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Comments of the API, IPAA, the AEPC and AOPL in Response to the Environmental Protection Agency’s and the Army Corps of Engineers’ Proposed Rule to Define “Waters of the United States.”

We believe that the Proposed WOTUS Rule reflects careful consideration of the Agencies’ prior interpretations, the broad guideposts provided by the United States Supreme Court (“Supreme Court” or the “Court”), and a genuine interest in developing an interpretation of WOTUS that is clear, protective of the environment and human health, administrable, and legally sound.  Our comments include a detailed executive summary - with our discussion points and requests outlined in a “table of contents” format.  Additionally, we are pleased to share a recent study commissioned from ERM NC, Inc. (“ERM”) that demonstrates that the benefits of the Proposed WOTUS Rule will exceed its costs under any reasonably foreseeable scenario.

The definition of WOTUS under the CWA matters for several very practical reasons.  From an environmental perspective, a clear definition of WOTUS will allow both the federal and state governments to allocate their limited resources more effectively toward those waters appropriately under their jurisdiction and protection.  From a permitting perspective, additional clarity allows landowners to make more educated decisions about their property, and will likely reduce the number of jurisdictional determinations submitted to the Army Corps (a major source of delay under the current permitting system).  When landowners, regulated entities, and regulators themselves can readily discern the entity with jurisdiction over a waterbody, they can readily take appropriate actions to make sure that the necessary permits are in place.  Faced with jurisdictional uncertainty, important projects—including projects that promote and protect water quality—may be substantially delayed or altogether abandoned.  Additionally, given the significant civil and criminal penalties that can be imposed under the CWA, it is essential that the Act is administered and jurisdiction is asserted in a clear, predictable, and transparent manner.

With great respect for cooperative federalism, the Associations strongly support the Agencies’ framework to “recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution [and] to plan for the development and use (including restoration, preservation, and enhancement) of land and water resources . . . .”   We further agree with the Agencies that the “the line between Federal and State waters is a legal distinction, not a scientific one, that reflect the overall framework and construct of the CWA.”  The Agencies also are clear that the proposed definitions are based on the legal limit of federal jurisdiction.  The Proposed WOTUS Rule is therefore “informed by, though not dictated by, science.”

The Associations applaud the Agencies’ efforts and ask for the Agencies to move toward a final rule and implementation without any further delay. Additionally, the Associations provide comments for the Agencies’ consideration that we believe are aligned with these overall objectives and that provide further consistency and clarity to the WOTUS definition.  The Associations also submit recommended changes to certain proposed definitions and exclusions.

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API, IPAA, the AEPC and AOPL in Response to EPA’s WOTUS Rule

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