Association of State Wetland Managers - Protecting the Nation's Wetlands.

The Compleat Wetlander: Make a Difference Commenting on the Draft CWA Guidance

A public comment period is an opportunity for people to weigh in and provide ideas about what is right or wrong about a proposal—whether it is a project, a rule or guidance.   At the end of April, the Obama Administration issued “Draft Guidance on Waters Protected by the Clean Water Act.” http://water.epa.gov/lawsregs/guidance/wetlands/upload/wous_guidance_4-2011.pdf. The public has until July 1, 2011 to review the guidance and make recommendations.

Public comment periods are taken seriously by the government.  The U.S. Army Corps of Engineers and U.S. Environmental Protection Agency fully expect 100,000 on the draft Clean Water Act guidance.  They are required to review and weigh these comments and make appropriate changes to the guidance.  They are also required to explain why they adopted some changes and declined to incorporate others.

One thing they cannot do is add new ideas of their own.  Any changes that occur as a result of a public comment period must be based on ideas and recommendations submitted by the public.

If the comments submitted follow previous patterns, the great majority of the comments will be from write-in campaigns that support or oppose the guidance.  These are duly tabulated and they do serve to provide useful information about public opinion, but they generally do not provide the agencies with concrete suggestions on specific changes that are needed.  Nor are they backed up with citations to scientific research or other.  There will also be comments that do make specific recommendations and cite supporting documentation.  These will be analyzed for their content and it is from these comments that any changes will be derived.

What comments are most likely to be useful?

First, it is important to read and understand the guidance before developing comments.  This may sound like common sense, but it is no easy task to wade through a long document and understand it perfectly.  Comments recommending changes that do not reflect what is in the guidance, will have little weight.

The draft Clean Water Act jurisdiction guidance contains an introduction, eight sections, and an appendix.  One strategy for developing comments is to take a look at each part and considerthe following.

Does the reviewer agree with the section?

  • If not, why, and is there data in the form of scientific studies, economic reports, legal analyses or other information that the reviewer can provide
  • If so, why, and is there data in the form of scientific studies, economic reports, legal analyses or other information that the reviewer can provide

The agencies have undertaken extensive reviews of available information, which are documented in the appendix and endnotes.  Much of what is available to the agencies is in peer-reviewed publications.  Practitioners in the field also work extensively with what is called “grey literature” including procedures and studies used in administering wetland or stream programs, conducting field investigations, etc.  Submission of grey literature and other information that was not used in developing the guidance can further inform the agencies.

Sections 4, 6 and 7 of the guidance are likely to receive a great deal of attention.  Section 4 covers tributaries and discusses how the agencies will identify tributaries including physical characteristics, flow characteristics and consideration of ditches, manmade features and other relevant information.  Many states have been working independently to create methodologies for identifying streams that may be useful to describe.  Some streams run throughout the year (perennial).  Others flow only part of the year.  Stream identification methods, documentation of upstream/downstream connections, economic considerations and other related information could be submitted on this section.

Section 6 covers ‘Other Waters’ which is largely isolated waters.  It is divided into two categories.  The first is nonwetlands which are close to jurisdictional waters, for example oxbow lakes.  These are subject to the same analysis as adjacent wetlands in Section 5.

However, isolated waters (those not close to jurisdictional waters such as streams and rivers) are treated differently from all other waters described in the guidance and it will be much harder to assert jurisdiction for isolated wetlands such as playa lakes and prairie potholes.

This is because for all other waters the guidance allows the agencies to declare similar waters in a watershed jurisdictional if they collectively meet the significant nexus test.  However this approach cannot be used for isolated wetlands.  Isolated wetland must be considered individually and must meet the significant nexus test on a case-by-case basis.

These waters, (an estimated 20 million acres of wetlands) have not been identified as subject to Clean Water Act jurisdiction since the SWANCC Supreme Court decision in 2001, which eliminated the “migratory bird rule” that allowed the U.S. Army Corps to assert jurisdiction if a water was used by migratory birds.  Documentation of contributions isolated waters make to jurisdictional waters such as biological connections, flood retention or other functions could be submitted on this section.  This information is still useful.

Section 7 addresses waters that are generally not jurisdictional.  This is a list of waters that are not and have never been subject to Clean Water Act jurisdiction including artificial and man-made ponds and ditches, sewer systems and erosional features such as gullies and rills.  Sometimes it is not easy to determine which waters should fall into this category.  Information on what waters should not be jurisdictional as well as the information that can be used to identify them could be submitted for this section.

The federal agencies spent considerable time developing the draft guidance.  But there may be important information that was not identified and considered.  Now there is an important opportunity to improve the guidance by identifying where the agencies got it right and why, where they did not and why, and how to fix it.

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2 Responses to The Compleat Wetlander: Make a Difference Commenting on the Draft CWA Guidance

  1. John C. Bender says:

    All I’ve heard about the subject is the claim the new act contains a Federal “power grab” that would allegedly expand jurisdiction over most waters in the nation. Not a techspert, I’m usure what to make of this.

  2. Jeanne Christie says:

    It is tough for anyone, even a ‘techspert’ to wade through 40+ pages of guidance. But guidance cannot change what is in rules or legislation or decisions handed down by the court. It can only interpret those things. That is what this guidance attempts to do. It would replace existing guidance http://www.usace.army.mil/CECW/Documents/cecwo/reg/cwa_guide/cwa_juris_2dec08.pdf The result would be to identify more small streams as jurisdictional than the older guidance. But an estimated 20 million acres of wetlands would remain not subject to the Clean Water Act as they have been since a Supreme Court decision (SWANNC) in 2001.

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