharge Elimination System (NPDES) electronic reporting rule. Again, the 

purpose of such workgroups is not necessarily to reach consensus but rather to provide 

state and federal participants a meaningful and timely opportunity to discuss and resolve 

their needs and concerns. (p. 1 – 2)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism.

Cooperative federalism is a hallmark of the Clean Water Act and this rule does 

nothing to change that. No intent to change current practices. The Agencies 

appreciate the suggestion of developing a state-based advisory board to provide 

local input on interpretation and implementation issues. Going forward, the 

Agencies will consider this suggestion. 

13.375 Idaho recognizes further discussion between the states and federal agencies is needed to 

develop the specifics of such measures and the process for applying them, particularly 

with the variation in hydrologic and geologic conditions existing across the nation. As 

such, Idaho urges EPA and the Corps to utilize a state-federal workgroup to identify and 

develop specific, quantifiable measure(s) for determining "significance" consistent with 

the rebuttable presumption concept. (p. 3)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism.

The Agencies appreciate the suggestion of developing a state-based advisory board

to provide local input on interpretation and implementation issues. Going forward, 

the Agencies will consider this suggestion.

13.376 Idaho urges EPA and the Corps to work with a state-federal workgroup to determine a 

reasonable process for making jurisdictional determinations involving "other waters" and 

provide remedies in those situations where the permitting agency fails to make a 

determination. (p. 3)

Agency Response: The agencies intend to continue working with states to address 

implementation issues associated with the final rule. For additional information on 

the approach to “other waters”, see compendium 4. 

Florida Department of Agriculture and Consumer Services (Doc. #10260)

13.377 State Sovereignty

“The powers not delegated to the United States by the Constitution, nor prohibited by it 

to the states, are reserved to the states respectively, or to the people.” U.S. Const. amend. 

X. Each state can establish regulations for water bodies within their borders that are not 

“waters of the U.S.,” which is to say those waters related to navigability, interstate 

commerce, and the federal government’s scope of powers. As the extent of “waters of the 

U.S.” is expanded, the regulatory control reserved solely to the states is diminished and, 

potentially, becomes nonexistent. This is not consistent with the CWA’s stated purpose of 

recognizing, preserving, and protecting the “primary responsibilities and rights of the 

States...to plan the development and use...of land and water resources....” SWANCC, 

531 U.S. at 174 (quoting 33 U.S.C. § 1251(b)).
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Within the bounds of the federal government’s enumerated powers, there is the concept 

of “cooperative federalism,” which is a term used to describe those spheres where federal 

and state authorities share a degree of regulatory authority over a particular area of 

law.232 Under this construct, the federal government establishes a minimum level of 

regulation and the state assumes responsibility for administration of the federal program 

to standards at least at the federally-set floor; beyond that states may also implement 

stricter regulations. For instance, the CWA limits states to issuing permits for “the 

discharge of dredged or fill material into the navigable waters (other than those waters 

which are presently used, or are susceptible to use in their natural condition or by 

reasonable improvement as a means to transport interstate or foreign commerce 

shoreward to their ordinary high water mark, including all waters which are subject to 

the ebb and flow of the tide shoreward to their ordinary high water mark, or mean higher 

high water mark on the west coast, including wetlands adjacent thereto) within its 

jurisdiction. 33 U.S.C. § 1344(g)(1) (emphasis supplied). The parenthetical carves out an 

exception, apparently reserving those specified waters for federal jurisdiction; however, if 

that is the case, it also seems that if the term “navigable waters” is amended by the 

proposed rule, the cooperative intent is thwarted as the term “navigable waters” 

encompasses a much wider subset of waters, infringing on and at least partially 

obliterating the jurisdiction of the states. The proposed rule offers little cooperation; 

rather, it expands federal jurisdiction and marks no limit as to the waters the CWA may 

reach, leaving uncertainty as to what the states will be left to regulate. (p. 78 – 79)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. Cooperative federalism is a hallmark of the Clean Water Act 

and this rule does nothing to change that. The agencies have no intent to change 

current practice. 

By its terms, the CWA reaches all “waters of the United States” and the agencies are 

defining the term consistent with the statute and caselaw. In any event, as discussed 

above, nothing in this rule carves out or affects states’ ability to regulate their 

waters. The fact that federal statute and state authorities may regulate the same 

waters is not new, and this rule does nothing to change the longstanding ability of 

states to regulate coterminous with the federal statute, or more broadly.

Energy Producing States Coalition (Doc. #11552)

13.378 Perhaps the most troubling aspect of this entire rulemaking process has been the process 

itself. In its rush to produce a rule, which did not meet basic consultation requirements 

with state co-regulators under the CWA’s cooperative federalism model, the EPA’s 

Science Advisory Board did not even finish its analysis of the proposal before it was 

submitted for interagency review. It is difficult to have confidence in the impartiality of a 

new, expansive regulatory process when new rules are issued before the EPA’s own 

independent scientific body has completed its analysis. As the nonpartisan Western States 

Water Council has noted in public correspondence to you last spring, the states have been 

 

232 Robert L. Glicksman, Modern Federalism Issues and American Business: Article & Essay:

Cooperative to Inoperative Federalism: The Perverse Mutation of Environmental Law and

Policy, 41 Wake Forest L. Rev. 719, 719 (2006).
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asking for a formal consolatory role in this rulemaking process since at least 2011.233 

Instead, this enormously consequential rule was sent to the Office of Management and

Budget (OMB) for interagency review without input from states who are not just “the 

public” or “stakeholders”, but co-regulators under the CWA. Much of the current 

apprehension, anxiety, and concern with this Byzantine proposal could likely have been 

avoided if substantive state input had been sought from the beginning rather than as an 

afterthought of a typical Washington-knows-best-regulatory mindset. (p. 2)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. See section 13.1 summary response for information 

regarding concerns about timing/overlap of the science document and review 

process, SAB review of the rule, and the Connectivity Study. For additional 

information on consultation, see sections 13.2.6 on Tribal Consultation and 11.1 on 

RFA/SBREFA in compendium 11. 

Lastly, Cooperative federalism is a hallmark of the Clean Water Act and this rule

does nothing to change that. The agencies have no intent to change current practice. 

Utah State Senate et al. (Doc. #12338)

13.379 We have reviewed the proposed rule recently released by the environmental Protection 

Agency and the U.S. Army Corps of Engineers (the Agencies) entitled Definition of 

Waters of the United States Under the Clean Water Act and respectfully request that it be 

withdrawn as the Agencies failed to complete any state consultations when developing 

this rule. As Senators of the State of Utah, we are concerned that this rulemaking was 

developed without sufficient consultation with the states and that the rulemaking would 

impinge upon state authority in water management. As co-regulators of water resources, 

states should be fully consulted and engaged in any process that may affect the 

management of their waters. In particular, based on the copy of the proposed rule, we are 

deeply concerned that the Agencies believe that this proposed rule does not have 

federalism implications and therefore does not need to comply with Executive Order 

13132. To this assumption, we respectfully disagree. Under the Executive Order, 

federalism implications include substantial direct effects of the States, or the relationship 

between the national government and the States, or on the distribution of power and 

responsibilities among the various levels of government. By changing the definition of 

the Waters of the United States, the proposed rule will have a direct effect on the 

distribution of power and responsibilities among the various levels of government. 

Currently, there are many waters that are subject to state regulations only. This proposed 

rule will significantly expand the scope of federal regulation, stripping the States of any 

governing authority. (p. 1 – 2)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism.

13.380 Due to the fact that this rule attempts to regulate all waters, we urge you to withdraw the 

proposed rule until the requirements of Executive Order 1312 have been met. It is of the 

 

233 Phillip Ward, Chairman of the Western States Water Council. Comment letter, March 25, 2014.

http://www.westgov.org/images/stories/WSWC_CWA_Rulemaking_Letter.pdf
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utmost importance that State and local governments be consulted while developing this 

rule. (p. 2)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism.

National Association of Conservation Districts (Doc. #12349)

13.381 Any attempt to clarify CWA jurisdiction should be subject to local input, in order to 

develop effective parameters, criteria, and standards that successfully meet specific local 

needs. No final ruling should be employed until EPA and USACE have successfully 

vetted and approved clear provisions that are predictable when applied on the local level.

Finally, NACD requests that a state-based advisory board be put in place to provide an 

avenue for local input, interpretation and implementation which would include Stage I 

permitting and appeals. NACD and its member soil and water conservation districts place 

high importance on the protection and enhancement of our nation’s natural resources. 

The incorporation of local knowledge, heritage and passion during any rule- writing 

process will help ensure the rule is workable at the local level and successfully meets its 

intended goals. (p. 8 – 9)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism.

The Agencies appreciate the suggestion of developing a state-based advisory board 

to provide local input on interpretation and implementation issues. Going forward, 

the Agencies will consider this suggestion. 

Wisconsin Legislature (Doc. #14064)

13.382 In particular, based on the copy of the proposed rule, we are deeply concerned that the 

Agencies believe that this proposed rule does not have federalism implications and 

therefore do not need to comply with Executive Order 13132. I respectfully disagree.

Under the Executive Order, federalism implications include "substantial direct effects on 

the States, on the relationship between the national government and the States, or on the 

distribution of power and responsibilities among the various levels of government."

By changing the definition of "Waters of the United States," the proposed rule will have a 

direct effect on the distribution of power and responsibilities among the various levels of 

government. Currently, there are many waters that are subject to state regulation only. 

However, the proposed rule will significantly expand the scope of federal regulation, 

stripping the States of any governing authority. Given this expansion, we are at a loss to 

identify any water that would not be subject to federal regulation unless specifically 

exempted. Such an expansion in federal jurisdiction would fundamentally alter our ability 

to make decisions regarding the use of land within our borders. Due to the fact that States 

often regulate more waters than are encompassed by the current definition of "waters of 

the United States" it is not clear what benefit the expansion of federal authority is 

designed to achieve. It appears that the Agencies did not even consider existing State 

authorities when developing its proposed rule.
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Due to the fact that this rule attempts to regulate all waters, we urge you to withdraw the 

proposed rule until the requirements of Executive Order 13132 have been met. It is of the 

upmost importance that State and local governments be consulted while developing this 

rule. (p. 1 – 2)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism.

The commenter is incorrect that the rule will significantly expand jurisdiction, as 

explained in response to prior comments, and the rule would not cover any water 

that was not historically regulated under the statute prior to SWANCC and 

Rapanos. States vary significantly in the extent to which they protect their waters, 

and many states only regulate to the extent they are covered by the federal statute. 

The final rule covers those waters that warrant federal protection, for the reasons 

explained by the agencies in the record. 

Wyoming House of Representatives (Doc. #14308)

13.383 Perhaps the most troubling aspect of this entire rule-making process has been the process 

itself. In its rush to produce a rule, which did not meet basic consultation requirements 

with state co-regulators under the CWA's cooperative federalism model, the EPA s 

Science Advisory Board did not even finish its analysis of the proposal before it was 

submitted for interagency review. It is difficult to have confidence in the impartiality of a 

new, expansive regulatory process when new rules are issued before the EPA's own 

independent scientific body has completed its analysis. As the nonpartisan Western States 

Water Council has noted in public correspondence to you last spring, the states have been 

asking for a formal consolatory role in this rule-making process since at least 2011.234 

Instead, this enormously consequential rule was sent to the Office of Management and 

Budget (OMB) for interagency review without input from states who are not just ''the 

public" or "stakeholders", but co-regulators under the CWA. Much of the current 

apprehension, anxiety, and concern with this Byzantine proposal could likely have been 

avoided if substantive state input had been sought from the beginning rather than as an 

afterthought of a typical Washington-knows-best-regulatory mindset. Further, over 60 

organizations have expressed their concerns that continued ad hoc regulatory 

interpretations and revisions in guidance documents - through the media and blog posts 

rather than the formal rule-making process - violate the spirit and letter of the 

Administrative Procedure Act by skirting public notification and input requirements.235 

Adding to this troubling record, I have been informed that the Administration's cost 

benefit analysis of the underlying proposal relied on 20-year old data that had not been 

adjusted for inflation and did not fully examine the wide-ranging implications of 

additional CW A compliance. (p. 2)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. See section 13.2.1 summary response for information

 

234 Phillip Ward, Ch airman of the Western States Water Council. Comment letter, March 25, 2014. http://www. 

westgov.org/images/stories/WSWC _ CW A_ Rulemaking_ Letter. pdf

235 Waters Advocacy Coalition Letter, September 29, 2014. http://www.fb.org/tmp/uploads/wacletter092914.pdf
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regarding the Administrative Procedure Act. See section 13.1 summary response for 

information regarding concerns about timing/overlap of the science document and 

review process, SAB review of the rule, and the Connectivity Study.

Cooperative federalism is a hallmark of the Clean Water Act and this rule does 

nothing to change that. The agencies have no intent to change current practice. 

State of Oklahoma (Doc. #14625)

13.384 In addition to the cooperative federalism framework embodied in the CWA, the EPA and 

Corps of Engineers ("Agencies") surprisingly opted to forego the opportunity to engage 

in a meaningful, upfront consultation process with States as required by Executive Order 

("E.O.") 13132. Specifically, E.O. 13132 requires a federalism summary impact 

statement that details the efforts made by the Agencies to involve and engage the States 

in promulgation of a draft rule prior to notice of the rule in the Federal Register. Instead 

of using E.O. 13132 as a legally mandated avenue to engage States in a thorough process 

of ensuring the greatest deference to State-led efforts, the Agencies rejected partnership 

and certified in the Federal Register notice that this rulemaking action "will not have 

substantial direct effects on the states, on the relationship between the national 

government and the states, or on the distribution of power and responsibilities among the 

various levels of government." 79 Fed. Reg. at 22,220. How a rulemaking focused on 

defining the boundary between Federal and State jurisdiction over water pollution control 

can have no substantial impact or effect on States and the distribution of power between 

various levels of government is beyond rational.

Regardless of the legal ramifications, the practical result of choosing the path of rejecting 

federalism consultation requirements is mass confusion among the very State partners 

that have worked with your Agencies for decades to accomplish all the water quality 

gains made thus far. Just as we have been partners and allies in the overall effort to 

restore the fishable, swimmable goals of the CWA the States and the Agencies could 

have been allies in the effort to clarify WOTUS jurisdiction to the benefit of all who 

implement the CWA's many facets. As it stands now, we've lost faith in the process and 

believe that the myriad flaws and points of confusion cannot be resolved satisfactorily 

through a series of public comment period extensions. The kind of input that our agencies 

and other State coregulators seek, not to mention deserve as a matter of mutual respect 

and as required by law, can only be accomplished through halting the current effort, 

rolling up our sleeves, and developing regulatory language through a meaningful 

exchange of ideas and drafts. Such a process has been employed by your Agencies in the 

past through numerous Federal-State working groups and other arrangements.

Choosing to charge ahead with the current proposal in a rush to finalize the WOTUS rule 

will undoubtedly lead to increased litigation and burdensome resource constraints on our 

agencies that could ultimately thwart the great water quality successes we have 

documented in Oklahoma. We are proud to be listed on EPA's website as having the 

second most water quality restoration success stories in the country, but we note that the 

overwhelming majority of those successes came through voluntary actions taken in 

partnership with our landowners and other watershed stakeholders. States, not the Federal 

government, are in the best position to coordinate with their local stakeholders to 

accomplish the goals of the CWA. (p. 2 – 3)
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Agency Response: See section 13.2.5 summary response for information 

regarding Federalism.

Cooperative federalism is a hallmark of the Clean Water Act and this rule does 

nothing to change that. The agencies have no intent to change current practice. 

Western Governors Association (Doc. #14645)

13.385 As co-regulators of water resources, states should be fully consulted and engaged in any 

process that may affect the management of state waters. While we appreciate the outreach 

from EPA and the Corps since the release of the proposed rule, we note that the agencies 

did not engage the states in substantive consultation prior to the release. Extending the 

comment period would allow for meaningful consultation between your agencies and the 

states. This is particularly imperative because the SAB panel for the review of the EPA 

water body connectivity report includes no state representatives at all. That report was 

therefore developed without the regulatory expertise, scientific resources and on-theground knowledge possessed by state professionals.236 (p. 2)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. See section 13.1 summary response for information 

regarding concerns about timing/overlap of the science document and review 

process, SAB review of the rule, and the Connectivity Study.

13.386 Prior to any intervention in state-run programs, federal agencies should consult with 

states in a meaningful way, and on a timely basis.

a. Predicate Involvement: Federal agencies should take into account state data and 

expertise in development and analysis of underlying science which serves as the 

legal basis for federal regulatory action. Accordingly, states merit greater 

representation on all relevant EPA Science Advisory Board (SAB) Committees 

and other panels advising the agency on scientific, technological, social and 

economic issues that inform its regulatory process.

b. Pre-Publication / Federal Decision-making Stage: Federal agencies should 

engage in early (pre-rulemaking) consultation with Governors and state 

regulators. This should include substantive consultation with states during 

development of rules or decisions and a review by states of the proposal before a 

formal rulemaking is launched (i.e. before such proposals are sent to the White 

House Office of Management and Budget for finalization).

c. Post-Publication / Pre-Finalization Stage: As they receive additional 

information from state agencies and non-governmental entities, Governors and 

other state officials should have the ability to engage with federal agencies on an 

ongoing basis to seek refinements to proposed federal regulatory actions prior to 

finalization.

d. Rule / Policy Implementation: Significant deference – as provided for by 

Congress in various enacting statutes (including the Clean Air Act, Clean Water 

 

236 EPA Science Advisory Board (SAB) membership listed online as of October 17, 2014.
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Act, Resource Conservation and Recovery Act, among others) -- should be 

granted to states in formulation of state plans designed to implement delegated 

programs. (p. 12 – 13)

Agency Response: See section 13.2.5 summary response for information

regarding Federalism.

The members of the EPA Science Advisory Board are selected on the basis of their 

expertise, not their affiliation. The membership of the Board, however, does include 

scientists who are affiliated with state governments.

Although implementation issues are outside of the scope of this rule, see comment

responses to other implementation questions in compendium 12.

State of Oklahoma (Doc. #14773)

13.387 Many of my concerns with the proposed WOTUS rule could have been avoided by 

meaningful consultation with the states during the formulation process. States serve as 

the co-regulators of the CWA, and it is disappointing a federal agency would not involve 

us in developing a landmark rule the states would be forced to implement. I urge the 

Agencies to pause all work on this proposal until such meaningful consultation is 

afforded, and then to reintroduce the proposed WOTUS rule once direct input from the 

states has been incorporated. (p. 3)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism.

Office of the Governor, State of Kansas (Doc. #14794)

13.388 The next steps taken by the Federal agencies must adhere more closely to cooperative 

Federalism and not render lip service to consultation with the States as required by 

Executive Order 13132. Whatever shape the proposed rule takes will have profound 

impact on the State agencies tasked with applying and administering the Clean Water Act 

on Kansas waters. Those implementing the rule should have a say in the scope of the rule. 

If the Federal agencies believe there are gaps in the protective coverage provided by State 

of Kansas authority, they need to express their concerns and intentions of solving those 

shortcomings with any proposed rule. Failing to do so leaves only speculative and 

insubstantial concerns, precisely contradicting Justice Kennedy's caution in establishing 

"significant nexus" for waters. (p. 6 – 7)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. For information on significant nexus see compendium. 

Cooperative federalism is a hallmark of the Clean Water Act and this rule does 

nothing to change that but rather defines the scope of the Act based on the statute 

and caselaw. 

The agencies utilize the significant nexus standard, as articulated by Justice 

Kennedy’s opinion and informed by the unanimous opinion in Riverside Bayview

and the plurality opinion in Rapanos which recognize that the Act and the agencies 

must draw lines “on this continuum to find the limit of ‘waters,’” Riverside Bayview

at 134, to interpret the scope of the statutory term “waters of the United States.” 
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While a significant nexus determination is primarily weighted in the scientific 

evidence and criteria, the agencies also consider the statutory language, the statute’s 

goals, objectives and policies, the case law, and the agencies’ technical expertise and 

experience when interpreting the terms of the CWA.

North Carolina Department of Environment and Natural Resources (Doc. #14984)

13.389 The proposed definition, if adopted, violates the cooperative federal-state framework 

mandated under the Clean Water Act and Executive Order 13121. 

EPA has violated the cooperative federal-state framework of the Act and Executive Order 

13 12 1. Section 101 (b) requires the Federal Agencies to work with the states on the 

formulation, not simply the implementation, of the Act's authority. States have a 

Congressionally-recognized interest in which waters in their jurisdiction are determined 

to be within federal control and the methods used to make that determination. Executive 

Order 1312- 1 requires Federal Agencies to consult with states when a proposed rule 

would have a "substantial direct effect on the States, on the relationship between the 

national government and the States, or on the distribution of power and responsibilities 

among various levels of government." 64 Fed. Reg. 43255. Executive Order 13121 

requires Federal Agencies to be "deferential to the states when taking action that affects 

the policymaking discretion of the States" and must take caution when states identify 

"uncertainties regarding the constitutional or statutory authority" of federal action. Id. at 

43256.

States were not afforded a meaningful opportunity to participate in the formulation of the 

draft rule or review EPA's scientific rationale. Indeed, the science was not completely 

vetted or available at the time of publication. As indicated in the discussion above, the 

decision to equate connectivity with a significant nexus is not entirely one of science. 

Contrary to EPA's assertion and as discussed above, the proposed definition of WOTUS 

has significant implications for federalism, affects the states' traditional authority to 

regulate land and water use, impacts the federal-state framework under the Act, and is 

unlawful under the Act and the Constitution. (p. 6)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. See section 13.2.2 summary response for information 

regarding Executive Order s for Regulatory Planning (12866) and Review and 

Improving Regulation and Regulatory Review (13563).

Nevada State Conservation Commission (Doc. #14998)

13.390 We further request that no additional action, modifications, or proposals be presented as 

proposed rules at least until a firm and final resolution has been reached on H.R. 5078, 

also known as the Waters of the United States Regulatory Overreach Protection Act of 

2014, whether that be during this current Congress or during future Congresses. In the 

past, Congress has demonstrated strong opposition to past efforts of EPA and ACE to 

control all wet areas of the states. Past efforts to pass legislation to have the federal 

government control all non-navigable waters have also failed in past Congresses. (p. 1)

Agency Response: The pendency of legislation that would amend the Clean Water 

Act does not obviate the need, as expressed by numerous stakeholders and members
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of the Supreme Court, to undertake rulemaking to clarify the scope of waters of the 

U.S.

Arizona Department of Environmental Quality (Doc. #15096)

13.391 In April 2014, the Environmental Protection Agency and the U.S. Army Corps of 

Engineers (the Agencies) proposed a rule to redefine “waters of the United States” under 

the Clean Water Act (CWA), 79 Fed. Reg. 22,188 (Apr. 21, 2014). After its release, the 

Agencies reached out to States, the regulated community, and environmental groups in a 

series of meetings, speeches, and webinars seeking to explain the proposed rule and 

answer questions. The Agencies’ belated efforts to outreach do not support an assertion

that the Agencies sought public input.

Such efforts ignore the role States play as co-regulators under the Clean Water Act. The 

Clean Water Act is based on cooperative federalism. Under Section 303 of the Clean 

Water Act all States identify the designated uses of regulated waters within the State and 

the criteria to protect those uses. Under Section 401 of the Clean Water Act, all States 

review federal actions and certify whether that action will meet State water quality 

standards. Under Section 402 of the Clean Water Act, forty-six out of fifty States 

implement the NPDES permitting program. Under Section 404 of the Clean Water Act, 

two States implement the dredge and fill permitting program. In addition, States have 

their own statutes authorizing State water regulatory programs and defining waters of the 

State in some cases more broadly than the federal definition.

State regulators were not meaningfully consulted before the Agencies issued the 

proposed rule, and therefore were not afforded the opportunity to point out concerns in 

advance. We recognize that Agency representatives have expressed a willingness to make 

changes to the rule based on comments received during the comment period. We 

appreciate that willingness. However, our concerns relate to the legal rationale for the 

proposal and the implications of that rationale for State programs. Accordingly, we 

believe that the scope of changes necessary to respond to State concerns will be 

extensive. In such a situation, it is appropriate to withdraw or suspend a rulemaking and 

issue a supplemental proposal. This would allow the Agencies to consult with States 

before issuing a new proposal and receive public comment on new legal rationales and a 

revised jurisdictional scope. (p. 1)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. See section 13.1 summary response for information 

regarding concerns about timing/overlap of the science document and review 

process, SAB review of the rule, and the Connectivity Study.

Cooperative federalism is a hallmark of the Clean Water Act and this rule does 

nothing to change that. 

North Dakota Office of the Governor,et al. (Doc, #15365)

13.392 13. North Dakota requests that the WOTUS rule be withdrawn. At a minimum, the states 

must be consulted, the rule must be amended, and then the rule must be put out for a 

second round of comments. 
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North Dakota believes the EPA and the Corps must withdraw the proposed rule. This rule 

was proposed before the final connectivity report was published, failing to give EPA and 

interested parties the chance to understand any science that may support the definitions. If 

the EPA and Corps insist on proposing new definitions, a new draft and a second round 

of comments is needed following outreach with the state co-regulators and affected 

agencies. While EPA did conduct hearings, webinars, and meetings on this rule, states 

should have been consulted prior to the rule's release to avoid instances of federal 

overreach and to gain an understanding of what water features are like in different 

regions. Further compounding this problem is that the Corps, an issuing agency of the 

rule did no outreach on this rulemaking process. The Corps has authority over 

determining what is federally jurisdictional. If this is the agency that is going to be 

issuing guidance and be on the ground during implementation, they need to hear from 

affected individuals, groups, and industries to fully understand the extent of the harm the 

rule as proposed could cause and how it can be made better in the future. A new draft 

appropriately considering the constraints of proximity to waterbodies specified in the 

plurality decision of Rapanos is needed. 

EPA has admitted in regional and national conference calls and webinars that many 

mistakes were made in this rulemaking process. Reopening a draft for comments will 

help states, their constituents and industries know that EPA is listening to concerns and 

willing to work in a manner that will gel this rule right. 

Furthermore, throughout the public comment period, the federal agencies have 

continually released new documents, blog posts, Q&A documents, and webinars, offering 

explanations of key terms and new reasoning to support the proposed assertions of CWA 

jurisdiction. Much of this new information is inconsistent with material provided in the 

official rulemaking docket. These additions inhibit public comment as the agencies keep 

changing their story and adding new (and often conflicting) information as the comment 

period progressed. 

For example, the term upland is not defined in the proposed rule, but is necessary when 

determining whether a ditch is exempt. Throughout the comment period, the agencies 

acknowledged that they do not have a proposed definition of upland. Now, a recent Q&A 

document, issued by the agencies or September 9, 2014, provides a new definition of 

upland: "Under the rule, 'upland' is any area that is not a wetland stream, lake, or other 

waterbody. So, any ditch built in uplands that does not flow year-round is excluded from 

CWA jurisdiction." This new definition of upland is not included anywhere in the 

rulemaking docket. The public cannot adequately comment on a proposed rule if critical

components continually change and are not posted in the Federal Register. (p. 13 - 14)

Agency Response: The public comment period was extended twice to ensure 

sufficient time for receipt of public comments, including an extension that allowed 

for public comments to be received after the Science Advisory Board issued their 

final report on the EPA Draft Connectivity Report. 

The agencies recognize that the state and local governments have well-defined and 

long-standing relationships in implementing affected CWA programs and these 

relationships will not be altered. This action will not have substantial direct effects 

on the states, on the relationship between the national government and the states, or 
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on the distribution of power and responsibilities among the various levels of 

government. The final rule does not restrict the states’ efforts in developing or 

implementing statewide permits under CWA programs as a result of the rule. 

There was extensive outreach during the public comment period, including many 

stakeholder meetings with state agencies. The outreach sessions provided 

invaluable input for the agencies in the rulemaking process. The Corps attended as 

many outreach sessions as possible in consideration of their limited staff and 

resources. The Corps also read all comments that were posted to the public docket 

to ensure they understood the comments in order to provide input during the 

development of the final rule language. 

The Corps is developing guidance specific to section 404 to facilitate effective, 

consistent, and efficient implementation of the final rule once it becomes effective. 

EPA, Tribes, and states may also provide implementation guidance for CWA 

sections under their authority once the final rule is effective.

See the Technical Support Document for a summary of the legal basis for the final

rule, including information on the Rapanos decision. 

The agencies received many helpful comments in response to the proposed rule 

which led to changes in the final rule for improved clarity for the agencies and the 

regulated public. The term “upland” was removed from the final rule language in 

the ditch exclusions section in response to comments received. Many commenters 

were confused by the term “uplands” and did not feel the term had a common 

understanding. The ditch exclusions now focus on flow regime and on whether the 

ditch is excavated in or relocated a tributary.

The agencies posted to the docket all materials related to the rulemaking effort that 

would be open for public comment. Many of the documents released during the 

public comment period were intended to help respond to questions received about 

the proposed rule to provide additional information and explanations to the public. 

The additional information and materials are not themselves part of the final rule 

package. 

National Association of State Departments of Agriculture (Doc. #15389)

13.393 In Executive Order 13132, the White House clearly directed federal agencies to consult 

with states early in the rulemaking process and give as much weight and deference as 

possible to state needs, priorities and concerns. For example, §2(i): "The national 

government should be deferential to the States when, taking action that affects the 

policymaking discretion of the States and should act only with the greatest caution 

where State or local governments have identified uncertainties regarding the 

constitutional or statutory authority of the national government;" §3(c) (emphasis added): 

"With respect to Federal statutes and regulations administered by the States, the national 

government shall grant the States the maximum administrative discretion possible. 

Intrusive Federal oversight of State administration is neither necessary nor desirable;" 

and §6(b): Federal agencies must consult with state and tribal officials ("early in the 

process of developing the proposed regulation" where the regulation will impose

"substantial direct compliance costs on State and local governments and that is not 
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required by statute." (emphasis added) Promulgation of this proposed rule without 

complying with E.O. 13132's consultation criteria could threaten the future federal-state 

partnership for implementing the CWA. (p. 3)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism.

13.394 The process used to develop the proposed rule lacked any meaningful consultation with 

the states. The result is a rule that contains a considerable amount of uncertainty 

regarding the extent of the CWA's authority and the additional costs that will be 

associated with the implementation of federal regulations over an expanded universe of 

waters. Additionally, the U.S. Environmental Protection Agency (EPA) and the U.S. 

Army Corps of Engineers (Corps) did not comply with the state consultation criteria in 

Executive Order 13132 (Aug. 10, 1999) regarding the formulation of policies that have 

federalism implications. The proposed rule infringes on states' rights to regulate water 

quality in surface waters with no rational connection to traditionally navigable waters -

the touchstone of CWA jurisdiction.

EPA and the Corps attempt to justify the proposed rule by pointing to several perceived 

benefits and purposes. These include:

 Conformance with U.S. Supreme Court direction regarding the extent of CWA 

jurisdiction;

 Clarification of which water bodies are jurisdictional and which are not; and

 Cost savings that will be accrued to both the regulatory agencies and regulated 

entities as the result of a simplified process for determining jurisdiction.

In its current form, the proposed rule will not achieve any of these goals. What will be 

achieved is an expansion of federal interference into the states' ability to reasonably and 

efficiently regulate water quality on minor stream reaches and isolated waters where there 

is no meaningful connection to traditional navigable waters. This expansion of 

jurisdiction will not provide any increased protection or improved water quality in 

navigable waters because the ability to properly regulate activities on remote stream 

reaches already exists in many states, including Wyoming. It will, however, result in 

significant added implementation costs which have not been adequately evaluated and 

disclosed by EPA. We believe the rule should be withdrawn and reconsidered with more 

meaningful input from the states. (p. 2)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. For information on costs/benefits see the economic analysis 

in compendium 11.

Indiana Department of Environmental Management (Doc. #16440)

13.395 2. The Agencies failed to adequately engage affected stakeholders.

IDEM and ISDA are disappointed in the development and rollout of the Proposed Rule. 

Executive Order 13132, Section 3(c), notes that "With respect to Federal statutes and 

regulations administered by the States, the national government shall grant the States 

maximum administrative discretion possible." Section 3(d) requires agencies to consult 
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with State and local officials in developing standards and where possible, defer to States. 

This is known as a federalism review. EPA and the Corps did not perform a federalism 

review, nor did they adequately engage the States, as co-regulators, in development of the 

Proposed Rule language. Only after the Proposed Rule was published did the U.S. EPA 

and the Corps hold meetings, conference calls and webinars to explain the intent of the 

rule. Even after those meetings, the intent and effect of the Proposed Rule was unclear 

with Agencies' staff frequently answering questions with, "We don't know" and "We'll 

have to figure that out." As an agency responsible for implementing Section 401 of the 

CWA, IDEM insists that states should have been consulted during the development of the 

Proposed Rule. 

While we agree that in the wake of Rapanos v. United States there was a need to clarify 

the applicability of the CWA to certain waters, we contend that if the Agencies had 

conducted a federalism review and consulted with state and local officials, many of the 

misunderstandings regarding the intent of the proposal could have been avoided. The 

Proposed Rule must be withdrawn to comply with Executive Order 13132 and to allow 

the Agencies time to adequately engage affected stakeholders. (p. 2 - 3)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism.

Office of the Governor, State of Utah (Doc. #16534)

13.396 A. Executive Order 13132

Despite the federalism implications of the rule, EPA and the Army have failed to consult 

with the states as required under Executive Order (EO) 13132. Failure to do so 

undermines the cooperative federalism at the heart of the CWA and ignores the 

substantial direct effects on state governments and the distribution of power and 

responsibilities at the federal, state, and local levels of government. (p. 15)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism.

New Mexico Environment Department (Doc. #16552)

13.397 No State or Local Consultations

Many of the Department's concerns arise from the Agencies' failure to consult with the 

states before promulgation and publication of the proposed rule, sidestepping the critical 

role that states playas co-regulators under the CWA. See Alexandra Dapolito Dunn and 

Meghan Boian, Postcards From the Edge: Perspectives to Reinvigorate Clean Water Act 

Cooperative Federalism, Journal of Energy and Environmental Law, 2013, 68-79; see 

also 33 U.S.c. § 1251(b) (2011) (Congress directs the EPA Administrator to consult with 

affected states in the exercise of his or her authority). Unfortunately, the lack of state 

engagement is evident. If consulted with and engaged prior to the proposed rule's release, 

the Department would be better situated to provide more robust and substantive 

comments. The time limit for submitting comments, initially 91 days and then extended 

to 182 days, provides an inadequate period for the State and its departments to develop 

comprehensive comments.
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The Department is further concerned that the Agencies have failed to fully evaluate state 

and local level implementation and the proposed rule's impact on existing state inspection 

and permitting programs. This concern is critical as it has direct impact on required 

staffing levels, legislative funding requests, and general agency planning.237 Additionally, 

and most concerning to the Department, is the Agencies' failure to consult or engage 

State municipal and county land use and planning agencies. These local land use agencies 

are often the individuals explaining to the public the permits required for land use 

development and planning , yet the Department is unaware of any local land use agencies 

that have a clear understanding of the proposed rule's impacts including additional 

permitting requirements, additional staffing for permit reviews, and expansion of 

construction timelines.238 (p. 10 – 11)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. For information on costs/benefits see the economic analysis 

in compendium 11.

Cooperative federalism is a hallmark of the Clean Water Act and this rule does 

nothing to change that. The agencies have no intent to change current practice. 

State of Oklahoma et al. (Doc. #16560)

13.398 States are Central to Clean Water Success

It is noteworthy that the Federal Water Pollution Control Act has long recognized the 

importance of partnership between local, State and Federal governments going back to its 

inception in 1948 and continuing through the various amendments that have brought us to 

the CWA of today. The existence and need for a State-Federal partnership has been 

present in the statutory basis for this rule for over sixty years. The CWA's cooperative 

federalism framework was solidified in the 1972 reauthorization process, whereby 

Congress gave explicit authority for the States to act as co-regulators when implementing 

the CWA. Sections 101(b) and 101(g) of the CWA state that it is the policy of Congress 

to protect the rights of States in their effort to eliminate pollution and that States have the 

authority to allocate quantities of water within their boundaries, as well as underscoring 

that Federal agencies shall cooperate with them when solutions are developed.

In addition to the cooperative federalism framework embodied in the CWA, the EPA and 

Corps of Engineers ("Agencies") surprisingly opted to forego the opportunity to engage 

in a meaningful, upfront consultation process with States as required by Executive Order 

("E.O.") 13132. Specifically, E.O. 13132 requires a federalism summary impact 

statement that details the efforts made by the Agencies to involve and engage the States 

 

237 The Agencies suggest only a 3% programmatic expansion , however the calculations are lacking in detail. See

"Economic Analysis of Proposed Revised Definition of Waters ofthe United States" (March, 2014). Available at

http://www2.epa.gov/uswaters/economic-analysis-proposed-revised-definition-waters-united-states.

238 As the Court notes in Rapanos, the average applicant for a general "dredge and fill" permit spends 313 days to

obtain the permit at a cost of $28,915.00, while the average applicant for an individual permit spends 788 days and

$271,596.00 to obtain the permit. 547 U.S. at 721, citing Sunding & Zilberman, The Economics of Environmental

Regulation by Licensing: An Assessment of Recent Changes to the Wetland Permitting Process, 42 Natural

Resources J. 59, 74-76 (2002). Note the costs were from a 2002 survey. Inflation indices suggest that these costs

would likely have increased 32% since 2002. See http://www.bls.gov/data/inflation_calculator.htm.
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in promulgation of a draft rule prior to notice of the rule in the Federal Register. Instead 

of using E.O. 13132 as a legally mandated avenue to engage States in a thorough process 

of ensuring the greatest deference to State-led efforts, the Agencies rejected partnership 

and certified in the Federal Register notice that this rulemaking action "will not have 

substantial direct effects on the states, on the relationship between the national 

government and the states, or on the distribution of power and responsibilities among the 

various levels of government." 79 Fed. Reg. at 22,220. How a rulemaking focused on 

defining the boundary between Federal and State jurisdiction over water pollution control 

can have no substantial impact or effect on States and the distribution of power between 

various levels of government is beyond rational.

Regardless of the legal ramifications, the practical result of choosing the path of rejecting 

federalism consultation requirements is mass confusion among the very State partners 

that have worked with your Agencies for decades to accomplish all the water quality 

gains made thus far. Just as we have been partners and allies in the overall effort to 

restore the fishable, swimmable goals of the CWA, the States and the Agencies could 

have been allies in the effort to clarify WOTUS jurisdiction to the benefit of all who 

implement the CWA's many facets. As it stands now, we've lost faith in the process and 

believe that the myriad flaws and points of confusion cannot be resolved satisfactorily 

through a series of public comment period extensions. The kind of input that our agencies 

and other State coregulators seek, not to mention deserve as a matter of mutual respect 

and as required by law, can only be accomplished through halting the current effort, 

rolling up our sleeves, and developing regulatory language through a meaningful 

exchange of ideas and drafts. Such a process has been employed by your Agencies in the 

past through numerous Federal-State working groups and other arrangements.

Choosing to charge ahead with the current proposal in a rush to finalize the WOTUS rule 

will undoubtedly lead to increased litigation and burdensome resource constraints on our 

agencies that could ultimately thwart the great water quality successes we have 

documented in Oklahoma. We are proud to be listed on EPA’s website as having the 

second most water quality restoration success stories in the country, but we note that the 

overwhelming majority of those successes came through voluntary actions taken in 

partnership with our landowners and other watershed stakeholders. States, not the Federal 

government, are in the best position to coordinate with their local stakeholders to 

accomplish the goals of the CWA. (p. 1 – 3)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. 

Cooperative federalism is a hallmark of the Clean Water Act and this rule does 

nothing to change that. The agencies have no intent to change current practice. 

13.399 II. Oklahoma concerns with rulemaking process

a. Co-regulators are not just stakeholders

The State of Oklahoma plays a significant role in ensuring effective implementation of 

the CWA. Our co-regulator status elevates the State of Oklahoma, and every other state, 

above the multitude of other stakeholders now engaged in the public review process. It is 

imperative that with a rulemaking process of this magnitude, which directly impacts 
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states' implementation of CWA programs, that significant input and review be provided 

to co-regulator entities on the substance of the proposed rule. With regard to the proposed 

rule regarding CWA jurisdiction, the WOTUS rulemaking process undeniably excluded 

Oklahoma's CWA co-regulating agencies.

As stated in my testimony on behalf of WGA and WSWC, EPA and the Corps failed to 

follow Federalism consultation requirements under Executive Order 13132. Oklahoma 

believes this failure is a direct violation not only of a Presidential directive designed to 

maintain the proper balance between federal and state regulation of our citizens, but also 

of a specific Congressional mandate that shared Federalism guide the ultimate 

implementation of the CWA. In the proposed rule's preamble, EPA and the Corps 

downplay the rule's substantial effects on the relationship between the national 

government and states. On the contrary, the very architecture of the CWA relies upon a 

strong, cooperative relationship between the federal and state agencies charged with its 

implementation. Thus, it stands to reason that any rule designed to implement this law 

must also be based upon substantial cooperation between the federal and state 

governments.

From a more practical standpoint, there was no reason for EPA and the Corps to avoid 

formal and meaningful consultation with the states over the many years that have 

transpired since the agencies embarked upon this process. Erring on the side of caution 

and demonstrating a genuine desire to cooperate with the very state agencies that have 

labored to make CWA implementation a success over the past forty-plus-years, EPA and 

the Corps just as easily could have engaged in the more formal consultation process 

outlined by Executive Order 13 132. Oklahoma recognizes that this rule is one that EPA 

and the Corps must address at a national level; however, Section 3(b) of Executive Order 

13 132 requires federal agencies to "consult with State and local officials to determine 

whether Federal objectives can be attained by other means." This is critical in the current 

situation given the significant effect this rule could have on the ability of Oklahoma and

many other drought-stricken states to manage and allocate scarce water resources, not to

mention the absolute necessity to do so at the State, regional and local levels. By skipping 

this critical step in the process, Oklahoma and many other states are left confused, 

disenfranchised, and scrambling within a 90-day period allotted for public comment to 

figure out how we will carry out our respective responsibilities on a mostly final rule. (p. 

8)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. For information on costs/benefits see the economic analysis 

in compendium 11.

State of Idaho (Doc. #16597)

13.400 Consultation:

Idaho believes EPA and the Corps failed to adequately consult with the states prior to 

development of the Proposed Rule. Effective consultation could have addressed many of 

Idaho's concerns and avoided much of the confusion that now exists. EPA and the Corps' 

failure to include the states in the formulation process effectively missed an opportunity 

to build consensus with the primary implementing entities and prevent controversy.
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As a result, there now is an even greater need, and opportunity, to enter into sustained 

dialogue and consultation with the states to revise the Proposed Rule. Such consultation 

should treat the states as co-regulators, separate and apart from the general public, as 

envisioned by the CWA's framework of cooperative federalism and as required by 

Executive Order 13132.

To facilitate consultation and sustained dialogue with Idaho and other states, a statefederal workgroup should be established between EPA, the Corps and the states to revise 

the Proposed Rule. Although it is unlikely such a workgroup would reach a consensus on 

every issue, it would facilitate the dialogue, collaboration and relationship-building 

needed to create a more workable and effective rule. One productive example of such an 

approach is the workgroup EPA established with the Environmental Council of the States 

and the Association of Clean Water Administrators to discuss revisions to the National 

Pollutant Discharge Elimination System (NPDES) electronic reporting rule. Again, the 

purpose of such workgroups is not necessarily to reach consensus but rather to provide 

state and federal participants a meaningful and timely opportunity to discuss and resolve 

their needs and concerns. (p. 1 – 2)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism.

Cooperative federalism is a hallmark of the Clean Water Act and this rule does 

nothing to change that. The agencies have no intent to change current practice. 

The Agencies appreciate the suggestion of developing a state-based advisory board 

to provide local input on interpretation and implementation issues. Going forward, 

the Agencies will consider this suggestion.

Wyoming Association of Conservation Districts (Doc. #17348)

13.401 CONCLUSION

The Association requests the EPA and Army Corp withdraw the rule so that adequate 

state and local government consultation can occur. A real conversation at the individual 

state level between EPA, Army Corp, State agencies and local governments must occur, 

in order to have a collaborative informed dialogue and agreement on which waters 

appropriately fall under federal jurisdiction and which do not. (...) (p. 9)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism.

Water Advocacy Coalition (Doc. #17921.1)

13.402 3. The agencies have not complied with E.O. 13132 (Federalism).

Executive Order 13,132 of August 4, 1999, titled “Federalism” (E.O. 13132), establishes 

requirements for policies that have “federalism implications,” meaning “substantial direct 

effects on the States.” 64 Fed. Reg. 43,255 (Aug. 10, 1999). The purpose of E.O. 13,132 

is to ensure that, in formulating and implementing policies with federalism implications, 

agencies are guided by certain fundamental principles. For example, E.O. 13132 

provides, “the national government should be deferential to the States when taking action 

that affects the policymaking discretion of the States.” Id. § 2(i). In addition, “[w]ith 
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respect to federal statutes and regulations administered by the States, the national 

government shall grant the States the maximum administrative discretion possible.” Id. § 

3(c). E.O. 13132 requires federal agencies to consult with State and local officials on 

policies that have federalism implications and “determine whether Federal objectives can 

be attained by other means.” Id. §§ 3(b), 6(a). Consultation must occur “early in the 

process of developing the proposed regulation.” Id. § 6(b)(2). 

In the preamble, the agencies state that the proposed rule “will not have a substantial 

direct effect on the states, on the relationship between the national government and the 

states, or on the distribution of power and responsibilities among the various levels of 

government.” 79 Fed. Reg. at 22,220. This is patently false. The proposed rule defines 

where federal jurisdiction stops and where State jurisdiction begins. It involves the reach 

of a statute administered, in part, by the States. Yet the States were not adequately 

consulted on the proposed rule as E.O. 13132 requires. Waiting until the public comment

period to solicit State input does not allow for meaningful consideration of the States’ 

views, as well as alternate ways the States may have for meeting federal objectives under 

the CWA. 239Practically speaking, there was no reason for EPA and the Corps to avoid 

formal consultation with the States over the many years that the agencies have been in 

this rulemaking process. The agencies should withdraw the proposed rule and conduct the 

necessary consultation with States and local governments. (p. 96 – 97)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism.

Iowa League of Cities (Doc. #18823)

13.403 The Iowa League of Cities' national organization, the National League of Cities (NLC) 

along with other groups, requested a rulemaking in hopes that the Environmental 

Protection Agency (EPA) would follow the Federalism consultation procedures required 

under Executive Order (EO) 13132. We do not agree that the impacts of the rule are only 

"indirect" and believe strongly a consultation process should have been followed. This 

process would help cities to better understand the Agency's rule and provide examples of 

how the rule will directly impact municipal storm-water systems.

Request for EPA Response: The EPA should conduct the consultation procedure 

outlined by E.O. 13132.

Request for EPA Response: Will the EPA release an interim rule to follow the 

federalism consultation process before a final rule? (p. 1)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism.

New York State Departments of Environmental Conservation (Doc. #18895)

13.404 Early Consultation with States for a Successful Rulemaking Process

 

239 See Potential Impacts of Proposed Changes to the Clean Water Act Jurisdictional Rule , Hearing Before

the Subcomm. on Water Resources and Environment of the H. Comm. on Transportation and Infrastructure

(testimony of J.D. Strong, Oklahoma Water Resources Board ), at 12 (June 11, 2014) , available at

http://transportation.house.gov/uploadedfiles/2014-06-11-strong.pdf.
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We recognize and appreciate that EPA and, to a lesser extent, the Army Corps, made 

some efforts to reach out to the states and regulated entities both before releasing the 

proposed rule and during the comment period. However, meaningful early consultation to 

identify the regulatory impacts to states and local governments did not occur. There is 

concern among the regulated community that the Waters of the United States regulation 

could result in amendments to already-approved permits, and/or make it more difficult 

and time consuming to obtain a future permit.

Under the proposed rule, we cannot determine its impact on existing or future projects 

since the normal processes for outreach and comment were not followed, including 

necessary consultation with the states and local governments. For example, the proposed 

rule could be easy to implement, with little change in existing DEC permitting activities. 

Alternatively, depending upon EPA/USACE interpretation of the regulation, it is also 

possible that the federal agencies could place new requirements on projects which could 

slow their implementation. If so, many initiatives, including the implementation of

projects to restore areas affected by Superstorm Sandy could be affected. (p. 1 – 2)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism.

State of Louisiana Senate (Doc. #19119)

13.405 In particular, based on the copy of the proposed rule, I am deeply concerned that the 

Agencies believe that this proposed rule does not have federalism implications and 

therefore do not need to comply with Executive Order 13132. Under that Executive 

Order, federalism implications include "substantial direct effects on the States, or on the 

distribution of power and responsibilities among the various levels of government."

By changing the definition of "Waters of the United States," the proposed rule will have a 

direct effect on the distribution of power and responsibilities among the various levels of 

government. Currently, there are many waters that are subject to state regulation only. 

However, the proposed rule will significantly expand the scope of federal regulation, 

stripping the States of any governing authority. Given this expansion, I am at a loss to 

identify any water that would not be subject to federal regulation unless specifically 

exempted. Such an expansion in federal jurisdiction would fundamentally alter our ability 

to make decisions regarding the use of land within our borders. Due to the fact that States 

often regulate more waters than arc encompassed by the current definition of "waters of 

the United States'' it is not clear what benefit the expansion of federal authority is 

designed to achieve, It appears that the Agencies did not even consider existing State 

authorities when developing its proposed rule.

I urge you to withdraw the proposed rule until the requirements or Executive Order 

13132 have been met. It is of the utmost importance that State and local governments be 

consulted while developing this rule. (p. 1)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism.
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State of Missouri (Doc. #19420)

13.406 Although I understand your interest in clarifying the definition of WOTUS, I also 

understand the concerns of those who are frustrated that they were left out of the rule 

development process despite the fact that they will be directly impacted by these rules. 

Under the CWA, Congress intended that the states bear primary responsibility to protect 

water resources. Unfortunately, the proposed rule could infringe upon that responsibility 

without extensive engagement, consultation and guidance from the states.

Missourians strongly value clean water, and our recent experience illustrates the need for 

engagement with entities and individuals who play important roles in carrying out this 

responsibility. Missouri's new water quality standards would provide additional CWA 

protection to over 90,000 miles of streams and 2,100 lakes in Missouri. These new 

standards were the result of a decadelong effort to thoroughly engage a diverse group of 

interested parties, including representatives of industry, agriculture, municipalities, and 

environmental organizations. Classifying Missouri's waters took considerable time and 

stakeholder engagement, and I am pleased with the outcome of this effort.

Missouri's process in classifying its waters provides an example of the engagement 

process EPA and the Corps should employ in developing a revised WOTUS rule. 

However, no such process has been employed to date, leaving significant concerns that 

the proposed rule could limit the primary role of the states in preserving water quality 

under the CWA. (p. 1)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism.

State of Alaska (Doc. #19465)

13.407 Failure to Consult with States. In contravention of federalism principles, CWA 

requirements, and Executive Order 13132, EPA and the Corps failed to embark on 

meaningful consultation with states in the promulgation of the proposed rule. (p. 5)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism.

13.408 B. EPA and the Corps have failed to adequately consult with the States in developing a 

proposed rule.

Contrary to Congress’ CWA directive that EPA and the Corps consult and cooperate with 

the States in developing programs and comprehensive solutions to protect the nation’s 

waters and to preserve the states’ primary role in land and water resource management,240

there has been no meaningful consultation with the states, certainly not with Alaska, in 

the development of the proposed rule. Writing such a fundamental rule that applies 

nationally is a very difficult task, and state regulators would bring valuable insight to 

promulgating a rule, given their regulatory authorities and knowledge of specific 

watersheds and state geomorphologic and hydrologic conditions. With this proposed rule, 

EPA and the Corps unilaterally acted to outline what they see as the bounds of their 

 

240 See, e.g., 33 U.S.C. § 1251(b) and (g), and 33 U.S.C. § 1252(a).
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authority, without any consultation with the states on where it is appropriate to draw 

those lines. This is particularly disconcerting for the states, as Congress, in enacting the 

CWA, provided that the states should retain primary jurisdictional authority over state 

lands and water resources.

Additionally, EPA and the Corps fail to comply with EO 13132, which requires 

consultation on rulemakings that have federalism implications and which will have 

“substantial direct effects on the States.”241 Efforts to clarify the term “waters of the 

United States” clearly raise significant federalism issues. Consultation under the EO is 

further required in light of several other provisions, including the following:

 Section 2(i): “The national government should be deferential to the States when 

taking action that affects the policymaking discretion of the States and should act 

only with the greatest caution where State and local governments have identified 

uncertainties regarding the constitutional or statutory authority of the national 

government.” 

 Section 3(b): “Where there are significant uncertainties as to whether national 

action is authorized or appropriate, agencies shall consult with appropriate State 

and local officials to determine whether Federal objectives can be attained by 

other means.”

Thus, a procedural component of the larger 404 – and indeed, 402 – permitting regime 

like that in the proposed rule for determining jurisdictional lines implicates the substantial 

rights of the states, both from a Tenth Amendment Constitutional, as well as a CWA 

statutory perspective. Including the states with all other stakeholders and interested 

parties in the opportunity for public comment on a proposed rule is decidedly not the 

robust and meaningfully state-federal “consult and cooperate” partnership that Congress

clearly had in mind when it enacted the CWA. Nor do a handful of teleconferences where 

EPA is only there to present its proposal and to answer questions, rather than collaborate 

on rulemaking, satisfy the consultation requirement. (p. 8 – 9)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. For more information on state outreach see the national 

outreach summaries in the docket (Docket Id No EPA-HQ-OW-2011-0880).

Western Governors Association (Doc. #19654)

13.409 As co-regulators of water resources, states should be fully consulted and engaged in any 

process that may affect the management of their waters. While the Environmental 

Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) have provided 

briefings to inform states that rulemaking is underway, the conversations to date have not 

been sufficiently detailed to constitute substantive consultation. Western Governors 

strongly urge both EPA and the Corps to engage states as authentic partners in the 

management of Western waters.

States have federally-recognized authority to manage and allocate water within their 

boundaries. Section 101(g) of the Clean Water Act (CWA) expressly states that, “the 

 

241 Executive Order 13132, Section 1(a), Federalism (August 4, 1999).
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authority of each state to allocate quantities of water within its jurisdiction shall not be 

superseded, abrogated, or otherwise impaired by this Act.” The Western States Water 

Council, in its March 10, 2014, correspondence to you both, delineates the areas of 

concern states have with this rulemaking process. Western Governors urge you to engage 

with us, individually and through the Western Governors’ Association, to resolve these 

important concerns in advance of any further action on this issue. (p. 1)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism.

Hinsdale Colorado Board of County Commissioners (Doc. #1768)

13.410 The Guidance Fails to Address Federalism Consultation and Preemption Issues. In 

addition to the rulemaking process outlined under the APA, there are additional 

procedures in place for consultation with state and local governments required during a 

rulemaking that were not applied if to the development of the Draft Guidance. Under 

"Executive Order 13132: Federalism," agencies are required to consult with state and 

local governments on regulations that will have significant impact. Such consultation can 

lead to better results, while strengthening the federal, state, and local government 

partnership in implementing the Clean Water Act. In the case of the Draft Guidance, 

consultation consistent with the Executive Order would have provided an opportunity to 

address significant concerns about the preemption of traditional state and. local 

government authority concerning the management of state waters. (p. 2)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism.

Skamania County Board of Commissioners (Doc. #2469.1)

13.411 Proposed rule raises federalism concerns and could impose direct and indirect costs. 

Under Executive Order 13132-Federalism, federal agencies are required to work with 

state and local governments on proposed regulations that have substantial direct 

compliance costs. Since the agencies have determined that the definition of "waters of the 

U.S." imposes only "indirect" costs, the agencies state in the proposed rule that the new 

definition does not trigger Federalism considerations. However, the agencies' costbenefits analysis-Economic Analysis of Proposed Revised Definition of Waters of the 

U.S. (March 2013)-contradicts the notion that there are no federalism concerns. The 

economic analysis acknowledges that there may be additional implementation costs for a 

number of CWA programs and cautions that the data used and the assumptions made to 

craft the analysis may be flawed (page 2). Since states, local governments and their 

agencies implement and enforce CWA programs, we believe the "waters of the U.S." 

definitional change does have a substantial direct effect on these entities. The economic 

analysis agrees, stating that CWA "programs may subsequently impose direct or indirect 

costs as a result of implementation..." (Page 2). (p. 2)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. For information on economic analysis see compendium 11. 
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Butler County, Pennsylvania (Doc. #6918)

13.412 The proposed rule raises federalism concerns discussed by the Rapanos Supreme Court as 

States and local governments have jurisdiction over land use and could be impacted by 

both direct and indirect costs. Although the proposed rule sets forth "that decisions 

concerning whether or not a water body is subject to the CWA have consequences for 

State, tribal and local governments," it fails to analyze tile specific impacts to state and 

local governments under federalism mandates. Specifically, under Executive Order 

13132-Federalism, "federal agencies are required to work with state and local 

governments on proposed regulations that have substantial direct compliance costs." 

Because the EPA and Corps self-determined their proposed definitional rule expansion 

would only impose indirect costs, the proposed rule stated federalism concerns were not 

triggered despite their own cost-benefits analysis "Economic Analysis of Proposed 

Revised Definition of Waters of the U.S. (March 2013). " The economic analysis 

indicates there may be additional implementation costs for a number of CWA programs 

and cautions the data used and the assumptions relied upon by the Agencies in drafting 

the proposed rule analysis may be flawed. Furthermore, under the rule, the economic 

analysis failed to address additional waters currently not jurisdictional (with no permit 

submissions) which would become jurisdictional under the rule. This reasoning is flawed 

and fails to recognize a true accounting of direct impact costs or benefits. Consultation 

input strengthens federal, state and local government partnerships for CWA 

implementation and streamlining of expenses in any proposed projects. Given concerns 

raised by the EPA and Corps cost-benefits analysis, the definitional implementation 

expansion will have a direct effect and impact on state and local governments responsible 

for maintaining water quality. All State and local plans must comply with their federal 

counterparts and established regulatory mandates. Butler County's comprehensive land 

use plan as well as its County-Wide Waters/led Stormwater Management Plan (Act 167) 

has to consider the following laws (and any amendments) to protect natural resources: 

Agricultural Operations; Nutrient Management Act; The Clean Streams Law; Oil and 

Gas Act; Agricultural Area Security Law; Surface Mining Conservation & Reclamation 

Act; Noncoal Surface Mining Conservation & Reclamation Act; Coal Refuse Disposal 

Control Act; and The Bituminous Mine Subsidence & Land Conservation Act. Moreover, 

impact cost analysis on how the proposed definitional changes may impact the pesticide 

general permit program, including EPA and DEP spraying programs, to control weeds 

and vegetation around ditches, water transfer, reuse and reclamation efforts, drinking and 

other water delivery systems have not been considered. These issues directly impact 

states and local government budgets. Had the proposed rule complied with the Executive 

Order, an opportunity to address significant concerns over the preemption of traditional 

state and local government authority concerning management of state and local waters 

and land use would have been provided. Moreover, a direct impact cost analysis should 

have been included in tile proposed rule process. Usurping a State and local government's 

right to oversee land use within its jurisdiction clearly violates Constitutional federalism 

concepts and mandates. (p. 9)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. For information on economic analysis see compendium 11. 
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Somerset County Commissioners, Somerset, Pennsylvania (Doc. #9734)

13.413 (...) Other civic leaders share my disappointment with the sequence and timing of the 

draft science report "Connectivity of Streams and Wetlands to Downstream Waters, 

Review and Synthesis of Scientific Evidence." Mainly when Executive Order 13132 

Federalism requires Federal agencies to work with local governments on "proposed 

regulations" having direct compliance costs; yet, "we little people in the swamp" were 

denied a potential game-changing opportunity to review the local affect of its' fit into the 

next, "Waters of the US Rulemaking Process" and how it will be used on a scientific 

basis before the "Connectivity Report" was finalized. Nonetheless, these seem leaders 

expressed sincere appreciation for allowing input but are disappointed that local entities 

were not included earlier...the main reason a proposed rule should follow, not precede a 

draft science report. (p. 1)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

13.414 (...) Proper staffing for environmental as well as financial considerations require 

comments to be open 90 days... after release of the "Connectivity Report." (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Office of the City Attorneys, City of Newport News, Virginia (Doc. #10956)

13.415 (...)Since exercise of federal jurisdiction implicates individual property rights under the 

Fifth Amendment of the United States Constitution, due process rights under the 

Fourteenth Amendment and issues of federalism (as set out in Section V, below), 

"desktop" rulings should never be regarded as sufficient to determine jurisdiction. (p. 4)

Agency Response: This comment appears to relate to the manner in which the 

Corps makes jurisdictional determinations; it is outside the scope of this 

rulemaking.

New Mexico Department of Agriculture (Doc. #13024)

13.416 Federalism (E.O. 13132) and Costs to State and Local Agencies

"This action will not have substantial direct effects on the states, on the relationship 

between the national government and the states, or on the distribution of power and 

responsibilities among the various levels of government. Thus, Executive Order 13132 

does not apply to this action and local agencies should have been done at that level as 

well (79 FR22220)."

Since "[t]he main responsibility for water quality management resides with the States in 

the implementation of water quality standards, the administration of the NPDES... and the 

management of nonpoint sources of pollution,”242 any change in jurisdiction will 

 

242 U.S.Environmental Protection Agency. "Overview of Impaired Waters and Total Maximum Daily Loads 

Program." http://water.epa.gov/lawsregs/lawsguidance/cwa/tmdl/intro.cfm#section303.
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necessarily have an impact on the states. E.O. 13132 states that, "To the extent 

practicable and permitted by law, no agency shall promulgate any regulation that has 

federalism implications, that imposes substantial direct compliance costs on state and 

local governments, and that is not required by statute..”243 NMDA concludes that the 

Agencies ' analysis regarding E.O. 13132 was done incorrectly.

The Economic Analysis states there should be no substantial increase in costs to state 

agencies, in spite of a probable increase in jurisdiction. Under the section entitled "CWA 

Section 303 and 305," the document states, "EPA's position on these costs is that an 

expanded assertion of jurisdiction would not have an effect on annual expenditures ... for 

state agencies, including those responsible for state water quality standards, monitoring 

and assessment of water quality, and development of total maximum daily loads 

(TMDLs) for impaired waters."

NMDA does not agree that states will necessarily have capability in a form robust enough 

to comply with the expanded federal jurisdiction as proposed in this rule. Moreover, 

monitoring and assessing water quality on newly jurisdictional water bodies in a very 

large state such as New Mexico would necessarily require additional resources and, 

therefore, cannot possibly come without new costs. (p. 22)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. For information on economic analysis see compendium 11. 

Big Horn County Commissioners (Doc. #13599)

13.417 After careful review, Big Horn County feels the proposed rule has these deficiencies:

1) The proposed rule abandons cooperative federalism.

The principles of cooperative federalism dictate that control of land use decisions 

properly rests with state and local governments. As the Supreme Court recognized, 

"regulation of land use is perhaps the quintessential state activity. (p. 3)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. 

Cooperative federalism is a hallmark of the Clean Water Act and this rule does 

nothing to change that. The agencies have no intent to change current practice. 

San Joaquin Tributaries Authority (Doc. #14992)

13.418 The Proposed Rule Violates the Requirements of Executive Order 13132 

The EPA and Corps did not meet the requirements of Executive order 13132 in 

formulating the Proposed Rule. Executive Order 13132 requires Federal agencies to 

consult with state and local governments, as well as restrict the reach of their proposed 

rules, when adopting policies "that have federalism implications." The EPA and Corps 

 

243 Exec. Order No. 13132 - "Federalism." Signed August 4, 1999. Available at:

https://www.federalregister.gov/articles/1999/08/10/99-20729/federalism.
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determined that the Proposed Rule does not have "federalism implications," and thus the 

requirements of Executive Order 13132 do not apply. (Federal Register, at 22220-22221.) 

In the alternative, however, the EPA and Corps maintain they have met their consultation 

obligations under Executive Order 13132. (ld., at 22221.) 

The Proposed Rule has federalism implications. Executive Order 13132 states that a 

policy has "federalism implications" if it has "substantial direct effects on the States, on 

the relationship between the national government and the States, or on the distribution of 

power and responsibilities among the various levels of government." (Executive Order 

13132, at §1(a).) The Supreme Court recognized there are significant federalism 

implications involved in WOTUS matters. In determining which hydrologic features are 

under the jurisdiction of the CWA. The Supreme Court recognized that the EPA and the 

Corps' claims of federal jurisdiction over traditionally state-regulated resources would 

result in a significant impingement of the States' traditional and primary power over land 

and water use." (SWANCC, at 174, quoting 33 U.S.C. § 1251(b).) 

In addition, as recognized in SWANCC and Rapanos, the expansion of EPA and Corps 

jurisdiction over hydrologic features has federalism implications because it results in the 

federal government placing additional burdens on states. For instance, under Section 

303(d) of the CWA, the states must identify all WOTUS which do not meet or are not 

expected to meet federal water quality standards. (33 USC § I313(d)(l )(A).) When 

identifying these impaired WOTUS, the states must also determine the cause of 

impairment. (See EPA, Chapter 4 -- EPA And State Responsibilities (March 6, 2010) 

<http://water.epa.gov/lawsregs/lawsguidance/cwa/tmdl/dcc4.cfm> [as of Sept. 12, 

2014].) The states must also submit to the EPA adequate documentation supporting the 

listing of waters. (ld.) Thus, the additional requirements of the Proposed Rule also trigger 

federalism issues. 

Because the Proposed Rule is subject to the requirements of Executive Order 13132, EPA 

must engage in adequate consultation with the states. The EPA has not met its 

consultation requirements under Executive Order 13132. On June 11, 2014, the House 

Transportation and Infrastructure Committee subcommittee on Water Resources and 

Environment held a hearing at which top administrative officials from the EPA and Corps 

were interviewed about the Proposed Rule. At this interview, EPA and Corps officials 

admitted that no state had explicitly voiced its support for the Proposed Rule. (Committee 

on Transportation & Infrastructure, Potential Impacts of Proposed Changes to the Clean 

Water Act Jurisdictional Rule (June 11,2014) 

<http://transportation.house.gov/calendar/eventsingle.aspx?EventID=378392> [as of 

Sept. 12, 2014] at 36:30 & 1:00:20 [hereinafter "Transportation & Infrastructure 

Hearing"].) At that hearing, the representative of the Western Governors Association, 

representing 19 western states, stated "the Western states, at least, are unanimous in their 

concern over the fact that the states were not adequately consulted in advance of this rule 

being proposed." (ld., at 2:25:45.) He noted, further, that the states were not involved in 

drafting the declaration and consultation requires more than allowing states to provide 

comment during the public comment period. (Id.) The EPA must consult meaningfully 

with the states to meet their obligation under Executive Order 13132, something, to this 

point, they have failed to do.
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Conclusion

The Irrigation Districts request the EPA decline to adopt the Proposed Rule. The 

Proposed Rule constitutes a significant expansion of jurisdiction that is not supported. In 

addition, the Proposed Rule does not provide clarity. The added confusion and expanded 

jurisdiction of the Proposed Rule are not offset by the limited additional certainty. The 

Proposed Rule has also failed to comply with the consultation requirement of Executive 

Order 13132. To the extent the EPA proceeds with the Proposed Rule, the Irrigation 

Districts urge the EPA to revise the Proposed Rule to ensure irrigation facilities and the 

operational facilities that support irrigation are expressly exempted from WOTUS 

jurisdiction. (p. 5 – 6)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. 

National Association of Counties (Doc. #15081)

13.419 President Clinton issued Executive Order No. 13132, “Federalism,” on August 4, 1999. 

Under Executive Order 13132—Federalism, federal agencies are required to work with 

state and local governments on proposed regulations that will have a substantial direct 

impact on state and local governments. We believe the proposed “waters of the U.S.” rule 

triggers Executive Order 13132. Under Federalism, agencies must consult with state and 

local officials early in the process and must include in the final draft regulation a 

federalism summary impact statement, which must include a detailed overview of state 

and local government concerns and describe the extent the agencies were able to address 

the concerns.244 A federalism impact statement was not included with the proposed rule.

EPA’s own internal guidance summarizes when a Federalism consultation should be 

initiated.245 Federalism may be triggered if a proposed rule has an annual implementation 

cost of $25 million for state and local governments.246 Additionally, if a proposal triggers 

Federalism, EPA is required to work with state and local governments in a “meaningful 

and timely” manner which means “consultation should begin as early as possible and 

continue as you develop the proposed rule.”247 Even if the rule is determined not to 

impact state and local governments, the EPA still subject to its consultation requirements 

if the proposal has “any adverse impact above a minimum level.”248

Within the proposed rule, the agencies have indicated they “voluntarily undertook 

federalism consultation.”249 While we are heartened by the agencies’ acknowledgement 

of our concerns, we are disturbed that EPA prematurely truncated the state and local 

government Federalism consultation process. EPA initiated a formal Federalism 

consultation process in 2011. In the 17 months between the consultation and the 

proposed rule’s publication, EPA failed to avail itself of the opportunity to continue 

 

244 Exec. Order No. 13132, 79 Fed. Reg. 43,255 (August 20, 1999).

245 U.S. Envtl. Prot. Agency, EPA’s Action Development Process: Guidance on Exec. Order 13132: Federalism, 

(November 2008).

246 Id. at 6.

247 Id. at 9.

248 Id. at 11.

249 79 Fed.Reg. 22220.
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substantial discussions during this intervening period with its intergovernmental 

partners, thereby failing to fulfill the intent of Executive Order 13132, and the 

agency’s internal process for implementing it. (p. 4 – 5)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. 

13.420 (...) 3. Complete a multiphase, rather than one-time, Federalism consultation process

4. Charter an ad hoc, subject-specific advisory committee under the authority of the 

Federal Advisory Committee Act (FACA), as EPA has done on numerous occasions for 

less impactful regulations, to underpin the development of this comprehensive regulation

5. Accept an ADR Negotiated Rulemaking process for the proposed rule: Because of the 

intrinsic problems with the development of the proposed rule, we would also ask the 

agencies to consider an Alternative Dispute Resolution (ADR) negotiated rulemaking 

with all stakeholders. An ADR negotiated rulemaking process would allow stakeholders 

of various groups to “negotiate” the text of a proposed rule, to allow problems to be 

addressed and consensus to be reached. (p. 5)

Agency Response: The negotiated rulemaking process is used as a pre-proposal 

mechanism to develop a rule. It is most effective when affected parties have 

conflicting positions on what provisions should be in a rule and where a negotiated 

process could lead to consensus language for the rule. The process for developing 

this rule included pre-proposal opportunities for affected parties to provide input to 

the agencies (for detailed information see the sections on 13.2.5 on Federalism, 

13.2.6 on Tribal Consultation, and 11.1 on RFA/SBREFA in compendium 11). Since 

the rule has been proposed and the Agencies have received over one million 

comments, it would be inappropriate to ignore all of those comments to restart the 

rulemaking through a negotiated rulemaking process.

Rio Grande Water Conservation District (Doc. #15124)

13.421 For all of the foregoing reasons, the RGWCD is strongly opposed to the promulgation of 

the proposed jurisdictional waters rule in its current form. We urge the EPA and Corps to 

withdraw the draft rule at the conclusion of the comment period and engage state and 

local governments and the agricultural community in meaningful conversation to develop 

a comprehensive regulatory framework that is clear and efficient, comports with federal 

law, and protects the Nation's waters without overly burdening agriculture, small 

businesses and other regulated groups. This course of action is particularly appropriate 

given the amount of opposition that has been levied against the proposed rule since its 

release, including the written request of 231 members of Congress to withdraw the rule 

and the bipartisan legislation, "Waters of the United States Regulatory Overreach 

Protection Act," H.R. 5078, that is currently before the Senate after having passed the 

House on September 9, 2014. (p. 9)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. 

Sacramento County, California (Doc. #15518)

13.422 Concerns about Agency Consultation with State and Local Partners
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We appreciate that EPA and the Corps are moving forward with a proposed rule, rather 

than a guidance document, as originally proposed. However, we have concerns with the 

process used to create this proposal - specifically, whether impacted state and local 

groups were adequately consulted throughout the process. 

 Proposed rule raises federalism concerns and could impose direct and 

indirect costs.

Under Executive Order 13132-Federalism, federal agencies are required to work with 

state and local governments on proposed regulations that have substantial direct 

compliance costs. Since the agencies have determined that the definition of waters of the 

U.S." imposes only "indirect" costs, the agencies state in the proposed rule that the new 

definition does not trigger Federalism considerations. However, the agencies' costbenefits analysis-Economic Analysis of Proposed Revised Definition of Waters of the U.S.

(March 2014)-contradicts the notion that there are no federalism concerns. The economic 

analysis acknowledges that there may be additional implementation costs for a number of 

CWA programs and cautions that the data used and the assumptions made to craft the 

analysis may be flawed (page 2). Since states, local governments and their agencies 

implement and enforce CWA programs, we believe the "waters of the U.S." definitional 

change does have a substantial direct effect on these entities. The economic analysis 

agrees, stating that CWA "programs may subsequently impose direct or indirect costs as 

a result of implementation ..." (page 2). (p. 2 – 3)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. For information on economic analysis see compendium 11.

Lander County Commissioner (Doc. #15664)

13.423 (... The proposed Rule raises federalism concerns and could impose unfair and unduly 

burdensome direct and indirect costs on Lander County; (...) (p. 2)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. 

Eddy County Commissioners (Doc. #15665)

13.424 Proposed rule raises federalism concerns that could impose large costs. Executive order 

13132- Federalism, federal agencies are required to work with state and local 

governments on proposed regulations that may or will have substantial direct compliance 

cost. Agencies have determined "Waters of US" as indirect costs and do not trigger 

federalism. Commissioners disagree and believe the proposed rule changes will have 

significant direct costs to our county. (p. 2)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. For information on economic analysis see compendium 11.

San Bernardino County, California (Doc. #16489)

13.425 Duplication of State Regulation and Management: The DPW disagrees with the 

Agencies' opinion that Executive Order 13132 (concerning Federalism) does not apply to 

the proposed Rule. (p. 5)
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Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. 

13.426 V. Comment on the Proposed Rule and "Executive Order 13132 ("Federalism")

In should be noted that the proposed Rule asserts the following:

"This action (proposed Rule) will not have substantial direct effects on the states, 

on the relationship between the national government and the states, or on the 

distribution of power responsibilities among the various levels of government. 

Thus, Executive Order 13132 (64 FR 43255, August 10, 1999) does not apply to 

his action." 250

The DPW would assert that the proposed Rule does touch on federalism principles, 

because the proposed Rule focuses on developing a regulatory policy derived from 

SWANCC and Rapanos which examined CWA at its outer fringe. The Supreme Court, 

granted certiorari to hear these cases because they were concerned with federal overreach which is central to federalism.

The DPW wishes to highlight several of the provisions of Executive Order 13132.

Section 1. Definitions. For purposes of this order:

(a) “Policies that have federalism implications” refers to regulations, legislative 

comments or proposed legislation, and other policy statements or actions that 

have substantial direct effects on the States, on the relationship between the 

national government and the States, or on the distribution of power and 

responsibilities among the various levels of government.

Section. 2. Fundamental Federalism Principles. In formulating and implementing policies 

that have federalism implications, agencies shall be guided by the following fundamental 

federalism principles:

(a) Federalism is rooted in the belief that issues that are not national in scope or 

significance are most appropriately addressed by the level of government closest 

to the people.

(i) The national government should be deferential to the States when taking action 

that affects the policymaking discretion of the States and should act only with the 

greatest caution where State or local governments have identified uncertainties 

regarding the constitutional or statutory authority of the national government.

Section. 3. Federalism Policymaking Criteria. In addition to adhering to the fundamental 

federalism principles set forth in section 2, agencies shall adhere, to the extent permitted 

by law, to the following criteria when formulating and implementing policies that have 

federalism implications:

(b) National action limiting the policymaking discretion of the States shall be 

taken only where there is constitutional and statutory authority for the action and 

the national activity is appropriate in light of the presence of a problem of national 

 

250 Federal Register, at 22220 (E).
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significance. Where there are significant uncertainties as to whether national 

action is authorized or appropriate, agencies shall consult with appropriate State 

and local officials to determine whether Federal objectives can be attained by 

other means.

(d) When undertaking to formulate and implement policies that have federalism 

implications, agencies shall: (1) encourage States to develop their own policies to 

achieve program objectives and to work with appropriate officials in other States; 

(2) where possible, defer to the States to establish standards; (3) in determining 

whether to establish uniform national standards, consult with appropriate State 

and local officials as to the need for national standards and any alternatives that 

would limit the scope of national standards or otherwise preserve State 

prerogatives and authority; and (4) where national standards are required by 

Federal statutes, consult with appropriate State and local officials in developing 

those standards.

A. FEDERALISM AND STATE RESPONSE TO REGULATORY GAPS

The DPW is aware that many interest groups are wary of a CWA regulatory framework 

which excludes some surface waters from jurisdiction. These groups tend to resist efforts 

to limit the scope of protection will result. To answer these concerns the DPW asserts that 

a fundamental precept underlying both the SWANCC and Rapanos Decision is 

federalism.251 Federalism underscores the responsibility and benefit of state management 

of resources. To this end, recent history clearly establishes that states respond adequately 

to "regulatory gaps" resulting from loss of federal CWA jurisdiction. The issue of 

"regulatory gaps" in CWA jurisdiction was first addressed in the years following the 

SWANCC decision. The invalidation of the MBR created some "gaps" in regulation of 

"other waters". While the response of the many States to SWANCC was not immediate, 

by 2004 most states had moved to fill regulatory gaps 2004.252 As example, some states 

like California, issued guidelines wherein existing laws were interpreted to extend to 

"other waters" including isolated intrastate wetlands.253

 

251 See, United States v. Alfonso D. Lopez, Jr., 514 U.S. 549, at 558 (1995), citing NLRB v. Jones & Laughlin

Steel Corp., 301 U. S. 1 at 37 (1937). In Lopez, the Court moved to invalidate the "Gun Free School Zone Act of

1990", identifying three broad categories of activity that Congress could regulate under the Commerce Clause: (1)

The channels of interstate commerce, (2) The instrumentalities of interstate commerce, or persons or things in

interstate commerce, and (3) Activities that substantially affect or substantially relate to interstate commerce. The

Court continued the reproach of Commerce authority in United States v. Morrison, addressing the "Violence Against

Women Act". 529 U.S. 598 (2000).

252 See, Jon Kusler, Esq., The SWANCC Decision: State Regulation of Wetlands to Fill The Gap,., Association of

State Wetland Managers, Inc., (03/04/2004.). Depending on state needs, "filling the gaps" took one of three forms

(1) Extend water quality programs to explicitly include isolated and other wetlands (Indiana, Ohio), south Carolina,

North Carolina); (2) Adopt limited legislation closing the gaps created by SWANCC (Approach taken by Wisconsin

and Ohio, which already regulate some wetlands); and (3) Adopt new comprehensive wetland regulation (proposed

bills introduced by Illinois). It should be noted that many states already had comprehensive wetlands statutes

(Including: Minnesota, Michigan, Massachusetts, Rhode Island, Maine, New Hampshire, New York, New Jersey,

Connecticut, Maryland, Virginia, Florida, Vermont, Pennsylvania and Oregon.)

253 California State Water Resources Control Board, Guidance for Regulation of Discharges to "Isolated

Waters" (June 25, 2004); Under the California Porter-Cologne Water Quality Control Act (Porter Cologne; Ca.
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After the Rapanos decision, the issue of "regulatory gaps" was again raised with respect 

to coverage and protection of remote tributaries and wetlands. Arguably, because the 

metrics behind the tiered evaluation process is complex, and the case-by-case structure of 

the federal §404 program is tantamount to a moving target, it might be reasoned that 

Rapanos complicates the ability of states to formulate a comprehensive program to 

resolve coverage gaps. However, as a practical matter these concerns are simply not 

warranted. Any complexity in the federal regulatory framework derives from the need to 

create a uniform, all-encompassing program that addresses the diverse hydrosphere in the 

many states, while complying with constitutional limitations via the commerce clause. 

Conversely, States have more limited hydro-diversity and are not bound by federal 

notions of limited government and enumerated powers. As such, States have broader 

authority under State constitutions, coupled with more experience in management and 

oversight of intra-state resources. 

In California, the State's Department of Fish and Wildlife (CDFW) has exercised 

administrative authority over remote first order tributaries for decades. This regulatory 

framework includes tributaries to navigable waters, isolated intrastate dry-lakes and 

"other waters".254 As such, jurisdictional regulation of tributaries within the State of 

California exceeds that coverage provided by the CWA even prior to the diminution of 

jurisdiction subsequent to SWANCC and Rapanos.

The hope of the DPW, in seeking to limit the scope federal jurisdiction, is to minimize 

assessment and permitting costs. Because these resources are already protected under 

state law, streamlining the process by limiting federal jurisdiction will allow the DPW to 

focus its time and resources on fulfilling its vital flood-control, stormwater management 

and public safety mission.

Again, the DPW appreciates the opportunity to comment on the proposed Rule and looks 

forward to working collaboratively with the USACE and EPA to achieve mutual goal of 

and predictable, consistent and streamlined regulatory framework. (p. 27 – 29)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism.

Hot Springs County Commissioners (Doc. #16676)

13.427 After careful review, the Hot Springs County Commission has identified the following 

deficiencies with the proposed rule:

1) The proposed rule abandons cooperative federalism.

Section 101 (b) of the CWA reads that, "It is the policy of Congress to recognize, 

preserve, and protect the primary responsibilities of States to prevent, reduce, and 

 

Water Code, Div. 7, §13000 et seq.), discharges to wetlands and other "waters of the state" have been and remain

subject to state regulation. On January 25, 2001, the Office of Chief Counsel of SWRCB released a legal

memorandum confirming the State's jurisdiction over such waters. Under the program, local Regional Water

Quality Control Boards (RWQCB), implement an administrative program covering isolated waters, wherein

permittees must comply with "waste discharge requirements" (WDRs).

254 See California Fish & Game Code §§1600-1602, regulating any lake or streambed resource include perennial,

intermittent and ephemeral stream with a discernable bed and bank, including adjacent wetland and riparian areas.
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eliminate pollution, to plan the development and use (including restoration, preservation 

and enhancement) of land and water resources... "

The EPA and the USACE have provided numerous briefings and conversations with state 

and local governments since the introduction of the proposed rule. However, these 

briefings have either been too broad for sufficient comment, or peppered with insinuation 

that the reviewers simply don't understand the rule's content.255 Numerous commenters 

have stressed the point that the EPA and the Corps have failed in their obligation under 

the CWA and Executive Order 13132 to meaningfully engage the states in development 

of this rule.256 The Hot Springs County Commission adds its voice to that growing 

chorus. 

Recommendation: The Hot Springs County Commission requests that the EPA and the 

Corps immediately withdraw the proposed rule and begin a new and open process that 

includes Wyoming's expert agencies and county government in its development. The 

State of Wyoming several instances to create rules and management practices that help 

protect Wyoming's land and water, support economic growth, and recognize on-theground realities. The Hot Springs County Commission believes a rule clarifying 

jurisdiction of waters can be developed in a similar manner. (p. 2)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. 

Cooperative federalism is a hallmark of the Clean Water Act and this rule does 

nothing to change that. The agencies have no intent to change current practice.

Navajo County Board of Supervisors, Arizona (Doc. #19569)

13.428 The proposed rule raises federalism concerns and could impose direct and indirect costs.

Under Executive Order 13132 Federalism, federal agencies are required to work with 

state and local governments on proposed regulations that have substantial direct 

compliance costs. Since the agencies have determined that the definition of “waters of the 

U.S.” imposes only “indirect” costs, the agencies state in the proposed rule that the new 

definition does not trigger Federalism considerations. However, the agencies’ costbenefits analysis: Economic Analysis of Proposed Revised Definition of Waters of the 

U.S. (March 2014), contradicts the notion that there are no federalism concerns. The 

economic analysis acknowledges that there may be additional implementation costs for a 

number of CWA programs and cautions that the data used and the assumptions made to 

craft the analysis may be flawed (p. 2).

Since states, local governments and their agencies implement and enforce CWA 

programs, Navajo County believes that the “waters of the U.S.” definitional change does 

have a substantial direct effect on these entities. The economic analysis agrees, stating 

 

255 Letter from 24 United States Senators to the EPA, October 23, 2014.

256 "Western Governors strongly urge both the EPA and the Corps to engage states as authentic partners in the

management of Western waters." Western Governors' Association Letter to the EPA, March 25,2014; and,

" .. .consultation should treat states as co-regulators that are separate and apart from the general public . . ." Western

States Water Council, Letter to the EPA, October 15,2014 among many others.
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that CWA “programs may subsequently impose direct or indirect costs as a result of 

implementation...” (p. 2). (p. 2)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. For information on economic analysis see compendium 11.

Association of Clean water Administrators (Doc. #13069)

13.429 I. Lack of Consultation with States

Members of ACWA feel very strongly that states should have been consulted early on, as 

co-regulators, during the development of the Proposed Rule. It would have been very 

helpful for EPA and the Corps to have a detailed and nuanced understanding of how 

states currently implement the CWA before concluding that the Proposed Rule will only 

result in a change in jurisdiction of three percent (3%). As the primary entities 

responsible for carrying out the CWA, States are uniquely positioned to provide input on 

how the Proposed Rule would impact their current activities under the various CWA 

programs, and how the reach of jurisdiction may change dependent on their current 

authority under state law. The Proposed Rule also raises implementation issues and 

questions that vary from state to state, important considerations when developing a 

national rule of this breadth. (p. 2)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. 

Georgia Municipal Association (Doc. #14527)

13.430 While the Environmental Protection Agency {EPA) and U.S. Army Corps of Engineers 

(Corps) have developed the proposed rule- Definition of the Waters of the United States 

Under the Clean Water Act- to provide clarity, GMA finds the rule very ambiguous and 

believes it will create more questions than answers. In particular, we are concerned about 

potentially farreaching unintended consequences if the rule is put into place as written, 

especially since state and local governments were not involved in the federal consultation 

process.

257 (p. 2)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. 

County Commissioners Association of Pennsylvania (Doc. #14579)

13.431 A good regulation would engage state governments, local communities and affected 

industries as active partners in the regulatory decision-making process. Instead, the 

 

257 The National League of Cities (NLC) and other state and local government associations asked for a rulemaking 

on Waters of the U.S. in the hopes that a Federalism consultation as required under Executive Order 13132 would be 

undertaken. But, because the agencies have determined the proposed Waters of the U.S. rule does not trigger EO 

13132 considerations, this process was omitted. If the Federalism consult process proceeded, many local 

government concerns could have been addressed prior to the proposed rule's publication. The EPA/Army Corps 

conducted a "voluntary" consultation with state and local government groups but they concluded the proposed rule 

will only have an indirect impact on state and local governments, therefore the Federalism requirements were

not triggered. This means there will be no Federalism impact statement in the final rule, which would

detail the extent to which the concerns of state and lo ca l officials have been met.
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proposed regulations seek to federalize many of the land use and community and 

economic development decisions that should be made by state officials and local 

communities. (p. 11)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. 

Wyoming County Commissioners Association (Doc. #15434)

13.432 The proposed rule abandons cooperative federalism

Section 101(b) of the CWA reads that, "It is the policy of Congress to recognize, 

preserve, and protect the primary responsibilities of States to prevent, reduce, and 

eliminate pollution, to plan the development and use (including restoration, preservation 

and enhancement) of land and water resources..."

The EPA and the USACE have provided numerous briefings and conversations with state 

and local governments since the introduction of the proposed rule. However, these 

briefings have either been too broad for sufficient comment, or peppered with insinuation 

that the reviewers simply don't understand the rule's content.258 Numerous commenters 

have stressed the point that the EPA and the Corps have failed in their obligation under 

the CWA and Executive Order 13132 to meaningfully engage the states in development 

of this rule.'259 The WCCA adds its voice to that growing chorus. 

Recommendation: The WCCA requests that the EPA and the Corps immediately 

withdraw the proposed rule and begin a new and open process that includes Wyoming's 

expert agencies and county government in its development. The State of Wyoming, 

counties, a federal land management agencies have worked cooperatively in several 

instances to create rules and management practices that help protect Wyoming's land and 

water, support economic growth, and recognize on-the-ground realities. The WCCA 

believes a rule clarifying jurisdiction of waters can be developed in a similar manner. (p. 

2) 

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. 

Cooperative federalism is a hallmark of the Clean Water Act and this rule does 

nothing to change. The agencies have no intent to change current practice. 

Association of State Drinking Water Administrators (Doc. #15530)

13.433 Working with States as Co-Regulators: We strongly recommend that EPA and the Corps

work closely with states, as co-regulators, in the final rulemaking. States have long 

supported early, meaningful, and substantial state involvement in the development and 

implementation of environmental statutes and related rules. The various calls between 

 

258 Letter from 24 United States Senators to the EPA, October 23, 2014.

259 "Western Governors strongly urge both the EPA and tile Corps to engage states as authentic partners in the

management of Western waters." Western Governors’ Association Letter to the EPA, March 25,2014; and,

"...consultation should treat states as co-regulators that are separate and apart from the general public...” Western 

States Water Council, Letter to the EPA, October 15, 2014 among many others.
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states and EPA during the public comment period for the proposed rule were a great help 

in answering state questions about the proposed rule; but, owing to the complexity of the 

proposed rule, a wide array of scenarios across the country, and state implementation 

challenges, many questions remain. Therefore, we believe that ongoing and frequent 

communication with states will be critical to developing an effective final rule on this 

challenging subject matter. (p. 2)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. 

South Carolina Association of Counties (Doc. #15573)

13.434 Concerns about Agency Consultation with State and Local Governments

We appreciate that EPA and the Corps are moving forward with a proposed rule, rather 

than a guidance document, as originally proposed. However, we have concerns with the 

process used to create this proposal, and specifically whether impacted state and local 

governments were adequately consulted throughout the process.

SCAC and our member counties believe the EPA's proposed rule raises serious 

federalism concerns and will impose direct and indirect costs on local governments. 

Under Executive Order 13132—Federalism, federal agencies are required to work with 

state and local governments on proposed regulations that have substantial direct 

compliance costs. The agencies state in the proposed rule that the new definition does not 

trigger Federalism considerations. The EPA and Corps have previously expressed their 

opinions that the definition of "waters of the U.S." may impose only "indirect" costs. 

However, the agencies' cost-benefits analysis, Economic Analysis of Proposed Revised 

Definition of Waters of the U.S. published in March 2014, directly contradicts the notion 

that there are no federalism concerns. (p. 2)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. For information on economic analysis see compendium 11.

The United States Conference of Mayors et al. (Doc. #15784)

13.435 3. Executive Order 13132: Federalism requires federal agencies to work with state and 

local governments on proposed regulations that have substantial direct compliance costs. 

Since the agencies have determined that a change in the definition of “waters of the U.S.” 

imposes only indirect costs, the agencies state that the proposed rule does not trigger 

Federalism considerations. We wholeheartedly disagree with this conclusion and are 

convinced there will be both direct and indirect costs for implementation. 

Additionally, while EPA initiated a federalism consultation for its state and local partners 

in 2011, the process was prematurely shortened. In the 17 months between the initial 

Federalism consultation and the publication of the proposed rule, the agencies changed 

directions several times (regulations versus guidance). In those intervening months 

between the consultation and the publication of the proposed rule, the agencies failed to 

continue substantial discussions, thereby not fulfilling the intent of Executive Order 

13132. (p. 3)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. 
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13.436 Initiate a formal state and local government federalism consultation process per 

Executive Order 13132: Federalism to address local government concerns and issues of 

clarity and certainty. (p. 4)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. 

Oklahoma Municipal League (Doc. #16526)

13.437 Executive Order 13132: Federalism requires federal agencies to work with state and local 

governments on proposed regulations that have substantial direct compliance costs. In 

view of the significant direct costs set out above, the Agencies should have complied 

with this mandate. Had they done so, they would have received valuable information 

about the rule's many problems. The Agencies would have had the opportunity to cure the 

defects before the proposal was released. (p. 2)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism.

U.S. Chamber of Commerce (Doc. #14115)

13.438 Executive Order 13132: Federalism

Executive Order 13132 requires federal agencies to develop accountable processes for 

“meaningful and timely input by State and local officials in the development of 

regulatory policies that have federalism implications.” Because the Clean Water Act is a 

federal statute that is currently primarily administered and enforced by the States, 

imposing new responsibilities on the States necessarily implicates federalism. Even 

before the WOTUS rule was formally proposed, groups representing State and local 

interests voiced loud concerns that the States were not being adequately consulted or 

involved in the rule development process. The U.S. House of Representatives recently 

passed, by a bipartisan 262-152 vote, H.R. 5078, the “Waters of the U.S. Overreach 

Protection Act of 2014,” which would require the Agencies to suspend the WOTUS 

proposal until they have done a better job of coordinating with the States. Because the 

Agencies have not consulted or coordinated adequately with the States, the Agencies 

must withdraw their proposal and not proceed to revise the WOTUS definition until they 

can fully comply with Executive Order 13132. (p. 40)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. 

Indiana Farm Bureau et al. (Doc. #14119)

13.439 We all agree that regulatory certainty and ease of implementation is important and 

necessary. However, we will not concede regulation to federal agencies which has not 

been authorized by Congress. It is incumbent upon the agencies to withdraw this rule 

proposal and start anew with a well-reasoned and deliberately developed proposal to 

clarify the regulatory reach of EPA and the Army Corps of Engineers. In arriving at this 

decision, we believe that the agencies should follow the road map established in HR 5078 

by a bipartisan group in the House of Representatives. Only through open discussion with 

state and local governments and inclusion of the public within the process will the 
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agencies be able to achieve the level of certainty and consensus that all deserve through 

the implementation of the Clean Water Act. (p. 4 – 5)

Agency Response: As explained elsewhere, the agencies believe this rule is 

consistent with the statute, the caselaw, sounds science and respectfully disagrees 

that we should implement legislation that has not been enacted.

John Deere & Company (Doc. #14136)

13.440 The Proposed Rules Fail to Assess the Impact that Greatly Expanded Federal Jurisdiction 

Will Have on the Cooperative Federalism Approach Embodied in the CWA Through 

changes to jurisdictional water definitions the agencies have expanded the geographical 

scope of their jurisdiction under the CWA at the expense of state involvement. The 

proposed rule fails to assess the impact this expanded jurisdiction will have on the 

cooperative federalism approach embodied in the CWA. This federal-state partnership 

has played a critical role for agriculture, and was intended by Congress to restore and 

maintain the chemical, physical, and biological integrity of the nation’s waters.260

For agriculture, a key element to this cooperative federalism is allowing states to 

individually tailor the means to meet clean water objectives.261 As detailed in these 

comments, agricultural practices and activities vary greatly throughout the U.S. in 

response to soil conditions, weather, pests, and other factors. The best management 

practices used by farmers throughout the country vary between states and regions. The 

practices a farmer in the Northeast uses to grow and cultivate crops will vary significantly 

from those used in the Southwest. Input at the state level helps assure that the site specific 

nature of farming practices, the environment, available resources, and economic factors 

are all considered when developing plans to address non-point pollution. A nation-wide 

solution to nonpoint source pollution problems will not work for agriculture. (p. 12 – 13)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. Cooperative federalism is a hallmark of the Clean Water Act 

and this rule does nothing to change that. The agencies have no intent to change 

current practice. 

Georgia Chamber of Commerce (Doc. #14430)

13.441 The Role of Congress

The Chamber supports the supremacy of Congress to make laws. It’s the responsibility of 

Congress, not the administration, to define the scope of regulatory jurisdiction under the 

CWA. 

The Chamber believes that ultimately Congress must take action to define more precisely 

what waters are covered under the Clean Water Act. The EPA and the Corps are 

encouraged to present Congress with appropriate amendments that they believe will 

clarify the issues preventing efficient and effective application of the existing CWA.

 

260 33 U.S.C. §1251(a) (2014).

261 Alexandra Dapolito Dunn & Meghan Boian, Postcards from the Edge: Perspective to Reinvigorate

Clean Water Act Cooperative Federalism, 4 Geo. Wash. J. Energy & Envtl. L. 68 (2013).
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Such an approach will allow Congress to rightfully consider these and other issues and 

determine what it considers to be appropriate limits to EPA’s regulatory powers.

The Chamber was pleased to see bi-partisan support for H.R. 5078 - Waters of the United 

States Regulatory Overreach Protection Act of 2014. The 262 votes in support illustrate 

the widespread concern with EPA’s proposed rulemaking and surely sends a strong signal 

from Congress that EPA must reconsider its current proposal.

The Chamber also recognizes the strong support of the Georgia Delegation in this vote 

and in their continuing endeavors to identify a better solution than that outlined in the 

current draft rule.

The Chamber’s membership is willing to work with EPA and Congress to seek workable 

amendments to the existing CWA that address regulatory issues, as well as ensuring 

certainty for the regulated community and those businesses who may, for the first time, 

find their activities drawn into the scope of the CWA. (p. 8 – 9)

Agency Response: This expression of support for legislation is outside the scope of 

this rulemaking.

Connecticut Marine Trades Association (Doc. #14558)

13.442 CMTA joins with members of United States House of Representatives that as a 

representative body overwhelming passed the Waters of the United States Overreach 

Protection Act (H.R. 5078) with bipartisan support due in part to the significant impact 

this regulation would impose on small business and further hindering job creation 

nationwide. (p. 1)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. 

13.443 Given the lack of involvement of state and local governments, regulated parties and the 

environmental community in the initial crafting of the proposal, the misdirected efforts of 

the scientific community, and the polarization existing in the legislative arena, the Water 

Congress would recommend that the agencies follow a new path towards the goal line. In 

particular, the agencies should:

1. Hold the current proposal in abeyance;

2. Seek input on the proposal from state and local governments, including those 

state and local agencies responsible for water quality regulatory compliance and 

the provision of water supplies;

3. Assemble representatives of the NGO stakeholder community, including the 

agricultural, municipal, industrial, business, utility, special district and 

environmental interests, for purposes of identifying “key” concerns and narrowing 

the scope of disagreement. The first step in this process would be to “bundle” or 

categorize key concerns as found in the comments submitted to date, along with 

the preparation of a short but substantive response of the agencies thereto. 

Thought could be given to the establishment of a Federal Advisory Committee.

4. Seek input anew from the scientific community on the connection of different 

types of waters, taking into consideration as part of their charge the need to focus 
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upon “water quality” impacts or relationships, the need to identify a “gradient” of 

impacts or relationships, and the need to consider the constraints on jurisdiction as 

identified by the Supreme Court. Seek input from the stakeholder community on 

the details of the scope of the charge.

5. Re-notice the proposal in a form which reflects the modifications resulting 

from the above process.

6. Establish a timeline to accomplish the above, with periodic updates provided to 

Congress as necessary. (p. 7 – 8)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. 

American Foundry Society (Doc. #15148)

13.444 IX. CONCLUSION

If the justification for finalizing this proposed rule relies on the need to provide certainty, 

clarity and predictability to the regulated public, the agencies have no choice but to 

withdraw the proposed rule and open a real dialog with the regulated community. The 

ambiguity that binds the inferences of broad connectivity between existing and new 

categories of waters of the U.S. is based on a report that was not fully vetted by the 

Scientific Advisory Board and was developed behind closed doors. Given the breadth and 

depth of the negative feedback and calls for the agencies to withdraw the current 

proposed rule, it is difficult to comprehend the agencies assertion that the rules is clear 

and understandable and will reduce regulatory burdens. 79 Fed. Reg. at 22192. (p. 10)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study.

Federal Water Quality Coalition (Doc. #15822)

13.445 D. The Proposed Rule Fails to Comply with Executive Order 13121.

In the proposed rule, the agencies also certified that: “This action will not have 

substantial direct effects on the states, on the relationship between the national 

government and the states, or on the distribution of power and responsibilities among the 

various levels of government.”262 As these comments have demonstrated, the proposed 

rule would have a significant effect on states’ ability to regulate use of their lands and 

waters. Under the Executive Order, federalism implications include “substantial direct 

effects on the States, on the relationship between the national government and the States, 

or on the distribution of power and responsibilities among the various levels of 

government.” As a result, the agencies must fully comply with the “Fundamental 

Federalism Principles” of section 2 of the Order, which requires the agencies to “act only 

with the greatest caution where State or local governments have identified uncertainties 

regarding the constitutional or statutory authority of the national government.” Many 

 

262 79 Fed. Reg. at 22,220.
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states have identified these uncertainties in the proposed rule.263 The agencies also must 

comply with the “Federalism Policymaking Criteria” of section 3, which requires 

agencies to strictly adhere to constitutional principles and statutory authority, to provide 

states with maximum administrative discretion, and to rely on state policies to the 

maximum extent practicable. Finally, before issuing a proposal, the agencies must 

develop and provide “a federalism summary impact statement, which consists of a 

description of the extent of the agency’s prior consultation with State and local officials, 

a summary of the nature of their concerns and the agency’s position supporting the need 

to issue the regulation, and a statement of the extent to which the concerns of State and 

local officials have been met.”

To meet these requirements, the agencies must withdraw the rule and develop a new 

proposal. (p. 63)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. 

Webber Land and Development Corporation (Doc. #10944)

13.446 I have reviewed the proposed rule recently released by the Environmental Protection 

Agency and the U.S. Army Corps of Engineers (the Agencies) entitled "Definition of 

'Waters of the United States' Under the Clean Water Act" and I respectfully request that it 

be withdrawn as the Agencies failed to complete any state consultation when developing

this rule. 

As a local real estate developer, I am concerned that this rulemaking was developed 

without sufficient consultation with the states and that the rulemaking could impinge 

upon state authority in water management. As co-regulators of water resources, states 

should be fully consulted and engaged in any process that may affect the management of 

their waters. 

In particular, based on the copy of the proposed rule, I am concerned that the Agencies 

believe that this proposed rule does not have federalism implications and therefore do not 

need to comply with Executive Order 13132. I respectfully disagree. 

Under the Executive Order, federalism implications include "substantial direct effects on 

the States, on the relationship between the national government and the States, or on the 

distribution of power and responsibilities among the various levels of government". 

By changing the definition of "Waters of the United States", the proposed rule will have a 

direct effect on the distribution of power and responsibilities among the various levels of 

government. Currently, there are many waters that are subject to state regulation only. 

However, the proposed rule will significantly expand the scope of federal regulation, 

stripping the States of any governing authority. Given this expansion, I am at a loss to 

 

263 See, e.g., October 23, 2014 comments filed by Kansas Governor Sam Brownback; October 8, 2014 comments

filed by Pennsylvania’s Department of Environmental Protection, Deputy Secretary for Water Management, Kelly

Heffner; October 8, 2014 comments filed by the Attorneys General of West Virginia, Nebraska, Oklahoma,

Alabama, Alaska, Georgia, Kansas, Louisiana, North Dakota, South Carolina, and South Dakota and the Governors

of Iowa, Kansas, Mississippi, Nebraska, North Carolina, and South Carolina.
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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identify any water that would not be subject to federal regulation unless specifically 

exempted. Such an expansion in federal jurisdiction would fundamentally alter our ability 

to make decisions regarding the use of land within our borders. Due to the fact that 

States often regulate more waters than are encompassed by the current definition of 

"waters of the United States" it is not clear what benefit the expansion of federal 

authority is designed to achieve. It appears that the Agencies did not even consider 

existing State authorities when developing its proposed rule. 

Due to the fact that this rule attempts to regulate all waters, I urge you to withdraw the 

proposed rule until the requirements of Executive Order 13132 have been met. It is of the 

utmost importance that State and local governments be consulted while developing this 

rule. (p. 1 – 2)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism

National Association of Home Builders (Doc. #19540)

13.447 d. The Agencies Failed to Comply with Executive Order 13132.

Executive Order (E.O.) 13132, entitled "Federalism," was issued by President Clinton in 

1999 with the objective of guaranteeing the Constitution's division of governmental 

responsibilities between the federal government and the states. E.O. 13132 establishes 

requirements for policies that have "federalism implications," meaning those with 

"substantial direct effects on the States.264 In short, E.O. 13132 requires federal agencies 

to consult with state and local officials on policies that have federalism implications and 

determine whether federal objectives can be attained by other means. Importantly, this 

consultation is to take place early in the process of developing the proposed regulation.

In an effort to subvert the requirements of E.O. 13132, the Agencies state that the 

proposed rule "will not have a substantial direct effect on the states, on the relationship 

between the national government and the states, or on the distribution of power and 

responsibilities among the various levels of government."265 This is simply not true. The 

proposed rule defines those waters subject to federal jurisdiction of the CWA. The statute 

is, in fact, co-administered by the states. It was the intent of Congress to preserve states' 

rights and responsibilities to jointly administer the Act with the federal agencies: "It is the 

policy of the Congress to recognize, preserve, and protect the primary responsibilities and 

rights of States to prevent, reduce, and eliminate pollution, to plan the development and 

use . . . of land and water resources . . ." The statute continues, "It is further policy of 

Congress that nothing in this [Act] shall be construed to supersede or abrogate rights to 

quantities of water which have been established by any state. Federal agencies shall cooperate with State and local agencies to develop comprehensive solutions to prevent, 

reduce and eliminate pollution in concert with programs for managing water resources.'" 

With the proposed rule, the Agencies wrongfully interpret "waters of the United States" 

to include all intrastate and interstate waters, including ephemeral streams and isolated 

wetlands that may be dry a majority of the time, thereby disregarding congressional intent 

 

264 64 Fed. Reg. at 43,255 (Aug. 10, 1999).

265 79 Fed. Reg. at 22,220.
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and undermining states' responsibilities and rights to control land and water resources 

within their borders.

Despite and in apparent disregard for the clear federalism implications, EPA and the 

Corps have proposed today's rule without sufficient consultation with the states as 

required under E.O. 13132. By expanding the definitions of "tributary," "adjacent 

waters," and "other waters," the federal Agencies will undoubtedly impinge upon state 

authority to manage their land and water resources, as many waters that were once within 

the purview of the states will now become federalized. As co-regulators of water 

resources, states must be fully consulted and engaged in any process that will affect the 

management of their waters. While EPA and the Corps have provided briefings to inform 

states that rulemaking is underway, the conversations to date have not been sufficiently 

detailed to constitute the substantive, collaborative consultation as require by E.O. 13132. 

In fact, EPA's idea of consultation consists of "three in-person meetings and two phone 

calls in the fall and winter of 2011.266 A proposed rule of this magnitude and with 

obvious federalism implications demands more. 

What is even more troubling is the fact that many states raised concerns about the process 

far before the rule was even published - in other words, while the Agencies had time to 

address them, but EPA and the Corps failed to act. Western states, in particular, voiced 

concerns that individual states would not have the opportunity to provide substantive 

feedback until after EPA and the Corps had developed a proposed rule and published it 

for public comment in the Federal Register.267 The substantial differences in hydrology, 

geography, and legal frameworks in the West require significant consultation with each 

state to determine how the proposed rule will be implemented in order to avoid 

misinterpretations and unintended consequences. The potential for unintended 

consequences further underscores the need for EPA and the Corps to avail themselves of 

the states' on-the-ground knowledge of their unique circumstances by giving as much 

weight and deference as possible to the states' collective and individual comments, 

concerns, priorities, and needs. It is not only Western states who believe consultation has 

been inadequate. The Association of Clean Water Administrators (ACWA), which has 

representatives from all fifty states, raised concerns that the Agencies did not adequately 

consulted with the states early on in the rulemaking process.268

EPA and the Corps have yet to adequately engage the states regarding state needs, 

perspectives, or expertise in developing the proposed rule. The Agencies should have 

conducted this type of consultation with the states prior to beginning the rulemaking 

process and before submitting a proposed rule to OMB. It is exactly this end result that 

E.O. 13132 was designed to avoid. The Agencies must now withdraw the proposed rule 

 

266 79 Fed. Reg. at 22,221.

267 Letter from Western Governors' Association Chairman Gov. John Hickenlooper and Vice Chairman Gov. Brian

Sandoval to the Hon. Gina McCarthy and the Hon. Jo-Ellen Darcy (March 25,2014), available at

http://westgov.org/component/docan/doc_download/1794-clean-water-act-rulemaking?Itemid=53.

268 Letter fiom Michael Fulton (ACWA President) to Mr. Ken Kopocis and Ms. Jo Ellen Darcy, Re: Definition of

"Waters of the United States" Under the Clean Water Act Proposed Rule: Docket ID No. EPA-HEOW-2011-

0880 (Nov. 12,2014).
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and conduct the necessary collaboration and consultation with states as required by E.O. 

13132. (p. 159 – 161)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. 

13.448 e. The Agencies Failed to Comply with Executive Order 13536.

The proposed rule fails to comply with Executive Order (E.O.) 13563, titled "Improving 

Regulation and Regulatory. That order states: "Our regulatory system must protect public 

health, welfare, safety, and our environment while promoting economic growth, 

innovation, competitiveness, and job creation."269 It specifically calls for regulations to be 

cost effective and cost justified, transparent, coordinated, flexible and science driven, and 

largely instructs the agencies to comply with E.O. 12866, which was issued in 1993 and 

has historically provided the blueprint for agencies to follow when considering and 

adopting rules.

Further, recognizing the regulatory burdens suffered by small businesses and the need to 

reduce their impacts, President Obama simultaneously issued E.O. 13563 and the 

Memorandum on Regulatory Flexibility, Small Business, and Job Creation, which directs 

the agencies to fully consider the needs of, and impacts of their actions on, small 

businesses. For example, the Memorandum states: "[each agency shall tailor its 

regulations to impose the least burden on society, including individuals, businesses of 

differing sizes, and other entities (including small communities and governmental 

entities), consistent with obtaining the regulatory objectives, taking into account, among 

other things, and to the extent practicable, the costs of cumulative regulations.” To do so, 

the Memorandum directs all federal agencies, when proposing new regulations, to 

include regulatory flexibilities for small businesses such as extended compliance dates, 

simplified reporting requirements, or even regulatory exemptions. Furthermore, the 

Memorandum states, “whenever an executive agency chooses, for reasons other than 

legal limitations, not to provide such flexibility to a proposed or final rule that is likely to 

have a significant economic impact on a substantial number of small entities, it should 

explicitly justify this decision not to do so in the explanation that accompanies that 

proposed or final rule.”270

Clearly, the Memorandum is intended to remind the federal agencies of their statutory 

obligations under the RFA and under E.O. 13563 to fully consider and afford regulatory 

flexibilities to small businesses. Moreover, the Memorandum goes a step further to 

mandate that whenever a federal agency fails to provide flexibility to small businesses 

under a proposed or final rule, it must justify why it did not do so. The Memorandum 

clearly recognizes the crucial role small businesses play in any future economic recovery 

and instructs all federal agencies to ensure their existing and future regulations are done 

in a cost-effective, innovative, and flexible manner so as not to stifle economic growth 

among small businesses.

 

269 See E.O. 13,563 $9 2,5.

270 76 Fed. Reg. at 3,828 (Jan. 21,2011).
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In drafting the proposed rule to define "waters of the United States," however, it appears 

that the Agencies chose to ignore or avoid their obligations under E.O. 13563 and the 

Memorandum. Specifically, as noted in Section IX., the proposed rule is not supported by 

the science. And fundamentally, as noted throughout these comments, the proposed rule 

will not provide predictability or reduce uncertainty. Moreover, there is no evidence that 

the Agencies made a reasoned determination that the proposed rule's environmental 

benefits (if any) will justify its jobs, development, and consumer cost burdens. 

Additionally, it is clear that the Agencies have not tailored the proposed rule to impose 

the least burden on society nor have they taken into account the cost of cumulative 

regulations affecting stakeholders.

Equally problematic, there are no considerations for small businesses. A 2010 study 

funded by the U.S. Small Business Administration examined the proportional costs of 

federal regulations upon smaller firms (i.e., firms with 20 or fewer employees) as 

compared to larger firms.271 The study found that these firms pay 40 percent more in 

compliance costs per employee than firms with more than 500 workers. The researchers 

found that this disproportionate compliance cost results from the fact that most federal 

environmental regulations impose identical recordkeeping, reporting, and compliance 

costs on all firms. , Smaller companies, including most home builders, cannot easily 

spread the compliance costs across a larger number of regulated activities and typically 

must rely on expensive outside professional consultants to help them demonstrate 

compliance with technical permitting and reporting requirements. Unfortunately, the 

proposed rule does nothing to alleviate these challenges and, in fact, will only make them 

worse. The proposed rule is riddled with ambiguities and prospective implementation 

problems. The Agencies have not crafted a revised definition of “waters of the United 

States” that “imposes the least burden on society” as required by E.O. 13563 or that 

adequately considers and minimizes impacts on small businesses. Such a result is 

unacceptable. (p. 161 – 163)

Agency Response: See section 13.2.2 summary response for information 

regarding Executive Order s for Regulatory Planning (12866) and Review and 

Improving Regulation and Regulatory Review (13563). With regard to the 

comment that the agencies failed to tailor the regulation to be least burdensome on 

society, it misapprehends the nature of this rule, which is definitional only; any 

burdens are imposed by the Act and permitting regulations under it. In any case, 

the agencies have evaluated indirect costs associated with this rule and the rule is 

justified in ensuring that the regulations are consistent with the statute, available 

science and the caselaw.

13.449 f. The Agencies Violated the Federal Information Quality Act.

 

271 Crain, N.V. and Crain, M.W., The Irnpact of Regulatory Costs on Small Firms, September 2010, at iv, retrieved

On November 13,2014, from

http://www.sba.gov/sites/default/files/advocacy/The%20Impact%20of%Regulatory%20Costs%on%20Small%20Fir

ms%20(Full)_0.pdf.
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To ensure the consistent use of high quality data and information in government decisionmaking, federal information quality requirements were adopted by Congress in § 515 of 

the 2001 Treasury and General Government Appropriations Act.272 The Information 

Quality Act (IQA) was supplemented by OMB’s Information Quality Guidelines, which 

served as a model for each agency’s implementing guidelines. Under OMB’s Information 

Quality Guidelines, “influential information” (i.e., information having or likely to have 

important public policy or private sector impacts) must include sufficient “transparency” 

about data and methods such that the analytic results are “reproducible” by a qualified 

member of the public. Also, influential information concerning risks to human health, 

safety, or the environment must meet the new more stringent standard of quality from the 

1996 Safe Drinking Water Act.273

Under this requirement, the Agencies are required to use only the “best available, peer 

reviewed science” and “best available methods.”274 For this reason, they must ensure that 

any technical or scientific studies or information used in developing any new regulation 

meets this data quality standard. Regrettably, much of the information the Agencies have 

used to support the rule and that has been disseminated before and after the proposed rule 

was published violates the IQA. Examples include:

The Connectivity Report is an incomplete draft and does not meet the “objectivity” 

definition. According to the IQA, federal agencies must ensure and maximize the 

objectivity of the information they disseminate. Objectivity refers to whether 

disseminated information is being presented in an “accurate, clear, complete, and 

unbiased manner.”275 The Agencies claim the proposed rule is supported by the 

Connectivity Report, which underscores the fact that the Report is indeed “influential 

scientific information.”276 Yet the Report is an incomplete draft and thus does not satisfy 

the objectivity requirement of the IQA. The Agencies should not have proposed the rule 

until the influential scientific basis supporting it was fully reviewed by the SAB and 

finalized.

The inclusion of all waters in the riparian area and floodplain as per se 

jurisdictional is not supported by the scientific literature. The discussion of riparian 

areas and floodplains in the draft Connectivity Report is biased and of limited utility.

Under the IQA, the information disseminated by any federal agencies must be presented 

in an "unbiased manner.277 Additionally, the federal agencies are required to ensure and 

maximize the "utility" or the "usefulness of the information" they distribute. 

Unfortunately, the information pertaining to riparian areas and floodplains within the 

draft Connectivity Report is both biased and of little utility. Although the proposed rule 

would assert categorical jurisdiction over waters located within the riparian area or 

 

272 Information Quality Act of 2001, Pub. L. 106-554 (2001).

273 42 U.S.C. § 300g-1(b)(3)(A) and (B).

274 See, e.g., U.S. Environmental Protection Agency, Guidelines for Ensuring and Maximizing the Quality, 

Objectivity, Utility, and Integrity, of Information Disseminated by the Environmental Protection Agency, 

EPA/260R-02-008 (October 2002) at 22..

275 67 Fed. Reg. at 8,459 (Feb. 22, 2002).

276 Id. at 8,452.

277 Id. at 8,459.
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floodplain of a (a)(lj through (5) water, the portion of the draft Connectivity Report 

addressing the impact of riparian areas and floodplains on downstream waters highlight 

findings from studies of riparian areas and floodplains, not necessarily wetlands or waters 

therein. Indeed, the authors of the draft Connectivity Report admit, "Although ample 

literature is available on riparian and floodplain wetlands . . . most papers on riparian 

areas and floodplains do not specify, whether the area is a wetland. . . This situation 

creates a dilemma, because limiting our literature review to papers that explicitly describe 

the area as a wetland would exclude a major portion of this body of literature and greatly 

restrict our discussion of wetland science. Alternatively, if we include papers that do not 

explicitly classify the area as a wetland, we could mistakenly incorporate results that are 

relevant only to upland riparian areas. Our response to this dilemma was to survey the 

riparian literature broadly and include any results and conclusions that we judged were 

pertinent to riparian/floodplain wetlands,"278

By claiming certain studies were pertinent to riparian/floodplain wetlands without the 

necessary data included in the original studies, the authors have biased this portion of the 

study. How did the authors of the Connectivity Report determine which studies were and 

were not pertinent? Indeed, "the fact that the use of original and supporting data and 

analytic results have been deemed 'defensible ' by peer-review procedures does not 

necessarily imply that the results are transparent and replicable279

Additionally, the conclusions the draft Connectivity Report authors reach about the 

importance of riparian and floodplain wetlands on downstream waters are of limited 

utility because these "findings" are based on studies that may or may not even have 

included wetlands. This is not useful information. Perhaps most egregious, however, is 

the fact that the authors of the Report misrepresent their findings in the Report's 

Summary of Major Conclusions & and the Agencies use this misinformation in the 

preamble of the proposed rule, stating, “The Report . . . concludes that wetlands and open 

waters in floodplains of streams and rivers and in riparian areas . . . have a strong 

influence on downstream waters.”280 In turn, they use this as support to include all waters 

(not just wetlands) located within the riparian area or floodplain of any (a)(1) through (5) 

as automatically jurisdictional. This is clearly not supported by the studies of riparian 

areas and floodplains included in the draft Connectivity Report.

The information the Agencies have disseminated regarding the non-riparian area 

and non-floodplain waters is contradictory. 

Even if a water falls outside of the subjectively defined riparian area or floodplain, it can 

still meet the Agencies’ definition of “neighboring” and, in turn, “adjacent” if it has a 

“shallow subsurface hydrologic connection” or “confined surface hydrologic connection” 

to an (a)(1) through (5) water.281 This assertion is problematic, in that the proposed rule is 

purported to be based on the conclusions of the draft Connectivity Report, yet the authors 

of the Report clearly state, “The literature we reviewed does not provide sufficient 

 

278 Draft Connectivity Report at 5-3,5-5 (emphasis added).

279 67 Fed. Reg. at 8,455.

280 79 Fed. Reg. at 22,196.

281 Id. at 22,263.
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information to evaluate or generalize about the degree of connectivity (absolute or 

relative) or the downstream effects of wetlands in unidirectional landscape settings [i.e., 

non-riparian area and non-floodplain waters].”282 Adding to the contradiction, the 

Agencies cite verbatim the draft Connectivity Report statement regarding the lack of 

sufficient information to generalize about the impact of non-floodplain wetlands on 

downstream waters in Appendix A of the proposed rule.283 By disseminating 

contradictory information, the Agencies have only added to the confusion surrounding 

the proposed rule. Indeed, this information is neither accurate nor clear and thereby 

violates the IQA.284

The supposed peer review of the draft Connectivity Report was hijacked.

The agency’s IQA guidelines typically require the use of the “best available science” that 

relies on “peer-reviewed studies with data collected by standard and accepted methods.” 

Under both OMB’s and EPA’s Information Quality Guidelines, information that has been 

subject to formal peer review is presumed to be of sufficient quality to meet the test of 

objectivity under the guidelines. This requirement bolsters EPA’s Peer Review Policy 

that generally requires independent peer review of all scientific or technical work 

products that are used to support a significant rulemaking such as establishing nationallyapplicable definition of waters of the United States.

Unfortunately, although EPA assembled the SAB panel to review and provide input on 

the draft Connectivity Report, the limited scope of the panel’s review, EPA’s reluctance 

to revise its charge questions, and the Agency’s refusal to address the additional 

questions posed by Members of Congress only ensured that the peer review would not be 

credible. As a result, much, if not most, of the scientific, technical, and economic 

information being disseminated by the Agencies in this rulemaking proposal, including 

the draft Connectivity Report and Economic Analysis does not meet the information 

quality guidelines and has not been independently peer reviewed.

The Economic Analysis the Agencies use to support the proposed rule does not meet 

the “objectivity” requirement of the IQA and is of limited utility. 

According to the IQA, “‘objectivity’ involves a focus on ensuring accurate, reliable, and 

unbiased information. In a scientific, financial, or statistical context, the original and 

supporting data shall be generated, and the analytic results shall be developed, using 

sound statistical and research methods.”285 Unfortunately, the information disseminated 

in the Economic Analysis is biased and far from objective. First, EPA only reviewed how 

the proposed rule would change jurisdiction and costs associated with the “other waters” 

category relative to current regulatory policy. In an exercise, the Corps performed a 

sample review of project files from the Corps’ Operation and Maintenance Business 

Information Link Regulatory Module (ORM2) database’s “isolated waters” category. The 

Agencies did not do a similar sample review to determine how jurisdiction might change 

 

282 Draft Connectivity Report at 1-10, 1-11.

283 79 Fed. Reg. at 22,225.

284 See 67 Fed. Reg. at 8,459 (Information disseminated by any federal agency must be “presented in an accurate, 

clear, complete, and unbiased manner”).

285 Id. at 8,459.
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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for other jurisdictional categories of waters (i.e., “tributaries” or “adjacent waters,” as 

newly and broadly defined). The economic impacts associated with these categorically 

jurisdictional waters are omitted from EPA’s analysis. Second, EPA biased the analysis 

by using an incorrect baseline to estimate the economic impacts of the proposed rule. In 

the preamble, the Agencies claim that because “this proposed rule is narrower than that 

under the existing regulations . . . fewer waters will be subject to the CWA under the 

proposed rule than are subject to regulation under the existing regulations,” and “[a]s a 

consequence , this action . . . will not have a significant adverse economic impact on a 

substantial number of small entities . . .”286 The “existing regulations” that the Agencies 

reference here is the 1986 rule defining “waters of the United States.”2872 Yet, in EPA’s 

Economic Analysis, the Agencies assess the regulation with respect to current practice 

under the 2008 Rapanos Guidance and determine the rule will increase CWA jurisdiction 

by approximately 3%. The Agencies’ claims in the preamble and the Economic Analysis 

contradict one another. The proper baseline from which to assess the proposed rule’s 

economic impact, as guidance from OMB’s Office of Information and Regulatory Affairs 

(OIRA) substantiates, is that of current practice. OIRA’s Circular A-4 provides guidance 

to federal agencies on the development of regulatory analysis and states that “[t]he 

baseline should be the best assessment of the way the world would look absent the 

proposed action.”288 The 1986 regulation has been abrogated by both SWANCC and 

Rapanos and is no longer in use. Indeed, the Agencies are currently operating under 

guidance issued in December 2008, which sought to bring jurisdictional determinations in 

line with these cases.289 By using the 1986 regulation as the baseline to certify the 

proposed rule will not have a significant economic impact on a substantial number of 

small entities grossly underestimate the costs associated with the proposed rule. Third, 

EPA biased the economic analysis of CWA Section 404 costs by relying on permitting 

cost data that are nearly 20 years old and not adjusted for inflation. It likewise has

provided incomplete information, as EPA admits that the costs of time delays and 

avoiding and minimizing impacts is not included. Ultimately, the biased nature and the 

use of incomplete data in the Economic Analysis fail to render it useful in supporting the 

proposed rule. In a review of EPA’s Economic Analysis of the proposed rule, Dr. David 

Sunding highlighted the limited utility of the study, stating, “the errors and omissions in 

EPA’s study are so severe as to render it virtually meaningless.”290

The Agencies have disseminated off the record information in the form of blog posts 

and Q & A’s that add to the confusion surrounding the proposed rule and are of 

limited utility.

During the public comment period, the Agencies have published official agency blog 

posts and posted multiple Q and A’s about the proposed rule. This information has, at 

times, been at odds with the information in the proposed rule itself, has been revised 

 

286 79 Fed. Reg. at 22,220.

287 51 Fed. Reg. at 41,206.

288 Office of Management and Budget, Circular A-4, Subject: Regulatory Analysis (September 17, 2003) at 15, 

available at http://www.whitehouse.gov/sites/default/files/omb/assets/regulatory_matters_pdf/a-4.pdf

289 See 2008 Rapanos Guidance.

290 Sunding Review of EPA’s Economic Analysis at 2.
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without explanation, or has provided new statements and definitions regarding the scope 

of jurisdiction under the CWA that are not included in the rulemaking documents.

For example, following the release of USGS maps developed for the EPA and depicting 

the extent of perennial, intermittent, and ephemeral streams across the United States,291

Tom Reynolds, EPA Associate Administrator of the Office of Public Affairs, stated in a 

blog post entitled “Mapping the Truth,” “EPA has never and is not now relying on maps 

to determine jurisdiction under the Clean Water Act . . . While these maps are useful 

tools for water resource managers, they cannot be used to determine Clean Water Act 

jurisdiction – now or ever.”292 And yet, the preamble of the proposed rule states that 

“tributary connection[s] may be traced using . . . U.S. Geological Survey maps . . .”293

These two statements are in direct conflict with one another, leaving the public and the 

regulated community unclear as to how EPA and Corps use existing USGS maps to help 

determine CWA jurisdiction.

In another official EPA blog post, Nancy Stoner, then Acting Assistant Administrator for 

the Office of Water, originally wrote, "Any existing jurisdictional determination issued 

by the Corps will continue to be valid, and we will not re-review existing, valid 

determinations." Now, without any indication or notice that the June 30 Q & A document 

has been revised, the blog post no longer contains that statement. Have the Agencies 

changed their position on grandfathering? Will existing jurisdictional determinations be 

grandfathered or will they not be? In September 2014, EPA posted a Q & A about the 

proposed rule on its website. In the document, EPA defines "upland" and stresses that 

MS4s and green infrastructure features are not waters of the United Yet, none of this 

information is included in the proposed rule itself. What then is the utility of this 

document? Indeed, it carries no regulatory clout. 

Ultimately, by making available blog posts and Q and A documents that contradict 

language in the proposed rule itself, change without notice or explanation, and add 

critical new information regarding the scope of CWA jurisdiction, the Agencies have 

disseminated information that does not paint an "accurate, clear, [and] complete" picture 

as required by the IQA. What's more, if these are intended to be influential pieces of 

information regarding CWA jurisdiction, they will be of limited utility unless included in 

the proposed rule.

The collection and evaluation of data is the cornerstone to developing and implementing 

any meaningful and legitimate regulation. Likewise, those data must be of sufficient 

quality and transparency that the public can provide meaningful input and comment 

during the rulemaking process. In fact, the Obama Administration has taken great strides 

to improve the transparency quality and legitimacy of the data and information upon 

which regulations are based.

 

291 See http://science.house.gov/epa-maps-state-2013#overlay-context

292 Tom Reynolds, Mapping the Truth, EPA Connect Blog (Aug. 28, 2014), available at 

http://blog.epa.gov/epaconnect/2014/08/mapping-the-truth/

293 79 Fed. Reg. at 22,202.
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Unfortunately for the proposed rule, the Agencies have failed on all counts. Because of 

the significant and persistent violations of the IQA, the entire rulemaking is in jeopardy. 

These countless failings must be corrected before the Agencies contemplate any final 

rule. (p. 163 – 168)

Agency Response: See section 13.4 for information on Other Federal Laws.

The Information Quality Act (IQA), sometimes referred to as the Data Quality Act, 

was enacted in 2000 and directed the Director of the Office of Management and 

Budget (OMB) to issue guidelines providing policy and procedural guidance to 

ensure and maximize the quality, objectivity, utility, and integrity of information 

disseminated by Federal agencies. Each Federal agency was then required to issue 

its own guidelines modeled after those issued by OMB. OMB published its flexible, 

government-wide guidelines on February 22, 2002. EPA issued its Guidelines for 

Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of 

Information Disseminated by the Environmental Protection Agency (Guidelines) in 

October 2002, to provide non-binding policy and procedural guidance to achieve the 

purposes of the IQA. Under the Guidelines, EPA ensures and maximizes the quality 

of information it disseminates by implementing well established policies and 

procedures within the Agency as appropriate to the information. The Agencies have 

fully complied with the IQA.

The Agencies disagree with the commenter’s suggestion that the draft Connectivity 

Report is incomplete, biased, contradictory, or lacking in transparency. The 

Agencies also disagree with the commenter’s suggestion that the Connectivity 

Report was not subjected to adequate peer review. For information about how EPA

ensured the quality of the Connectivity Report, including information about the 

peer review process, see EPA’s responses to comments in Compendium 9. 

With respect to the commenter’s concerns about the Economic Analysis, see 

response to comments in compendium 11 – 11.3.1. The Agencies do not believe the 

Economic Analysis failed to consider economic impacts of the proposed rule 

associated with categories of waters from the Corps’ Operation and Maintenance 

Business Information Link Regulatory Module (ORM2) database. The ORM2 

database is a collection of jurisdictional determinations the Corps has made 

typically in response to landowner requests. The database does not assess the 

jurisdiction of waters nationwide. As explained in the Economic Analysis, ORM2 

records may be placed into three groups: streams (ORM2 categories of traditionally 

navigable waters, relatively permanent waters, and non-relatively permanent 

waters), wetlands (associated with the various above categories of streams), and 

other waters. Of the jurisdictional determinations in that database, approximately 

68% are categorized as streams, 27% are categorized as wetlands, and 6% are 

categorized as other waters. To provide a conservative impact estimate, the 

Agencies assumed only for the purpose of that analysis that under the rule 100% of 

the jurisdictional determinations for streams and wetlands would be positive.

The Agencies disagree with the commenter’s assertion that the Economic Analysis 

used an incorrect baseline to estimate economic impacts. For more information 
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about the Economic Analysis, the baseline used to estimate economic impacts, costs 

associated with CWA Section 404, see EPA’s responses in Compendium 11.

The Agencies further disagree with the commenter’s suggestion that EPA’s 

Associate Administrator of the Office of Public Affairs made statements concerning 

maps that contradict language in the preamble of the proposed rule. Maps are one 

tool that may help improve our understanding of our nation’s waters. Jurisdictional 

determinations informed by site-specific features, and are typically made on a caseby-case basis based on a request from a permit applicant or landowner. For more 

information about maps, see EPA’s responses in Compendium 9.

With regard to the commenter’s suggestions concerning EPA blog posts and 

question-and-answer documents, this information was intended to provide further 

clarification. To help inform the public regarding the proposed rule, during the 

public comment period the EPA had taken steps to translate the legal language and 

scientific principles of the proposed rule into easier-to-understand communications 

documents. This is a common practice for any major regulatory action taken by the 

EPA or any other federal agency. Such documents were used to help explain the 

proposed rule to the regulated public but did not substitute for it. Jurisdictional 

determinations are being made now under existing Corps and EPA regulations and 

guidance, and applicable case law, not under the proposed rule. Upon issuing the 

final rule, the agencies’ regulations and guidance, the Act, and applicable case law 

will continue to provide the legally binding criteria for CWA jurisdiction. For more 

information about definitions in the rule, see EPA’s responses to comments in 

Compendium 9.

American Petroleum Institute (Doc. #15115)

13.450 As if those two challenges were not enough, throughout the comment period, the 

Agencies have continued to offer different and conflicting jurisdictional interpretations –

often without calling attention to the changes or uploading them into the rulemaking 

docket. While the economic analysis accompanying the release of the Proposed Rule

clearly indicated an increase in jurisdiction, blogs and statements by key EPA 

administrators have begun to claim the Proposed Rule would actually be a decrease in 

jurisdiction. They have never once explained how this could be true, and it is impossible 

to reconcile that statement with the facts contained in this report. A supposed example of 

“enforcement challenges” that the Rule was intended to address has been removed 

without explanation as to what has changed. Additionally, the Q&A document posted on 

EPA’s website has changed in several wholly inconsistent ways between June and 

September. Stakeholders have been placed in the position where they not only need to 

monitor the docket, but also to track blog posts and ad hoc statements for definitions of 

regulatory terms that may change without notice at any time. (p. 51)

Agency Response: For information on economic analysis see compendium 11.

13.451 2.2 EPA’s changing and often conflicting analyses of jurisdiction under the Proposed 

Rule precluded stakeholders from developing accurate, quantifiable alternative economic 

impact assessments.
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Throughout the rulemaking process, EPA has used a number of different analyses which 

create a moving target for commenters: 

 In March 2014, the Agencies’ original impact analysis entered into the 

rulemaking docket estimated that “the proposed rule increases overall jurisdiction 

under the CWA by 2.7 percent.”294

 In June 2014, an EPA blog entry noted that “[T]he rule protects fewer waters than 

prior to the Supreme Court cases.”295 The economic impact analysis was not 

amended, nor did the blog explain how both the increase predicted in the 

rulemaking docket and the blog entry could both be true.

 In July 2014, EPA Administrator Gina McCarthy noted that, “EPA feels confident 

that, under this proposal, fewer waters will be jurisdictional than under President 

Reagan.”296 Again, the economic impact analysis was not amended, nor did the 

blog explain how both the increase predicted in the rulemaking docket and the 

blog entry could both be true.

 In September 2014, the Agencies’ Q&A document used a wholly different 

calculation to support “the proposed rule reflects a substantial reduction in waters 

protected by the CWA [when compared to the Agencies’ existing regulations].”297

Another example of the lack of consistency and clarity concerns the Agencies’ Q&A 

document originally released on June 30, 2014 and linked to in a blog by Nancy Stoner 

admitted to or provided notice for revising the Q&A document, the blog now links to a 

new Q&A document containing abbreviated information and revised responses. Table 2-

2 illustrates the confusion caused by some of these pivotal, conflicting, and unexplained 

changes.

 

294 EPA and the Corps, Economic Analysis of Proposed Revised Definition of Waters of the United 

States, at 12 (March 2014), available at http://www.regulations.gov/#!documentDetail;D=EPAHQ-OW-2011-0880-003. 

295 Nancy Stoner blog entry, “Setting the Record Straight on Waters of the U.S.” (June 30, 2014).

296 Remarks of Gina McCarthy at Agricultural Business Council of Kansas City on Clean Water Proposal (July 10, 

2014), available at http://go.usa.gov/xmvh.

297 Sept. Q&A at 3.
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Concerning the first topic in Table 2-2 - notwithstanding the EPA’ remarkable assertion 

that the Proposed Rule will result in fewer jurisdictional waters than before the Supreme 

Court cases - and even with an influx new jurisdictional determinations to be made based 

on the detailed provisions of the Proposed Rule, the Agencies assert that the Proposed 

Rule will result in a 2.7 percent increase in jurisdictional waters strictly based on a 

database of jurisdictional determinations made after the Supreme Court cases means that 

a number of previous jurisdictional determinations will be reversed.

The Agencies’ estimate of increased jurisdiction under the Proposed Rule directly 

contradicts the Agencies’ deleted Q&A response that all previous jurisdictional 

determinations, including determinations of no jurisdiction, will be honored. Yet 

landowners have already made land use decisions based on those determinations of no 

jurisdiction. To now require these landowners to reverse their land use decisions and 

effect environmental restoration would be burdensome, unreasonable, and unfair. The 

Agencies should explicitly state that no previous jurisdictional determinations will be 

reversed under the Proposed Rule and that existing land use decisions based on prior 

jurisdictional determinations will not be overruled by the Agencies.

Concerning the second topic in Table 2-2, the Corps issued in August 2014 its 

comprehensive guidance on the definition of ordinary high water mark.298 The late 

example of the Agencies’ inconsistency and moving target for critical definitions 

necessary for proper understanding and implementation of the Proposed Rule. This 

guidance should have been issued prior to the Proposed Rule and the Proposed Rule’s 

definition of OHWM based upon it. Moreover, the descriptive language in the Agencies’ 

Q&A such as “features that flow extremely rarely,” and “waters that don’t flow 

frequently enough or with enough volume,” are so nebulous, case-specific, and lacking in 

context, that they are essentially meaningless. (p. 52 – 55)

Agency Response: For information on economic analysis see compendium 11.

Illinois Coal Association (Doc. #15517)

13.452 B. The Proposed Rule is a significant impingement on States' traditional and primary 

power over land and water use, and thus raises serious federalism questions.

Expanding federal jurisdiction from navigable to isolated waters would mark a serious 

encroachment upon traditional powers of the states, and runs afoul of basic constitutional 

limits on federal power. Indeed, the Supreme Court has long been wary of agency 

interpretations that would infringe upon the states' "traditional and primary power over 

land and water use." See e.g., SWANCC, 531 U.S. at 174, citing Hess v. Port Authority 

Trans Hudson Corporation, 513 U. S. 30, 44 (1994) ("[R]egulation of land use [is] a 

function traditionally performed by local governments"). As highlighted by Justice 

Rehnquist in SWANCC, federal courts view agency actions through the lens of a 

"prudential desire not to needlessly reach constitutional issues and our assumption that 

Congress does not casually authorize administrative agencies to interpret a statute to push 

the limit of congressional authority." 531 U.S. at 173. This concern over, and respect for, 

 

298 http://www.usace.army.mil/Portals/2/docs/civilworks/regulatory/reg_supp/west_mt_finalsupp_aug

2014.pdf and http://acwc.sdp.sirsi.net/client/search/asset/1036026
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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federalism "is heightened where the administrative interpretation alters the federal/state 

framework by permitting federal encroachment upon a traditional state power." Id., citing 

United States v. Bass, 404 U. S. 336, 349 (1971) ("[U]nless Congress conveys its purpose 

clearly, it will not be deemed to have significantly changed the federal-state balance"). 

This altering of the federal-state framework due to an encroachment upon a traditional 

state power (i.e., regulation of non-navigable, isolated state waters) is precisely what 

would result from the Proposed Rule if adopted as written. The federal judiciary's clear 

preference for avoiding such an outcome should send a strong signal to the Agencies 

about how the Proposal would likely viewed on appeal. Indeed, "where an otherwise 

acceptable construction of a statute would raise serious constitutional problems, the Court 

will construe the statute to avoid such problems unless such construction is plainly 

contrary to the intent of Congress." Id., quoting Edward J. DeBartolo Corp. v. Florida 

Gulf Coast Building & Col1Str. Trades Council, 485 U. S. 568, 575 (1988). The result of 

this Proposal would be "plainly contrary to the intent of Congress." (p. 16 – 17)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. 

Pennsylvania Aggregates and Concrete Association (Doc. #16353)

13.453 b. Lack of Compliance with Executive Order 13,132 (EO) dated August 4, 1999, entitled 

“Federalism.”

The purpose of this EO is to ensure that rulemakings and policies with “...substantial, 

direct effects on states...”299 are steered by specific basic standards, including being 

deferential to the States when taking action that affects the policymaking discretion of 

process, with State and local officials on policies that have federalism implications.

In the preamble300, the agencies indicate the proposed rule “will not have a substantial 

direct effect on the states, on the relationship between the national government and the 

states, or on the distribution of power and responsibilities among the various levels of 

government.” However, PACA, as well as the Pennsylvania Department of 

Environmental Protection, strongly disagrees. (See comments submitted by Kelly Jean 

Heffner, Deputy Secretary, Office of Water Management, PA Department of 

Environmental Protection.)

The proposed rule should be withdrawn, and the agencies should consult with all States 

prior to re-proposing.

c. Transparency is missing in the proposed rulemaking. President Obama stated to the 

nation his desire for his Administration to be open and transparent--encouraging the 

public, state, and local participation in the creation of policy and instructing agencies to 

take steps to ensure that the government is transparent, participatory, and collaborative.301

Yet EPA and the Corps did not solicit public participation in the development of the 

 

299 64 FR 43255.

300 79 FR 22220.

301 Memorandum by President Barack Obama on Transparency and Open Government to the Heads of Executive 

Departments and Agencies (Jan. 21, 2009), found at: 

http://www.whitehouse.gov/the_press_office/TransparencyandOpenGovernment.
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proposed rule. If the Agencies were truly interested in crafting a rule in a transparent 

manner, they would have reached out to identify stakeholder concerns prior to developing 

a proposed rule. Instead, outreach was conducted on a rule that was first developed within 

the two Agencies. Furthermore, in response to ongoing public outcry, the Agencies 

merely state over and over that this proposed rule is not broadening the scope of 

jurisdictional waters. (p. 2 – 3)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. 

Nebraska Cattlemen (Doc. #13018)

13.454 b. The proposed rule unlawfully expands the scope of federal agency jurisdiction under 

the CWA through the use of broad and ambiguous terminology; by improper application 

of the “significant nexus” test for determining CWA jurisdiction according to Rapanos v. 

United States, 547 U.S. 715 (2006); by usurping the cooperative federalism tenants laid 

out in the CWA; and through the illegal regulation of groundwater.

i. Unlawful expansion of federal agency jurisdiction under CWA through the 

use of broad and ambiguous terminology.

As discussed in detail in Section I. there are countless terms and phrases within the 

proposed rule that are not adequately defined or defined at all. What this provides to EPA 

is practically limitless authority to assert jurisdiction over thousands, if not millions, of 

new water features and land uses creating only more confusion for farmers and ranchers. 

Two additional overly broad terms include “tributary” and “adjacent.”

The proposed rule, under the claim of clarifying CWA jurisdiction, is determining, for the 

first time, that the following will always be jurisdictional:

• All “tributaries”, including any water (wetlands, lakes, and ponds) that 

contribute flow, either directly or through another water, to downstream 

traditional navigable waters, interstate waters, or territorial waters.

• All waters “adjacent” to such tributaries. “Adjacent” is broadly defined to 

include all waters located within the “riparian area” or “floodplain” of otherwise 

jurisdictional waters, including waters with shallow subsurface hydrologic 

connection or confined surface hydrologic connection to jurisdictional water.

The proposed rule does codify existing policies and categorically exempt areas from 

federal CWA jurisdiction in a specific listing of the policies and areas. However, the net 

effect of the proposed rule is that never before regulated smaller and more remote 

upstream bodies of water will fall with certainty within federal CWA jurisdiction. It is the 

position of Nebraska Cattlemen that the proposed rule has expanded the jurisdiction of 

the CWA to waters that the Supreme Court has ruled are beyond its scope.

Nebraska is comprised of over 77,000 square miles of area with over 92 percent of that 

area used for agricultural purposes. From west to east, the State moves from low 

precipitation high plains to higher precipitation grasslands in the east. There are an 

infinite number of scenarios that call for good judgment in determining whether or not a 

particular water body is or should be subject to federal CWA jurisdiction. This rule 

would impose a blanket jurisdictional determination over thousands of acres of private 
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property. The effect would be to impose illegal and unnecessary property restrictions and 

uncertainty as to what that actually means to a farmer or rancher.

Much of the cause for unlawful expansion of jurisdiction is due to the broad scope of 

definitions contained in the proposed rule. The definition of “tributary” is overly broad. 

As proposed, the definition is a land feature which has two banks, a bed and a high water 

mark. The land feature does not lose its tributary status if there are man-made breaks 

(bridges, culverts, etc.) so long as the bed and bank can be identified upstream and 

downstream of the break. And, a tributary can be natural, man-altered, or man-made and 

includes rivers, streams, lakes, impoundments, canals, and ditches (unless excluded).

In direct contradiction to this definition the proposed rule also states, a tributary need not 

even have two banks, a bed and a high water mark if the water feature contributes flow 

directly or through another water to a traditionally navigable water. (Proposed rule at 

22241). The definition also goes on to include isolated water features that might 

somehow be connected through groundwater to a traditionally navigable water. Lastly, 

EPA has entirely excluded any consideration of flow or impact to traditionally navigable 

waters, by including in the definition of tributaries intermittent and ephemeral streams. 

(Proposed rule at 22206). Clearly the plain sense reading of the definition of tributary is 

virtually limitless in its jurisdictional application.

There are many examples in Nebraska of waterways that have a bed and bank and a high 

water mark but only run during precipitation events. And, unless there is a significant 

amount of precipitation, many of those examples are waters that flow only a short 

distance before evaporating or seeping into the ground. Many rarely, if ever, have flow 

that actually reaches a flowing stream. This is especially true in the more arid western 

part of the state. Also, there are thousands of miles of “ditches” in Nebraska constructed 

either as part of public and private roadways or are on the land for various reasons to help 

direct water flow during storms or wet periods. To include these features as being subject 

to federal jurisdiction is unlawful and will have little or no positive impact on water 

quality.

The Supreme Court has clearly articulated there is a limit to CWA jurisdictional 

authority. This limit is the commerce clause, the term navigable and a finding of 

“significance” in impact to traditionally navigable waters. See SWANCC v. Army Corps 

of Engineers, 531 U.S. 159 (2001). In SWANCC the Court pointed out the authority of 

the “We cannot agree that Congress’ separate definitional use of the phrase “waters of the 

United States” constitutes a basis for reading the term “navigable waters” out of the 

statute.” Id. at 172.

“[It] is one thing to give a word limited effect and quite another to give it no effect 

whatever. The term "navigable" has at least the import of showing us what Congress had 

in mind as its authority for enacting the CWA: its traditional jurisdiction over waters that 

were or had been navigable in fact or which could reasonably be so made.” Id.

Furthermore, when making determinations of what waters are jurisdictional for purposes 

of the CWA outside the scope of traditionally navigable waters the Supreme Court has 

always indicated that not just any tenuous connection will suffice. “It is the significant 

nexus...that informed our reading of the CWA.” SWANCC v. Army Corps of Engineers, 
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531 U.S. 159, 167 (2001). This ““significant nexus” [or degree of impact of a connection] 

to waters that are or were navigable in fact or that could reasonably be so made” is 

required. Rapanos v. Army Corps of Engineers, 547 U.S. 715, 759 (2006).

Not only would “tributaries” be categorically subject to federal CWA jurisdiction but also 

any “adjacent” waters will be automatically jurisdictional as well. Adjacent waters 

include “neighboring” waters to tributaries. Neighboring waters are those that are located 

within a “riparian area” or “floodplains” or waters with a surface or shallow subsurface 

connection. In Nebraska, there are many areas that are flat and the state has many miles 

of rivers and streams. Therefore, many of Nebraska’s rivers and streams have extensive 

riparian and floodplain areas. Looking at the plain meaning of these definitions, Nebraska 

Cattlemen have deep concerns that many areas of the state will be categorically defined 

as jurisdictional waters. If enacted as proposed, the interpretation of these definitions will 

be immensely important. The literal interpretation would be that a tributary (which is 

merely a discernible bed, bank and high water mark) and all of the adjacent riparian areas 

and floodplains would be under CWA jurisdiction.

Again, this interpretation of “adjacent” runs afoul of the CWA and Supreme Court 

rulings which does not allow EPA to assert jurisdiction over every open water in a 

floodplain and riparian area if they are isolated and do not have a significant connection 

to traditionally navigable waters. Justice Kennedy in his concurring opinion in Rapanos 

stated “...the dissent would permit federal regulation whenever wetlands lie alongside a 

ditch or drain, however remote and insubstantial, that eventually may flow into traditional 

navigable waters. The deference owed to the Corps’ interpretation of the statutes does not 

extend so far.” Rapanos v. Army Corps of Engineers, 547 U.S. 715, 778 (2006).

EPA should withdraw the proposed rule and re-propose the rule with definition of 

tributary and adjacent that is in line with the CWA and Supreme Court case law. 

Nebraska Cattlemen comment that these definitions should be narrowed to require that 

there is water flow present in a tributary at least a majority of the time to trigger 

jurisdiction. Or, provide some test that allows for the field personnel to exclude 

tributaries that only rarely contribute to the water quality of the identified traditionally 

navigable water. Nebraska can provide many examples of tributaries that, even at their 

glory, do not contribute to water quality impacts of any navigable water. (p. 8 – 11)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. For information on adjacent waters and tributary, see the 

comment responses in compendiums 3 and 8 respectively. 

Cooperative federalism is a hallmark of the Clean Water Act and this rule does 

nothing to change that. The agencies have no intent to change current practice. 

13.455 iii. Unlawful expansion of federal agency jurisdiction by usurping the cooperative 

federalism tenants laid out in the CWA.

The CWA states it is the “policy of the Congress to recognize, preserve, and protect the 

primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to 

plan the development and use (including restoration, preservation, and enhancement) of 

land and water resources, and to consult with the [EPA] Administrator in the exercise of 

his authority under this Act.” 33 U.S.C. § 1251.
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Clearly, states have an important and congressionally recognized role to play in water 

quality regulation. Unfortunately, EPA’s proposed rule unlawfully expands their 

authority by obliterating this federal-state partnership and claiming all waters as subject 

to federal agency jurisdiction. As discussed previously, the proposed rule makes federal 

agency jurisdiction over waters for purposes of the CWA limitless. This violates the text 

and spirit of the CWA itself. If Congress intended for the federal government to regulate 

all waters under the CWA why would it have included language such as that above?

To further articulate this point Nebraska Cattlemen would like to point out a serious 

concern that the attempt to fix the §404 problem creates many more problems under other 

sections of the CWA. If enacted as proposed, the definition of “waters of the United 

States” would affect the scope of all provisions of the CWA that use the term. This would 

include the §402 National Pollutant Discharge Elimination System (NPDES) permit 

program; the §303 water quality standards and total maximum daily load programs; the 

§401 state water quality certification process; and the §311 oil spill program. As noted 

earlier, the Existing Guidance (the model for this rule) was limited on its face to §404 

determinations and had no practical impact on the other sections listed above. By 

essentially overlaying the Existing Guidance (as modified by the proposed rule) on these 

other sections, EPA will create significant cost, confusion, increase unnecessary 

bureaucracy, infringe on state programs, and expose agricultural producers to new 

liability.

The reason that there is a difference in use and application of the same definition in the 

CWA is easily explained. Other than the §404 program and the §311 oil spill program, 

the CWA is essentially administered by the states with delegated programs. All but a 

handful of states have CWA programs delegated to them. In Nebraska, the Nebraska 

Department of Environmental Quality (NDEQ) has been delegated all CWA programs 

other than §404 and §311 since the mid-1970s. In order to have an approved program, 

EPA must determine the state’s laws are consistent with the CWA. That would include an 

evaluation of the state equivalent definition of water bodies covered. In Nebraska, the 

definition of “waters of the state” is found in Neb. Rev. Stat. §81-1502(21) which was 

reviewed and approved by EPA. The wording of that definition is not identical to the 

wording of the definition of “waters of the United States” in the CWA. In fact, the 

wording is quite different. Wisely, Congress allowed states to craft their programs to be 

the most fitting to the state so long as the provisions were at least as stringent as the 

federal counterpart. The concept was one of “cooperative federalism” in which the 

federal government sets the broad goals and individual states reach the goals in a manner 

most appropriate for its citizens and based on its physical characteristics.

As a result, NDEQ has administered the §401, §402 and §303 programs using its unique 

“waters of the state” definition for nearly forty years. NDEQ has applied that definition to 

literally thousands of permitting decisions without ever once referring to the Existing 

Guidance. During those forty years, NDEQ’s decisions have been overseen by the EPA 

and have been in accordance with the CWA. For agriculture in Nebraska, there is an 

understanding of what a “water of the state” is and is not based on four decades of 

interpretation by NDEQ. Also, to Nebraska Cattlemen best knowledge, EPA in 

administering §311 does not utilize the Existing Guidance document itself but advises 

producers to decide if a spill could “reasonably be expected” to reach water (EPA SPCC 
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Fact Sheet: Information for Farmers, January 2014). However, the imposition of the 

proposed rule would create uncertainty, expansion of jurisdiction, and exposure to new 

liability for Nebraska producers. In addition, the federal encroachment of what is now a 

state delegated program runs counter to the concept of “cooperative federalism” which is 

a tenet of federal environmental programs.

Currently, the §402 program most impacts Nebraska agriculture in permit requirements 

for certain livestock operations and pesticide applications on or near water. For livestock 

producers, the NDEQ first started regulating discharges to “waters of the state” in 1974. 

Thousands, if not tens of thousands, of livestock producers have been visited by NDEQ 

since that time. NDEQ’s program is to observe an operation to determine if waste or 

runoff has the potential to impact waters of the state. If there is a potential to impact 

water quality then the producer must either change the operation to avoid the potential 

impact or control the waste and runoff such that it will not impact water quality. Many 

producers, especially small producers, have been able to modify their operation or 

construct mitigating landscape features (water diverting berms or waterways, for 

example) to avoid impacting waters of the state. Likewise, producers have been 

constructing livestock waste control facilities under state permits. These are state

construction standards for engineered facilities to handle all waste and it is common to 

use land application of waste as part of the operation. All decisions on these program 

features have relied on the state definition of regulated water bodies for forty years. In 

addition, many producers have gone through the NPDES permitting process and are 

currently operating under a General Permit or an Individual Permit. This regulatory 

structure has evolved at the state level in tandem with the federally delegated NPDES 

program since its inception. All determinations have been made under the state definition 

of regulated waters. If the proposed rule is adopted, the Nebraska regulatory scheme 

suddenly leaves the producer wondering if his or her operation is effectively permitted or 

exempted. This is because, with the broad categorical definition of tributaries and 

neighboring waters, it is possible that currently exempted operations may now be subject 

to federal CWA jurisdiction. What’s worse is that a producer may have, in good faith, 

constructed a landscape feature to divert flow away from livestock operations and now 

those very features may themselves be a “tributary” or an “adjacent” water.

Again, this will cause confusion, increase costs and will expose producers to new liability 

to enforcement from the federal or state government or to citizen suits under the CWA. 

This federalization of a current state program infringes states’ rights and runs counter to 

the concept of “cooperative federalism”. (p. 12 – 14)

Agency Response: The commenter explains how the State has used the same 

definitions of waters of the state for several decades. The federal regulations in 

effect since 1986, however, have a broader scope than this regulation. It has only 

been since 2001 and the SWANCC discussion, and subsequently Rapanos in 2006, 

that uncertainty has existed as to the scope of federal jurisdiction. Because states 

with permitting authority under section 402 must define waters at least as broadly 

as the federal program, the longstanding definition in the State should have been 

broader than under the new regulation. Regarding the concerns about this 

definition applying to all programs, there is only one definition of waters of the 
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United States, and it applies to all sections of the statute whose scope is tied to this 

term. 

13.456 In Nebraska, farmers and ranchers have rarely been subject to NPDES permits other than 

the livestock program (and the recent pesticide permits which will be discussed later). 

The expansion of the definition to categorically include tributaries and waters adjacent to 

tributaries takes in many new types of waters and land features. It is an additional 

concern that the Interpretive Rule treatment of “normal farming” activities does not apply 

to sections other than §404. That creates a question mark and added confusion over what 

differences there would be between §404 and the rest of the Act as it relates to the 

farming exemptions. Many of the questions that have long ago been answered or 

understood will now be at issue again. For example, if a farmer or rancher incidentally 

deposits fertilizer into a ditch or ephemeral stream we know that most likely we are not 

dealing with a “point source discharge to waters of the United States” because the area 

has not been deemed jurisdictional and this normal farming activity would be exempt 

under the Act. With the proposed change, this same incident could occur in a 

categorically determined jurisdictional area and not be considered “normal farming” 

activity. This increased confusion and uncertainty is not necessary. Again, the Nebraska 

definition of waters of the state is in place and has been implemented for forty years in a 

rational fashion. There is no problem that needs to be fixed in Nebraska.

The recent need to establish a process to obtain coverage for pesticide applications “on or 

near” water creates another point of potential turmoil if the proposed rule is adopted. The 

National Cotton Council decision caused much confusion on how states would issue 

permits for application of pesticides on or near water bodies. NDEQ developed and 

issued a General Permit with cooperation from the Region VII office of EPA. The 

General Permit is appropriate for Nebraska’s varying conditions. It may not, however, 

cover all of the expansion of categorical federal jurisdiction and “other waters” as 

contemplated in the proposed rule. Nebraska Cattlemen is directly impacted by this issue 

and comment that the State has adequately addressed any concern here.

In summary, an expansion of CWA jurisdiction and an overlay of §404 decision-making 

process to §402 is not only unlawful, it does not make sense. The State of Nebraska has 

developed a surface water discharge permitting system that is now built on forty years of 

implementation. Do not fix what is not broken. Do not expose producers to liability and 

uncertainty by drastically changing the NPDES program with an unlawful expanded 

federal definition.

NDEQ has also administered the §401 and §303 programs since delegation in the 1970s. 

The impact on §401 will be an increase in the number of certifications that the State will 

need to issue because there will be more federal actions to trigger certification needs. 

This may add more bureaucracy, time, and red tape to the existing process. Nebraska 

Cattlemen comment that this increase in the resources of state government will raise the 

NDEQ’s budget and potentially state taxes.

The §303 program will be impacted by the increased number of water bodies subject to 

water quality standards. The NDEQ has been monitoring and assessing water bodies for 

forty years based on its interpretation of the state definition of waters of the state. EPA 

has approved the state program and, thus, has approved the definition. The addition of 
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more water bodies will add to the state burden without additional resources which will 

lead to the need for more state resources. In addition, the water bodies that are subject to 

state assessment will also need to be evaluated to determine if they meet an assigned 

beneficial use. If the beneficial use is not being met, the water body may be impaired and 

need to be listed on the §303(d) list of impaired water bodies. That would trigger the 

requirement that a total maximum daily load (TMDL) be prepared which lays out 

“reasonable assurances” to bring the water body out of impaired status.

Nebraska Cattlemen comment that additional TMDLs will put additional burdens on 

producers. If EPA’s expanded jurisdictional reach is realized under the propose rule, 

TMDLs may be written that include reasonable assurances that incorporate regulatory 

controls over newly defined CWA waters. Under the “other waters” definition, there 

could be entire watersheds that are subject to TMDLs. Nebraska Cattlemen comments 

that it is an unwarranted reach of regulatory authority beyond the intent of the CWA or 

the holdings of the Supreme Court.

The federal encroachment into the §303 process is another illustration of the erosion of 

cooperative federalism. NDEQ has developed a successful model of a voluntary process 

whereby priority watersheds can be protected using state, local, and federal resources to 

leverage private investment. There have been very successful efforts in Nebraska and 

around the country that are collaborative watershed projects using state, local, federal, 

and private (agricultural producers and land owner) resources. If these same efforts had 

been under a mandatory regulatory program, the results would have been much less 

successful. In fact, an unintended consequence of this proposed rule would be to create a 

disincentive for producers to install conservation measures at their operations. Why 

install conservation terraces if there is a question as to how that land feature will be 

viewed under the new rule? Why would a producer voluntarily try new conservation 

practices if they would raise the jurisdictional issue and potentially require a permit?

Another significant concern of Nebraska Cattlemen is the effect of the proposed rule on 

the §311 oil spill program. Due to the expanded jurisdiction to include tributaries and 

water adjacent to tributaries and other waters, there will be more instances of the need to 

prepare a Spill Prevention, Control, and Countermeasures Plan (SPCC) plan. Currently, 

the EPA Fact Sheet advises producers to determine if a spill would “reasonably” reach 

water to decide if the operation needs a plan. With the blanket categories of jurisdictional 

waters that would be subject to CWA jurisdiction, that rule of thumb would surely 

change. Many producers would have to assume that they would need a SPCC plan since 

the jurisdictional question would be so far reaching and unpredictable. Nebraska 

Cattlemen comment that this change will place an additional burden on producers and 

create additional liability exposure without additional benefits to water quality.

Any change to the interpretation of “waters of the United States” should focus only on 

§404 where many problems currently exist. The other sections of the Act are largely 

administered by the states and no business case has been made for a need to change this 

area of the Act. In addition, without any limit to federal jurisdiction under the proposed 

rule EPA has also illegally usurped the federalism principles laid out in the CWA and 

should withdraw the proposed rule and re-propose a rule that takes in to account states’ 

rights. (p. 14 – 16)
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Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. For information on economic analysis see compendium 11.

The premise of this comment is that various CWA programs will be significantly 

impacted is that the rule expands jurisdiction, but the scope of regulatory 

jurisdiction in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. 

Moreover, the rule does not affect the “normal farming” exemptions and the 

interpretive rule was withdrawn at Congressional direction.

North Dakota Soybean Growers Association (Doc. #14121)

13.457 Executive Order 13132 requires federal agencies to develop accountable processes for 

“meaningful and timely input by State and local officials in the development of 

regulatory policies that have federalism implications.” Because the Clean Water Act is a 

federal statute that is primarily administered and enforced by the states, imposing new 

responsibilities on the states necessarily implicates federalism. Even before the WOTUS 

rule was formally proposed, groups representing state and local interests voiced loud 

concerns that the states were not being adequately consulted or involved with the ruledevelopment process. (p. 6)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. 

Western Growers Association (Doc. #14130)

13.458 B. Proposed Rule has not Adequately Involved the States

Western Growers also believes that the proposed rule should be withdrawn since the EPA 

and Corps have failed to properly engage and consult with state and local authorities in 

constructing this proposal. When Congress passed the Clean Water Act in the early 

1970’s, they clearly envisioned an active cooperation between the states and the federal 

government.302 Commenting on this aspect of the law the Supreme Court wrote: “[t]he 

Clean Water Act anticipates a partnership between the States and the Federal 

Government, animated by a shared objective: to 'restore and maintain the chemical, 

physical, and biological integrity of the nation's waters."'303

The Clean Water Act is replete with this vision of federalism. In creating the Act, 

Congress made federal money available to states contingent upon the creation of a 

regulatory 1 scheme that is at least as stringent as the federal minimum standards, 

although states may / tailor water quality criteria to local needs, implement their own 

pollutant discharge elimination systems, and enforce their own administrative rules.304 In 

section 303, the law provides states with the primary responsibility to establish, 

periodically review, and revise water quality standards, and the EPA only has a review 

 

302 Id.

303 Arkansas v. Oklahoma, 503 U.S. 91, 101 (1992) (quoting 33 U.S.C. § 1251).

304 See 33 U.S.C. §§ 1251-1887
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function.305 This strong federalism structure even extends into section 402 where states 

also may assume primary enforcement and administration of the National Pollutant 

Discharge Elimination System ("NPDES") program for discharges of pollutants other 

than dredged or fill material.306

It is clear from the statute, and reinforced in numerous court rulings, that Congress wrote 

the Clean Water Act with federalism foremost in its mind. Unfortunately, in constructing 

this proposed "waters of the United States" rule EPA and the Corps seem to have ignored 

these most basic principles of state and local government involvement. In fact, numerous 

states have written that they have not been involved in the formation of this rule and 

object to this rule moving forward without EPA and Corps reopening the rulemaking 

process to ensure their input is more directly heard. In testimony before the Senate 

Interior Appropriations Committee, the bipartisan Western Governors Association 

commented on this issue writing:

WGA is concerned that states were insufficiently consulted in the development of 

this proposal and played no role in the creation of the rule, which has such major 

implications for states. Congress intended that the states and EPA would 

implement the CWA in partnership, delegating authority to the states to 

administer the law as coregulators with EPA. Accordingly, WGA encourages 

congressional direction to EPA to engage the states in the creation of rulemaking, 

guidance, or studies that threaten to redefine the roles and jurisdiction of the 

states. State water managers should have a robust and meaningful voice in the 

development of any rule regarding the jurisdiction of the Clean Water Act or 

similar statutes.307

Western Growers agrees with this position and argues that the states cannot be effectively 

engaged unless this rule is abandoned and the process is re-initiated with state and local 

authorities engaged in the formative development of these definitions. (p. 8 – 9)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. 

Tennessee Farm Bureau Federation (Doc. #14978)

13.459 In this proposed rule, where is the cooperative federalism Congress envisioned between 

the Agencies and the state of Tennessee? We do not find it in this proposal. Congress 

said: "It is the policy of the Congress to recognize, preserve, and protect the primary 

responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the 

development and use (including restoration, preservation, and enhancement) of land and 

water resources ...." (33 U.S.C. 3 1251(b)). This proposal seeks to regulate land use 

throughout the state and water resources that belong under the jurisdiction of Tennessee's 

Water Quality Control Act of 1977. Tennessee's water quality statute says: "Recognizing 

 

305 33 U.S.C. § 1313

306 33 U.S.C. §§1311(b)(2), 1342

307 Western Governors' Association, Testimony of James D. Ogsbury, Executive Director to U.S. Senate Comm. on 

Appropriations, Subcomm. on Interior, Environment, and Related Agencies

May 23, 2014, page 3.
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that the waters of Tennessee are the property of the state and are held in public trust for 

the use of the people of the state ...." (TCA 69-3-102(a)). What does this mean under this 

proposed rule? Based on this proposed rule, where does Tennessee have full jurisdiction 

over state waters and more importantly over the land use that could affect those waters? 

We cannot find that distinction between waters of the U.S. and waters of Tennessee. (p. 

2)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. Cooperative federalism is a hallmark of the Clean Water Act 

and this rule does nothing to change that. 

National Alliance of Forest Owners (Doc. #15247)

13.460 A. SWANCC and Rapanos Narrowed the Scope of Jurisdiction by Invalidating Attempts 

to Assert Jurisdiction Based on Migratory Bird Use and the “Any Hydrological 

Connection” Theory.

In the CWA, Congress defined “navigable waters” as simply the “waters of the United 

States.”7 In SWANCC, the Supreme Court held that the Corps could not assert

jurisdiction over an isolated pond based on the pond’s use as migratory bird habitat. The 

Court reasoned that, although “navigable waters” does include at least some waters not 

traditionally deemed to be “navigable,” it does not include non-navigable, isolated, 

intrastate waters. Allowing federal jurisdiction over an isolated pond based solely on the 

presence of migratory birds fails to give effect to the term “navigable” in the CWA’s 

jurisdictional provision and also raises “significant constitutional and federalism 

questions.”308 (p. 4)

Agency Response: The rule conforms the agencies’ regulations to the SWANCC 

decision.

Elmore County Highway Department, Wetumpka, Alabama (Doc. #14072)

13.461 Proposed rule raises federalism concerns and could impose direct and indirect costs. 

Under Executive Order 13132-Federalism, federal agencies are required to work with 

state and local governments on proposed regulations that have substantial direct 

compliance costs. Since the agencies have determined that the definition of "waters of the 

U.S." imposes only "indirect" costs, the agencies state in the proposed rule that the new 

definition does not trigger Federalism considerations. However, the agencies' costbenefits analysis - Economic Analysis of Proposed Revised Definition of Waters of the 

U.S. (March 2014)-contradicts the notion that there are no federalism concerns. The 

economic analysis acknowledges that there may be additional implementation costs for a 

number of CWA programs and cautions that the data used and the assumptions made to 

craft the analysis may be flawed (page 2). Since states, local governments and their 

agencies implement and enforce CWA programs, we believe the "waters of the U.S." 

definitional change docs have a substantial direct effect on these entities. The economic 

analysis agrees, stating that CWA "programs may subsequently impose direct or indirect 

costs as a result of implementation..." (Page 2). (p. 2 – 3)

 

308 531 U.S. at 172, 164.
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Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. For information on costs/benefits see compendium 11.

Western States Water Council (Doc. #9842)

13.462 The WSWC's prior correspondence with EPA and the Corps expressed repeated concerns 

about the lack of significant state consultation in the development of the rule before its 

publication for public comment. While the WSWC remains concerned about the lack of 

state consultation in the rule's development, it has since participated in a series of calls 

with EPA and the Corps after the rule's publication for public comment. The WSWC 

appreciates your agencies' willingness to speak with the WSWC about the rule during 

these calls. The WSWC also appreciates the efforts of EPA Region 8 Administrator Sham 

McGrath and Region 8 Senior Advisor Joan Card in facilitating these discussions. 

Nevertheless, there is still a significant need and opportunity for continued, sustained 

dialogue and consultation with the states in their revision and implementation of the rule, 

particularly on a state-by-state basis. Such consultation should treat states as coregulators that are separate and apart from the general public, as envisioned by the 

CWA’s framework of cooperative federalism and as required by Executive Order 13132. 

One way to facilitate continued dialogue and consultation with the states would be to 

establish a state-federal workgroup between EPA, the Corps, and the states as your 

agencies work to revise and implement the rule. Although such a workgroup would be 

unlikely to reach a consensus on every issue, it would help facilitate the types of 

dialogue, collaboration, and relationship-building needed to create a more workable and 

effective rule. One possible model could be the workgroup EPA established with the 

Environmental Council of States and the Association of Clean Water Administrators to 

discuss revisions to the National Pollutant Discharge Elimination System electronic 

reporting rule. Consensus is not necessarily sought but individual state participants 

discuss their individual views with the federal agencies. The WSWC would welcome the 

opportunity to help develop and participate in a similar workgroup to review the CWA 

rule. (p. 3)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. The Agencies appreciate the suggestion of developing a statefederal workgroup to provide local input on interpretation and implementation 

issues. Going forward, the Agencies will consider this suggestion.

Western States Water Council (Doc. #11165)

13.463 Lastly, the Council reiterates its October 15 request for continued, sustained dialogue and 

consultation with the states in the revision and implementation of the rule, including any 

revisions undertaken in light of the SAB report. As the Council noted in its comments, 

the establishment of a state-federal workgroup between EPA, the Corps, and the states 

would be one way to facilitate the types of dialogue, collaboration, and relationshipbuilding needed to create a workable and effective rule. (p. 2 – 3)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. The Agencies appreciate the suggestion of developing a state-
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federal workgroup to provide local input on interpretation and implementation 

issues. Going forward, the Agencies will consider this suggestion.

Westlands Water District (Doc. #14414)

13.464 The states’ traditional authority to regulate water is rooted in both constitutional and 

statutory principles. Under the equal footing doctrine, which is based on principles of 

federalism written into the Constitution, each state upon its admission to statehood, 

acquires sovereign rights and interests in navigable waters and underlying lands within its 

borders, subject to the federal government’s paramount authority to regulate and control 

navigation. (PPL Montana, LCC v. Montana, __ U.S. __, 132 S.Ct. 1215, 1226-1228 

(2012); Oregon v. Corvallis Sand & Gravel Co., 429 U.S. 363, 372-374 (1977); Shively 

v. Bowlby, 152 U.S. 1, 49-50 (1894); Pollard’s Lessee v. Hagan, 44 U.S. 212, 224-229 

(1845); Martin v. Waddell, 41 U.S. 367, 410 (1842).) As the Supreme Court has stated, 

“except where the reserved rights or navigation servitude of th United States are invoked, 

the State has total authority over its internal waters.” (California v. United States, 438 

U.S. 645, 662 (1978), citing United States v. Rio Grande Dam & Irrig. Co., 174 U.S. 690, 

709 (1899).) Thus, the states retained “total authority” over their internal waters upon its 

admission to statehood, subject only to federal reserved rights and the federal navigation 

servitude. Thus, both the Constitution and the Clean Water Act make clear that the states 

have primary authority to regulate water in our federal system. This basic principle of 

federalism informs the meaning of sections 101(g) and 510, and indicates that the Act 

cannot be construed as a limitation or hindrance on the right of the states to authorize 

appropriation and use of water under their water rights systems. This basic principle is 

supported not only by the Clean Water Act but also by the doctrine of constitutional 

avoidance. This doctrine holds that congressional statutes should be construed to avoid 

constitutional difficulties, unless such construction is plainly contrary to the 

congressional intent. (Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & 

Const. Trades Council, 485 U.S. 568, 575 (1988); NLRB v. Catholic Bishop of Chicago, 

440 U.S. 490, 500 (1979); Machinists v. Street, 367 U.S. 740, 749-750 (1961); Crowell v. 

Benson, 285 U.S. 22, 62 (1932).) (p. 17 – 18)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism.

CropLife America (Doc. #14630)

13.465 The Proposed Rule Fails to Adhere to Applicable Constitutional, Statutory and Judicial 

Constraints

Federalism Limitations: Congress intended the CWA to be implemented as a federal-state 

partnership with delegated states acting as co-regulators with EPA for many CWA 

program."309 States have delegated authorities to administer many environmental 

statutes, including the Clean Water Act, Safe Drinking Water Act, Clean Air Act, 

Resource Conservation and Recovery Act, etc.310 The degree of CWA delegation varies 

 

309 33 U.S.C. 5 1251(b).

310 Environmental Council of the States, States: Delegation by Environmental Act,

http:l/www.ecos.orglsection/stateslenviroactlist (last visited Nov. 5,2014).
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by program but usually includes permitting, inspections, monitoring and enforcement, 

and often includes standards setting.311 Counties and municipalities also have important 

responsibilities for local management of key aspects of the CWA. Delegated CWA 

programs, budgets, authorities and prerogatives all will be adversely affected by any 

changes to the regulations that govern which waters are federally jurisdictional.

Under Solid Waste Agency of Northern Cook County v. United States Army Corps of 

Engineers (SWANCC), "[where an administrative interpretation of a statute invokes the 

outer limits of Congress's power we expect a clear indication that Congress intended that 

result. . . .This concern is heightened where the administrative interpretation alters the 

federal-state framework by permitting federal encroachment upon a traditional state 

power."2' The Supreme Court has repeatedly characterized the regulation of land and 

water use as traditional state and local powers and the CWA gives no clear indication that 

Congress intended to intrude on this state and local authority.312 Many of the features that 

the agencies seek to regulate under the proposed rule are local and intrastate waters and 

topographies rather than the "waters of the United States" that Congress charged EPA 

and the Corps with regulating under the CWA.

Rather than pursue the clarification of "waters of the U.S." jointly with state and local 

authorities and other important stakeholders, however, the rule was developed 

unilaterally by EPA and the Corps and would undermine traditional state and local 

authorities over land and water resources, affecting the ability of every state, county and 

municipality to enact policies regarding waters within their borders and efficiently 

allocate resources. This fails to meet the system of cooperative federalism under the 

CWA as interpreted by the Supreme Court and the requirements of Executive Order 

13132, in which the White House clearly directed federal agencies to consult with states 

early in the rulemaking process and give as much weight and deference as possible to 

state needs, priorities and concerns.313 (p. 9 – 10)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. Cooperative federalism is a hallmark of the Clean Water Act 

and this rule does nothing to change that. The agencies have no intent to change 

current practice. 

13.466 Administrative Procedure Act Concerns: The Administrative Procedure Act (APA) 

requires federal agencies to conduct rulemakings in a transparent manner through public 

notice and comment, allowing stakeholders a realistic opportunity to participate.314

Throughout this comment period, however, the agencies have engaged in ongoing 

“reinterpretations” of key definitions and controversial aspects of the proposed rule 

 

311 Environmental Council of the States, Clean Water Act: State Delegations,

http:llwww.ecos.orglsection/~tateslenviroactlisstatesenviroactlistcw(laa st visited Nov. 5,

2014).

312 See Rapanos v. United States, 547 U.S. 715, 738 (2006).

313 Barack Obama, Preemption Memorandum for the Heads of Executive Departments and Agencies (May 20, 

2009), http://www.whitehouse.gov/the_press_office/Presidential-Memorandum-Regarding-Preemption.

314 5 U.S.C. §§ 551-59.
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through presentations, webinars, blogs,315 a Questions and Answers document316 and 

other ad hoc communications. Because these often include statements that are 

inconsistent with materials provided in the official rulemaking docket, such changes 

prevent stakeholders from clearly understanding what the official agency policy proposal 

is, especially when such statements are made by EPA without any indication of 

endorsement by the Corps. How is the public to comment when one or both of the 

agencies keep changing their positions? (p. 11)

The agencies adhered to the requirements established under APA and incorporated the 

information provided by our stakeholders as appropriate.

Agency Response: The agencies adhered to the requirements established under 

APA and incorporated the information provided by our stakeholders as 

appropriate. For more information, please see the full response in section 13.2.1 of 

this compendium.

Exxon Mobil Corporation (Doc. #15044)

13.467 The Clean Water Act provides a firm foundation for environmental protection of our 

Nation's water resources. The law reserves for the Federal government the authority to 

regulate waters used in interstate or foreign commerce -that is, "navigable waters," 

spelled out as "the waters of the United States, including the territorial seas." To suggest 

that waters lying outside Federal jurisdiction are automatically 'unprotected' and that

'clean water' can only be ensured by sweeping them in, is unfounded and lacks 

recognition of the role and achievements of the States in protecting their own waters. It 

undermines the principle of cooperative federalism designed into the Clean Water Act. 

Several States have already expressed concerns about this encroachment and about the 

lack of meaningful consultation prior to formulating the Proposed Rule. (p. 1 – 2)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. Cooperative federalism is a hallmark of the Clean Water Act 

and this rule does nothing to change that. The agencies have no intent to change 

current practice. 

Interstate Council on Water Policy (Doc. #15397)

13.468 We ask that you reconsider your agencies' conclusion that Executive Order 13132 

("Federalism") does not apply because any regulatory proposal to redefine or clarify the 

jurisdictional definition of "Waters of the United States” has direct and immediate 

consequences for the states. That jurisdictional interface requires compliance with 

Executive Order 13 132 and substantial consultation with the states and the interstate 

water organizations many have established to help plan and manage our water resources 

responsibly. (p. 1)

 

315 Nancy Stoner, Acting Assistant Administrator for Water, Setting the Record Straight on Waters of the US (July 

7, 2014), http://blog.epa.gov/epaconnect/2014/06/setting-the-record-straight-on-wous/.

316 EPA and U.S. Army Corps of Engineers, Waters of the U.S. Proposal Questions and Answers (Sept. 2014), 

http://www2.epa.gov/sites/production/files/2014-09/documents/q_a_wotus.pdf.
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Agency Response: See section 13.2.5 summary response for information 

regarding Federalism.

Utility Water Act Group (Doc. #15016)

13.469 3. The Proposed Rule Violates Federalism Principles.

The CWA opens with a clear statement that states are to have “primary responsibilities” 

for reducing and preventing water pollution and protecting water resources within their

boundaries. CWA § 101(b), 33 U.S.C. § 1251(b). Congress’ clear intent, as the Supreme 

Court has recognized, was to “‘recognize, preserve and protect the primary 

responsibilities and rights of States to . . . plan the development and use . . . of land and 

water resources . . . .” SWANCC, 531 U.S. at 166-67 (citing CWA § 101(b)). The 

Proposed Rule’s increase in the Agencies’ jurisdiction would significantly expand the 

waters subject to federal regulation and thereby deprive the states of their primary role in 

water and land use and management, contrary to Congress’ wishes. Moreover, the 

Proposed Rule could impose significant additional regulatory burdens on the states. See, 

e.g., supra pp. 13-15 (discussing states’ need to develop “fishable, swimmable uses” for 

features that could qualify as WOTUS under the Proposed Rule and would not clearly fall 

under any of the Proposed Rule’s exclusions).

The Agencies’ failure to consider the impacts on states, and appropriately weigh 

federalism infringements, is exemplified in its conclusion that changing the WOTUS 

definition will have little to no effect on § 303 plans.317 Contrary to the Agencies’ 

assertion, states must invest considerable resources in developing CWA § 303(c) water 

quality standards, making use determinations, and setting water quality criteria. 

Moreover, if states must assign uses that waterbodies cannot achieve, see infra pp. 62-63 

(discussing inability of states to set waste transport as a use), states may be forced to list 

impaired waters and then set TMDLs.318

The Agencies assert that the Proposed Rule’s WOTUS definition, which includes broad 

per se jurisdictional categories, will make enforcement easier. 79 Fed. Reg. at 22,191 col. 

1 (asserting that Proposed Rule will “reduce time and resource demanding case-specific 

analyses prior to determining jurisdiction and any need for permit or enforcement 

actions.”). But the Agencies cannot use administrative convenience as a basis to disregard 

the federalism structure that underpins the Act and trump states’ rights by imposing 

substantial additional burdens on states. (p. 44 – 45)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. For information on indirect impact see the comment 

response for costs/benefits in compendium 11.

Regulatory Environmental Group for Missouri (Doc. #16337)

13.470 Our comments follow:

 

317 Economic Analysis at 6.

318 See also Sunding Report at at 24-25.
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1. Re-open Public Stakeholder Process. REGFORM joins the rising chorus of those who 

believe the Proposed Rule requires additional discussion and analysis because it too 

broadly expands “navigable Waters of the U.S.” jurisdiction to nearly all waters and 

ditches. This issue is far too important to NOT get right. As drafted, whether intended or 

not, the Proposed Rule will have an unnecessarily adverse impact on Missouri 

manufacturing, mining, academic institutions, utilities, municipalities and other land 

owning entities by vastly expanding the number of water bodies that will be defined as 

“Waters of the United States (WOTUS).”

While the Clean Water Act clearly authorizes federal jurisdiction over “navigable” waters 

and territorial seas, the Proposed Rule we believe extends the scope of federal control far 

beyond what either Congress intended or what the U.S. Supreme Court has ruled. The 

definitions of “floodplain,” “wetlands,” “tributaries,” “significant nexus,” and “riparian 

area” in particular are overly broad and vague. While we applaud EPA efforts to codify 

for the first time the definition of several key Clean Water Act terms, we simply do not 

fully agree with the proposed definitions. In our view, the new definitions, when applied 

to establish jurisdictional waters, will not provide the hoped for clarity or consistency in 

making accurate determinations. Instead these definitions will foster confusion, invite 

inconsistent approaches, increase the cost and difficulty of obtaining a permit, shift the 

regulatory burden to the Missouri Department of Natural Resources and other state, local 

and tribal Agencies resources.

Sweeping application of clean water programs on newly defined streams will force 

landowners, industries and local government to expend their limited resources to protect 

those waters with little or no additional environmental benefit. Our members will also see 

additional vulnerability to third party litigation and citizen suits since these groups will 

have expanded standing based on broader jurisdiction of the Proposed Rule.

The EPA and Army Corps should withdraw the Proposed Rule and reinstitute an 

expanded stakeholder process that fully addresses the thousands of comments on the 

inappropriate and illegal expansive impact of the Proposed Rule. The end result hopefully 

would be a more commonsense alternative that follows the statutory constructs of the 

Clean Water Act and Supreme Court decisions. (p. 1 – 2)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. For clarification of the definitions see the preamble for the 

final rule. 

Congress of the United States, Senate Committee on Environment and Public Works et al. (Doc. 

#16564)

13.471 In this letter, as the chairmen and ranking members of congressional committees and 

subcommittees charged with overseeing the federal government's compliance with the 

Clean Water Act and the Constitution, we wish to formally object to the proposed "waters 

of the United States" rule's disregard for federalism and the constitutional and statutory 

limitations on EPA's and the Corps' jurisdiction over "navigable waters." The proposed 

rule contemplates an extra-constitutional relationship between the federal government 

and the States in the regulation of local land-use matters. Thus, the proposed rule subverts 

the Constitution, Congress, as well as the Clean Water Act's promise to ''recognize, 
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preserve, and protect the primary responsibilities and rights of States . . . to plan the 

development and use . . . of land and water resources."319

EPA and the Corps must abandon the proposed "waters of the United States" rule if the 

Clean Water Act is to be administered consistent with federalism, the Constitution's 

limits on the federal government's Commerce Clause jurisdiction over "navigable 

waters," and the statutory limits contained in the Clean Water Act. We appreciate your 

review of these comments and the reasoning behind our recommendation to withdraw the 

proposed rule. (p. 1)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. 

13.472 The Proposed "Waters of the United States" Rule Contravenes the Constitution's 

Federalism Structure and Provides No Limit to Federal Authority Under the Clean Water 

Act. 

In considering the proper relationship between the federal government and the States, the 

Framers of the Constitution determined that federalism would serve as a guiding 

principle. The Framers' purpose was to guarantee that States and their citizens could 

control their own destiny, in contrast to a government in which local initiative might be 

impeded by an overbearing federal bureaucrat.320 

James Madison expounded on this structural idea in The Federalist No. 45, observing that 

the powers "delegated by the proposed Constitution to the federal government, are few 

and defined," and "[t]hose which are to remain in the State governments are numerous 

and indefinite.”321 Whereas the federal government's powers were to be exercised 

primarily over matters concerning war, peace, and foreign commerce, the powers 

"reserved to the several States will extend to all the objects which, in the ordinary course 

of affairs, concern the lives, liberties, and properties of the people, and internal order, 

improvement, and prosperity of the state."' Thus, federalism "serves to grant and delimit 

the prerogatives and responsibilities of the States and the National Government vis-a-vis 

one another," preserving the "integrity, dignity and residual sovereignty of the states."' 

Importantly, federalism protects state sovereignty as well as individual liberty. "State 

sovereignty is not just an end in itself: Rather, federalism secures to citizens the liberties 

that derive from the diffusion of sovereign power."322 It "protects the liberty of all 

persons within a State by ensuring that laws enacted in excess of delegated governmental 

power cannot direct or control their actions. By denying any one government complete 

jurisdiction over all the concerns of public life, federalism protects the liberty of the 

individual from arbitrary power."323 

 

319 Federal Water Pollution Control Act $ 101 (b), 33 U.S.C. fi 125 l(b).

320 See Bond v. United States, 13 1 S. Ct. 2355,2364 (201 1) (Federalism "allows States to respond . . . to the 

initiative of those who seek a voice in shaping the destiny of their own times without having to rely solely upon the 

political processes that control a remote central power.").

321 THE FEDERALIST No. 45, at 311 (James Madison) (Easton Press 1979).

322 New York v. United States, 505 U.S. 144, 181 (1 992) (internal quotations and citation omitted).

323 Bond, 13 1 S. Ct. at 2364.
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Congress explicitly recognized federalism's importance when it enacted the Clean Water 

Act in 1972.324 Congress likewise restricted the EPA's and Corps' authority by 

predicating Clean Water Act jurisdiction on the presence of "navigable waters," defined 

as "the waters of the United States, including the territorial seas.”325 Furthermore, 

because the Clean Water Act is a Commerce Clause enactment, EPA's and the Corps' 

administration of the law must be constrained and reflect effective bounds to federal 

regulatory authority.326 Accordingly, the reach of the "waters of the United States" is 

inextricably tied to the statute's limiting term, "navigable waters," and "may not be 

extended so as to embrace effects upon interstate commerce so indirect and remote that to 

embrace them . . . would effectively obliterate the distinction between what is national 

and what is local and create a completely centralized government.''327 

EPA and the Corps' proposed "waters of the United States" rule is irreconcilable with 

these principles. Under the proposed rule, virtually any parcel of land containing a 

water feature may be deemed a "water of the United States." Rather than preserve the 

prerogative of the States to manage purely local waterbodies, the proposed rule would 

centralize the regulation of streams, lakes, ponds, and ditches, As such, the proposed rule 

represents a dangerous effort by EPA and the Corps to achieve "a significant 

impingement of the States' traditional and primary power over land and water use."328 

(p. 1)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism. As explained in the preamble to the rule, the rule conforms to 

the Supreme Court’s articulation of the limits of federal authority under the Clean 

Water act; it therefore is consistent with the commerce clause. 

13.473 B. The Proposed “Waters of the United States” Rule is a Grave Threat to Individual 

Liberty and Property Rights.

After examining the proposed rule's definitions for “tributary'' and "adjacent waters,” as 

well as the case-by-case standard for "other waters," one is hard pressed to identify any 

waterbody that would be beyond the reach of EPA and the Corps as “waters of the United 

States.” The import of the proposed rule is clear: all water is national water (unless 

expressly exempted), and land with only a slight connection to a waterbody is within the 

regulatory purview of EPA and the Corps.

Federalism serves as an absolute bar to such an expansive proposal. The proposed rule's

definitions "pile inference upon inference in a manner that would bid fair to convert

congressional authority under the Commerce Clause to a general police power of the sort

retained by the States." 329 Congress did not sanction this approach in the Clean Water 

Act, and the Constitution forbids it.

 

324 See Federal Water Pollution Control Act 3 101@), 33 U.S.C. 8 125 1 (b).

325 See 33 U.S.C. 5 1362(7).

326 See United States v. Morrison, 529 U.S. 598, 608 (2000).

327 Id. (internal quotations and citation omitted).

328 Solid Waste Agency of Northern Cook County. USACE, 53 1 U.S. 159, 1 74 (200 1).

329 United States v . Lopez, 514 U.S. 549, 567 (1995) (majority opinion).
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The proposed rule's contravention of federalism threatens individual liberty and property

rights.330 By providing EPA and the Corps with virtually unlimited authority under the 

Clean Water Act, it would force those who wish to build a home, expand a small 

business, or increase their crop production to obtain the blessing of the federal 

government. Landowners will have to decide whether to spend up to two years and 

$270,000 in a burdensome and uncertain permitting process,331 or proceed without a 

federal permit and run the risk that EPA could seek fines of up to $187,500 per day for 

alleged Clean Water Act violations.332 Stated differently, the proposed rule would "put 

the property rights of ordinary Americans entirely at the mercy of [EPA] employees.333

This disregard for federalism is unacceptable. EPA and the Corps flouted their duty to 

abide by the limits established by the Framers,334 dubiously concluding that the proposed 

"waters of the United States” rule "will not have substantial direct effects on the states, on 

the relationship between the national government and the states, or on the distribution of 

power and responsibilities among the various levels of government."335 The agencies' 

assertion is fundamentally at odds with the reality that the proposed rule sanctions the 

federal regulation of what rightly and legally must be considered purely local land and 

water features. We recommend that EPA and the Corps take heed of the following 

admonition: "Impermissible interference with state sovereignty is not within the 

enumerated powers of the National Government, and action that exceeds the National 

Government's enumerated powers undermines the sovereign interests of the States."336 As 

a matter of federalism and constitutional governance, the proposed rule must be 

abandoned. (p. 7 – 8)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism and other responses addressing consistency of the rule with 

the commerce clause of the constitution 

 

330 See Bond, 13 1 S. Ct. at 2364 ("Federalism secures the freedom of the individual.") See a h Lynch v. Household,

405 U.S. 538,552 (1 972) ("[A] fundamental interdependence exists between the personal right to liberty and the

personal right in property. Neither could have meaning without the other. That rights in property are basic civil

rights has long been recognized.'" (citing J. Locke, Of Civil Government 82-85 ( 1 924); J. Adams, A Defence of the 

Constitutions of Government of the United States of America, in F. Coker, Democracy, Liberty, and Property 121-

132 (1942); 1 W. Blackstone, Commentaries * 138-140).

331 See Rapanos v. United States, 547 U.S. 7 15, 72 1 (2006) (plurality opinion).

332 See Letter from Senator David Vitter, et al. to Hon. Nancy Stoner, U.S. Environmental Protection Agency (April

1, 2014), available at

http://www.epw.senate.gov/public/index.c?FuseAction=Files.View&FileStoreidbfdO-e563-449e-bb86-

30e5eefeadgb.

333 Sackett v. EPA, 132 S. Ct. 1367, 1375 (2012) (Alito, J., concurring)

334 United States v. Lopez, 514 U.S. 549, 578 (1995) (Kennedy, J., concurring) (''[It is the obligation of all officers of 

the Government to respect the constitutional design.").

335 Proposed Rule, 79 Fed. Reg. at 22220-2222 1.

336 Bond, 13 1 S. Ct. at 2366 (citations omitted).
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13.3.6. Executive Order 13175: Consultation and Coordination with Indian Tribal 

Governments

Executive Order 13175

Subject to the Executive Order (E.O.) 13175 (65 FR 67249, November 9, 2000), agencies 

generally may not issue a regulation that has tribal implications:1) that imposes substantial direct 

compliance costs, and that is not required by statute, unless the Federal government provides the 

funds necessary to pay the direct compliance costs incurred by tribal governments, or the 

agencies consult with tribal officials early in the process of developing the proposed regulation 

and develops a tribal summary impact statement; or 2) that preempts tribal law unless the 

agencies consult with tribal officials early in the process of developing the proposed regulation 

and develops a tribal summary impact statement. 

This action does not have tribal implications as specified in E.O. 13175. In any event, 

consistent with the EPA Policy on Consultation and Coordination with Indian Tribes (May 4, 

2011), the agencies consulted with tribal officials throughout the rulemaking process to gain an 

understanding of tribal views and solicited their comments on the proposed action and on the 

development of today’s rule. In the course of this consultation, EPA and the Corps jointly 

participated in aspects of the process.

Summary Comments on Consultation and Coordination with Indian Tribal Governments 

There were two comments regarding consultation and coordination with tribes, both of which 

expressed concern that EPA and USACE did not engage in meaningful government to 

government consultation consistent with the EPA Policy on Tribal Consultation and 

Coordination with Indian Tribes (2011). One of the commenters also indicated concern that the 

rule is overly broad and will infringe on the Tribe’s sovereignty and ability to regulate its land 

and natural resources. 

Agencies’ Summary Response to Comments About Consultation and Coordination with 

Indian Tribal Governments Comments

Consultation

Consistent with the EPA Policy on Consultation and Coordination with Indian Tribes (May 4, 

2011), the agencies consulted with tribal officials throughout the rulemaking process to gain an 

understanding of tribal issues and solicited their comments on the proposed action and on the 

development of today’s rule. In the course of this consultation, EPA and the Corps jointly 

participated in aspects of the process.

The agencies began consultation with federally recognized Indian tribes on the Clean Water Rule 

defining waters of the U.S. in October 2011. The consultation and coordination process, 

including providing information on the development of an accompanying science report on the 

connectivity of streams and wetlands, continued in stages, over a four-year period, until the close 

of the public comment period on November 14, 2014. EPA invited tribes to provide written 
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input on the rulemaking throughout both the tribal consultation process and public comment 

period.

In 2011, close to 200 tribal representatives and more than 40 tribes participated in the 

consultation process, which included multiple webinars and national teleconferences and face-toface meetings. In addition, EPA received written comments from three tribes during the initial 

consultation period.

EPA continued to provide status updates to the National Tribal Water Council and the National 

Tribal Caucus during 2012 through 2014. The final consultation event was completed on 

October 23, 2014 as a national teleconference with the Office of Water’s Deputy Assistant 

Administrator. Ultimately, EPA received an additional 23 letters from tribes/tribal organizations

by the completion of the consultation period. The comments indicate that tribes, overall, support 

increased definitional clarity of waters protected by the Clean Water Act, but some expressed

concern with the consultation process and the burden of any expanded jurisdiction. The feedback 

received through consultation and written comments had been considered in developing today’s 

rule. 

Comments

The agencies received comments from the following Tribes and Tribal organizations during the 

development of the Clean Water Rule: Bridgeport Indian Colony, Ute Indian Tribe Uinah & 

Ouray Reservation, Pokagon Band of Potawatomi Indians, Swinomish Indian Tribal Community, 

Sealaska Corporation, Barona Band of Mission Indians, Chickaloon Native Village, Gila River 

Indian Community, Great Lakes Indian Fish and Wildlife Commission, Keweenaw Bay Indian 

Community, Lac Du Flambeau Band of Lake Superior, Chippewa Indians, Muckleshoot Indian 

Tribe, Navajo Nation, Pyramid Lake Paiute Tribe, Pueblo of Sandia, Quapaw Tribe of 

Oklahoma, Lake Superior Chippewa Indians, Curyung Tribal Council, San Carlos Apache Tribe, 

Sokaogon Chippewa Community, Southern Ute Indian Tribe Growth Fund, National Tribal 

Council, Arctic Slope Regional Corporation, Alaska Inter-Tribal Council, and Native Village of 

Nuiqsut.

The agencies have reviewed and responded to each tribal comment received, and these have been 

placed in the rule compendium according to the issue(s) raised. To assist tribes and members of 

the public in locating the responses to tribal comments not related to consultation, we have 

included below a summary chart of those tribal comments with references to the appropriate 

compendium.
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The agencies have prepared a report summarizing their consultation with tribal nations,. This 

report, Final Summary of Tribal Consultation for the Clean Water Rule: Definition of “Waters of 

the United States” Under the Clean Water Act; Final Rule (Docket Id No EPA-HQ-OW-2011-

0880), is available in the docket for this rule. 

Specific Comments

Western Governors Association (Doc. #14645)

13.474 State-Tribal Coordination: Western Governors endorse government-to-government 

cooperation among the states, tribes and EPA in support of effective and consistent CWA 

implementation. While retaining the ability of the Governors to take a leadership role in 

coordination with the tribes, EPA should promote effective consultation, coordination, 

and dispute resolution among the governments, with emphasis on lands where tribes have 

treatment-as-state status under Section 518 of the CWA. (p. 8)

Agency Response: The agencies support effective consultation, coordination, and 

dispute-resolution with all affected stakeholders throughout the rulemaking process. 

For more information on the consultation efforts associated with this rule, please see 

the subsection on “Consultation” in the summary response above.

Tribe/Tribal Organization Docket Number 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17

Sealaska Corporation

15356 (additional 

maps in duplicate 

16671) x x x x x x x

Barona Band of Mission Indians 2476 x x

Barona Band of Mission Indians 10966 x x

Chickaloon Village Traditional Council 15137 x x

Gila River Indian Community 13619 x x x x

Great Lakes Indian Fish and Wildlife Commission 15048 x x

Great Lakes Indian Fish and Wildlife Commission 15454 x x x x

Keweenaw Bay Indian Community 15497 x

Lac du Flambeau Band of Lake Superior Chippewa Indians16538 x

Muckleshoot Indian Tribe Fisheries Division 16369 x x

Navajo Nation Environmental Protection Agency

10117 (duplicate 

15180) x x x x x x

Pyramid Lake Paiute Tribe

17472 (duplicate 

19134) x x x

Pueblo of Sandia 2729 x x

Quapaw Tribe of Oklahoma (the O-Gah-Pah) 7980 x x x x x x

Red Cliff Band of Lake Superior Chippewa 16572 x

San Carlos Apache Tribe

15067 (duplicate 

17094) x x x x x

Sokaogon Chippewa Community, Sokaogon, Mole Lake Band of the Lake Superior Chippewa Indians, Crandon Wisconsin 16591 x

Southern Ute Indian Tribe Growth Fund 15386 x x x x x x x x x

National Tribal Water Council (NWTC) 18922 x

Arctic Slope Regional Corporation (“ASRC”) 15038 x x x x

Alaska Inter-Tribal Council (included with others) 15173 x

Native Village of Nuiqsut 19578

Curyung Tribal Council 14927

Swinomish Indian Tribal Community N/A

Bridgeport Indian Colony N/A (2011)

Pokagon Band of Potawatomi Indians N/A (2011)

Ute Indian Tribe of the Potawatomi Indians N/A (2011)

Response to Comment Compendium Number
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San Carlos Apache Tribe (Doc. # 17094)

13.475 The Tribe is concerned that EPA and USACE failed to comply with EPA Policy on 

Consultation and Coordination with Indian Tribes (2011) and the goals of Executive 

Order 13175 to ensure meaningful and timely input by tribal officials in the development 

of regulatory policies that have tribal implications. EPA and USACE did not engage in 

meaningful government-to-government consultations with any officials or representative 

of this Tribe regarding the proposed rule. Non-localized national meetings, webinars and 

generalized publicity campaigns do not constitute meaningful consultation or dialogue 

with the Tribe.

The United States, through the Department of the Interior, the EPA and USACE and their 

officials and officers, as a matter of constitutional, statutory, regulatory, and federal 

common law, is a trustee and a fiduciary to the San Carlos Apache Tribe and is charged 

with carrying out trust duties and responsibilities. The United States' trust responsibility 

is a well-established legal obligation that originates from the unique, historical 

relationship between the United States and Indian tribes. The Constitution recognized 

Indian tribes as entities distinct from states and foreign nations. The trust responsibility 

consists of the highest moral obligations that the United States must meet to ensure the 

protection of tribal and individual Indian lands, assets, resources, and treaty and similarly 

recognized rights. See generally Cohen's Handbook of Federal Indian Law § 5.04[3] 

(Nell Jessup Newton ed., 2012).

Executive Order No. 13647, Establishing the White House Council on Native American 

Affairs (June 26, 2013) required cabinet-level participation and interagency coordination 

for the purpose of "establish[ing] a national policy to ensure that the Federal Government 

engages in a true and lasting government-to-government relationship with federally 

recognized tribes in a more coordinated and effective manner, including by better 

carrying out its trust responsibilities."

Nominally, EPA and USACE should have engaged in direct government-to-government 

consultations with Indian Tribes or tribal organizations. EPA and USACE failed to 

initiate such engagements and consultations. There is no question that the proposed rule 

will impact Indian Tribes nationwide. The failure of EPA and USACE to engage in 

meaningful consultations is a fundamental flaw in this rulemaking process.

The Tribe's Office of Attorney General participated in the Webinar presented on 

November 3, 2014 by the River Network entitled Waters of the US Rulemaking: What it 

means for Tribal Governments. That webinar cannot be considered consultation. In fact, 

the presenters, including those from EPA, agreed that the webinar would not be 

considered consultation and that the comments made during the webinar by tribal 

participants would not be accepted as comments on the rule. Participants were instructed 

that only comments made officially under the rulemaking process would be considered.

On behalf of the Tribe, I request that in the future, when considering rules that will have 

such an adverse impact on the Tribe and its resources, the EPA and USACE should 

initiate proper and meaningful government-to-government consultation with a view to 

actually addressing our differences.
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In summation, the Tribe believes the rulemaking process was flawed because of a lack of 

government-to-government consultation with the Tribe. The Tribe believes the rule is 

overly broad and will infringe on the Tribe's sovereignty and ability to regulate its land 

and natural resources. Accordingly, the Tribe opposes the proposed rule as currently 

drafted. (p. 6 – 8)

Agency Response: EPA acknowledges that the United States has a unique legal 

relationship with tribal governments based on the Constitution, treaties, statutes, 

executive orders, and court decisions. The agency remains fully committed to 

engaging tribes as sovereign governments with a right to self-governance. Consistent 

with these principles, the agencies consulted with tribes in a meaningful way 

throughout the rulemaking process and considered tribal views in developing 

today’s rule. 

San Carlos Apache Tribe (Doc. #17094)

13.476 The Rulemaking Process is Fundamentally Flawed

The Tribe is concerned that EPA and USACE failed to comply with EPA Policy on 

Consultation and Coordination with Indian Tribes (2011) and the goals of Executive 

Order 13175 to ensure meaningful and timely input by tribal officials in the development 

of regulatory policies that have tribal implications. EPA and USACE did not engage in 

meaningful government-to-government consultations with any officials or representative 

of this Tribe regarding the proposed rule. Non-localized national meetings, webinars and 

generalized publicity campaigns do not constitute meaningful consultation or dialogue 

with the Tribe.

The United States, through the Department of the Interior, the EPA and USACE and their 

officials and officers, as a matter of constitutional, statutory, regulatory, and federal 

common law, is a trustee and a fiduciary to the San Carlos Apache Tribe and is charged 

with carrying out trust duties and responsibilities. The United States' trust responsibility 

is a well-established legal obligation that originates from the unique, historical 

relationship between the United States and Indian tribes. The Constitution recognized 

Indian tribes as entities distinct from states and foreign nations. The trust responsibility 

consists of the highest moral obligations that the United States must meet to ensure the 

protection of tribal and individual Indian lands, assets, resources, and treaty and similarly 

recognized rights. See generally Cohen's Handbook of Federal Indian Law § 5.04[3] 

(Nell Jessup Newton ed., 2012).

Executive Order No. 13647, Establishing the White House Council on Native American 

Affairs (June 26, 2013) required cabinet-level participation and interagency coordination 

for the purpose of "establish[ing] a national policy to ensure that the Federal Government 

engages in a true and lasting government-to-government relationship with federally 

recognized tribes in a more coordinated and effective manner, including by better 

carrying out its trust responsibilities."

Nominally, EPA and USACE should have engaged in direct government-to-government 

consultations with Indian Tribes or tribal organizations. EPA and USACE failed to 

initiate such engagements and consultations. There is no question that the proposed rule 
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will impact Indian Tribes nationwide. The failure of EPA and USACE to engage in 

meaningful consultations is a fundamental flaw in this rulemaking process.

The Tribe's Office of Attorney General participated in the Webinar presented on 

November 3, 2014 by the River Network entitled Waters of the US Rulemaking: What it 

means for Tribal Governments. That webinar cannot be considered consultation. In fact, 

the presenters, including those from EPA, agreed that the webinar would not be 

considered consultation and that the comments made during the webinar by tribal 

participants would not be accepted as comments on the rule. Participants were instructed 

that only comments made officially under the rulemaking process would be considered.

On behalf of the Tribe, I request that in the future, when considering rules that will have 

such an adverse impact on the Tribe and its resources, the EPA and USACE should 

initiate proper and meaningful government-to-government consultation with a view to 

actually addressing our differences.

In summation, the Tribe believes the rulemaking process was flawed because of a lack of 

government-to-government consultation with the Tribe. The Tribe believes the rule is 

overly broad and will infringe on the Tribe's sovereignty and ability to regulate its land 

and natural resources. Accordingly, the Tribe opposes the proposed rule as currently 

drafted. (p. 6 – 8)

Agency Response: Duplicate Comment (see the response above)

13.3.7. Executive Order: 13045: Protection of Children from Environmental Health and 

Safety Risks

No substantive comments that addressed this topic were identified. 

13.3.8. Executive Order 13211: Actions Concerning Regulations that Significantly Affect 

Energy Supply, Distribution, or Use Compliance, Federalism

No substantive comments that addressed this topic were identified. 

13.3.9. National Technology Transfer and Advancement Act

No substantive comments that addressed this topic were identified. 

13.3.10. Executive Order 12898: Federal Actions to Environmental Justice in Minority 

Populations and Low-Income Populations

Summary of Executive Order 12898 Comments

NOTE: This summary includes EO 12898 comments that are part of the Appendix C of the 

Environmental Justice Report found in the docket. 
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The majority of comments in this section expressed concern with the economic impacts of the 

rule on low-income and minority populations. These issues are not covered by the EO, and are 

more directly related to the costs benefit analysis developed for the rule (see Compendium 11).

Commenters recommended that EPA expand their communication of the proposed rule and its 

effects to low income EJ communities, especially those with poor access to clean water. This 

would involve on-the-ground engagement with community members and creating outreach 

materials that are community-oriented and multi-lingual. 

A few commenters expressed support for the rule indicating that the rule will help to clarify what 

waterways are protected under the Clean Water Act. Commenters urged the agencies to leave in 

place all portions of the existing definition that have not been invalidated by the Supreme Court, 

to remove new definitions and other language that limit jurisdiction in a manner not supported by 

law or science, remove categorical exclusions that are not supported by law or science, and to 

rely on all valid jurisdictional tests for categorically protecting waters to the full extent allowed 

under the Commerce Clause.

Agencies’ Response to Executive Order 12898 Comments

Executive Order (E.O.) 12898 (59 FR 7629, Feb. 16, 1994) establishes Federal executive policy 

on environmental justice. Its main provision directs Federal agencies, to the greatest extent

practicable and permitted by law, to make environmental justice part of their mission by 

identifying and addressing, as appropriate, disproportionately high and adverse human health or 

environmental effects of their programs, policies, and activities on minority populations and lowincome populations in the United States. 

Meaningful involvement from minority, low-income, and indigenous populations, as well as 

other stakeholders has been a cornerstone of development of the final rule. In compliance with 

EO 12898, EPA hosted a stakeholder briefing on May 12, 2014, in Washington DC, and an 

additional 24 meetings between April – November 2014, through which Environmental Justice 

stakeholders were specifically engaged for technical input and meaningful involvement in the 

rulemaking process. The rule complies with Executive Order 12898, which requires the Federal 

agencies to identify and address, as appropriate, disproportionately high and adverse human 

health or environmental effects on minority, low income, and indigenous populations (E.O. 

12898, 1994). The Agencies have determined that this rule will not have disproportionally high 

and adverse human health or environmental effects on minority, low income, and indigenous 

populations.

The Clean Water Rule does not establish any specific regulatory requirements. Instead, it is a 

definitional rule that clarifies the scope of “waters of the United States” consistent with the Clean 

Water Act (CWA), Supreme Court precedent, and science. The definition itself imposes no direct 

impacts on environmental and, or public health for communities at large; therefore, it will have 

no increased impact on low-income or disadvantaged communities. The rule will increase CWA 

program transparency, predictability, and consistency. All potential impacts will be measured 

through CWA program implementation, which is outside of the scope of this rule. The Clean 
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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Water Rule does not change the current structure of permit and regulatory processes under the 

Act and instead will result in more effective and efficient CWA permit evaluations with 

increased certainty and less litigation. 

The Clean Water Rule will benefit future implementation of the CWA by clarifying the extent of 

jurisdictional waters, and identifying where data collection and analysis may be appropriate for 

future program evaluations.

The agencies received comments from the following organizations and individual stakeholders 

who expressed concern for environmental justice issues within their respective communities: 

Audobon California, Cochise County, EJ Coalition of Water, GA Water Coalition, Greybull 

Valley Irrigation District, Rep. Dennis Hedke, Sen. Larry Powell, Mission Springs Water 

District, Pamilico-Tar-Riverkeeper, National Religious Partnership for the Environment, EcoJustice Ministries, NJ Environmental Justice Alliance, City Greens, Local Government Advisory 

Committee.

The agencies have reviewed and responded to each comment received from EJ stakeholders, and 

these have been placed in the rule compendium according to the issue(s) raised. To assist 

members of the public in locating the responses to the comments not related to the EO, we have 

included the comments below with references to the appropriate compendium.

Specific Comments

New Mexico Department of Agriculture (Doc. #13024)

13.477 Environmental Justice (E.D. 12898), the Regulatory Flexibility Act (RFA), and Impacts 

to Small Businesses

In the Federal Register notice of this proposed rulemaking, EPA claims that under the 

RFA the proposed rule will have no effect on small business using the language, "After 

considering the economic impacts of this proposed rule on small entities, I certify that 

this proposed rule will not have a significant economic impact on a substantial number of 

small entities" (79 FR 22220). However, language pulled directly from the Economic 

Analysis states, “As a result of this proposed action, costs to regulated entities will likely 

increase for permit application expenses."337 The same document says, "This proposed 

rule could result in new indirect costs on regulated entities such as the energy, 

agricultural, and transportation industries; land developers, municipalities, industrial 

operations; and on governments administering regulatory programs, at the tribal, state 

and federal levels.”338 The Federal Register notice and the Economic Analysis 

 

337 U.S. Environmental Protection Agency & U.S. Army Corps of Engineers, "Economic Analysis of Proposed 

Revised Definition of Waters of the U'S" Page 32. March 20 14. Available at: 

http://www2.epa.gov/uswaters/documents-related-proposed-definition-waters-united-states-under-clean-water-act.

338 U.S. Environmental Protection Agency & U.S. Amy Corps of Engineers. "Economic Analysis of Proposed 

Revised Definition of Waters of the U.S."Page 5. March 2014, Available at: 

http://www2.epa.gov/uswaters/documents-related-proposed-definition-waters-united-states-under-clean-water-act.
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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conclusions clearly contradict each other; and NMDA agrees with the latter, that 

increased permitting will come with increased costs to small businesses.

NMDA requests that additional analysis be completed to determine the true impacts of 

increased permitting to small businesses - particularly for the agriculture industries. In the 

meantime, USDA's 2012 Census of Agriculture provides economic analyses that show a 

significant amount of agricultural producers can be categorized as small businesses thus 

likely to experience the impact of regulatory burden. The 2012 Census of Agriculture 

classifies approximately 75 percent of agricultural operations nationwide as being less 

than $50,000 in the "classification of farms by the sum of market value of agricultural 

products sold and federal farm program payments."339 In New Mexico the percentage of 

less than $50,000 producers is significantly higher, at nearly 88 percent; therefore, 

producers in New Mexico could be more economically vulnerable to market fluctuations 

caused by regulatory burden. NPDES and other permitting costs may have a negative 

economic impact on small businesses. Therefore, EPA's findings under RFA are not only 

incorrect but they also conflict with supporting documents.

To this same point, the United States Small Business Administration recently wrote a 

comment letter to the Agencies requesting them to "withdraw the rule and that the EPA 

conduct a Small Business Advocacy Review panel before proceeding any further with 

this rulemaking.”340 (p. 22 – 23)

Agency Response: This comment is not applicable to section 13.2.10. For 

information on RFA, see comment responses in Compendium 11.

National Religious Partnership for the Environment (Doc. #14060)

13.478 Our faith traditions teach us to care for vulnerable populations including communities of 

color and low-income communities. The proposed rule will protect waters in parishes 

such as Orleans, St. James, West Baton Rouge, Caddo, Terrebonne and Lafourche that 

have significant populations of African Americans, Native Americans, or low-income 

communities.

As communities of faith across a broad spectrum of traditions, we understand water as a 

symbol of preservation, cleansing, and renewal. Water is a gift from God. We urge you to 

act swiftly to finalize the Waters of the US rule so that we can protect this gift for the 

health and wellbeing of our people and all creation. (p. 2)

Agency Response: Thank you for your comment and support of this rule.

 

339 U.S. Department of Agriculture - National Agricultural Statistics Service." 2012Census of Agriculture." 2014,

http://www.agcensus.usda.gov/Publications/2012/.

340 U.S. Small Business Administration. Comments on the Definition of Waters of the U.S."Under the Clean Water 

ct.

Submitted 10/ 1/14. http://www.sba.gov/advocacy/1012014-definition-waters-united-states-under-clean-water-act.
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Additional Comments Noted from Appendix C. of the Environmental Justice Report 

Local Government Advisory Council 

13.479 The LGAC has concerns about how the agency will incorporate EJ into the final rule; and 

whether EJ communities will be given consideration in permitting consistent with 

Executive Order 12898”; The LGAC urges the EPA to further their engagement with EJ 

communities. The proposed rule could improve access to clean and safe water for these 

communities but in order to do so, communication of the rule is critical; The LGAC 

recommends that EPA expand their communication of the proposed rule and its effects to 

low income EJ communities, especially those with poor access to clean water. This 

would involve on-the-ground engagement with community members and creating 

outreach materials that are community-oriented and multi-lingual; The LGAC 

recommend that the EPA, before issuing a permit such as those for MS4s, analyze the 

impact to nearby communities and identify whether a community is disproportionately 

affected. The Committee recommends that is a community is disproportionately affected, 

a permit should not be authorized”.

Agency Response: See section 13.2.10 summary response for information 

regarding communication on outreach to Environmental Justice stakeholders. For 

information on the permitting process, see the comment response in compendium 

12.

Anonymous: (tracking # 1jy-8buzu-j) - SUMMARY

13.480 Please consider the economic impacts of your policies knowing that your actions will 

have serious impacts on struggling families, seniors, low-income households and small 

business owners. 

Agency Response: For information on the economic analysis, see comment 

responses in Compendium 11.

Audubon California

13.481 We urge the Agencies to strengthen the final rule by further clarifying that important 

wetlands and other waters located beyond floodplains are also categorically protected 

under the Clean Water Act. Additional recommendations include: 

1. Categorically define certain non-adjacent “other waters” as “Waters of the United 

States” and identify additional subcategories of waters that are jurisdictional, rather than 

requiring case-by-case determinations. 

2. Provide for new science by not categorically excluding any of the “other waters.” 

Establish a process that allows evolving science to inform future jurisdictional decisions. 

3. Our organizations urge the Agencies to swiftly finalize a rule to clarify that all waters 

with a “significant nexus” to downstream waters are clearly protected under the Clean 

Water Act.

Agency Response: Thank you for your support of this rule. For information on 

“other waters”, see comment responses in Compendium 4. For information on 

adjacent waters see comment responses in Compendium 3.
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Cochise County

13.482 The agencies fail to identify the point on the continuum from non-connectivity to full 

connectivity at which a significant nexus would occur and instead the determination is 

left to the judgment of the agencies. The Connectivity report, upon which the proposed 

rule is based offers a scientific presumption of connectivity for both tributaries and other 

waters. 

Agency Response: For information on the agencies approach to significant nexus, 

see the comment responses in Compendium 5. For information on the Connectivity 

report, see comment responses in section 13.1 of this compendium. 

EJ Coalition of Water 

13.483 We urge your agencies to strengthen the categorical protections to be extended to our 

nation's wetlands. Many non-adjacent waters, referred to in the proposed rule as "other 

waters" provide critical benefits to the waterways we love, filtering our pollution and 

preventing flooding. We urge you to follow the best science available on the connectivity 

of our waterways and use it to shape jurisdictional decisions.

Agency Response: Thank you for your support of this rule. For information on 

the agencies approach to “other waters”, see comment responses in Compendium 4. 

13.3.11. Environmental Documentation

Comment Summary

Some commenters argued that while EPA is exempt from NEPA under section 511(c) of the 

CWA, the Corps was obligated to prepare an EIS on the rulemaking. Commenters also 

expressed concern that while the preamble stated that the Corps had prepared an environmental 

assessment, none was included in the proposed rule docket.

Agencies’ Summary Response

The final EA is available in the rulemaking record. The EA reviewed the reasonably foreseeable 

impacts of the rule, and the Assistant Secretary of the Army for Civil Works determined they 

would not be significant. Her decision is documented in a “finding of no significant impact” that 

can be found in the docket for the rule. While NEPA does not apply to this rulemaking (see 

CWA section 511(c)) and the Army therefore prepared the EA voluntarily, even if NEPA did 

apply, preparation of an EIS would not be required.

Regarding the comments on the absence of a draft EA in the proposed rulemaking docket, the 

preamble to the proposed rule the Corps inadvertently stated that the Corps had prepared a draft 

Environmental Assessment at the time of the proposal. While a draft had not been prepared at 

that time, the Corps has now completed its EA and, consistent with its general practice of making 

EAs at the time of the decision or action, the document is now available in the rulemaking 

docket. The preamble to the proposed rule was misleading and caused confusion as to whether a 

draft Environmental Assessment had been finalized at the time of the proposal. The Army has 
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now completed the EA and, consistent with its general practice of making this documentation 

available at the time of the decision or action, the document has been posted in the rulemaking 

docket.

Specific Comments

Uintah County, Utah (Doc. #12720)

13.484 Environmental Documentation -The COE asks the public to simply take on faith that they 

have completed an accurate environmental analysis (EA). There is no link to the EA nor 

is it included as an appendix. It is problematic for the public to accept the conclusions of 

a document which is entirely selfserving. The statement at the end of Section K., 

Environmental Documentation (P. 22222), seems to belie the notion that this is simply a 

definition change.

There is no argument that the COE is not required to make a good decision as a result of 

the EA. The decision merely has to be informed but does not have to be in the best 

interest of the people of the United States. In this case, the County is concerned that the 

EA does not accurately portray the impacts.

Despite the voluminous discussion, background, and rationalization, there is not a 

compelling purpose and need identified by either Agency for the implementation of this 

rule. As pointed out in discussions above, the Agencies seem to have glossed over the 

potential impacts under the Paperwork Reduction Act and the Regulatory Flexibility Act.

Based on the language in Section K., Environmental Documentation, which is apparently 

drawn from the Decision Record/Finding of No Significant Impact, the COE, at a 

minimum, will be demanding additional analysis, applications, filings, fees and review 

periods, etc. The mere fact that the existing COE functions could expand significantly 

should be a reason for a Finding of Significant Impact and require the preparation of an 

Environmental Impact Statement (EIS).

The language in Section K., Environmental Documentation, intrudes upon the 

responsibility of other State and Federal agencies. The proposed rule would insert the 

Agencies into areas where other agencies currently perform extensive NEPA 

documentation, which includes the resources proposed by this rule. The implementation 

of this rule would not relieve those agencies of their responsibilities to evaluate direct, 

indirect, cumulative and residual impacts to all resources in the project area.

(...) Based solely on the Environmental Documentation, this proposed rule should be 

withdrawn. The Agencies have failed to properly state the purpose and need for this rule. 

The Agencies have failed to disclose the scope of impact of the proposed rule. The 

Agencies have failed to complete and identify the requisite information which would 

allow for a proper NEPA analysis and for the public to provide meaningful comment on 

this proposed rule. (p. 6 – 7)

Agency Response: Section 511(c) of the Clean Water Act provides that, except for 

certain actions not relevant here, no action by EPA constitutes ‘a major federal 

action significantly affecting the quality of the human environment within the 

meaning of [NEPA]”. In this joint rulemaking, the two agencies establish a 
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definitional rule that clarifies the scope of the Clean Water Act. The definition will 

apply to all provisions of the Act, and this regulation specifically amends EPA 

regulations implementing sections 301, 304, 306, 311, 402 and 404, while the Corps 

is making substantively identical revisions to their regulations solely under section 

404 of the CWA. EPA is exempt from NEPA under section 511(c). This rulemaking 

implements EPA’s authority to determine the scope of CWA jurisdiction. See 

Opinion of Attorney General Civiletti, 43 Op. att’y. Gen. 197 (1979). Under the 

narrow circumstances of this rulemaking which defines the scope of CWA 

jurisdiction for all provisions of the CWA, the exemption in section 511(c) applies to 

the rulemaking. 

Nevertheless, the Army has complied with NEPA. The Army’s final EA is available 

in the public rulemaking record. The EA sets forth the purpose and need for the 

rulemaking, and discloses the rule’s potential impacts. It also indicates that Corps 

regulatory functions and processes are not anticipated to change, and addresses 

socio-economic impacts. The agencies also note that economic and social effects by 

themselves are not intended to require preparation of an environmental impact 

statement under NEPA. 40 C.F.R. § 1508.14. The agencies disagree that the EA 

intrudes upon other agencies’ responsibilities; NEPA is purely procedural, and the 

EA simply informs the Army and public about the potential environmental impacts 

of the rule. The agencies agree implementation of the rule would not relieve 

agencies from their existing NEPA responsibilities. The agencies believe a 

meaningful opportunity to comment on the proposed rule was provided.

13.4. NEPA

Specific Comments

State of Alaska (Doc. #19465)

13.485 The preamble to the rule states that the Corps prepared an environmental assessment 

under the National Environmental Policy Act (NEPA) for this rulemaking341. However, 

the website for the proposed rule apparently does not contain the EA, and it is impossible 

to assess the adequacy of the document. Moreover, because this rulemaking will likely 

result in significant impacts, it constitutes major federal action requiring the preparation 

of an environmental impact statement (EIS) under NEPA342. (p. 18)

Agency Response: See summary response for 13.2.11. 

Kansas House of Representatives Committee on Energy & Environment (Doc. #4903)

13.486 With that as a preamble, the purpose of this correspondence is to invoke State 

Coordination between EPA and the Kansas House Committee on Energy and 

Environment, as required of your Agency by the National Environmental Policy Act343

 

341 79 Fed. Reg. 22222.

342 42 U.S.C. 102(c).

343 42 USC §§ 601-612.
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and Executive Orders 12372, 13352, and 13575. It is this Committees’ intent to evaluate 

the claims in the QAD using studies required of EPA prior to proposing the WOTUS 

Rule. (p. 1)

Agency Response: The agencies are unable to discern any State Coordination 

requirement under NEPA as described in the comment. 

13.487 The National Environmental Policy Act (NEPA)344 of 1970, and concomitant 

implementation via the Council on Environmental Quality regulations, require 

preparation of an Environmental Impact Statement (EIS) prior to the publication of the 

WOWS Rule. Please provide this Committee those portions of the EIS that are relevant 

and specific to the Kansas counties proposed to be covered by the WOTUS Rule. (p. 2)

Agency Response: See summary response for 13.2.11.

Kansas Senate Committee on Natural Resources (Doc. #4904)

13.488 The National Environmental Policy Act (NEPA) of 1970 and its implementing CEQ 

Regulations345 require preparation of an Environmental Impact Statement (EIS) prior to 

publication of the WOTUS Rule. 

Please provide this Committee those portions of the EIS relevant and specific to the 

Kansas counties proposed to be covered by the WOTUS Rule. As you may be aware, 

there are number of significant, environmental-related Federal Actions taking place 

simultaneously in Kansas. These include Endangered Species Listings by the United 

States Fish and Wildlife Service, revision of the Resource Management Plan by Bureau 

of Land Management, the proposed groundwater Rule by the United States Forest 

Service, and the problematic Agriculture Conservation Practices Limitation Rule by EPA 

and US Army Corps of Engineers. Because Environment is the common theme behind all 

these initiatives, the collective and cumulative significance and intensity of impacts to the 

Human Environment of all these initiatives is required to be evaluated and published for 

public comment before any Record of Decisions are made.346 Please provide this 

Committee with a demonstration that the NEPA required impacts to culture, custom,

industry have been studied and the proposed WOTUS Rule adequately accounts and 

balances Human and Natural Environments. (p. 2)

Agency Response: See summary response for 13.2.11.

Kansas Senate Committee on Natural Resources (Doc. #15022)

13.489 With respect to The National Environmental Policy Act (NEPA) of 1970~an d its 

implementing CEQ Regulations,347 the WOTUS Rule is considered a Major Federal 

Action. Resultantly, preparation of an Environmental Impact Statement (EIS) was 

required prior to WOWS publication, and my committee is interested in reviewing the 

EIS. Please provide those portions of the EIS relevant and specific to the Kansas 

counties proposed to be covered by the WOTUS Rule. 

 

344 42 USC $5 4321 -4347; USC $433 1 (a)-(c).

345 40 CFR §1501 – 1502.

346 40 CFR §1508.27.

347 42 USC §§ 4321-4347; 42 USC 4 4331 (a)-(c)
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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CEQ Regulations 40 C collectively significant federal actions to be analyzed in the 

context of socioeconomic circumstances, cultural affects, and downstream future impacts. 

As you may be aware, there are number of significant, environmental related Federal 

Actions taking place simultaneously in Kansas. These include Endangered Species 

Listings by the United States Fish and Wildlife Service, revision of the Resource 

Management Plan by Bureau of Land Management, the proposed groundwater Rule by 

the United States Forest Service, and the problematic Agriculture Conservation Practices 

Limitation Rule by EPA and US Army Corps of Engineers. Because Environment is the

common theme behind all these initiatives, the collective and cumulative significance and 

intensity of impacts to the Human Environment of these initiatives are required to 

collectively be evaluated. Please provide this Committee with a demonstration of how the 

NEPA required impacts to culture, custom, industry were evaluated and the proposed 

WOTUS Rule adequately accounts and balances Human and Natural Environments. (p. 

2)

Agency Response: See summary response for 13.2.11. 

Senate Natural Resource Committee Garden City (Doc. #16427)

13.490 In contrast to stated concerns for human systems, the record indicates EPA has not 

completed an Environmental Impact Statement for the WOTUS Rule, nor has it issued a 

determination on its Environmental Assessment, to the glaring neglect of crucial, 

protective procedures found in the National Environmental Policy Act. (p. 2)

Agency Response: An EA prepared by the Army reviewed the reasonably 

foreseeable impacts of the rule, including socio-economic and cumulative impacts. 

The Assistant Secretary of the Army for Civil Works determined that the adoption 

of the rule would not have significant impacts on the human environment. Her 

decision is documented in a “finding of no significant impact” (FONSI) that can be 

found in the rule making docket. While NEPA does not apply to this rulemaking 

(see CWA section 511(c)) and the Army therefore prepared the EA voluntarily, even 

if NEPA did apply, preparation of an EIS would not be required.

Mesa County, Colorado Board of County Commissioners (Doc. #12713)

13.491 Yet, if the Rule were adopted, causing more water bodies to be subject to Federal 

oversight, more of Mesa County's capital projects could require permitting from the 

United States Army Corps of Engineers (USACE). If Mesa County's project were large 

enough, the additional oversight could trigger the need for a National Environmental 

Policy Act (NEPA) review and consultation with Fish and Wildlife Service for impacts to 

Endangered Species Act (ESA). These additional requirements will increase cost and 

perhaps add years onto a project. (p. 1)

Agency Response: It is possible that some additional projects may require 

permitting with adoption of rule, which may in turn trigger a NEPA analysis or 

require the Army to consult with FWS. Nothing in the rule is directed at capital 

projects, and the increased clarity and predictability provided by the rule should 

improve the efficiency of permitting. 
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Big Horn County Commission (Doc. #13599)

13.492 The EPA also failed to consider that this proposed rule is a Major Federal action that

requires all Federal Agencies to implement NEPA. (p. 1)

Agency Response: See summary response for 13.2.11. 

Waters of the United States Coalition (Doc. #14589)

13.493 VII. BECAUSE THE PROPOSED RULE IS AN ACOE ACTION, EPA AND ACOE 

NEED TO ANALYZE THE IMPACTS UNDER NEPA

All federal agencies must comply with NEPA. (40 C.F.R. § 1500.3.) To do so, federal 

agencies undertaking any “major Federal action” must analyze the environmental impacts 

of that action. (42 U.S.C. § 4332(2)(C).) New or revised policies, rules, and regulations

constitute major Federal actions when they have the potential to affect the quality of the 

human environment. (40 C.F.R. §§ 1500.6, 1502.4(b), 1508.18(b).) When a major federal 

action has the potential to significantly affect the quality of the human environment, an 

Environmental Impact Statement (“EIS”) must be prepared. (42 U.S.C. § 4332(2)(C).)

EPA and ACOE’s Proposed Rule revises the definition of the term “waters of the United 

States.” The proposed revision greatly expands the number of waters classified as waters 

of the United States including man-made conveyances and treatment structures that are 

part of local government flood control or water supply systems. See Claudia Copeland, 

EPA and the Army Corps’ Proposed Rule to Define “Waters of the United States” (April 

21, 2014) (Congressional Research Service report noting the Proposed Rule will reach an 

additional 3% to 17% of the nation’s waters).

The Proposed Rule’s expansive definition of the term waters of the United States will 

result in significant impacts to the human environment. It will restrict or entirely prevent 

the use of many man-made conveyances that provide drinking water to residents, keep 

streets free of flood waters, and allow for the development of new uses for recycled 

water, among other uses.

Designating the internal infrastructure as waters of the United States could limit local 

government agencies’ ability to provide critical water supply services, recycling water for 

re-use, or responding to wildfires and other critical emergencies. The Proposed Rule is 

therefore likely to result in project-specific and cumulative significant environmental 

impacts relating to water supplies, hydrology, emergency services, public services and 

utilities, agriculture, air quality, biological resources, soil erosion, land use and planning, 

population and housing, and others. These impacts, particularly the impacts to water 

supply, will be dire in certain areas of the west, including California, which are suffering 

from unprecedented drought conditions and already experiencing enormous water supply, 

agricultural, socioeconomic impacts, and other impacts, and these will be further 

exacerbated by the Proposed Rule.

Due to the likelihood of such significant impacts to the human environment, an EIS that 

discloses and analyzes these impacts is required prior to the approval or implementation 

of the Proposed Rule. (42 U.S.C. 5 4332(2)(C); Ocean Advocates v. US. Army Corps of 

Engineers, 402 F.3d 846,864-65 (9th Cir. 2005).)
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We recognize that EPA may be exempt from certain NEPA requirements. (33 U.S.C. 5 

137 1 (c).) However, the Proposed Rule is being promulgated by EPA and ACOE, and no 

such exemption applies to the latter, nor does ACOE have any applicable categorical 

exclusion. (See, e.g., Ronald E. Bass et al., The NEPA Book 40 (2d ed. 2001) (EPA 

exemptions only applicable to EPA); 33 C.F.R. 5 230.9 (listing the Army Corps' 

categorical exclusions, none of which concern rule revisions).) Accordingly, due to the 

wide-ranging, significant impacts to the human environment that will result from the 

Proposed Rule, an EIS is required. (p. 46 – 48)

Agency Response: As discussed in the Army EA, as compared with existing 

practices under current regulations and guidance, the agencies predict that there 

will be an incremental increase in the number of positive jurisdictional 

determinations under the rule. The agencies disagree with the commenters’ 

assertion that the rule is somehow directed at local government infrastructure and 

related activities, or designates them as waters of the U.S. The fact that the rule 

covers man-made conveyances that come within the scope of the rule is not a change 

– man-made conveyance that are tributaries are regulated under the current 

regulations. Whether any of the activities identified in the comment will become 

newly subject to section 404 permitting is speculative. If they do, this would not 

prevent the activities from going forward. Moreover, the commenters' concerns 

about any project-specific environmental, socio-economic, and cumulative impacts 

would be addressed under NEPA in the permitting process. See also summary 

response for 13.2.11.

South Big Horn County Conservation District (Doc. #17264)

13.494 Due to the significant expansion of waters and thus lands falling under Clean Water Act 

jurisdiction, we believe that the NEPA process is triggered and request that EPA 

complete this process before adopting the rule. (p. 2)

Agency Response: See summary response for 13.2.11. 

Idaho Association of Commerce and Industry (Doc. #15461)

13.495 NEPA Process – Impacts to waters of the U.S. is an important evaluation criterion under 

national Environmental Policy Act (NEPA). Furthermore, the NEPA process must 

demonstrate that alternatives are considered that minimize impacts to wetlands and 

waters of the U.S. as “practicable” to conform with CWA 404(b)(1) regulations. The 

NEPA process for mines is already a very lengthy process, often taking many years to 

complete. The proposed rule and expansion of the definition of waters of the U.S., 

alternative selection in the NEPA process will be affected, which will likely add further 

delays to the NEPA process. (p. 10)

Agency Response: The agencies disagree that a change in the definition of waters 

of the United States will affect the length of time in which NEPA is completed for a 

project. The agencies also disagree that the change to the definition of waters of the 

United States will significantly affect the developments of reasonable alternatives to 

a proposed action under NEPA. 
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13.496 NEPA Avoidance – For activities on private land, often the only federal action that 

triggers NEPA is a Section 404 permit. Often mine sites and industrial activities on 

private land avoid jurisdictional waters and wetlands in order to avoid the NEPA process 

(for example, it is possible to permit a mine site on private or state land and not have the 

NEPA process if there is no federal nexus). The proposed rule broadens the definition of 

waters of the U.S. and therefore, it is possible that avoidance of jurisdictional wetlands 

and waters is not feasible, resulting in NEPA requirements or the cancellation of projects.

(p. 11)

Agency Response: As discussed in the Army EA, as compared with existing 

practices under current regulations and guidance, the agencies predict that there 

will be an incremental increase in the number of positive jurisdictional 

determinations under the rule. Whether mining or other industrial activities will 

become newly subject to section 404 permitting is speculative. If they do, this would 

not prevent the activities from going forward. 

CEMEX (Doc. #19470)

13.497 The proposed rule is so expansive that it will trigger numerous additional environmental 

reviews to address such issues as endangered species and historic preservation, which 

will make it even more difficult and costly to ensure timely supply of aggregates for 

public works projects essential to economic recovery.

The proposal would interact with the newly-proposed Endangered Species rules to

increase the regulatory impact of both sets of rules. (p. 3 – 4)

Agency Response: The agencies disagree that the rule is a significant expansion of 

jurisdiction. Whether projects related to the supply of aggregates for public works 

will become newly subject to section 404 permitting is speculative. If they do, this 

would not prevent the activities from going forward. 

A. Schafer (Doc. #2743) 

13.498 This rule change will require federal funding for implementation, and following the 

NEPA requirements, requires conduction of a full environmental impact assessment in 

order to determine all potential socio-economic impacts, impacts to rural and 

disadvantaged communities and areas, impacts to irrigatable lands. This is required by 

law to allow public input in order to define and understand the unintentional 

consequences of the proposed rule change. (p. 1)

Agency Response: See summary response for 13.2.11. 

J.R. Simplot Company (Doc. #15062)

13.499 NEPA Process - Impacts to waters of the U.S. is an important evaluation criterion under 

National Environmental Policy Act (NEPA). Furthermore, the NEPA process must 

demonstrate that alternatives are considered that minimize impacts to wetlands and 

waters of the U.S. as "practicable" to conform with CWA 404(b)(1) regulations. With the 

proposed rule and expansion of the definition of waters of the U.S., alternative selection 

in the NEPA process could be affected. (p. 16)
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Agency Response: The agencies disagree that the change to the definition of 

waters of the United States will significantly affect the developments of reasonable 

alternatives to a proposed action under NEPA.

13.500 NEPA Avoidance - For activities on private land, often the only federal action that 

triggers NEPA is a Section 404 permit. Often mine sites and industrial activities on 

private land avoid jurisdictional waters and wetlands in order to avoid the NEPA process 

(for example, it is possible to permit a mine site on private or state land and not have the 

NEPA process if there is no federal nexus). The proposed rule broadens the definition of 

waters of the U.S. and therefore, it is possible that avoidance of jurisdictional wetlands 

and waters is not feasible, resulting in NEPA requirements or the cancelation of the 

project. (p. 16)

Agency Response: As discussed in the Army EA, as compared with existing 

practices under current regulations and guidance, the agencies predict that there 

will be an incremental increase in the number of positive jurisdictional 

determinations under the rule. Whether mining or other industrial activities will 

become newly subject to section 404 permitting is speculative. If they do, this would 

not prevent the activities from going forward. 

Jefferson Mining District (Doc. #15706)

13.501 The Rule definition adopted as proposed will most certainly "constitute a major Federal 

action significantly affecting the quality of the human environment”, if not commit an 

outright and unlawful takings, and therefore any assertion that the proposal would not 

affect the quality of the human environment, so called, is fraud on the record. This 

remark is stated to give the appearances that the requirements under law are met for this 

sort of administrative action and to further undermine the obligations of the federal 

government to meet the requirements of the NEPA which intends the balance be in favor 

of the needs of the people, the public, and their property as Congress disposed to them.

(p. 5)

Agency Response: See summary response for 13.2.11. 

Westlands Water District (Doc. #14414)

13.502 III. THE ARMY CORPS OF ENGINEERS SHOULD COMPLY WITH THE 

NATIONAL ENVIRONMENTAL POLICY ACT IN ADOPTING THE PROPOSED 

RULE.

All federal agencies are required to comply with the National Environmental Policy Act 

(“NEPA”), 42 U.S.C. §§ 4321, et seq. 40 C.F.R. § 1500.3. Under NEPA, any federal 

agency undertaking any “major Federal action” that may have an effect on the quality of 

the human environment must analyze the environmental impacts of that action. (42 

U.S.C. § 4332(2)(C).) An agency’s adoption of a new or revised policy, rule, or 

regulation constitutes a major federal action within the meaning of NEPA if the action 

may potentially affect the quality of the human environment. (40 C.F.R. §§ 1500.6, 

1502.4(b), 1508.18(b).) If an agency undertakes such a major federal action, the agency 

must prepare an Environmental Impact Statement (“EIS”) analyzing and describing the 

effect of its action on the human environment. 42 U.S.C. § 4332(2)(C).
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As discussed above, the Proposed Rule revises the definition of the phrase “waters of the 

United States” for the purposes of establishing federal jurisdiction under the Clean Water 

Act. The Proposed Rule greatly expands the requirements of the Clean Water Act, as 

such requirements apply to man-made conveyances and treatment structures that are part 

of local government flood control or water supply systems. (See Claudia Copeland, EPA 

and the Army Corps’ Proposed Rule to Define “Waters of the United States” (April 21, 

2014) (Congressional Research Service report noting the Proposed Rule will reach an 

additional 3% to 17% of the nation’s waters).)

The Proposed Rule’s expansion of the reach of the Clean Water Act would result in 

significant impacts to the human environment by restricting or entirely preventing the use 

of many man-made conveyances that provide drinking water to residents, keep streets 

free of flood waters, and allow for the development of new uses for recycled water. 

Under the Proposed Rule as currently worded, upland ditches that are part of a local 

government flood control or water supply system would for the first time be defined as 

“waters of the United States” and, accordingly, subject to regulation under the Clean 

Water Act. If these types of man-made structures are so designated, they may no longer 

be used for treatment, because they would be required to attain TMDL compliance instream rather than at the point of discharge.

Designating the water in such internal infrastructure as waters of the United States would 

prevent local government agencies from using that infrastructure and hence from 

providing critical water supply services, recycling water for re-use, or responding to 

wildfires and other critical emergencies. This would result in project-specific and 

cumulative significant environmental impacts relating to water supplies, hydrology, 

emergency services, public services and utilities, agriculture, air quality, biological 

resources, soil erosion, land use and planning, population and housing, and others. These 

impacts, particularly the impacts to water supply, would be dire in certain areas of the 

West, including California, which are suffering from historical drought conditions and 

are experiencing enormous water supply, agricultural, socioeconomic and other impacts. 

Because of the potential impacts of the Proposed Rule on the human environment, the 

agencies should prepare an EIS prior to adoption or implementation of the Rule that 

discloses and analyzes these impacts. (42 U.S.C. § 4332(2)(C); Ocean Advocates v. U.S. 

Army Corps of Engineers, 402 F.3d 846, 864-65 (9th Cir. 2005).)

Although the EPA is exempt from compliance with NEPA in taking certain actions under 

the Clean Water Act, 33 U.S.C. § 511(c)(1), the exemption does not apply to the Army 

Corps of Engineers, which is one of two agencies adopting the Proposed Rule. The Army 

Corps of Engineers is not exempt from compliance with NEPA, and does not have a 

categorical exclusion from NEPA. See, e.g., Ronald E. Bass et al., The NEPA Book 40 

(2d ed. 2001) (EPA exemptions only applicable to EPA); 33 C.F.R. § 230.9 (listing the 

Army Corps’ categorical exclusions, none of which concern rule revisions). Accordingly, 

because of the significant, wide-ranging impacts to the human environment that would be 

caused by the Proposed Rule, the Army Corps of Engineers is required to prepare an EIS 

before adopting the Rule. (p. 29 – 31)

Agency Response: As discussed in the Army’s voluntary EA, as compared with 

existing practices under current regulations and guidance, the agencies predict that 
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there will be an incremental increase in the number of positive jurisdictional 

determinations under the rule. The agencies disagree with the commenters’ 

assertion that the rule is somehow directed at local government infrastructure and 

related activities, or designates them as waters of the U.S. The fact that the rule 

covers man-made conveyances that come within the scope of the rule is not a change 

– man-made conveyance that are tributaries are regulated under the current 

regulations. Whether any of the activities identified in the comment will become 

newly subject to section 404 permitting is speculative. If they do, this would not 

prevent the activities from going forward. Moreover, the commenters' concerns 

about any project-specific environmental, socio-economic, and cumulative impacts 

would be addressed under NEPA in the permitting process. 

Colorado Water Congress Federal Affairs Committee (Doc. #14569)

13.503 Perhaps most importantly, the federal nexus invokes the provisions of the National 

Environmental Policy Act (NEPA), another costly and time consuming process involving 

the examination of numerous alternatives, the imposition of additional mitigation 

requirements, and exposure to costly and lengthy administrative and judicial challenges. 

This would be true even if the project crosses only a number of dry arroyos or washes 

which may periodically flow in response to precipitation events. As Water Congress 

members can attest, for any large project the NEPA process entails years, if not over a 

decade, of additional work and millions, if not tens of millions, of additional ratepayer or 

taxpayer dollars in situations involving the construction of necessary water, wastewater 

and stormwater infrastructure. (p. 4)

Agency Response: The agencies have regulated ephemeral tributaries under 

current regulations. The agencies disagree that a change in the definition of waters 

of the United States will significantly affect the length of time in which NEPA is 

completed for a project. The agencies also disagree that the change to the definition 

of waters of the United States will significantly affect the developments of 

reasonable alternatives to a proposed action under NEPA. 

Southern Company (Doc. #14134)

13.504 The Proposed Rule Could Significantly Expand Regulatory Requirements and Burdens 

Under Other Laws and Requirements

This rulemaking also has implications beyond the CWA. The proposal would trigger 

requirements under other laws, such as the Endangered Species Act (ESA) and NEPA. 

The issuance of Sections 402 and 404 permits for activities that could potentially impact 

listed species may give rise to ESA obligations, such as Section 7 consultation with the 

U.S. Fish and Wildlife Service and National Marine Fisheries Service and possible 

mitigation (both for impacts to aquatic resources and threatened or endangered species 

and their habitat). The fact that this proposal would significantly expand jurisdiction over 

more waters will necessarily trigger and involve more permits and consultations under 

these laws.

In one of the states in which Southern Company operates, it is estimated that 40 percent 

of the more than 100 listed species are dependent upon aquatic habitats. In addition, as 

the potential for impacts to waters of the U.S. increases with expanded jurisdiction, the 
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scope of the Corps’ NEPA review may also expand, thereby giving rise to more extensive 

pre-project review.348 The primary concern here is the potential scope of review under 

NEPA for private projects triggered by the issuance of 404 permits. The scope of analysis 

could expand as impacts to waters of the U.S. increase (due to the expansion of 

jurisdiction) and greatly slow the pace of permitting. These additional requirements and 

costs must be taken into consideration. (p. 20)

Agency Response: The rule itself does not trigger the applicability of NEPA or 

other laws, and is not a significant expansion of jurisdiction. The agencies disagree 

that the scope of Army’s NEPA reviews may expand, since the rule does not change 

NEPA or its requirements. 

Center for Biological Diversity, Center for Food Safety, and Turtle Island Restoration Network.

(Doc. #15233)

13.505 Failure of Corps to Comply with NEPA

While EPA may not have to comply with NEPA in proposing this rule, the Corps is 

required to comply with NEPA. We understand that the Corps has prepared an 

Environmental Impact Assessment (EIA) for the rule, but has chosen to withhold the EIA 

until after the rule has been issued as final. Such action by the Corps violates the plain 

language and intent of NEPA, 42 U.S.C. § 4332 (2)(C), thus jeopardizing the entire 

rulemaking process. (p. 11)

Agency Response: See summary response for 13.2.11. 

Center for Environmental Law and Policy (Doc. #15431)

13.506 THE RELATED ENVIRONMENTAL ASSESSMENT BY THE CORPS OF 

ENGINEERS IS BEING INAPPROPRIATELY WITHHELD

The EPA references a Corps-prepared environmental assessment in the preamble to the 

proposed rule, but this document is not posted on either the EPA website or the Corps 

website349 We are informed by the Corps of Engineers that this document is expected to 

be made available the final rule is published.350 We object to this withholding; NEPApreparatory documents are not secret documents. According to the statute itself, the 

analysis must be undertaken whenever there are "proposals" for "major Federal actions" 

with significant effects351, and we are obviously in the presence of a proposal. 

This decision to proceed by an unrevealed environmental assessment is a violation of 

NEPA and it is a violation of the public participation provisions of the Clean Water Act 

(CWA).352 (p. 1)

Agency Response: See summary response for 13.2.11. 

 

348 See NEPA Scope of Analysis in the Federal Permitting Context: The Federal Tail that Risks Wagging the NonFederal Dog, available at https://www.fed-soc.org/doclib/20080314_EnviroDuncan.pdf.

349 79 Fed. Reg. 22,222 (April 21,2014).

350 Personal communication with Cheryl R. Nyberg, Reference Librarian, Gallagher Law Library. University ofWashington School of Law (Nov. 10: 2014).

351 N EPA, Subsection 102(2)(C), 42 U.S.C. 5 4332(2)(C)

352 Subsection 101(e) of the Clean Water Act, 33 U.S.C. s 1251(e)
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13.5. OTHER FEDERAL LAWS

Specific Comments

Kansas House of Representatives Committee on Energy & Environment (Doc. #4903)

13.507 As I am sure you are also aware, EPA is also required, by Executive Orders 12291 and 

12866, to file a Regulatory Impact (RI), cost-benefit analysis which would describe all 

alternatives, including No Action, for those Major Federal Action(s) under consideration. 

The RI analysis is to include the net benefit of each alternative, along with a discussion of 

how such analyses were coordinated with local and state governments. Please provide the 

RI analysis EPA has performed for each Kansas County affected by the proposed WOWS 

Rule, as well as a description of Coordination EPA has conducted with local Kansans 

and/or jurisdictions in preparing the WOTUS Rule. (p. 2)

Agency Response: EPA has prepared a cost-benefit analysis, which is addressed 

in Compendium 11.

13.508 Finally, as you are most likely aware, the citizens of Kansas are currently being subjected 

to a significant range of Federal Actions, each of which has the potential to impact our 

citizens in psychological, economic and other measurable ways. These include 

Endangered Species listings by the United States Fish & Wildlife Service (Lesser Prairie 

Chicken) and proposed revision of the Resource Management Plan by the Bureau of 

Land Management, which were presented in February of this year in Salina, Kansas. (p. 

2)

Agency Response: Federal actions other than this rule are outside the scope of 

this rulemaking.

Kansas Senate Committee on Natural Resources (Doc. #4904)

13.509 The purpose of this correspondence is to officially invoke coordination between 

Environmental Protection Agency (EPA) and the Kansas Senate Committee on Natural 

Resources as required by National Environmental Policy Act353 and Executive Orders 

1237 2, 13575, 1335 2. Please consider this notification of our intent to evaluate - using 

studies required of EPA prior to proposing the WOTUS Rule - the claims in the Q&A 

Document. (p. 1). 

Agency Response: As explained in sections on Federalism (13.2.5), Tribal 

Consultation (13.2.6), and RFA/SBREFA (11.1 in Compendium 11), the agency did 

voluntary (i.e., not legally required) outreach prior to the proposed rule, and the 

extensive outreach, and extended comment period provided an unprecedented 

degree of public input, which was fully considered by the agencies in the 

rulemaking. For additional information on public outreach events, see the docket.

13.510 The Q&A document, Page 6 states that the WOTUS Rule: "would not infringe on private 

property rights and hinder development." Executive Order 12630 requires EPA to assess, 

 

353 42 USC §4331 (a), b) 
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account for and fully evaluate the potential for private-property takings, and if the Q&A 

document is taken at face value, EPA has performed its duty under EO 12630.

Because EPA and US Army Corps of Engineers are proposing, via the WOTUS Rule, 

participation in NRCS Conservation programs, this Committee is concerned that the 

Federal Nexus created by participation of private landowners in Federal conservation 

programs could result in diminution of private property rights, a decrease in property 

values and/or erosion of the local tax base.

This is particularly the case for lands adjacent to properties in Conservation Easements, 

as such programs have the stated goal of lowering property values. Please provide this 

Committee with specific documentation that the requirements of EO 12630 have been 

addressed, and in particular how property values may be maintained in the context of 

lands proximal to those encumbered by Conservation Easements. (p. 2)

Agency Response: See compendium 10 and the Technical Support Document for 

Responses regarding the Takings Executive Order.

Gila River Indian Community (Doc. #13619)

13.511 E. Greater Federal Regulation of Tribal Lands Goes Against Current Trends

When Congress enacted the Indian Self-Determination and Educational Assistance Act of 

1975, federal policy began to revolve around promoting tribal self-determination and 

transferring certain federal responsibilities to willing tribal nations. Federal policy has 

continued down this path through the enactment of statutes and regulations that provide 

tribes with the ability to manage their own lands. For example, in the area of 

environmental law, the U.S. Fish and Wildlife Service has enacted an Endangered 

Species Act policy against designating critical habitat for an endangered species on tribal 

lands. The Service has recognized that it is the tribe, and not the Federal government, that 

should regulate tribal lands.354 

The same has been true in Congress, which recently passed the Helping Expedite and 

Advance Responsible Tribal Homeownership (“HEARTH”) Act in 2012. With the 

HEARTH Act, Congress authorized tribes to control and approve the leasing of their 

tribal lands; Secretary of the Interior approval is no longer required. The HEARTH Act 

also allowed tribes to substitute their own environmental review process for leasing 

decisions, thus supplanting a NEPA review by the Bureau of Indian Affairs. The 

Proposed Rule, however, goes against these trends, as it will result in more –not less –

Federal regulation on tribal lands. (p. 6 - 7)

Agency Response: The HEARTH Act (Helping Expedite and Advance 

Responsible Tribal Home Ownership) of 2012 creates a voluntary, alternative land 

leasing process available to tribes by amending the Indian Long-Term Leasing Act 

of 1955 and is not relevant to this rule. The agencies disagree that the rule is in 

tension with the trends cited by the commenter, as it conforms the rule to the CWA 

and relevant caselaw. 

 

354 Secretarial Order No. 3206 (June 5, 1997).
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Illinois Farm Bureau (Doc. #14070)

13.512 EPA’s Social Media Campaign Has Prejudiced the Rulemaking Process

EPA’s social media advocacy in favor of the proposed WOTUS rule has prejudiced the 

rulemaking process. Throughout the rulemaking, EPA staff have asked the public to 

influence the agency’s view of the proposed WOTUS rule. A few months ago, EPA 

established a website called “Ditch the Myth”, which declares the proposed rule “clarifies 

protection under the Clean Water Act for streams and wetlands that form the foundation 

of the nation’s water resources.” EPA has now gone so far as to solicit others to seek to 

influence the agency regarding the proposed rule, urging social media users to “show 

their support for clean water and the agency’s proposal to protect it.” These actions raise 

serious concerns about compliance with the Anti-Lobbying Act.

The integrity of the rulemaking process is in jeopardy, if not already tainted. EPA’s social 

media advocacy removes any pretense that the agency will act as a fair and neutral arbiter 

during the rulemaking. Why should any landowner believe that EPA will seriously and 

meaningfully examine adverse comments regarding the proposed rule’s impact on 

ditches, for example, when the agency has already pronounced that the proposed rule 

“reduces regulation of ditches”?

IFB questions whether the WOTUS rulemaking can be conducted in accordance with the 

Administrative Procedure Act and its objective that agencies “benefit from the expertise 

and input of the parties who file comments with regard to [a] proposed rule” and 

“maintain a flexible and open-minded attitude towards its own rules.”

IFB is dismayed that the Obama Administration has failed to adhere to its obligations of 

impartiality under the law. Moreover, the bias has been reflected in comments from nongovernmental organizations as well. Based on similar statements from groups such as 

National Resources Defense Council on the national level and several environmental 

activist groups in Illinois, it is as though the Administration and its environmentalist 

allies are of one mindset, eager to paint the proposed rule’s critics as anything other than 

concerned citizens.

The Obama Administration owes the American people, including Illinois farmers, a 

higher level of discourse. To date, however, the WOTUS rulemaking has been plagued 

by administrative bias and prejudicial grandstanding. (p. 4)

Agency Response: See response 13.2.1.

Palm Beach County MS4 NPDES (Doc. #13218)

13.513 Additionally, the Palm Beach County MS4s support the U. S. House of Representatives 

efforts in passing legislation that protects States authority to protect our water ways. The 

Waters of the United States Regulatory Overreach Protection Act (H.R. 5078) prohibits 

EPA and Corps. From implementing a rule that would redefine WOTUS and requires 

these agencies to work with the States and local governments to develop 

recommendations for a regulatory proposal. Within a year after enactment of the law, a 

draft report would be required to be published in the Federal Register and the public 

provided with the opportunity to provide comments. Within two years after enactment, a 

final report would be provided to Congress. (p. 2)
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Agency Response: The pendency of legislation that would amend the Clean Water 

Act does not obviate the need as expressed by numerous stakeholders and members 

of the Supreme Court, to undertake rulemaking to clarify the scope of waters of the 

U.S.

U.S. Chamber of Commerce (Doc. #14115)

13.514 Information Quality Act

The Agencies’ WOTUS proposal neither complies with the Information Quality Act 

(IQA) as implemented under Office of Management and Budget (OMB) guidelines, nor 

EPA’s own information quality guidelines.355 The Agencies issued the proposed rule 

based upon EPA’s Report, Connectivity of Streams and Wetlands to Downstream 

Waters: A Review and Synthesis of the Scientific Evidence. The Report purports to 

establish a scientific basis for the connectivity of isolated, often evanescent “waters” to 

traditional “navigable” waters under the CWA. The Agencies argue that the hydrologic 

“connectivity” of these remote waters, which ultimately reach navigable waters, 

establishes federal jurisdiction over these waters. The information contained in the 

Agencies’ Report clearly meets the OMB definition of “information.” “’Information’ 

means any communication or representation of knowledge such as facts or data, in any 

medium or form, including textual, numerical, graphic . . . .”356

The information at issue also meets the OMB definition of “influential” information. 

“Influential” means “that the agency can reasonably determine that the dissemination of 

the information will have or does have a clear and substantial impact on important public 

policies . . . .”357 The Agencies have directly relied upon the Report in making findings 

regarding the extent of hydrologic connectivity sufficient to support an assertion of 

federal jurisdiction. OMB has stated that “influential information” should be held to a 

heightened standard of quality.358 The Report clearly meets definition of “influential” 

information that needs to be of the highest quality.

On the date the Agencies published the proposed WOTUS rule, EPA’s Science Advisory 

Board had not completed its review of the Report. In fact, the SAB did not complete its 

review of the Report until September 30, 2014. Given the complex and controversial 

nature of the conclusions made in the Report, until the public is given the opportunity to 

fully evaluate peer reviewers’ comments on the Report—the quality of the information in 

the Report is of unknown quality and cannot be relied upon to make public policy.359 This 

 

355 See Treasury & General Governmental Appropriations Act for Fiscal Year 2001, Pub. L. No. 106-554 § 515(a); 

44 U.S.C. § 3516 (notes); EPA Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility and 

Integrity of Information Disseminated by the Environmental Protection Agency, EPA/260R-02-2008 (October 

2002).

356 OMB Guidelines § V.5.

357 OMB Guidelines § V.9

358 67 Fed. Reg. 8,452 (February 22, 2002).

359 Significantly, on September 2, 2014, SAB panel members released a memorandum raising serious concerns about 

the definitions in EPA;s Report, such as “significant nexus,” and the extent to which hydrologically connected 

waters actually have any “significant nexus” to one another. Memorandum from Dr. Amanda Rodewald, Chair, 

Science Advisory Board for the Review of the EPA Water Body Connectivity Report, to Dr. David Allen, Chair, 
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is particularly true of such a significant policy as the scope of federal jurisdiction over 

water and land uses. The Agencies must withdraw their proposal until they are able to 

fully comply with the Information Quality Act. (p. 36 – 37)

Agency Response: The Information Quality Act (IQA), sometimes referred to as 

the Data Quality Act, was enacted in 2000 and directed the Director of the Office of 

Management and Budget (OMB) to issue guidelines providing policy and 

procedural guidance to ensure and maximize the quality, objectivity, utility, and 

integrity of information disseminated by Federal agencies. Each Federal agency was 

then required to issue its own guidelines modeled after those issued by OMB. OMB 

published its flexible, government-wide guidelines on February 22, 2002. EPA issued 

its Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and 

Integrity of Information Disseminated by the Environmental Protection Agency 

(Guidelines) in October 2002, to provide non-binding policy and procedural 

guidance to achieve the purposes of the IQA. Under the Guidelines, EPA ensures 

and maximizes the quality of information it disseminates by implementing well 

established policies and procedures within the Agency as appropriate to the 

information. The Agencies have fully complied with the IQA.

For information about how EPA ensured the quality of the Connectivity Report, 

including information about the peer review process, see EPA’s responses to 

comments in Compendium 9.

Portland Cement Association (Doc. #13271)

13.515 In addition to the above concerns based on the proposed rule’s legality, breadth and 

clarity, PCA notes several areas of concerns. The first is based on several indirect the 

impacts of the rule.

a. Secondary interaction with newly proposed changes to Endangered Species rules

As the Agencies are likely aware, the U.S. Fish and Wildlife and National Marine 

Fisheries Services (FWS and NMFS) are currently in the middle of two rulemakings 

under the Endangered Species Act (ESA).360 These rulemakings relate to one of the 

restrictions on federal government action under the ESA – that agencies of the federal 

government not act in a way that results in the adverse modification of listed species’ 

critical habitat. In PCA’s view, those proposed rules will both expand the potential for a 

variety of lands to be listed as critical habitat and also reduce the breadth of activities 

which the government can undertake without those activities being viewed as an adverse 

modification. In short, the rules will expand the reach of the ESA and limit the ability of 

the government to act without violating the ESA.

 

EPA Science Advisory Board, Comments to the chartered SAB on the adequacy of the scientific and technical basis 

of the proposed rule titled “definition of ‘waters of the United States’ under the Clean Water Act” (Sept. 2, 2014).

360 79 Fed.Reg. 27060 (May 12, 2014) (“Interagency Cooperation—Endangered Species Act of 1973, as

Amended; Definition of Destruction or Adverse Modification of Critical Habitat”) and 79 Fed. Reg.

27066 (May 12, 2014) (“Listing Endangered and Threatened Species and Designating Critical Habitat; 

Implementing Changes to the Regulations for Designating Critical Habitat”)
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The FWS and NMFS rulemakings are significant in their own right, but are also 

significant in their interplay with the Agencies’ proposed rule redefining Waters of the 

US. This is because (1) the proposed rule will expand federal jurisdiction over waters and 

therefore increase the need for federal actions and (2) a large percentage of endangered 

species are found exclusively in wetland areas. EPA’s Office of Water is aware of the 

latter connection, having tweeted about it upon FWS and NMFS’s proposal of their ESA 

rules.361

As a result of the interplay between the CWA and ESA rules, if finalized, there will need 

to be more and more detailed consultations between the Agencies and the Services and 

those consultations are more likely to result in delay, permit denial, and/or permit 

restrictions. The Agencies have failed to include these costs or analyze these impacts in 

the proposed rule. (p. 28)

Agency Response: It is speculative to conjecture at this time what the interplay of 

this rule and the Services’ rulemaking, as the latter has not been finalized. In any 

event, the agencies disagree with the commenter’s suggestion that this rule 

significantly expands jurisdiction.

CalPortland Company (Doc. #14590)

13.516 (...) The proposal would interact with the newly-proposed Endangered Species rules to 

increase the regulatory impact of both sets of rules. (p. 2)

Agency Response: It is speculative to conjecture at this time what the interplay of 

this rule and the Services’ rulemaking, as the latter has not been finalized. In any 

event, the agencies disagree with the commenter’s suggestion that this rule 

significantly expands jurisdiction.

National Association of Home Builders (Doc. #19540)

13.517 d. The Proposed Rule will have Adverse Impacts on Other Federal Programs.

Before the Agencies can issue any CWA permit, they must first comply with other 

federal statutes, including Section 7 of the Endangered Species Act and Section 106 of 

the National Historic Preservation Act. These additional requirements can be particularly 

burdensome, further delaying permits and adding to the already steep regulatory costs 

home builders must incur.

i. Increases in Clean Water Act Permits will Trigger Additional Endangered Species Act 

Section 7 Consultations.

The Endangered Species Act (ESA) requires all federal agencies to consult with the U.S. 

Fish and Wildlife Service or the National Oceanic and Atmospheric Administration 

(collectively referred to as the Service) whenever a proposed federal action may 

adversely affect an endangered species or designated critical habitat.362 A jurisdictional 

 

361 The tweet occurred the day the Services’ proposed rule was published in the Federal Register (May 12,

2014) and stated “May is #wetlands month. Did you know that 1/3 of threatened & endangered species in the US 

live only in wetlands? go.usa.gov/22j4”

362 50 C.F.R. § 402.03.
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determination by the Corps and obtaining a CWA Section 404 wetlands permit is clearly 

covered by the ESA’s regulatory definition of a federal action, which includes all 

activities or programs of any kind authorized, funded, or carried out by federal agencies 

including granting of licenses and permits.363 Once the ESA’s Section 7 consultation 

requirements have been triggered by the federal action, the Corps, along with the Service, 

must complete the ESA Section 7 consultation process prior to issuing the CWA permit. 

The ESA Section 7 consultation process has two separate routes: informal and formal 

consultation.

During an informal consultation, the Corps, with input from the Service, has 180 days to 

prepare a biological assessment that identifies whether or not the issuance of the CWA 

Section 404 permit is likely to adversely affect an endangered species or adversely 

modify designated critical habitat. Once the Corps has completed the a biological 

assessment, the Service has 30 days to review it to determine whether the proposed action 

is likely to adversely affect an endangered species or adversely modify designated critical 

habitat. If the issuance of the proposed CWA Section 404 permit is likely to adversely 

affect an endangered species or adversely modify critical habitat, formal consultation is 

required.364

During the formal consultation process, the Service has 90 days to prepare a Biological 

Opinion (hereinafter, BiOp) that contains the Service’s opinion on whether or not the 

federal permit, as proposed, is likely to jeopardize the continued existence of an 

endangered species, or result in the destruction or adverse modification of critical habitat. 

The BiOp must include a summary of all the information the Service has based its 

opinion upon, a review of the potential effects of the proposed permit on the species or 

critical habitat, and a “jeopardy” or “no jeopardy” determination. If the Service concludes 

the issuance of the CWA permit is likely to jeopardize the continued existence of an 

endangered species, or adversely modify designated critical habitat (e.g., a “jeopardy 

biological opinion”) the Service must identify reasonable and prudent alternatives (RPAs) 

that if adopted, will reduce and/or mitigate the impacts so that the issuance of the permit 

is not likely to jeopardize the continued existence of an endangered species (e.g., "no 

jeopardy biological opinion").365 If the Corps agrees to adopt all the RPAs contained in 

the BiOp, they become binding terms and conditions of the proffered permit. Typically, 

these RPA’s involve reducing the size of proposed land development projects (i.e., loss of 

buildable lots) and providing additional species monitoring and reporting. Once accepted, 

the Service will issue the Corps and the permit applicant an "incidental take statement," 

which exempts both parties from the ESA Section 9 "take" prohibitions.366

The ESA Section 7 consultation process, as it is currently implemented, is onerous and 

problematic, making it the subject of numerous oversight reports by the Government 

Accountability Office (GAO). A 2004 report titled "Endangered Species -More Federal 

Management Attention is needed to Improve the Consultation Process," evaluated the 

 

363 50 C.F.R. § 402.02.

364 50 C.F.R. § 402.12(k)(2).

365 50 C.F.R. 6 402.14(h).

366 50 C.F.R. 4 402.1qi)
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existing Section 7 consultation program and found a great deal of confusion regarding 

roles and responsibilities between the various federal action agencies (e.g., EPA, the 

Corps, US Forest Service WSFS]) and the Services during the Section 7 consultation 

process. Furthermore, GAO found it impossible to determine with any certainty the 

extent of the delays within the Section 7 consultation process because the Services failed 

to track, monitor, or report the significant amount of time spent before the federal action 

agency formally began the consultation This confusion and failure to keep track of 

actions frequently results in excessive permitting delays impacting federal agencies and 

private landowners alike. For example, a review by FWS following GAO's 

recommendations found that routine CWA Section 404 nationwide permits issued by the 

Corps for private dock building activities had been delayed by over two years, costing 

private landowners approximately $10,000 in additional construction costs per permit367

of federal jurisdiction under the CWA that triggers these ESA requirements in areas 

designated as critical habitat. If one pictures two nearly identical properties one of which 

is deemed jurisdictional and the other is not, it is only the one under CWA jurisdiction 

that is also implicated under ESA. Landowners whose property becomes subject to 

ESA’s Section 7 consultation process due to the necessity of obtaining CWA Section 404 

permit face significant permitting delays and additional compensatory measures under the 

ESA. At a minimum, EPA and the Corps must consider the economic impact stemming 

from the expanded scope of CWA jurisdiction and the greater number of ESA Section 7 

consultations. (p. 132 – 134)

Agency Response: This rule does not affect any existing requirements that may 

apply under other federal statutes, and their applicability will be site-specific. Any 

such requirements are due to independent obligations imposed by those laws. The 

economic analysis in the record did consider permit application costs, but due to the 

variability in the applicability of such statutes, the lack of scalable data provided by 

commenters, and the difficulty in assessing these values at a national level in a 

meaningful way the agencies are unable to quantify these impacts. In any event, the 

agencies disagree with commenter’s assertion that the rule will result in significant 

expansion of jurisdiction leading to significantly greater obligations under other 

statutes that may apply on a case-by-case basis.

ii. Increased Number of Clean Water Act Permits will Trigger Additional National 

Historic Preservation Act Section 106 Requirements.

With the expansive “tributary,” “adjacent waters,” and “other waters” definitions in the 

proposed rule, more waters will be deemed jurisdictional under the CWA, in turn 

requiring more federal permits for land development, home building, and other activities 

on private property. In addition to prompting ESA Section 7 consultation, federal CWA 

permits trigger burdensome requirements under the National Historic Preservation Act 

(NHPA) of 1966.

Section 106 of the NHPA requires federal agencies issuing permits or providing funds for 

projects to consider the effects of those projects on properties included in or eligible for 

 

367 GAO (2004) More Federal Management Attention Is Needed to Improve the Consultation Process, GAO-04-91

available at http://www.docsearch/repandtest.html, page 12.
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inclusion in the National Register of Historic Places.368 As such, any project that involves 

CWA Section 404 permits will require the Corps to consider the impacts of the project on 

historic resources. Historic properties may include prehistoric or historic districts, sites, 

buildings, structures, objects, sacred sites, and traditional cultural places.

Before issuing any CWA permit, the Corps must first determine whether the issuance of 

the permit could affect an historic property. If so, the Corps must identify the appropriate 

State Historic Preservation Officer/Tribal Historic Preservation Officer (SHPO/THPO) to 

consult with during the process. The Corps must also plan to involve the public, and 

identify other potential consulting parties. If the Corps finds that no historic properties are 

present or affected, it provides documentation to the SHPO/THPO and, barring any 

objection in 30 days, proceeds with the permit. Alternatively, if the agency finds that 

historic properties are present, it proceeds to assess possible adverse effects. If the Corps 

and the SHPO/THPO agree that there will be no adverse effects, the Corps can proceed 

with the permit and any agreed-upon conditions. If, however, the Corps and the 

SHPO/THPO find that there are adverse effects, or if the parties cannot agree and the 

Advisory Council on Historic Preservation (ACHP) determines that there will be adverse 

effects, the Corps begins consultation to seek ways to avoid, minimize, or mitigate the 

adverse effects. The Corps then consults to resolve adverse effects with the SHPO/THPO 

and others, including local governments, permit or license applicants, and members of the 

public. Consultation usually results in a Memorandum of Agreement (MOA), which 

outlines agreed-upon measures that the Corps will require the permittee to take to avoid, 

minimize, or mitigate the adverse effects. The requirements contained within the MOA 

are incorporated into the CWA permit.369

While the goal of NHF'A Section 106 is to complete the evaluation of whether the 

proposed project may affect an historic property early in the process to ensure minimal 

impacts on that property, satisfaction of many of the requirements can be time consuming 

and costly to the permit applicant. Delays in project scheduling between the Corps, 

SHPO/THPO, the public, and other involved parties are common. This will only add to 

the costs and delays home builders face when trying to conduct their daily business. I 

Indeed, many cities and towns have historically been built along river floodplains. With 

the expanded definition of "neighboring" that automatically asserts jurisdiction over any 

water or wetland within the floodplain, many projects in metropolitan areas that include a 

pond, small stream, or ditch would now require a CWA Section 404 permit. And, in the 

event the project has the potential to impact an historic property, which may be 

commonplace in older cities, those I permits could be held up or even denied as the Corps 

works through the NHPA Section 106 process. (p. 134 – 135)

Agency Response: This rule does not affect any existing requirements that may 

apply under other federal statutes, and their applicability will be site-specific. Any 

such requirements are due to independent obligations imposed by those laws. The 

economic analysis in the record did consider permit application costs, but due to the 

variability in the applicability of such statutes, the lack of scalable data provided by 

 

368 16 U.S.C. § 470a.

369 33 C.F.R. 5 325, Appendix C to Part 325, "Procedures for the Protection of Historic Properties."
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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commenters, and the difficulty in assessing these values at a national level in a 

meaningful way the agencies are unable to quantify these impacts. In any event, the 

agencies disagree with commenter’s assertion that the rule will result in significant 

expansion of jurisdiction leading to significantly greater obligations under other 

statutes that may apply on a case-by-case basis.

Ohio Coal Association (Doc. #15163)

13.518 The Proposed Rule Does Not Provide Additional Clarity as U.S. EPA Claims.

The Agencies indicate that the purpose of the Proposed Rule is to clarify the scope of 

Clean Water Act ("CWA") jurisdiction in a manner consistent with U. S. Supreme Court 

precedent. The current Proposed Rule, however, does not achieve that objective. Rather, 

due to several confusing, overly broad, and internally inconsistent definitions and 

statements contained in the Proposed Rule and the Agencies' supporting materials, the 

Proposed Rule injects more uncertainty into current CWA regulations, causing potential 

conflicts with other statutory requirements. We also note that the Proposed Rule even 

conflicts with President Obama's Executive Order 13604, Improving Performance of 

Federal Permitting and Review of Infrastructure Projects ("E.O. 13604").

The Proposed Rule fits within the scope of federal permitting activities contemplated by 

E.O.13604 as many of the listed infrastructure activities, including transportation, ports 

and waterways, water resource projects, electricity generation, and pipelines, are likely to 

include waters of the United States' considerations. Coal is the building block of many of 

these infrastructure projects. As E.O. 13604 recognizes, the "United States must have 

fast, reliable, resilient, and environmentally sound means of moving people, goods, 

energy, and information" in order to "maintain our Nation's competitive edge." 77 Fed. 

Reg. 18887. This goal "depends in critical part on Federal permitting and review 

processes." Id.

Ohio Coal's members depend upon efficient permitting processes at the local, state and

federal level to produce and transport the coal that is vital to our nation's infrastructure 

and energy production in an environmentally sound and timely manner. The Proposed 

Rule, however, will lead to increased uncertainty for infrastructure projects that impact 

jurisdictional waters, which will, in turn, result in decreased productivity that is 

antithetical to the aims of E.O.13604. Worse still, this uncertainty pertains primarily to a 

subset of smaller, marginal waters, and therefore only implicates minimal environmental 

concerns at a great cost to the regulated community. As evidenced by Justice Kennedy's 

"significant nexus" test in Rapanos v. United States, 547 U.S. 715 (2006), it is incumbent 

to make clear, decisive demarcations with respect to such waters and to only assert 

federal jurisdiction over a limited set of waters.

Ohio Coal urges the Agencies to withdraw the current proposal and take sufficient time to 

consult with industry, states, localities, small businesses and other regulated communities 

before re proposing a more sensible rule. Such action would allow the Agencies to 

properly assess the current scope of both state and federal regulatory programs, 

understand where clarifying language is needed and what impacts such language would 

have on the regulated communities. Such action also would enable the Agencies to make 

fully informed, thoughtful decisions about how to strike the balance between regulation 
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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of waters while still allowing for efficient, reliable permitting processes vital to economic 

growth. (p. 2 – 3)

Agency Response: The agencies are fully implementing the directions contained in 

this Executive Order and nothing in this rule will affect such compliance.

Utah Mining Association (Doc. #16349)

13.519 The Current Proposal Does Not Provide Necessary Clarity, Deviates from President 

Obama’s Federal Permitting Executive Order, and Should be Withdrawn

The EPA and the Corps (collectively, Agencies) indicate the purpose of the proposed rule 

is to clarify the scope of CWA jurisdiction in a manner consistent with Supreme Court 

precedent. The current rule, however, does not achieve that objective. Rather, due to 

several confusing, overly broad, and at times inconsistent definitions and statements 

contained in the rule and the Agencies’ supporting materials, the proposal runs the 

serious risk of injecting more uncertainty into current CWA regulations, causing potential 

conflicts with other statutory requirements, and running afoul of President Obama’s 

Executive Order 13604, Improving Performance of Federal Permitting and Review of 

Infrastructure Projects.

This rulemaking fits squarely within the scope of Executive Order 13604, as many of the 

listed infrastructure activities including transportation, ports and waterways, water 

resource projects, renewable energy generation, electricity generation, and pipelines are 

likely to implicate waters of the U.S. Minerals and metals are the building blocks of all of 

these infrastructure projects. For example, mining produces the raw materials necessary 

for multiple types of energy production, including solar, wind, and hydropower 

generation, in addition to supplying affordable and reliable coal and uranium generated 

electricity. Minerals extracted by the U.S. mining industry also provide the base of nearly 

all manufacturing supply chains. As E.O. 13604 recognizes, the “United States must have 

fast, reliable, resilient, and environmentally sound means of moving people, goods, 

energy, and information” in order to “maintain our Nation’s competitive edge.” This goal 

“depends in critical part on Federal permitting and review processes.” (p. 1 – 2)

Agency Response: The agencies are fully implementing the directions contained in 

this Executive Order and nothing in this rule will affect such compliance.

North Dakota Soybean Growers Association (Doc. #14121)

13.520 The agencies’ WOTUS proposed rule does not comply with the Information Quality 

Act’s requirements as implemented under the Office of Management and Budget’s 

(OMB) guidelines.370 The agencies issued the proposed rule based upon an EPA report, 

Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis 

of the Scientific Evidence. The report purports to establish a scientific basis for the 

connectivity of isolated, often temporary, “waters” to traditional “navigable” waters 

under the CWA. The agencies argue that the hydrologic “connectivity” of these remote 

waters, which ultimately reach navigable waters, establishes federal (rather than state or 

 

370 See Treasury & General Governmental Appropriations Act for fiscal year 2001, Pub. L. No. 106--‐554 § 515(a); 

44 U.S.C. § 3516 (notes).
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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local) jurisdiction for these waters. This argument is a significant change concept in the 

proposed rules and meets OMB’s definition of “influential” information. (p. 5)

Agency Response: The Information Quality Act (IQA), sometimes referred to as 

the Data Quality Act, was enacted in 2000 and directed the Director of the Office of 

Management and Budget (OMB) to issue guidelines providing policy and 

procedural guidance to ensure and maximize the quality, objectivity, utility, and 

integrity of information disseminated by Federal agencies. Each Federal agency was 

then required to issue its own guidelines modeled after those issued by OMB. OMB 

published its flexible, government-wide guidelines on February 22, 2002. EPA issued 

its Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and 

Integrity of Information Disseminated by the Environmental Protection Agency 

(Guidelines) in October 2002, to provide non-binding policy and procedural 

guidance to achieve the purposes of the IQA. Under the Guidelines, EPA ensures 

and maximizes the quality of information it disseminates by implementing well 

established policies and procedures within the Agency as appropriate to the 

information. The Agencies have fully complied with the IQA.

EPA’s responses on the Connectivity Report are contained in Compendium 9.

Jefferson Mining District (Doc. #15706)

13.521 The proposed rule appears to be in conflict with Executive Order 13573 - Establishment 

of the White House Rural Council the policy of which is "To Enhance the Federal 

Government’s efforts to address the needs of rural America”. Disregarding rural land 

disposal rights, status, and needs by imposing a commercial character upon these is not 

lawful and will not effect the mission the Executive Order intends, which in part is, to 

“(b)coordinate and increase the effectiveness of Federal engagement with rural 

stakeholders, including agricultural organization, small business, education and training 

institutions, health care providers, telecommunications providers, research and land 

grant institutions, law enforcement, State, local and tribal governments, and 

nongovernmental organizations regarding the needs of rural America,” such as 

coordinating with Jefferson Mining District. (p. 4)

Agency Response: The agencies have done extensive outreach with a broad cross 

section of stakeholders (see section 13.2), including those identified in this executive 

order.

13.522 The proposed rule violates other Executive Orders such as E.O. 12630, takings 

assessments. (p. 4)

Agency Response: See Legal Analysis in compendium 10 and the Technical 

Support Document for Responses regarding the Takings Executive Order.

Central Arizona Project (Doc. #3267)

13.523 Intersection with Endangered Species Act: Applying for a federal permit may also trigger 

a requirement to consult with the Fish and Wildlife Service under Section 7 of the 

Endangered Species Act, and entail additional time and expense, if any endangered 

species or its critical habitat is located in the area. One such species that could be affected 

is the Sonoran Desert Tortoise habitat, which is under review by the Fish and Wildlife 
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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Service for inclusion as a threatened or endangered species and which has habitat along 

the CAP canal. (p. 5)

Agency Response: This rule does not affect any existing requirements that may 

apply under other federal statutes, and their applicability will be site-specific. Any 

such requirements are due to independent obligations imposed by those laws. The 

economic analysis in the record did consider permit application costs, but due to the 

variability in the applicability of such statutes, the lack of scalable data provided by 

commenters, and the difficulty in assessing these values at a national level in a 

meaningful way the agencies are unable to quantify these impacts.

The Clean Energy Group Waters Initiative (Doc. #14616)

13.524 Recognizing the importance of the Administration’s climate and clean energy goals, we 

caution that it appears premature for the agencies to proceed with a clarification of the 

extent of WOTUS’ jurisdiction at a time when internal procedures are underway to 

modernize and streamline the permitting process. As proposed, the WOTUS rule could 

undermine efforts to modernize permitting, such as Executive Order 13604, Improving 

Performance of Federal Permitting and Review of Infrastructure Projects.30 If 

jurisdictional clarity is necessary, we recommend that a concurrent process take place 

such that permit reform and jurisdictional issues are resolved simultaneously, rather than 

the current approach. A concurrent process would help avoid permitting delays and 

confusion associated with regulatory changes. It would also ensure proper coordination 

and goal alignment with some of the key components of the President’s Climate Action 

Plan, such as the QER. (p. 13)

Agency Response: The agencies are fully implementing the directions contained in 

this Executive Order and nothing in this rule will affect such compliance.

CropLife America (Doc. #14630)

13.525 Proposal Will Add Compliance and Legal Uncertainty for Pesticide Users

We are particularly concerned about impacts on public and private pesticide users and 

their efforts to meet Federal Insecticide, Fungicide and Rodenticide Act (FIFRA)371 and 

CWA requirements created when the agencies intend to (a) regulate ephemeral 

conveyances regardless of the frequency, intensity or duration of their flow; (b) rely on 

vague and self-reinforcing definitions for jurisdictional features, such as “floodplain,” 

“riparian area,” “neighboring” and “tributary;” (c) lack biological and chemical metrics 

for a “significant nexus” among individual or aggregated “other waters;” (d) expand 

jurisdiction over adjacent “wetlands” to categorically include all adjacent “waters;” (e) 

regulate most manmade canals and drainage ditches; and (f) apply the proposed new 

categories of WOTUS across all land uses, climatic zones, ecoregions, and topographies. 

We believe the net result would be a great expansion of federal jurisdiction over minor 

waters and man-made conveyances that have not previously been defined as WOTUS; a 

chaotic encroachment on state authorities and budgets; and result in adverse impacts on 

 

371 See generally 7 U.S.C. 136 et seq.; see also EPA, Federal Insecticide, Fungicide, and Rodenticide Act and 

Agriculture, http://www.epa.gov/agriculture/lfra.html (last visited Nov. 5, 2014).
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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public and private pest control operators responsible for maintaining the availability of 

safe, healthy and abundant food, public health, forests and other natural resources, utility 

and transportation rights-of-way, parks and other public recreation areas.

Since its publication, agency officials repeatedly have sought to reassure the public, states 

and Congress that the proposal would not expand the CWA regulation of WOTUS, but 

the continued controversy and widespread criticism suggests that most stakeholders 

disagree. We share this skepticism and believe that the proposed rule would result in the 

categorical federalization of millions of miles of ephemeral, intermittent, seasonal and 

manmade conveyances not previously regulated by rule.372 We are concerned this would 

adversely affect agriculture, forestry and other land use activities on public and private 

lands where these conveyances occur, including weed, insect, disease, invasive species 

and mosquito control activities by states, municipalities, businesses and farmers. This 

would increase compliance risks and costs, and increase legal uncertainty for all 

involved. In 2013 we urged the agencies to conduct a proper rulemaking instead of 

guidance to define WOTUS; what the agencies have proposed in 2014, however, is 

entirely improper. Without adequately evaluating costs or science, engaging states or 

municipalities, conducting a formal small-business dialogue or proposing a rule adhering 

to applicable law, the proposed categories would improperly broaden federal CWA 

jurisdiction, complicate pesticide use and compliance requirements under the Federal 

Insecticide, Fungicide and Rodenticide Act (FIFRA) and CWA and increase the potential 

for federal enforcement and penalties, as well as citizen suits. CLA is very concerned that 

the proposed expansion of WOTUS jurisdiction would adversely affect the legal use of 

FIFRA-registered pesticide products and create significant confusion and legal 

uncertainty under both FIFRA and CWA for public and private entities engaged in pest 

control activities, whether using products labeled for terrestrial use or aquatic use, both of 

which require water-focused environmental risk assessments discussed later in these 

comments.373 (p. 3)

Agency Response: Agencies’ Response: The scope of regulatory jurisdiction in 

this rule is narrower than that under the existing regulation. Fewer waters will be 

defined as “waters of the United States” under the rule than under the existing 

regulations, in part because the rule puts important qualifiers on some existing 

categories such as tributaries. This narrowing is to be consistent with Supreme 

Court decisions. 

 

372 The proposed rule states that the agencies intend to treat all perennial, intermittent and ephemeral streams as per 

se jurisdictional, and the preamble indicates that the agencies will identify categorical tributaries using U.S.

Geological Survey (USGS) maps and other appropriate information. WOTUS Proposed Rule, 79 Fed. Reg. at 

22,202. Recent USGS maps prepared for EPA indicate a total of approximately 8.1 million miles of perennial, 

intermittent and ephemeral streams across the 50 states, all of which would be categorically regulated as tributaries 

under the proposed rule. U.S. House of Representatives Committee on Science, Space, and Technology, EPA State 

and National Maps of Waters and Wetlands, http://science.house.gov/epa-maps-state-2013#overlay-context (last 

visited November 5, 2014). This is a 131% increase from the 3.5 million miles of regulable streams in EPA’s latest 

National Water Quality Inventory Report to Congress.

373 See infra FIFRA Registration of Pesticides Includes Water-Focused Risk Assessments.
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This rule does not affect any existing requirements that may apply under other 

federal statutes, and their applicability will be site-specific. Any such requirements 

are due to independent obligations imposed by those laws. In any event, the agencies 

disagree with commenter’s assertion that the rule will result in significant expansion 

of jurisdiction leading to significantly greater obligations under other statutes that 

may apply on a case-by-case basis. Also see compendium 11 for an economic 

analysis of the rule.

Red River Valley Association (Doc. #16432)

13.526 6. Widespread Objection by the US House and Senate: In May 2014 a bipartisan group of 

231 House members signed a letter for the agencies to withdraw this Proposed Rule. On 

May 2013, after issuance of the draft guidance, 52 Senators voted on an amendment to 

prohibit the agencies from implementing the guidance as a basis for any proposed rule. 

On September 9, 2014, the House passed (262-152) H.R. 5078, the Waters of the United 

States Regulatory Overreach Protection Act of 2014, a bipartisan bill to prohibit the 

Corps and EPA from finalizing the Proposed Rule. The obvious intent of both Houses of 

Congress is in opposition to this Proposed Rule. (p. 3)

Agency Response: The pendency of legislation that would amend the Clean Water 

Act does not obviate the need as expressed by numerous stakeholders and members 

of the Supreme Court, to undertake rulemaking to clarify the scope of waters of the 

U.S.

13.6. SUPPLEMENTAL COMMENTS ON PROCESS CONCERNS AND ADMINISTRATIVE 

PROCEDURES

Specific Comments

Western Urban Water Coalition (Doc. #0838)

13.527 EPA’s Science Advisory Board (SAB) is currently reviewing the draft Connectivity 

Report which, the preamble states, serves as the scientific basis of the proposed rule. By 

issuing the proposed rule for comment before the completion of the SAB review, the 

EPA and the Corps are hindering the public’s ability to make comments based on all of 

the available information. The WUWC believes that any public comments would be 

premature prior to the SAB finalizing its review. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study in compendium 13. For additional 

information on the final Connectivity Report and how it was considered in the 

development of today’s rule, please see Compendium 9.

Department of Agriculture, New Mexico (Doc. #0854)

13.528 Our preliminary concern is that the rule continually references a report (Report) that is 

not yet finalized, entitled "Connectivity of streams and Wetlands to Downstream Waters: 

A Review and Synthesis of the Scientific Evidence."
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The draft rule states: "The Report is under review by EPA's Science Advisory Board and 

the rule will not be finalized until that review and the final Report are complete." While 

we agree the rule should not be finalized until the Report is complete, - we do not agree 

that the draft rule should reference the Report in its current iteration - especially because 

of the explicit warning printed on every page "DRAFT – DO NOT CITE OR QUOTE." 

Our recommendation is that the peer-reviewed literature be finalized by addressing and 

incorporating public comments before the EPA uses it to endorse other federal actions. 

Any major changes to the Proposed Rule as a result of findings from the Report should be 

addressed in a second draft of the Proposed Rule (argued further below). (p. 1)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study in compendium 13. For additional 

information on the final Connectivity Report and how it was considered in the 

development of today’s rule, please see Compendium 9.

U.S. Congressman Chris Collins, U.S. House of Representatives et al. (Doc. #1434)

13.529 Compounding both the ambiguity of the rule and the highly questionable economic 

analysis, the scientific report - which the agencies point to as the foundation of this rule -

has been neither peer-reviewed nor finalized. The EPA's draft study, "Connectivity of 

Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific 

Evidence," was sent to the EPA's Science Advisory Board to begin review on the same 

day the rule was sent t OMB for interagency review. The science should always come 

before a rulemaking, especially in this instance where the scientific and legal concepts are 

inextricably linked. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study in compendium 13. For additional 

information on the final Connectivity Report and how it was considered in the 

development of today’s rule, please see Compendium 9.

New Mexico Farm and Livestock Bureau (Doc. #3969)

13.530 With the inconclusiveness and the blatant disregard for the APA we strongly urge the IR 

be removed. If left in place there may be devastating impacts to current farming and 

ranching, as well as, future establishment of operations. Contrary, to the claims of the 

agencies, there is no significant benefit to the industry. If the agencies were to collaborate 

with the industry in the future it would be the pleasure of the NMFLB to participate in 

any and all rule making processes. (p. 1)

Agency Response: Pursuant to Congressional direction, the Interpretive Rule was 

withdrawn. 

Delta Conservation District (Doc. #4719.2)

13.531 We believe the EPA's draft study, "Connectivity of Streams and Wetlands to Downstream 

Waters: A review and Synthesis of the Scientific Evidence" is highly questionable and 

flawed. We question the scientific evidence and timing of this proposal in light of the fact 
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that the study was sent to the Science Advisory Board to begin review on the same day it 

was sent to OMB for interagency review. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study in compendium 13. For additional 

information on the final Connectivity Report and how it was considered in the 

development of today’s rule, please see Compendium 9.

Falls County, Texas (Doc. #4758)

13.532 (...) AND WHEREAS, the EPA and the Corps relied on a draft synthesis of more than 

1,000 published and peer-reviewed scientific reports summarizing current understanding 

of the connections or isolation of streams and wetlands relative to large water bodies such 

as rivers, lakes, estuaries, and oceans. This draft is currently being reviewed by EPA's 

Science Advisory Board (SAB) and while the EPA states that it will not take any final 

action on its 20 14 proposed rule until a final report is approved by the SAB, that 

approval could come after the time for public comment on the proposed rule change has 

ended. (p. 3)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study in compendium 13. For additional 

information on the final Connectivity Report and how it was considered in the 

development of today’s rule, please see Compendium 9.

House of Representatives, Alaska State Legislature (Doc. #4879)

13.533 Agencies have developed the proposed rule without the benefit of a completed 

independent scientific review of the EPA’s Science Advisory Board’s review. Proposing 

rules before all the relevant information is completed and reviewed calls into question 

whether the science presented is free from any influences by the agencies involved. (p. 1)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study in compendium 13. For additional 

information on the final Connectivity Report and how it was considered in the 

development of today’s rule, please see Compendium 9.

L. Banks (Doc. #5554.2)

13.534 10. Having worked flood control and navigation issues with the Corps, USFWL and EPA 

for 44 years, it seemed the Corps had to abide by the NEPA process on every potential 

project or even on minor changes in regulation of existing projects. I don't understand 

why the EPA shouldn't have to abide by NEPA when pursuing an action which they 

believe will have such a drastic impact on the quality of waters throughout the USA! (p. 1 

– 2)

Agency Response: See section 13.3 summary response for information regarding 

NEPA in compendium 13.
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Montana Association of Counties (Doc. #7334.2)

13.535 Compliance with NEPA

I find it ironic that the EPA has made little, if any, effort to cooperate with state and local 

governments in this rule making process in spite of the mandate in 42 U.S.C. §4321 et 

seq. (1969), the National Environmental Protection Act (NEPA), Section 101, Title I 

states that Congress.......

“declares that it is the continuing policy of the Federal Government, in cooperation with 

State and local governments, to use all practicable means and measures, including 

financial and technical assistance, in a manner calculated to foster and promote the 

general welfare, to create and maintain conditions under which man and nature can exist 

in productive harmony, and fulfill the social, economic, and other requirements of 

present and future generations of Americans. (p. 4)

Agency Response: See section 13.3 summary response for information regarding 

NEPA in compendium 13. 

West Virginia Attorney General, et al (Doc. #7988)

13.536 C. The Proposed Rule Would Render The Clean Water Act In Excess Of Congress’s 

Powers Under The Commerce Clause

In SWANCC, the Supreme Court rejected a previous attempt by the Corps to expansively 

interpret the term “waters of the United States,” in part based upon the cannon of 

constitutional avoidance. As the Court explained, the Corps may not adopt an 

interpretation of the CWA that would create significant questions regarding whether the 

CWA exceeded Congress’ constitutional authority. 531 U.S. at 174. Without deciding 

whether the Corp’s assertion of CWA authority would exceed constitutional bounds, the 

Court reasoned that Congress did not intend to invoke its constitutional authority to its 

outermost limits, and instead “chose to ‘recognize, preserve, and protect the primary 

responsibilities and rights of States . . . to plan the development and use . . . of land and 

water resources.’” Id. (quoting 33 U.S.C. § 1251(b)). Both the four-Justice plurality in 

Rapanos and Justice Kennedy stressed that these concerns remain live as the Court 

interprets the CWA going forward. The plurality explained that “the Corps’ interpretation 

stretches the outer limits of Congress’s commerce power and raises difficult questions 

about the ultimate scope of that power.” Rapanos, 547 U.S. at 738. And Justice Kennedy 

noted that the significant nexus test “prevents problematic applications of the statute.” Id. 

at 782.

The Court’s concerns that the CWA not be interpreted to reach to the limits of Congress’s 

Commerce Clause authority apply with special force to the Proposed Rule. While 

SWANCC and Rapanos involved discrete examples of the Agencies’ overreach into 

intrastate matters, the Proposed Rule is a wholesale assertion of virtually limitless 

authority over broad swaths of intrastate waters and lands. For many of the proposal’s 

applications discussed above, the waters and lands covered are entirely outside of 

Congress’ authority under the Commerce Clause, such as non-navigable intrastate waters 

that lack any significant nexus to a core water, trenching upon state authority, including 

in areas of non-economic activity. See generally United States v. Lopez, 514 U.S. 549, 
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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561 (1995); United States v. Morrison, 529 U.S. 598, 613 (2000). And for many other 

applications of the Proposed Rule, those waters and lands could only be regulated under a 

statute that sought to assert the full force of Congress’ constitutional authority, such as 

application to the aggregated isolated waters the Proposed Rule includes on a case-bycase basis. The Supreme Court in SWANCC specifically held that the CWA is not such a 

statute. 531 U.S. at 173-74. Instead, the CWA—unlike the Proposed Rule—specifically 

respects the “primary responsibilities and rights of States . . . to plan the development and 

use . . . of land and water resources . . . .’” 33 U. S. C. § 1251(b). (p. 11)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism in compendium 13.

The rule implements, and is consistent with, the interpretations of the Supreme 

Court in the Rapanos and SWANCC decisions because the rule only covers waters 

that have a significant nexus with traditional navigable waters, and therefore within 

federal authority over channels of interstate commerce.

John Ford Ranch (Doc. #9512)

13.537 In developing this WOTUS rule, your agencies- the EPA and ACE- did not “follow the 

proper transparent rulemaking process that is dictated by the Administrative Procedure 

Act.” A rule of this magnitude needs to go through the normal rulemaking procedures. 

The EPA and ACE should not be given the right to make regulatory changes without 

being subject to the legislative procedures that are in place in America. This proposed 

WOTUS has massive negative implications not only for the production of food and fiber 

in America, but will also affect every individual person, town, municipal, local, and state

governments; simply by being put into effect without proper study, scientific 

documentation, involvement of municipalities and property owners, without 

consideration of consequences to the people and to the economy of America. It amounts 

to a governmental grab of jurisdiction over private property engaged in agricultural 

production, along with every other individual in America. Rather than adopting WOTUS, 

your agencies need to be placed under increased Congressional oversight. (p. 2)

Agency Response: See summary responses in sections 13.2 and 13.2.1 for 

information regarding the rulemaking process and Administrative Procedure Act in 

compendium 13.

Eddy County Board of Commissioners (Doc. #9693)

13.538 Proposed rule raises federalism concerns that could impose large costs. Executive order 

131 32- Federalism, federal agencies are required to work with state and local 

governments on proposed regulations that may or will have substantial direct compliance 

cost. Agencies have determined "Waters of US" as indirect costs and do not trigger 

federalism. Commissioners disagree and believe the proposed rule changes will have 

significant direct costs to our county.

Areas that are put in to the jurisdiction of the Waters of the US triggers other federal 

laws, besides the 404 or pesticide permits just to name a couple, will also involve 

Environmental Impact Statements, National Environmental Policy Act, and also triggers 

any issue with endangered species. This will cost money and time. Permit will require 
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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applicant to mitigate the impacts of a project sometimes with considerable expense. 

Conditions may be attached to permits for maintenance activities and specific required 

conditions that result in time consuming negotiations in a process that could take years.

(p. 2)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism in compendium 13.

O’Bannon Cook (Doc. #9878)

13.539 Improper Agency Advocacy of the Proposed Rule

The proposed rule is still in the public comment phase. As the EPA well knows, the

purpose of the comment phase is to receive input from the public and from the citizens 

and entities that will be affected by the proposed rule.

In an apparent effort to browbeat opposition and stifle the very input which is essential to

the rulemaking process, the EPA's website (http://www2.epa.gov/uswaters/ditch-myth) 

engages in an aggressive campaign of belittling opposition as purveying "myths" and 

"misconceptions." In other words, instead of soliciting commentary, the EPA is 

attempting to ensure that otherwise interested citizens will either be persuaded by the 

propaganda being disseminated by the EPA, or will come to view opponents of this 

proposed rule as enemies of the truth. This is reprehensible behavior by a government 

agency in any functioning democracy. (p. 2)

Agency Response: See section 13.2 summary response for information regarding 

the rulemaking process in compendium 13. 

The Anti-Lobbying Act does not prohibit the agencies from seeking input from the 

public on a rulemaking or restrict the agencies from educating or informing the 

public on a rulemaking under development – i.e., the types of activities described by 

the commenter. As noted in a recent Comptroller General opinion, “agency officials 

have broad authority to educate the public on their policies and views, and this 

includes the authority to be persuasive in their materials” – e.g. persuasive 

statements in “individual social security statements mailed to over 140 million 

Americans,” and letters “encouraging prosecutors to work with legislators to update 

local marijuana laws”. B-325248, U.S. Comp. Gen., Sept. 9, 2014. See also B319075, U.S. Comp. Gen., April 23, 2010, and B-304715, U.S. Comp. Gen., April 27, 

2005.

M. Seelinger (Doc. #12879)

13.540 It is clear in the opinions of the Supreme Court Justices that there is a difference between 

jurisdictional and non‐jurisdictional waters. What is not clear, and in fact these proposed 

regulations make it much less clear, what exactly is a ““Waters of the US.”

Furthermore, I draw your attention to the 199 additional documents posted to the 

Regulation.gov docket folder in the last two weeks. They in fact have not been posted 

and the public is greeted with this 12 page notice:

Additional Supporting Materials for Docket EPA‐HQ‐OW‐2011‐0880 
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EPA will be adding the following documents to the docket. Copyrighted material 

is publicly available only in hard copy. Publicly available docket materials are 

available electronically at http://www.regulations.gov or in hard copy at the Water 

Docket, EPA Docket Center, EPA West, Room 3334, 1301 Constitution Avenue, 

NW, Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 

p.m., Monday through Friday, excluding legal holidays. The telephone number 

for the Public Reading Room is 202–566–1744, and the telephone number for the 

Water Docket is 202–566–2426.

To what purpose do these documents serve? Why at this juncture are the Agencies 

concerned with copyright issues? It does beg the question of whether these copyright 

issue were addressed in the SAB report. Perhaps this should be disclosed.

How does this serve the public trust when the vast majority of these documents are only 

available by taking a trip to Washington, D.C. If the agencies feel that these documents 

are necessary to support their case for further regulations, then they should resolve the 

stated copyright concerns and publish them on the website in their entirety. Otherwise 

these 199 documents should be removed from the docket. (p. 2)

In general it is not uncommon for a rulemaking, especially one of this size and with this kind of 

technical basis, to have many copyrighted references listed in the docket. Copyright law and 

shear volume constrains EPA from posting their content at all or in their entirety in the electronic 

docket, but the references are available for review by the public.

These references listed for this rule were supplemental, supportive scientific literature. 

Commenters do not need to review the references in order to understand the rule and its basis 

and to comment effectively. The references are there, however, for to direct the public to more 

background information. 

Family Farm Alliance (Doc. #12983)

13.541 1. The agencies have only recently reviewed the adequacy of the underlying science, but 

have asked for commenters to provide complex technical information or recommend 

specific approaches within a range of proposals that are not well defined in the proposal.

The EPA’s proposed rule purports to rely on the scientific conclusions of the EPA’s draft 

“Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis 

of the Scientific Evidence” (connectivity report), which was recently reviewed by the 

SAB. However, EPA only extended the comment period for an additional 25-days to 

allow for the SAB report to be incorporated into the public record, which does not allow 

for meaningful analysis and response to the SAB report. There are numerous places 

throughout the preamble to the proposed rule wherein the agencies have asked the public 

to provide specific information regarding the proposed rule’s scientific justifications. The 

purpose of the SAB Panel review of the draft connectivity study was to evaluate the 

“evolving scientific literature on connectivity of waters374,” and the public deserves the 

opportunity to comment on the conclusion of that review process before the report is 

 

374 See 79 Fed. Reg. at 22,192.
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finalized. Also, the SAB made several recommendations to the EPA on the proposal, and 

the public, including the scientific community, should have the opportunity to comment 

on those recommendations as well. (p. 4)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study in compendium 13. For additional 

information on the final Connectivity Report and how it was considered in the 

development of today’s rule, please see Compendium 9.

Sitka Economic Development Association (Doc. #13023)

13.542 (...) WHEREAS, Under Executive Order 13 132 - Federalism, federal agencies are 

required to consult and work with state and local governments on proposed regulations 

that have substantial direct compliance costs; and

WHEREAS, as per H.R. 5078, titled "Waters of the United States Regulatory Overreach 

Protection Act of 2014" and passed by the House of Representatives on September 9, 

2014, the Congress of these United States agrees that development of the proposed rule 

"Definitions of Waters of the U.S. Under the Clean Water Act" violates Executive Order 

13 132; and (...) (p. 1 – 2)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism in compendium 13.

The pendency of legislation that would amend the Clean Water Act does not obviate 

the need, as expressed by numerous stakeholders and members of the Supreme 

Court, to undertake rulemaking to clarify the scope of waters of the U.S.

Todd Wilkinson (Doc. #13443)

13.543 EPA should conduct a formal SBAR Panel and consider alternative regulatory 

approaches. The Agencies proposed rule is seriously procedurally defective. On the date 

the Agencies published its proposed WOTUS rule EPA1s Science Advisory Board had 

not completed its review of the report. Given the complex and controversial conclusion,

until the public is given the opportunity to fully evaluate peer reviewer's comments on the 

Report it cannot be relied upon to make public policy. The Agencies must withdraw the 

proposal until they are able to comply with the Information Quality Act. (p. 2)

Agency Response: See section 11.1 summary response for information regarding 

RFA/SBREFA in compendium 11.

See section 13.1 summary response for information regarding concerns about 

timing/overlap of the science document and review process, SAB review of the rule, 

and the Connectivity Study in compendium 13. For additional information on the 

final Connectivity Report and how it was considered in the development of today’s 

rule, please see Compendium 9.

Colorado Wastewater Utility Council (Doc. #13614)

13.544 Furthermore, we are concerned that the proposed new rule has been issued for comments 

before the SAB has concluded its review of EPA's connectivity study. This connectivity 

study is supposed to form part of the scientific basis for the regulation. Because the 
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347

hydrology is fundamentally different in the arid West, we need assurances that this 

connectivity study will take into account these differences. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study in compendium 13. For additional 

information on the final Connectivity Report and how it was considered in the 

development of today’s rule, please see Compendium 9.

M. Smith (Doc. #14022)

13.545 I have concerns with the process used to create this proposal, and specifically whether 

impacted state and local groups such as townships were adequately consulted throughout 

the process. (p. 1)

Agency Response: See summary responses in sections 13.2 and 13.2.5 for 

information regarding the rulemaking process and Federalism in compendium 13.

Plumas County Board of Supervisors (Doc. #14071)

13.546 The rulemaking should not have been initiated before the issuance of the draft science 

report.

Your agencies have stated that the draft science report, "Connectivity of Streams and 

Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence is 

informing the proposed rule. However, you are moving forward with the rulemaking 

before the report has been finalized and released, making it impossible to truly use the 

conclusions from the report to inform this proposal. Such an approach is scientifically 

incongruous as it lacks the logical nexus that is always required in the establishment of a 

legal basis of an assertion. We agree with RCRC that moving forward with the proposed 

rule before the science report is finalized is bad public policy. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study in compendium 13. For additional 

information on the final Connectivity Report and how it was considered in the 

development of today’s rule, please see Compendium 9.

Legislative Council on River Governance (Doc. #14791)

13.547 (...) WHEREAS, the EPA and the Corps have not fulfilled statutory obligations to fully 

consult with the states, thus undermining Executive Order 13132’s consolation criteria; 

and (...) (p. 2)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism in compendium 13.

Monarch-Chesterfield Levee District, St. Louis, Missouri (Doc. #14904)

13.548 Jurisdiction is improperly expanded as the science supporting the sought after 

connectivity has not been supplied.

The Agencies published the proposed rule prior to the science upon which it is 

supposedly based having been finalized; something that should have occurred prior to the 
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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proposed rule having ever been formulated. EPA's Connectivity Report is still not 

finalized and has only recently been peer-reviewed. While the Report documents the 

presence of connections between waterbodies, it appears to fail in supplying the scientific 

basis needed to determine when such connections may or may not significantly affect 

downstream waters. The voluminous amount of data released after publication of the 

proposed rule is too complex to have reviewed in the limited time allowed, and specific 

scientific comments cannot be provided, instead, we offer that when policy is crafted and 

an implementing rule drafted all in advance of peer-reviewed sound science being 

published, transparency is lost and data driven decision-making has not occurred. Going 

forward the Agencies intend that all adjacent waters be categorized as jurisdictional, 

claiming a significant nexus to jurisdictional waters. Under the proposed rule, all 

tributaries (including ephemeral streams and manmade ditches which may be dry most of 

the year), all adjacent waters and all adjacent wetlands would be subject to federal 

jurisdiction. Drainage ditches would be considered jurisdictional unless they fall under 

one of the two categorical exclusions: 1) those ditches located in uplands with less than 

perennial flow (another undefined term used in the proposed rule for which there are 

varying working definitions), and 2) those ditches that do not contribute flow either 

directly or indirectly to jurisdictional waters. The basis for this expanded jurisdiction is 

deeply flawed in that it relies on a faulty construction of the significant nexus text and is 

not shown to be supported by sound science. This ill-founded and improper action, 

considering the predictable outcome of expanded jurisdiction and regulatory authority, is 

arbitrary and capricious. (p. 5)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study in compendium 13. For additional 

information on the final Connectivity Report and how it was considered in the 

development of today’s rule, please see Compendium 9.

Devon Energy Corporation (Doc. #14916)

13.549 The Administrative Procedures Act was not followed when the Agencies proposed this 

Rule prior to releasing the SAB Review. The determination of applicable science, which 

provides the underpinnings to the Proposed Rule, is not complete or finalized. However, 

the Proposed Rule cites the Connectivity Report which was concurrently being peerreviewed by the SAB during the Public Comment process and was finally posted to 

Federal Register on Oct. 24, 2014. The process of simultaneously evaluating the science 

during the comment process makes it impossible for parties that may be subject to the 

Proposed Rule to provide significant source of support for this Proposed Rule. The 

Agencies failed to observe the requirement of the federal Administrative Procedures Act 

by not timely providing the results of the SAB Review prior to the comment period for 

this Proposed Rule. (p. 3)

Agency Response: See section 13.2.1 summary response for information 

regarding the Administrative Procedure Act in compendium 13.
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The Heritage Foundation (Doc. #15055)

13.550 For nearly 70 years The Administrative Procedure Act375 (APA) has helped to ensure that 

the public has a meaningful opportunity to provide comments on proposed regulations. 

Yet, the proposed rule ignores this basic requirement.

In July 2013, the EPA assembled a Scientific Advisory Board (SAB)376 to review a draft 

report the agency developed called the Connectivity of Streams and Wetlands to 

Downstream Waters: A Review and Synthesis of the Scientific Evidence. 377

According to the EPA, “This report, when finalized, will provide the scientific basis 

needed to clarify CWA jurisdiction, including a description of the factors that influence 

connectivity [of streams] and the mechanisms by which connected waters affect 

downstream waters...Any final regulatory action related to the jurisdiction of the Clean 

Water Act rulemaking will be based on the final version of this scientific assessment, 

which will reflect EPA’s consideration of all comments received from the public and the 

independent peer review.378 

Yet the proposed rule was developed well before the Connectivity report was finalized (it 

still has not been finalized). The EPA sent its proposed rule to OMB on September 17, 

2013, and released its draft Connectivity report on the same day.379 The scientific 

advisory panel did not meet to review the report for the first time until December 16, 

2013 -months after the proposed rule was sent to OMB.380

The agencies have put the "cart before the horse." The proposed rule should have only 

been developed once the Connectivity report had been finalized. This would have 

allowed the final report to inform the proposed rule. Since the final report is being 

developed after the proposed rule, it has no bearing on the proposed rule.

 

375 Administrative Procedure Act, 5 U.S.C Subchapter II.

376 Thomas Armitage, Designated Federal officer, U.S. Environmental Protection Agency Science Advisory Board 

Staff Office, letter to Acting Director Christopher Zarba, July 29, 2013., 

http://yosemite.epa.gov/sab/sabproduct.nsf/fedrgstr_activities/7724357376745F48852579E60043E88C/$File/Final

%20Determination%20memo_connectivity%20panel%20(unsigned).pdf (accessed November 14, 2014). 

377 U.S. Environmental Protection Agency, Connectivity of Streams and Wetlands to Downstream Waters: A Review 

and Synthesis of the Scientific Evidence (External Review Draft), September 24, 2013, 

http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=238345 (accessed November 14, 2014).

378 U.S. Environmental Protection Agency, "Report Information," 

http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=238345 (accessed November 14, 2014).

379 The report was made available on September 17, 2013. It was published in the Federal Register on September 24, 

2013. Federal Register Vol. 78, No. 185 (September 24,2013), pp. 58536-58537, http://www.gpo.gov/fdsys/pkg/FR2013-09-24/html/2013-23198.htm (accessed November 14, 2014). The SAB submitted its review of the EPA's draft 

report on October 17, 2014. David Allen, Science Advisory Board Chair, and Amanda Rodewald, SAD Panel for the 

Review of the EPA Water Body Connectivity Report Chair, letter to Administrator Gina McCarthy, October 

17,2014, 

http://yosemite.epa.gov/sab/sabproduct.nsf/02ad90b136fc21ef85256eba00436459/AF1A28537854F8AB85257D740

05003D2?$File/EPA-SAB-15-001+unsigned.pdf (accessed November 14, 2014).

380 EPA Scientific Advisory Board, “Meeting: Panel for the Review of the EPA Water Body Connectivity Report 

12/16/2013 to 12/18/2013,” 

http://yosemite.epa.gov/sab/sabproduct.nsf/MeetingCal/A243CB99328D3BF085257BBE0074E4E2?OpenDocumen

t (accessed November 14, 2014.)
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The public is being given the opportunity to provide comments on the proposed rule, but 

the rule does not reflect the science that the agencies will be using to develop the final 

rule; the EPA has expressly made clear that the final report will be the scientific basis for 

the final rule.381

If EPA's improper process were to stand, it would undermine the rulemaking process. 

Agencies could develop proposed rules with limited support and then use reports and 

studies after-the-fact to validate what the agency has already proposed. The agencies 

could even use their own studies.

This process will hurt the legitimacy of the SAB's review of the draft Connectivity report, 

and both the final report and the final rules. By not waiting for the final report before 

developing the proposed rule, the EPA is making the policy decisions look like a 

foregone conclusion. In addition, the EPA would have an incentive to limit the number of 

changes to the final report since it is supposed to be the scientific basis for the final rule. 

If there are too many changes to the final report, this could require the agency to reflect 

those changes in the final rule, thereby potentially causing logical outgrowth doctrine 

problems.382

When there is a significant difference between proposed and final rules, courts may 

decide that agencies must start the process all over again by drafting new proposed rules. 

According to the D.C. Circuit Court of Appeals, “Given the strictures of notice-andcomment rulemaking, an agency’s proposed rule and its final rule may differ only insofar 

as the latter is a ‘logical outgrowth’ of the former.”383

The public should have a meaningful opportunity to provide comments on a proposed 

rule that reflects the science that will inform any final rule. Without this opportunity, the 

value of the public comments is significantly weakened. (p. 1 – 3)

Agency Response: See section 13.2.1 summary response for information 

regarding the Administrative Procedure Act in compendium 13.

Federal StormWater Association (Doc. #15161)

13.551 [B]esides lacking statutory authority or legal precedent, the proposed rule is procedurally 

flawed due to the agencies’ failure to comply with the Administrative Procedures Act, the 

Regulatory Flexibility Act, the Unfunded Mandates Reform Act, and the Federalism 

Executive Order. (p. 2)

Agency Response: See summary responses 13.2.4 and 13.2.5 for information 

regarding Unfunded Mandates and Federalism in compendium 13. For information 

regarding RFA/SBREFA see section 11.1 summary response in compendium 11. 

 

381 Public comments, like the final report, also can influence the final rule, but unlike this report, there is no prior 

agency commitment to use the comments, including as the scientific foundation for the rule. Further, the final report 

will be EPA’s own document. 

382 In addition, the objectivity of the SAB process (regardless of who was on the SAB) is put into question because 

the SAB could want to limit the number and scope of recommended changes to avoid any type of logical outgrowth 

doctrine problems. 

383 Environmental Integrity Project v. U.S. Environmental protection Agency, 425 F.3d 992 (D.C. Cir. 2005). 
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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Southern Illinois Power Cooperative (Doc. #15486)

13.552 The proposed rule was developed via a flawed process, where the rule was developed 

before review of the underlying science is complete. (p. 10)

Agency Response: See sections 13.2 summary response for information regarding 

the rulemaking process in compendium 13.

Western Landowners Alliance (Doc. #16553)

13.553 Interpretive Assurances. EPA staff have informed us that they refer to preambles for 

guidance in other rulemaking, and would like to do so here. The proposed definition 

itself is fairly short, but its implications are difficult to assess throughout all CWA 

programs. The assurances that EPA has provided should be documented in the preamble. 

If there is any potential for the preamble to not encapsulate regulatory intent in these 

regards, and usable as such in the future, it should be expanded to do so. That said, 

“normal practices” should not allow pollutant dumping associated with exempt activities.

(p. 2)

Agency Response: The rationale for the rule is explained in the preamble and 

other documents in the record for the rule. As discussed in those documents, the 

rule is consistent with the CWA and Supreme Court precedent. To the extent the 

commenter’s reference to “normal practices” this rule does not affect the 

application of the normal farming exemptions under section 404(f).

Salinas Valley Water Coalition (Doc. #15625)

13.554 The Proposed Rule's unconstitutionally over broad definition of "the waters of the United 

States" impermissibly expands the authority of the USEPA and USACE. The Interpretive 

Rule and MOU violate the Administrative Procedure Act by rewriting the 404 

exemptions under the guise of an interpretative rule in order to expand their authority 

beyond waters of the United States to land uses. We urge that the Proposed Rule and its 

associated Interpretative Rule be withdrawn due their constitutional, procedural and 

substantive defects. (p. 2)

Agency Response: See section 13.2.1 summary response for information 

regarding the Administrative Procedure Act in compendium 13.

The Interpretive Rule has been withdrawn. All comments on the Interpretive Rule 

are outside of the scope of this rulemaking. 

City of Jackson, Mississippi (Doc. #15766)

13.555 Furthermore, once jurisdictional, a project could then trigger other federal regulatory

requirements created by the National Environmental Policy Act ('NEPA"), the 

Endangered Species Act, etc. These programs involve studies and public comment 

periods, all of which cost additional time and money. Each of these steps would impose 

significant expenses and time delays on local governments with limited resources such as 

ours, preventing activities necessary to maintain public health and safety. (p. 3)

Agency Response: See section 13.3 summary response for information regarding 

NEPA in compendium 13.
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Associated Governments of Northwest Colorado (Doc. #16434)

13.556 Stay the current rulemaking process until the scientific assessment is final and the 

credibility of the Connectivity Report is established; and

Conduct a negotiated rulemaking process. (p. 2)

Agency Response: The negotiated rulemaking process is a discretionary preproposal mechanism that can be used to develop a rule. Some considerations in 

choosing what process to use are resources and how best to effectuate the Agencies 

priorities. In embarking on this rulemaking process, EPA elected not to engage in a 

negotiated rulemaking process, choosing instead to engage in notice and comment 

rulemaking, supplemented by extensive public engagement prior to issuing a 

proposal. The process for developing this rule included pre-proposal opportunities 

for affected parties to provide input to the agencies (for detailed information see the 

sections on 13.2.5 on Federalism, 13.2.6 on Tribal Consultation, and 11.1 on 

RFA/SBREFA in compendium 11). Moreover, since the rule has been proposed and 

the Agencies have received over one million comments, it would be inappropriate at 

this point to dismiss all of those comments and restart the rulemaking through a 

negotiated rulemaking process.

Cook County, Minnesota, Board of Commissioners (Doc. #17004)

13.557 WHEREAS, the EPA and Corps' attempt at initiating WOTUS constitutes failure to 

comply with Executive Orders 12866 Regulatory Planning Review (1993) and 13563 

Improving Regulation and Regulatory Review (2011)—which require that the regulatory 

system ensure, among other things, regulations are consistent, written in plain language, 

and are easy to understand—the proposed rule fails on all accounts; and

WHEREAS, nowhere in the proposed document is it stated, in plain and direct language, 

that the result of defining the terms for the various waters would be that all waters so 

defined would automatically fall within the scope of jurisdictional authority of the EPA 

and Corps. This amounts to "mission creep", which is enabled by not complying with the 

Executive Orders directives on regulatory planning. This is not only inappropriate, it is in 

violation of Executive Orders on regulatory planning; and (...) (p. 6)

Agency Response: See section 13.2.2 summary response for information 

regarding Executive Order s for Regulatory Planning (12866) and Review and 

Improving Regulation and Regulatory Review (13563) in compendium 13.

American Gas Association (Doc. #16173)

13.558 The Administration has laid out a detailed timeline and has already taken significant steps 

to encourage federal agencies to expedite infrastructure permitting for energy projects. 

Presidential Orders and action items include:

 Presidential Memorandum (2011): Providing transparency, accountability and 

certainty into infrastructure permitting and review processes.

 Executive Order 13604 (2012) – Improving Performance of Federal Permitting 

and Review of Infrastructure Projects: To move people, goods and energy, 

rehabilitate infrastructure, create jobs, and support growth.
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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 Blueprint for a Secure Energy Future (2012): Reducing reliance on foreign oil, 

saving families and businesses money at the pump, and positioning the U.S. as the 

global leader in clean energy.

 Executive Order 13605 (2012) – Supporting Safe and Responsible Development 

of Unconventional Domestic Natural Gas Resources and Associated Infrastructure

 Executive Order 13604 Steering Group (2012 – 2014): Under the leadership of 

OMB and CEQ, federal agencies have completed a comprehensive review to 

identify best practices for infrastructure permitting.

 Presidential Memorandum (2013) – Modernizing Federal Infrastructure Review 

and Permitting Regulations, Policies, and Procedures.

 Implementation Plan for the Presidential Memorandum on Modernizing 

Infrastructure Permitting (2014): Recommending specific action items to ensure 

that agency staff implementing the Clean Water Act is fully engaged in utilizing 

the flexibility of existing regulations, policies and guidance and identifying 

additional actions to facilitate high-quality, efficient, and targeted permitting 

decisions and reviews.

AGA has worked continuously with policymakers to explain the importance of timely, 

efficient and transparent permitting of water resource impacts. For example, Army Corps 

water resource permits are crucial for timely completion of natural gas projects—whether 

new construction, maintenance, emergency work, or replacement. In many areas of the 

country, AGA members are struggling to get timely decisions on their permitting 

applications. Adding the multiple requirements of the Proposed Rule will further delay 

project completion timelines, and similar effects will be felt in any energy infrastructure 

sector that relies on timely federal water resource permits. 

Additionally, the Proposed Rule would interfere with the successful implementation of 

federal law encouraging the acceleration of permitting reviews for natural gas pipeline 

projects. The 2014 Water Resources Reform and Development Act (“WRRDA”) will 

kick-start utility project applicants’ ability to fund independent third party project 

managers within the Army Corps, to expedite the evaluation and processing of permits. 

WRRDA authorizes the Army Corps to accept funds from non-federal public interests, 

including public utility companies and natural gas companies to expedite the processing 

of permits within the Army Corps’ regulatory program. Any positive gains in agency 

time, project timelines, and reduced costs for project reviews could be quickly reversed if 

the Proposed Rule is implemented, adding dollars and days to each review for individual 

natural gas projects.384 (p. 14-15)

Agency Response: The final rule does not establish any new regulatory 

requirements, and is not inconsistent with the Administration’s commitment to 

implement its programs pursuant to the above statutes. Instead, it is a definitional 

 

384 See Joint Associations Letter to Bruce Carlson, U.S. Army Corps of Engineers, Water Resources Reform and 

Development Act, Section 1006: Expediting the Evaluation and Processing of Permits (Filed October 31, 2014) 

(available on AGA website).
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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rule that clarifies the scope of “waters of the United States” consistent with the 

Clean Water Act (CWA), Supreme Court precedent, and science. It also does not 

upset the cooperative federalism of the Act that has been undertaken to implement 

the Clean Water Act. 

Atlantic Legal Foundation (Doc. #17361)

13.559 3. Scientific Basis

The proposed rule is based extensively upon a scientific analysis entitled Connectivity of 

Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific 

Evidence (the "EPA Report"). However, this Report has not yet been properly peer 

reviewed by the Science Advisory Board (SAB). It is troubling that the proposed rule was 

promulgated before its foundational scientific basis could be examined. We understand 

that the SAB is still conducting its Panel review and its panel members have recently 

expressed their view that the EPA Report will require extensive revisions.

385 Such 

disregard for peer review, which is an essential safeguard for scientific credibility, calls 

into question the agencies' adherence to the Administrative Procedure Act and the rulemaking process. The science analysis and peer review should always precede a 

rulemaking especially where the scientific and legal concepts are inextricably linked. (p. 

5)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study in compendium 13. For additional 

information on the final Connectivity Report and how it was considered in the 

development of today’s rule, please see Compendium 9.

R.D. Primrose (Doc. #18799)

13.560 (...)Implications regarding the Endangered Species Act (ESA}: I express extreme 

concern regarding the additional regulatory and economic burden that will be placed on 

our landowners, businesses and residents in being forced complying with ESA Section 7 

consultation requirements as a result of the Proposed Rule. When the Proposed Rule as 

written is broadly enforced by the EPA and USACE regarding permitting requirements, 

the ensuing federal nexus will require ESA Section 7 consultation across New Mexico for 

normal and customary agricultural and ranching practices that is not required today, as 

there are no agricultural or ranching exemptions contained within the ESA. The 

additional burden and potential ESA take findings will undoubtedly cause irreparable 

 

385 On June 5, 2014 SAB Panel members reviewed and approved a draft SAB report which "recommends a 

substantial number of revisions to improve the clarity of the [EPA] Report, better reflect the scientific evidence, 

provide more quantitative measures, and make the document more useful to decision-makers." SCIENTIFIC 

ADVISORY BOARD, PANEL MEMBER COMMENTS ON THE DRAFT (6-5-14) SAB REVIEW OF THE 

DRAFT EPA REPORT CONNECTIVITY OF STREAMS AND WETLANDS TO DOWNSTREAM WATERS: A 

REVIEW AND SYNTHESIS OF THE SCIENTIFIC EVIDENCE 7 (2014). It further recommends "that EPA 

clearly set forth the definitions used in the Report to be consistent with the definitions proposed for rulemaking and 

that any differences between the regulatory and scientific terminology be explained and described in terms of how it 

may affect interpretation of the conclusions reached." Id at 8.
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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economic harm to landowners and threaten to undermine and potentially eliminate the 

customs and culture of their rural communities. (p. 2)

Agency Response: See section 13.4 summary response for information regarding 

Other Federal Laws in compendium 13.

Anonymous (Doc. #18801)

13.561 (...) 7) Any expansion that could occur as a result of this rule needs to be very specific 

related to each sector of the regulated community and should be reviewed by the affected 

stakeholders. The vagueness of the proposed rule has raised many concerns about 

interpretation and expansion of the Waters of the United States. EPA and USACE has 

communicated that it is not the intention or the spirit of the proposed rule to expand 

jurisdiction. The proposed rule needs modification to place the intent and spirit of the 

EPA and USACE into the proposed rule very clearly so as to eliminate these concerns.

(...) (p. 2)

Agency Response: See summary responses and 13.2.5 for information regarding 

Federalism in compendium 13. For information regarding RFA/SBREFA see 

section 11.1 summary response in compendium 11. 

13.562 (...) 8) Clarification of definitions is greatly needed and overdue. However, in the 

attempt to provide clarification, more confusion has resulted. A sector by sector approach 

is needed. Stakeholders in these sectors need to be more involved in the process of rule 

modification to address the concerns that have been expressed by the various sectors. (p. 

2)

Agency Response: See summary responses and 13.2.5 for information regarding 

Federalism in compendium 13. For information regarding RFA/SBREFA see 

section 11.1 summary response in compendium 11. 

Alcona Conservation District (Doc. #19345)

13.563 We believe the EPA's draft study, "Connectivity of Streams and Wetlands to Downstream 

Waters: A review and Synthesis of the Scientific Evidence" is highly questionable and 

flawed. We question the scientific evidence and timing of this proposal in light of the fact 

that the study was sent to the Science Advisory Board to begin review on the same day it 

was sent to OMB for interagency review. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study in compendium 13. For additional 

information on the final Connectivity Report and how it was considered in the 

development of today’s rule, please see Compendium 9.

City of Morgan City, Louisiana (Doc. #19346)

13.564 As Mayor of the City of Morgan City, I am concerned that this rulemaking was 

developed without sufficient consultation with the states and that the rulemaking could 

impinge upon state authority in water management. As co-regulators of water resources, 

states should be fully consulted and engaged in any process that may affect the 

management of their waters.
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In particular, based on the copy of the proposed rule, I am deeply concerned that the 

Agencies believe that this proposed rule does not have federalism implications and 

therefore do not need to comply with Executive Order 13132. 1 respectfully disagree.

Under the Executive Order, federalism implications include "substantial direct effects on 

the States, on the relationship between the national government and the States, or on the 

distribution of power and responsibilities among the various levels of government."

By changing the definition of "Waters of the United States," the proposed rule will have a 

direct effect on the distribution of power and responsibilities among the various levels of 

government. Currently, there are many waters that are subject to state regulation only. 

However, the proposed rule will significantly expand the scope of federal regulation, 

stripping the States of any governing authority. Given this expansion, I am at a loss to 

identify any water that would not be subject to federal regulation unless specifically 

exempted. Such an expansion in federal jurisdiction would fundamentally alter our ability 

to make decisions regarding the use of land within our borders. Due to the fact that States 

often regulate more waters than are encompassed by the current definition of "waters of 

the United States" it is not clear what benefit the expansion of federal authority is 

designed to achieve. (p. 2)

Agency Response: See summary responses and 13.2.5 for information regarding 

Federalism in compendium 13. 

D. Watson (Doc. #19347)

13.565 Recently, I went to the EPA website looking for information regarding their proposed 

definition of CWA waters. Unfortunately, I was unable to find a map and corresponding 

list showing, designating, and identifying the waters they were referring to. Did I miss a 

link? If not, I feel that the EPA is missing a golden opportunity to clarify their definition 

with actual examples. In hindsight, wasn't this exactly the problem (not enough specific 

information) with the original definition? (p. 2)

Agency Response: As a part of the process to evaluate the indirect costs and 

benefits associated with the proposed rule, the agencies assessed the estimated 

increase in new Clean Water Act permits that could reasonably be expected as a 

result of the proposed regulation. This analysis did not, and could not, quantify the 

potential change in the geographic scope of the CWA. Because the agencies 

generally only conduct jurisdictional determinations at the request of individual 

landowners, we do not have maps depicting the geographic scope of the CWA. Such 

maps do not exist and the costs associated with a national effort to develop them are 

cost prohibitive and would require access to private property across the country. 

The U.S. Geological Survey and the U.S. Fish and Wildlife Service collect 

information on the extent and location of water resources across the country and 

use this information for many non-regulatory purposes, including characterizing the 

national status and trends of wetlands losses. This data is publicly available and 

EPA has relied on USGS and USFWS information to characterize qualitatively the 

location and types of national water resources. This information is depicted on 

maps but not for purposes of quantifying the extent of waters covered under CWA 

regulatory programs.
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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Western States Water Council (Doc. #19349)

13.566 A. Connectivity Report

EPA has indicated that its draft connectivity report will serve to inform the final rule on 

CWA jurisdiction. However, the draft rule’s submission to the Office of Management and 

Budget (OMB) before the finalization of the connectivity report raises concerns that the 

final report will have little or no influence on the final rule. Therefore, the connectivity 

report should be finalized before EPA and the Corps publish the draft jurisdictional rule 

in the Federal Register for public comment.

Additionally, many western states have submitted individual comments for the 

Environmental Protection Agency’s (EPA) Science Advisory Board (SAB) to consider in 

its review of the draft connectivity report. EPA should carefully evaluate the SAB’s 

consideration of these comments and any subsequent recommendations from the final 

report. Waiting until the report is finalized will give EPA more information to consider, 

and may possibly lead to revisions that improve the rule before its publication for public 

comment. (p. 2)

Agency Response: See section 13.1 summary response for information regarding 

concerns about timing/overlap of the science document and review process, SAB 

review of the rule, and the Connectivity Study in compendium 13. For additional 

information on the final Connectivity Report and how it was considered in the 

development of today’s rule, please see Compendium 9.

13.567 F. State Consultation

As noted in the Council’s prior correspondence and meetings with your agencies, the 

western states remain concerned about the process EPA and the Corps are using to 

develop this rule.

In 2011, the Council asked EPA and the Corps to pursue formal rulemaking instead of 

finalizing the now withdrawn guidance. At that time, the Council believed rulemaking, 

unlike guidance, would afford greater opportunities for early and ongoing consultation 

with the states. The Council also believed rulemaking would better ensure the treatment 

However, the submission of a draft rule on CWA jurisdiction to OMB for interagency 

review without any substantive state consultation in the development of the rule raises 

significant concerns that your agencies will use a process that is no better than the one 

they used to develop the draft guidance. In particular, we remain concerned that 

individual states will not have the opportunity to provide substantive feedback until after 

EPA and the Corps have developed a draft rule and published it for public comment in 

the Federal Register.

While we recognize that EPA and the Corps have participated in various meetings and 

calls with the Council and other state organizations to discuss their goals and time lines 

for the rulemaking, such communication cannot take the place of substantive, 

collaborative engagement with the states and their respective water quality agencies on an 

individual basis. In particular, the substantial differences in hydrology, geography, and 

legal frameworks in the West will require significant consultation with each state to 

determine how the draft rule will be implemented in order to avoid misinterpretations and 
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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358

unintended consequences. The potential for unintended consequences further underscores 

the need for EPA and the Corps to avail themselves of the states’ on-the-ground 

knowledge of their unique circumstances by giving as much weight and deference as 

possible to the states’ collective and individual comments, concerns, priorities, and needs.

In sum, EPA and the Corps should not wait until the public comment period to involve 

the states on a collective and individual basis in the development of the draft rule. States 

are co-regulators and are therefore separate and apart from the public. As such, waiting 

until the public comment period to consult with the states, both individually and 

collectively, in the development of the draft rule ignores their role as co-regulators and 

will not allow for meaningful state input or consideration of state concerns. (p. 3 – 4)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism in compendium 13.

M. Sedlock (Doc. #19524)

13.568 Issue 5: Failure to comply with Executive Orders 12866 (1993) and 13563 (2011)

References: FR page 22188, column 1. This proposal would enhance protection for the 

nation’s public health and aquatic resources, and increase CWA program predictability 

and consistency by increasing clarity as to the scope of ‘‘waters of the United States’’ 

protected under the Act.

FR page 22189, column 1. ...the agency’s request comment on alternate approaches to 

determining whether ‘‘other waters’’ are similarly situated and have a ‘‘significant 

nexus’’ to a traditional navigable water, interstate water, or the territorial seas.

FR page 22189, column 1. In particular, the agencies are interested in comments, 

scientific and technical data, caselaw, and other information that would further clarify 

which ‘‘other waters’’ should be considered similarly situated for purposes of a casespecific significant nexus determination.

FR page 22189, column 2. The agencies also solicit comment on whether the legal, 

technical and scientific record would support determining limited specific subcategories 

of waters are similarly situated, or as having a significant nexus sufficient to establish 

jurisdiction.

FR page 22189, column 2. ...the agencies also request comment on determining which 

waters should be determined non-jurisdictional.

FR page 22189, column 2. The agencies seek comment on how inconclusiveness of the 

science relates to the use of case specific determinations. As the science develops, the 

agencies could determine that additional categories of ''other waters'' are similarly 

situated and have a significant nexus and are jurisdictional by rule, or that as a class 

they do not have such a significant nexus and might not be jurisdictional.

FR page 22189, column 2. The agencies pose the questions because of the strong intent 

to provide as much certainty to the regulated public and the regulators as to which 

waters are and are not subject to CWA jurisdiction. These comments on alternate 

approaches will inform the agencies in addition to the comments on the case-specific 

determination proposed in the rule.
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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FR page 22190, column 1. This notice also solicits information and data from the general 

public, the scientific community, and tribal, state and local resource agencies on the 

aquatic resource, implementation, and economic implications of a definition of ''waters 

of the United States'' as described in the proposal. The goal of the agencies is to ensure 

the regulatory definition is consistent with the CWA, as interpreted by the Supreme 

Court, and as supported by science, and to provide maximum clarity to the public, as the 

agencies work to fulfill the CWA's objectives and policy to protect water quality, public 

health, and the environment.

Discussion: Executive Orders 12866 Regulatory Planning and Review (1993) and 13563 

Improving Regulation and Regulatory Review (2011) require that the federal regulatory 

system ensure, among other things, regulations that are consistent, written in plain 

language, and easy to understand. The proposed rule fails on all counts.

The stated purpose of this proposed rule, as evidenced by its title, is to define the “Waters 

of the United States” under the Clean Water Act, and as stated elsewhere (see above 

references), to increase clarity as to the scope of “waters of the United States”. As has 

already been addressed, above, that term does not need to be defined. The CWA and the 

Supreme Court have already very adequately provided a definition. However, the 

proposed rule goes on to request comments that address so many other issues, and in such 

a self-referential and circular manner, that the proposed rule becomes nearly impossible 

to understand.

The Agencies have not published a proposed rule, but rather a request for the public to do 

the Agencies’ own work. Rather than publish a proposed rule that presents definitions of 

terms and alternatives to those definitions in a consistent and easy to understand manner 

for the public to analyze and evaluate, the Agencies have created a rule that goes back 

and forth between confusing definitions scattered throughout the document and soliciting 

additional comments about definitions of terms that are not found anywhere near the 

request for comments. (See Issue 1 above, “bait and switch” discussion).

In the midst of all the confusion, it is difficult to understand precisely how the alleged 

purpose of clarification of scope actually would be achieved by complying with the 

proposed rules requests for comments. In fact, these many requests (only some of which 

are cited, above) are actually extremely loaded questions based on undisclosed 

presumptions meant to limit direct replies to only those that serve the Agencies’ agenda.

Nowhere in the proposed document is it stated, in plain and direct language, that the 

result of defining the terms for the various waters would be that all waters so defined 

would automatically fall within the scope of jurisdictional authority of the Agencies. As 

has been mentioned in several comments prior to this one, this amounts to “mission 

creep”, which is enabled by not complying with the Executive Orders directives on 

regulatory planning.

Recommendation: Withdraw the proposed rule. It is inappropriate and in violation of 

Executive Orders on regulatory planning. (p. 11 – 13)

Agency Response: See section 13.2.2 summary response for information 

regarding Executive Order s for Regulatory Planning (12866) and Review and 

Improving Regulation and Regulatory Review (13563) in compendium 13.
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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13.569 6: Failure to list all supporting documents.

FR page 22188, column 2. All documents in the docket are listed in the http:// 

www.regulations.gov index.

Discussion: FR page 22188, column 1 states that the proposed rule is published “in light 

of” court cases. Column 3 of the same page refers to the SWANCC and Rapanos court 

cases.

The SWANCC and Rapanos decisions are crucially important to understanding the whole 

reason the Agencies contend that the proposed rule is necessary, yet the Agencies have 

not made them available in the docket under “Supporting & Related Material. This is not 

only unfair to the public, but it is also a false statement made in the proposed rule.

Recommendation: Provide links to the SWANCC and Rapanos court cases as well as any 

other caselaw “in light of” their important connection to the proposed rule. (p. 13)

Agency Response: The SWANCC and Rapanos decisions are publicly available.

Alpine County Board of Supervisors, County of Alpine, California (Doc. #20492)

13.570 The rule was developed without proper engagement of local and state governmental 

partners

The CWA identifies state and local governments as partners in enforcing and 

implementing the Act, yet your agencies have proposed a rule that imposes all costs and 

responsibilities on these other partners. In Congressional testimony, the U.S. 

Environmental Protection Agency (EPA) representatives have been unable to name any 

public interests your agencies engaged with during development of the rule, which not 

only violates the spirit of the CWA, but also underscores the inadequate analysis of local 

impacts that will result from this rule. If your agencies decide to move forward with a 

change to the definition of 'Waters of the U.S.," we strongly urge you to redraft the 

proposed rule and fully engage local and state governments in a meaningful process to 

draft the new rule. (p. 3)

Agency Response: See section 13.2.5 summary response for information 

regarding Federalism in compendium 13.

Upper Makefield Board of Supervisors Township, Upper Makefield Township, Bucks County, 

Pennsylvania (Doc. #20494)

13.571 (...) WHEREAS. Upper Makefield Township is also cognizant of the many 

administrative and regulatory burdens placed on local government, and we oppose any 

Federal mandates brought about by this rulemaking action, specifically as addressed 

under the regulatory provisions of Title II of the Unfunded Mandates Reform Act of 1995 

(UMRA), 2 U.S.C. 1531-1538 for state, local or tribal governments or the prívate sector; 

and

WHEREAS, Upper Makefield Township opposes any change to the definition of "Waters 

of the United States" that would directly regulate and affect our Township and serve as an 

Unfunded Mandate for our community; and (...) (p. 1)
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Agency Response: See section 13.2.4 summary response for information 

regarding Unfunded Mandates in compendium 13.

Michigan House of Representatives (Doc. #20504)

13.572 (...) WHEREAS, The proposed rule would create greater uncertainty for businesses and 

homeowners rather than providing clarity. The proposed rule will add new definitions for 

key technical terms that introduce ambiguities and vagaries into federal regulation. 

Confusion will inevitably lead to further litigation, tying up our com1s, delaying 

economic development, and wasting taxpayer money; and (...) (p. 2)

Agency Response: For information regarding RFA/SBREFA see section 11.1 

summary response in compendium 11. 

ATTACHMENTS AND REFERENCES

Comments included above in this document discuss the Proposed Rule, and some include 

citations to various attachments and references, which are listed below. The agencies do not 

respond to the attachments or references themselves, rather the agencies have responded to 

the substantive comments themselves above, as well as in other locations in the 

administrative record for this rule (e.g., the preamble to the final rule, the TSD, the Legal 

Compendium). In doing so, the agencies have responded to the commenters’ reference or 

citation to the report or document listed below as it was used to support the commenters’ 

comment. Relevant comment attachments include the following:

2007 Final Alaska Regional Supplement to the 1987 Wetland Delineation Manual (Doc. 

#7494.1, p. 3) 

http://www.usace.army.mil/Portals/2/docs/civilworks/regulatory/reg_supp/erdc-el_tr-07-

24.pdf

33 C.F.R. 320 (Doc. #8377.1, p. 1)

40 C.F.R. 230 (Doc. #8377.1, p. 1)

A Review of Land and Stream Classifications in Support of Developing a National Ordinary 

High Water Mark (OHWM) Classification (August 2014), 

http://acwc.sdp.sirsi.nelfclient/search/ asset/ l 0360? 6 (Doc. #7981, p. 5)

Administrative Procedure Act. 5 U.S.C. Subchapter II. (Doc. #14624, p. 5)

Agricultural Conservation Flexibility Act of 2014, H.R. 5071, 113 Cong. Sponsored by Rep. 

Reid Ribble (WI). Introduced July 10, 2014. https://www.congress.gov/bill/113thcongress/house-bill/507(Doc. #13024, p.17)

Allen, David et al. Science Advisory Board. Consideration of the Adequacy of the Scientific and 

Technical Basis of the EPA’s proposed rule titled Definition of Waters of the United 

States Under the Clean Water Act. (Doc. #16552, p. 10)

Allen, David T., Amanda D. Rodewald. Science Advisory Board. SAB Review of the Draft EPA 

Report Connectivity of Streams and Wetlands to Downstream Waters: A Review and 

Synthesis of the Scientific Evidence. September 17, 2014. 
Clean Water Rule Response to Comments – Topic 13: Process Concerns and Administrative 

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http://yosemite.epa.gov/sab/sabproduct.nsf/fedrgstr_activites/AF1A28537854F8AB8525

7D74005003D2/$File/EPA-SAB-15-001+unsigned.pdf (Doc. #16552, p. 11)

American Iron & Steel Inst. v. EPA, 568 F.2d 284, 293 (3d Cir. 1977). (Doc. #14115, p. 36)

American Med. Ass'n v. Reno, 57 F.3d 1129, 1132-33 (D.C. Cir. 1995). (Doc. #8674, p. 1)

Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227, 236 (D.C. Cir. 2008). (Doc. #15016, p. 

136)

Associated Fisheries Maine v. Dalq, 127 F.3d 104, 114 (1st Cir. 1997). (Doc. #14751, p. 15)

Belle Company, LLC v. U.S. Army Corps of Engineers, No. 13-30262, slip op. (5th Cir. July 30, 

2014).) (Doc. #14589, p. 9)

BNA. Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. 

U.S. & Carabell v. U.S., 

http://water.epa.gov/lawsregs/guidance/wetlands/upload/2008_12_3_wetlands_CWA_Jur

isdiction_Following_Rapanos120208.pdf (Doc. #14134, p. 8)

Brown Exp., Inc. v. US., 607 F.2d 695,700 (5th Cir. 1979) (Doc. #15376, p. 6)

California Fish & Game Code §§1600-1602(Doc. #16489, p. 27)

California State Water Resources Control Board, Guidance for Regulation of Discharges to 

Isolated Waters, June 25, 2004. (Doc. #16489, p. 28)

Citizens to Preserve Overton Park v. Yolpe, 40 1 U.S. 402, 416 (1971). (Doc. #14751, p. 14)

City of New York v. Permanent Mission of India to United Nations, 618 F.3d 172, 201 (2d 

Cir.2010). (Doc. #15018.1, p. 15)

Committee on Transportation & Infrastructure, Potential Impacts of Proposed Changes to the 

Clean Water Act Jurisdictional Rule, June 11, 2014 

http://transportation.house.gov/calendar/eventsingle.aspx?EventID=378392 (Doc. 

#14992, p. 5)

Connecticut Light & Power Co. v. Nuclear Regulatory Comm'n, 673 F.2d 525, 531 (D.C. Cir. 

1982). (Doc. #8674, p. 2)

Dapolito Dunn, Alexandra and Meghan Boian, Postcards From the Edge: Perspectives to 

Reinvigorate Clean Water Act Cooperative Federalism, Journal of Energy and 

Environmental Law, 2013, 68-79. (Doc. #16552, p. 10)

DiCosmo, Bridget, Inside EPA.com, EPA Appears to Reject SAB Calls to Clarify Controversial

"Waters" Proposal. Aug. 22, 2014. (Doc. #7981, p. 4)

Environmental Council of the States, Delegation by Environmental Act, 

http://www.ecos.org/section/states/enviroactlist. (Doc. #14630, p. 9)

Environmental Council of the States, Clean Water Act: State Delegations, 

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Supplemental References

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