CH A M B E R O F CO M M E R C E
O F T H E
UN I T E D ST A T E S O F AM E R I C A
1615 H ST R E E T, NW WA S H I N G T O N, DC 20062 ( 2 0 2 ) 463-5310
August 13, 2018
VIA ELECTRONIC FILING
Mr. Michael McDavit
Office of Water
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue, NW
Washington, DC 20460
Ms. Stacey Jensen
Regulatory Community of Practice
U.S. Army Corps of Engineers
441 G Street, NW
Washington, DC 20314
RE: Definition of “Waters of the United States” – Recodification of Preexisting Rule, 83
Fed. Reg. 32,227 (July 12, 2018); Docket No. EPA-HQ-OW-2017-0203; FRL-9980-52-
OW
Dear Mr. McDavit and Ms. Jensen:
The U.S. Chamber of Commerce submits these comments in support of the U.S.
Environmental Protection Agency’s (“EPA”) and U.S. Army Corps of Engineers’ (“the Corps;”
collectively, “the Agencies”) supplemental proposal to rescind the 2015 definition of “Waters of the
United States” (“2015 Rule”) and recodify the preexisting regulations and applicable guidance.1
I. Background and 2017 Comments
The definition of “Waters of the United States” (“WOTUS”) is critical to the Chamber and
its members, as many of the Chamber’s members engage in activities that are subject to extensive
permitting requirements under the Clean Water Act (“CWA”). The Chamber has been actively
engaged in WOTUS rulemaking for an extensive period, and filed comments opposing the overly
expansive 2015 Rule after the Agencies first proposed it in 2014.2
1 Definition of “Waters of the United States” – Recodification of Preexisting Rule, 83 Fed. Reg. 32,227 (July 12, 2018)
(to be codified at 33 C.F.R. 328, et al.). 2 See U.S. Chamber of Commerce et al., Comments on Proposed Rule: Definition of “Waters of the United
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Last year, after the start of the new Administration, the Agencies proposed to permanently
repeal the 2015 Rule and recodify the preexisting regulatory language and applicable guidance
(“Initial Proposal”).3 The Chamber and its members filed comments in support of the Agencies’
efforts.4 Specifically, the Chamber stated in its comments that:
The Agencies developed the 2015 Rule inconsistent with the limits that Congress and the
Supreme Court set forth.
The 2015 Rule violates the Constitution and several Federal statutes.
The Agencies deceived stakeholders during the public comment period.
The Agencies relied on misleading economic and scientific data during promulgation of the
2015 Rule.
It is within the Agencies’ authority to rescind the 2015 Rule and recodify the preexisting
regulations and applicable guidance.5
The Agencies are currently in the process of reviewing more than 685,000 comments
received from stakeholders.6
In the time since that comment period closed, the Agencies and the Courts have taken a
number of actions related to the WOTUS rulemaking. In December 2017, the Agencies proposed
and later finalized a rule that postpones the effective date of the 2015 Rule to February 6, 2020 in
order to “maintain the status quo…and thus provide continuity and regulatory certainty for regulated
entities, the States and Tribes, agency staff, and the public while the Agencies continue to work to
consider possible revisions to the 2015 Rule.”7 The Chamber and its members also submitted
comments to the Agencies in support of it on December 13, 2017.8 A number of parties have
subsequently challenged the Agencies’ action in court, and litigation in those cases is ongoing.9
States” Under the Clean Water Act (Nov. 12, 2014), available at
https://www.uschamber.com/sites/default/files/11.12.14-_multi-
organization_comments_to_epa_and_usace_on_proposed_rule_definition_of_waters_of_the_united_states.pdf 3 Definition of “Waters of the United States” – Recodification of Pre-Existing Rules, 82 Fed. Reg. 34,899 (July 27, 2017). 4 See U.S. Chamber of Commerce, Comments on Proposed Rule: Definition of “Waters of the United States” –
Recodification of Pre-Existing Rules (Sept. 25, 2017), available at
https://www.uschamber.com/sites/default/files/9.25.17-
_comments_to_epa_and_usace_on_proposed_repeal_of_2015_wotus_rule-1.pdf. 5 Id. at 4. 6 83 Fed. Reg. at 32,230. 7 Definition of “Waters of the United States” – Addition of an Applicability Date to 2015 Clean Water Rule, 82 Fed.
Reg. 55,542 (Nov. 22, 2017). 8 See U.S. Chamber of Commerce et al., Comments on Proposed Rule: Definition of “Waters of the United States” –
Addition of an Applicability Date to 2015 Clean Water Rule (Dec. 13, 2017), available at
https://www.uschamber.com/sites/default/files/12.13.17-
_comments_to_epa_and_usace_on_addition_of_applicability_date_to_2015_clean_water_rule.pdf. 9 See New York v. Pruitt, No. 1:18-cv-1030 (S.D.N.Y. Feb. 6, 2018); Nat. Res. Def. Council v. EPA, No. 1:18-cv-1048
(S.D.N.Y. Feb. 6, 2018); S.C. Coastal Conservation League v. Pruitt, No. 2:18-cv-330 (D.S.C. Feb. 6, 2018).
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The Supreme Court issued a unanimous decision on January 22, 2018, holding that U.S.
District Courts have original jurisdiction to hear challenges to the 2015 Rule.10 Soon thereafter, the
Sixth Circuit lifted its nationwide stay of the 2015 Rule and dismissed the related petitions for
review.11 Litigation in the district courts has resumed and, in addition to the injunction that the
District Court of North Dakota has issued, the U.S. District Court for the Southern District of
Georgia preliminarily enjoined the 2015 Rule in an additional 11 states.12 Litigation is ongoing in a
number of other challenges.13
The Agencies are now soliciting additional public comments from interested parties on
certain important considerations and reasons for the Agencies’ Initial Proposal for the 2015 Rule.
Some commenters found that the Initial Proposal did not provide them with an adequate
opportunity to comment.14
The Chamber continues to support the Agencies’ current actions, and the below comments
serve to supplement those that the Chamber filed in response to the Initial Proposal.15 Specifically,
the Agencies:
Failed to properly consider the Supreme Court’s decision in SWANCC when
developing the 2015 Rule.16
Included many vague and unclear terms in the 2015 Rule.
Should permanently repeal the 2015 Rule and recodify the preexisting regulations
and applicable guidance.
Should promulgate a reasonable new definition of WOTUS that addresses these
concerns in order to increase regulatory certainty and clarity for stakeholders.
II. The 2015 Rule Contains a Number of Inherent Flaws and the Agencies Should Act
Accordingly
The Agencies should permanently repeal the 2015 Rule and recodify the previous definition
of “waters of the United States,” and applicable agency guidance, until they can construct a rule that
adequately addresses Congress’ intent to protect America’s water resources within the bounds set by
the CWA, Constitution and Supreme Court precedent.
The 2015 Rule contains a number of defects that warrant its repeal. In addition to those
cited in the Chamber’s 2017 comments on the Initial Proposal, the 2015 Rule fails to properly
10 Nat'l Ass'n of Mfrs. v. Dep't of Def., 138 S. Ct. 617, 624 (2018). 11 See In re Dep't of Def. & EPA Final Rule, 713 Fed. App'x 489 (6th Cir. 2018). 12 See Georgia v. Pruitt, No. 15-cv-79 (S.D. Ga.) (Those states are Georgia, Alabama, Florida, Indiana, Kansas, Kentucky,
North Carolina, South Carolina, Utah, West Virginia, and Wisconsin). 13 See Texas v. EPA, No. 3:15-cv-162 (S.D. Tex.); Am. Farm Bureau Fed'n et al. v. EPA, No. 3:15-cv-165 (S.D. Tex.); See,
e.g., States' Supplemental Memorandum in Support of Preliminary Injunction, Ohio v. EPA, No. 2:15-cv-02467 (S.D.
Ohio June 20, 2018). 14 83 Fed. Reg. 32,227. 15 See supra, note 4. 16 Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159, 173 (2001) (“SWANCC”).
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consider the Supreme Court’s decision in SWANCC. Additionally, a number of terms included in
the 2015 Rule are vague and unclear. A notice and comment rulemaking to promulgate a new
definition of WOTUS would provide stakeholders with the needed regulatory certainty and clarity
that the 2015 Rule lacks.
a. The Agencies Failed to Properly Consider SWANCC When Promulgating the
2015 Rule
The 2015 Rule is overly broad and conflicts with the jurisdictional limits set forth by the
Supreme Court. In SWANCC, the Supreme Court found that isolated gravel ponds occupied by
migratory birds were “a far cry…from the ‘navigable waters’ and ‘waters of the United States’” that
the CWA covers.17 The Court reasoned that “the term ‘navigable’ has at least the import of showing
us what Congress had in mind as its authority for enacting the Clean Water Act: its traditional
jurisdiction over waters that were or had been navigable in fact or which could reasonably be so
made.”18 The Court later reaffirmed this decision in Rapanos v. United States.19
As further detailed in a separate multi-association comment letter filed in response to the
supplemental proposal, the Agencies must give the appropriate effect to the term “navigable” and
respect the limits of federal authority that flow from Congress’s explicit choice to preserve and
protect the states’ traditional and primary authority over land and water use.20 Any attempt to
reassert jurisdiction over the SWANCC ponds and comparable water features would violate the
plain text of the CWA and Supreme Court precedent, would impermissibly intrude on the states’
traditional and primary authority over land and water use, and would raise serious constitutional and
federalism questions.
b. The 2015 Rule is Vague and Unclear
The 2015 Rule fails to provide regulators and those subject to regulations with clear
jurisdictional limits and explicit terms and concepts. It leaves affected stakeholders subject to
potentially extreme consequences.21 Indeed, civil penalties under the CWA for unauthorized
discharges into WOTUS can exceed $50,000 per day.22
The Agencies stated that they developed the 2015 Rule in order to provide clarity and
certainty regarding the scope of WOTUS.23 That, however, is not the case. As both petitioners and
17 SWANCC, 531 U.S. at 173. 18 Id. at 172. 19 Rapanos v. United States, 547 U.S. 715 (2006) (“Rapanos”). 20 See American Farm Bureau Federation, et al., Comments on Proposed Rule: Definition of “Waters of the United
States”—Recodification of Preexisting Rule; Supplemental Notice of Proposed Rulemaking (Aug. 13, 2018) (discussing
specifically the effect given to the SWANCC opinion). 21 U.S. Army Corps of Eng'rs v. Hawkes Co., 136 S. Ct. 1807, 1812 (2016); see also Sackett v. EPA, 566 U.S. 120, 132-33
(2012) (Alito, J., concurring) (“[T]he combination of the uncertain reach of the Clean Water Act and the draconian
penalties imposed for the sort of violations alleged in this case still leaves most property owners with little practical
alternative but to dance to the EPA's tune.”). 22 Civil Monetary Penalty Inflation Adjustment Rule, 82 Fed. Reg. 3,633, 3,636 (Jan. 12, 2017). 23 See 80 Fed. Reg. at 37,055.
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public commenters have discussed, the 2015 Rule relies heavily on vague and unclear key terms and
definitions, which hinder the Agencies’ ability to administer WOTUS, create significant confusion,
and fail notify parties as to when certain conduct may violate the law.
For example, stakeholders expressed concern regarding the definition of “tributary” when
the 2015 Rule was initially proposed, yet the Agencies left that definition vague and unnecessarily
expansive when the Agencies finalized the 2015 Rule. There were also issues with terms such as
“impoundments,” “ordinary high water mark,” “floodplain,” and “significant nexus.” Instances
such as these render the 2015 Rule fatally flawed and, as such, the Agencies must act accordingly.
c. The Agencies Must Permanently Repeal the 2015 Rule and Recodify the
Preexisting Regulations and Applicable Guidance
Permanently repealing the 2015 Rule and recodifying the preexisting regulations and
applicable guidance is the best and most efficient option to ensure regulatory certainty and
transparency. While the Agencies have acted to delay the 2015 Rule’s applicability until 2020, the
regulatory text of the rule remains intact in the Code of Federal Regulations (CFR).
A permanent repeal of the 2015 Rule and recodification of the preexisting regulations and
applicable guidance would allow the CFR to reflect current practice and the status quo, which has
been in place for almost two years. This would provide for increased regulatory certainty. In the 43
days between the 2015 Rule’s initial effective date and the Sixth Circuit’s nationwide stay, there were
no enforcement actions under the 2015 Rule in the 37 states where it took effect. In the time since
the Sixth Circuit’s stay and the addition of a new applicability date to the 2015 Rule, over 36,000
approved jurisdictional determinations have been issued pursuant to the preexisting regulations and
applicable agency guidance.24
To that end, leaving portions of or the entire 2015 Rule in place while the Agencies complete
a second rulemaking would result in confusion and inconsistency. Neither revised implementation
guidance nor the extension of the effective date would provide certainty or remove the faulty
regulatory text. Implementation guidance would not cure the 2015 Rule’s numerous defects,
provide certainty, or satisfy the notice and comment requirements of the Administrative Procedure
Act. Additionally, there has been widespread agreement between states, NGOs, and industry that a
new rulemaking is the appropriate course of action necessary to ensure clarity and consistency on
this issue.
d. A New Definition of “Waters of the United States” is the Best Means of
Guaranteeing Regulatory Certainty and Clarity for Stakeholders
The Agencies should promulgate a new definition of WOTUS that clearly and transparently
articulates the jurisdictional limits that the Supreme Court and the CWA established. The
supplemental proposal states that the Agencies plan to conduct a second, separate notice and
24 EPA, Clean Water Act Approved Jurisdictional Determinations, https://watersgeo.epa.gov/cwa/CWA-JDs/ (last
visited August 7, 2018).
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comment rulemaking to propose a new definition of WOTUS after they finalize the full repeal of
the 2015 Rule and recodify the preexisting regulations and applicable guidance.25
This approach is the best course of action. While repealing the 2015 Rule and recodifying
the preexisting regulations and applicable guidance will provide stakeholders with short-term clarity
and regulatory certainty, it is not a sustainable ultimate response. There are many issues with the
pre-existing regulations and applicable guidance that the Agencies should address through a new
rulemaking. The Chamber continues to support such an effort that clearly and reasonably articulates
the limits of federal and delegated state authority under the CWA.
III. Conclusion
The Chamber appreciates the Agencies’ consideration of these comments and urges the
Agencies to repeal the 2015 Rule because it expands authority well beyond the land and waters
included in the Agencies’ statutory authority, ignores important limits set forth by the Supreme
Court, fails to recognize the CWA’s federalism principles, and lacks sufficient clarity and certainty
for both regulators and stakeholders.
The Agencies should finalize this repeal and recodify the preexisting regulations and
applicable guidance in as expeditious and thorough a manner as possible. If you have questions
regarding these comments, please contact me at (202) 463-5558 or at kharbert@uschamber.com.
Sincerely,
Karen A. Harbert
25 83 Fed. Reg. at 32,231.
