The extended public comment period for the US EPA and Army Corp of Engineers’ proposed rule to redefine “waters of the United States” under the Clean Water Act (CWA) expired November 14, 2014. The proposed rule has come under intense scrutiny for its apparent expansion of CWA jurisdiction. US EPA received nearly 500,000 public comments on the proposal during the comment period.
Numerous interested parties submitted comments just ahead of the deadline, including the US Chamber of Commerce and the US EPA Local Government Advisory Committee. The US Chamber of Commerce submitted comments on behalf of 375 groups representing all 50 states from a range of businesses, industries, and commercial interests. “If the proposed rule becomes final, EPA’s revision of the definition of ‘waters of the U.S.’ would expand its regulatory jurisdiction to almost all waters of the U.S., including ditches, ponds, and streams,” said William Kovacs, the US Chamber’s senior vice president for the Environment, Technology and Regulatory Affairs, in a prepared statement. In the statement, Mr. Kovacs further declared: “This rule will have a far-reaching impact and make it even more difficult to create opportunities and jobs in this country. EPA’s actions are just wrong and the U.S. Chamber has brought together organizations from across the country to call for this proposal to be immediately withdrawn.”
The US EPA Local Government Advisory Committee (LGAC), composed of 28 representatives from state, local and tribal governments, completed its six-month review of the rule and presented more than 50 recommendations. Overall, LGAC’s comments centered around concerns regarding the proposal’s lack of clarity regarding definitions, exemptions, implementation, and cost impacts to regulated entities, including governmental entities. LGAC noted local agencies’ skepticism of “[US] EPA’s strong statement that the proposed rule does not change the definition of the Waters of the US,” and stressed the importance that US EPA and the US Army Corps of Engineers “not understate the impact the rule may have on local jurisdictions.”
Not all of the comments have been negative, however. The US EPA Science Advisory Board, as well as the Natural Resources Defense Council and numerous other environmental interest groups submitted comments in support of the proposal with some commenters encouraging even broader reach.
The fate of the proposed rule is unclear at this time. Under the federal Administrative Procedures Act (APA), US EPA must read and address each comment, and can issue a substantially revised rule in response to comments received. The APA does not require an additional public comment period for a revised rule. Politically, the proposal has faced significant opposition from Republican Congressional members, who voted to withhold funding to US EPA for implementation of the rule earlier this year. Legislative attempts to thwart the rule could increase with the incoming Republican-controlled Senate in the next term.