NWC Submits Comments on Waters of the U.S. Rulemaking
NWC submitted comments to the Environmental Protection Agency and the Army Corps of Engineers in response to their proposed rule to expand the jurisdiction of “waters of the United States” under the Clean Water Act.
NWC urges the agencies not to finalize the rule as proposed. As explained in the comments, the agencies’ proposal misconstrues the “significant nexus” test articulated in Justice Kennedy’s concurring opinion in Rapanos in a manner that impermissibly expands CWA jurisdiction. The Proposed Rule contains sweeping and vague definitions of “adjacent,” “tributary,” and other terms. In these and other ways, the proposal creates new, overbroad categories of jurisdictional areas that lack a significant nexus to traditionally navigable waters. In so doing, the proposal violates the law as established by Rapanos. The agencies also have greatly underestimated the costs that will be associated with their Proposed Rule. 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.
NWC’s comments can be viewed here: NWC-WOTUS NOPR 11-10-2014 (100KB)