Deidre G. Duncan
Virginia S. Albrecht
Kerry L. McGrath
Hunton & Williams LLP
2200 Pennsylvania Avenue, NW
Washington, DC 20037
Counsel for Coalition
November 13, 2014
The Waters Advocacy Coalition (“WAC” or “Coalition”) writes to provide comments on
the Environmental Protection Agency (“EPA”) and U.S. Army Corps of Engineers (“Corps”)
proposed rule to re-define “waters of the United States” under the Clean Water Act (“CWA” or
“Act”), 79 Fed. Reg. 22,188 (Apr. 21, 2014) (“proposed rule”). In enacting the CWA, Congress
exercised its commerce power over navigation and granted EPA and the Corps (together, the
agencies) very specific, limited powers to regulate navigable waters, defined as “waters of the
United States.” Congress recognized and sought to preserve the States’ traditional and primary
authority over land and water use. For years, the agencies’ regulations and guidance documents
have attempted to expand the definition of “waters of the United States” beyond its constitutional
and statutory limits. On two occasions, in Solid Waste Agency of Northern Cook County v. U.S.
Army Corps of Eng’rs, 531 U.S. 159 (2001) (SWANCC), and Rapanos v. United States, 547 U.S.
715 (2006), the Supreme Court has recognized the Congressional limits placed on CWA
jurisdiction and invalidated the agencies’ sweeping assertions of regulatory authority. Despite
this history, the agencies’ proposed rule ignores the limits and structure that Congress put in
place, as well as the limits recognized by the Supreme Court, and continues the agencies’
practice of overreaching in their assertions of CWA jurisdiction and impinging on the traditional
power of the States to regulate land and water.
As detailed in our comments, the Coalition sets forth numerous concerns with the
proposed rule. Fundamentally, the Coalition asks that the agencies not finalize such a flawed
rule on this important topic. We recommend that the agencies withdraw the proposed rule,
revise the rule in light of these important concerns in coordination with stakeholders, and reissue
a revised proposed rule that is supported by the CWA, judicial precedent, and scientific
Please see the attached comments for the full text.