General Guidance on Responding to the
Advanced Notice of Proposed Rulemaking

Following publication of the Advanced Notice of Proposed Rulemaking on the Clean Water Act definition of “Waters of the United States” - January 10, 2003, the Association of State Wetland Managers prepared the following guidance to assist states and other interested parties in their efforts to provide substantive comments in response to the ANPRM.

A copy of the Advanced Notice of Proposed Rule Making, the extension of the comment period to April 16, Legal Background materials including the Supreme Court decision, and studies assessing the potential impact of SWANCC can be found at: http://www.epa.gov/owow/wetlands/swanccnav.html.

Comments can be submitted or viewed electronically (Docket ID NO. OW-2002-0050) at: http://www.epa.gov/edocket.

The following information is solicited in the ANPRM to help the Corps and EPA assess the potential extent of resource impacts to isolated, intrastate, non-navigable waters

Ø Information regarding the functions and values of wetland and other waters that may be affected by issues discussed in ANPRM.

Ø Data and information on the availability and effectiveness of other Federal or State programs for the protection of aquatic resources, and on the functions and values of wetlands and other waters that may be affected by the issues discussed in this ANPRM.

Ø      Data and comments from State and local agencies on the effect of no longer asserting jurisdiction over some of the waters (and discharges to those waters) in a watershed on the implementation of Total Maximum Daily Loads (TMDLs) and attainment of water quality standards.

The ANPRM asks two questions:

1. Whether, and, if so, under what circumstances, the factors listed in 33 CFR 328.3(a)(3)(i)–(iii) (i.e., use of the water by interstate or foreign travelers for recreational or other purposes, the presence of fish or shellfish that could be taken and sold in interstate commerce, the use of the water for industrial purposes by industries in interstate commerce) or any other factors provide a basis for determining CWA jurisdiction over isolated, intrastate, non-navigable waters?

2. Whether the regulations should define ‘‘isolated waters,’’ and if so, what factors should be considered in determining whether water is or is not isolated for jurisdictional purposes?

In order to answer the questions posed in the ANPRM, ASWM is recommending states and other interested parties focus comments in the following areas addressing the items above as well as some additional areas.  In all cases is it important to document any underlying assumptions used to develop information submitted.

1. Documentation of area and extent of wetlands/waters that may be lost (that are isolated, intrastate, non-navigable) through geographic information system (GIS) analysis and database overlays.   Detailed information on analysis can be found in Using Geographic Information System Technology to Estimate the Vulnerability of Wetlands and Other Waters in the Wake of the SWANCC Decision.  ASWM is recommending analysis of scenarios that not only addresses isolated waters, but also the potential exclusion of tributaries.  While this is not specifically addressed in the ANPRM, there have been rumors that outside interest groups as well as individuals within the Administration have supported more extensive reductions in Clean Water Act jurisdiction, either alleging or assuming that these larger reductions in jurisdiction either don’t entail many waters and/or won’t have much of an impact.  Therefore, we believe future deliberations will benefit from quantitative and qualitative analysis of the resources.  

2. Documentation of importance of areas potentially eliminated.  These can include:
   
   Ø     Databases that can be used to evaluate importance of areas potentially excluded from CWA jurisdiction by overlaying: point source discharges, drinking water intakes, drinking water source water, wildlife habitat, oil spill sites, flood attenuation, on GIS maps of wetlands and isolated waters potentially excluded.  See document: Using Geographic Information System Techniques to Estimate the Vulnerability of Wetlands and Other Waters in the Wake of the SWANCC Decision.
   Ø      Documenting specific functions and/or values provided by isolated waters.
   Ø      Identifying the economic importance of the resource.
   Ø      Quantifying the increase costs to communities to replace functions and values lost, including threats to human health and safety.
   Ø       Describing potential degradation of other resources such as drinking water, wildlife populations, floodwater retention, increased streambank erosion.
   Ø      Linking the importance of isolated waters to other resources in the area including navigable waters.
   Ø      Evaluating impact on attainment of water quality standards and TMDL’s for waters—identify to what extent the waters affected might continue to be under CWA jurisdiction.

Please be specific in providing source of information and where possible provide an actual copy of the data reports, etc., either electronically or in hard copy.  This is particularly important if the data is part of the grey literature and therefore difficult to locate.  If it is a published article either provide a copy/web link a complete citation of the study so that it can be located.  Information on the various ways to submit information is included in the ANRPM.

3. Vulnerability of areas eliminated to conversion and/or degradation:
   
   Ø      Documentation of wetland losses
   Ø      Number and types of 404, 402 or other permits issued for resource
   Ø      Role of Swampbuster or other federal programs in limiting conversions
   Ø       Ability of voluntary wetland restoration programs to offset losses
   Ø       Documented success or failure related to compensatory mitigation and ability to replace functions and values of wetlands at risk
   Ø      Documentation of current or planned changes in land uses/land use practices affecting wetlands/water resources
   Ø      Ability of state, tribal or local programs to protect areas lost from CWA

Based on the analysis above it would be useful to provide input on criteria or information that should or alternatively should not be used to delineate between isolated waters and those that continue to be included in CWA jurisdiction.

4. Examples
   
   Ø      Use of Ordinary High Water Mark or the absence thereof to identify the extent of upstream jurisdiction
   Ø       Use of underground conveyances as an indicator of the extent of jurisdiction upstream
   Ø      Reliability and accuracy of NWI, topo maps, soil maps, etc. for off site delineation
   Ø       Criteria for making determinations to define adjacency, tributary, and significant nexus

For additional analysis setting priorities review: Further Guidance on Prioritizing Comment on the ANPRM from States and Other Interested Groups.

For guidance on application of Geographic Information Systems review: Using Geographic Information System Technology to Estimate the Vulnerability of Wetlands and Other Waters in the Wake of the SWANCC Decision. 

The discussion above provides information on how to analyze and document the potential extent and consequences of changes to Clean Water Act Jurisdiction under different potential scenarios.  It does not provide recommendations regarding the answers to the questions posed in the ANPRM.  However, Position Paper on Clean Water Act Jurisdiction Determinations Pursuant to the Supreme Court's January 9, 2001 Decision, Solid Waste of Northern Cook County v. United States Army Corps of Engineers (SWANCC) may be useful.  It was forwarded to EPA and has been posted on the ASWM website since December 2001.  It provides recommendations on steps the EPA should take to clarify CWA jurisdiction.