AGA/Coalition Comments on EPA Draft Guidance on Waters of the United States (July 29, 2011)
On July 29, 2011, AGA and the organizations listed on the cover page of these comments ("Coalition") filed comments in response to the Environmental Protection Agency's and U.S. Army Corps of Engineers' Draft Guidance on Identifying Waters Protected by the Clean Water Act (CWA), 76 Fed. Reg. 24,479 (May 2, 2011). Our comments set forth numerous concerns with the new 2011 Draft Guidance. As a threshold matter, unlike prior guidance documents, which were limited to the section 404 program, the Agencies intend the Draft Guidance to apply to the entire CWA. The members of the Coalition are very concerned that the Draft Guidance and its supporting economic analysis fail to explain, consider, or analyze the implications that this Draft Guidance will have on other important CWA programs, programs that are vital to the proper functioning of the CWA. We believe that applying such broad jurisdictional principles such as the aggregation of all waters in a watershed and the regulation of agricultural, irrigation, and roadside ditches to the entire CWA structure (water quality standards, total maximum daily loads (“TMDLs”), etc.) does not make sense and, at a minimum, should be thought through carefully and with the full benefit and protections of the APA (Administrative Procedure Act). Indeed, the APA was designed to address these types of expansive changes and, in particular, to provide administrative agencies with the input required to avoid unintended consequences.