A newly issued guidance document has the potential to dramatically expand regulation under the Clean Water Act (CWA), going against the express wishes of Congress and the Supreme Court in the process, NAWG said in comments last week to the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers.  



The comments were made in response to a request from the agencies on new guidance regarding how the government will identify waters protected under CWA, which covers the legally vague “waters of the United States”. 


The new definitions in the guidance will impact action under many Clean Water Act regulatory regimes, including what waters will be covered under the National Pollutant Discharge Elimination System (NPDES) permit program, which is poised to expand dramatically this fall if a legislative fix is not achieved for new and duplicative pesticide permitting requirements established by the Sixth Circuit Court.

NAWG’s comments attacked the guidance on both policy and procedural fronts. 



First and foremost, NAWG told the agencies that the guidance document represents a significant rewrite and expansion of existing regulatory guidelines.

Expands jurisdiction beyond limits

Among other things, the guidance expands the agencies’ jurisdiction under CWA beyond the limits set by Congress and the Supreme Court by applying a broadened view of the Court’s significant nexus standard not only to wetlands but also to tributaries and isolated water. 



The guidance allows regulatory decisions to be made based on abstract scientific literature rather than actual analysis of the waters in question.



The guidance expands the universe of waters that will be considered “traditional navigable waters” by including for the first time ever waters that support one-time recreational use. 



It also expands regulation on “intrastate waters,” equating them with traditional navigable waters, and making it easier to find jurisdiction for adjacent wetlands, tributaries and other waters.



And, the guidance creates a completely new concept of allowing for “aggregation” of the contributions of all similar waters within an entire watershed — creating a blanket jurisdictional determination for an entire class of waters within an entire watershed. 



In addition to these severe substantive concerns about the guidance’s regulatory expansion, NAWG also commented vigorously on the agencies’ highly irregular decision to issue guidance saying what the government will do, versus undertaking a full rulemaking process that involves getting public comment on the details and impact of a proposal.



This decision runs contrary to the expressed views of the Supreme Court and the requirements of the Administrative Procedure Act (APA) and ignores requests by agricultural and other stakeholders. 



It also does an end-run around procedures meant to ensure that new regulations are reasonable and rejects all consideration of the cost of the new and expanded CWA regulation the guidance will cause, estimated by EPA to be between $87 million and $171 million without permitting costs or delays taken into consideration. 



NAWG works with state associations across the country and agricultural industry colleagues in Washington on a number of environmental regulatory issues, seeking first and foremost to help agencies including the EPA understand the unique nature of agricultural production.


More on this work and the full comments are available online at www.wheatworld.org/environmentalregulation, under “Statements and Testimony”.