EXCERPT:
Dear Ms. Downing and Mr. Olson:
On May 2, 2011, the U.S. Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (“Corps”) (together, “the agencies”) published a notice of availability of a document entitled “Draft Guidance on Identifying Waters Protected by the Clean Water Act” (“Draft Guidance”). 76 Fed. Reg. 24479 (May 2, 2011). This letter provides the comments of the National Waterways Conference (“NWC”) on the Draft Guidance. NWC has a number of concerns about the Draft Guidance. NWC urges the agencies not to use a process that results in the issuance of guidance. This procedure offers no advantage to the agencies’ efforts to gather information or develop policy, but it imposes a severe disadvantage for permittees who are concerned about the imposition of unlawful permit conditions. A rule making is more appropriate where, as here, the proposal is a significant departure from current law and would substantially impact the regulated community. The Draft Guidance also exceeds the authority provided by Section 404 of the CWA, as interpreted by the Supreme Court. Contrary to Rapanos, it would apply jurisdiction where the nexus to navigable waters is not “significant.” Contrary to SWANCC, it would cover isolated interstate waters. The Draft Guidance signals an unlawful effort to extend federal jurisdiction over groundwater issues, which are properly the subject of state and local regulation.
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