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Comments to EPA and Army Corps of Engineers on Proposed Revised Definition of “Waters of the United States”

The Environmental Protection Agency and Army Corps of Engineers recently proposed a rule to return to the pre-2015 definition of the term “waters of the United States” under the Clean Water Act. We submitted comments encouraging the agencies to more fully elucidate the benefits from the proposed regulation, as the current economic analysis understates the rule's positive environmental effects.

We recommend several changes to how the agencies assess benefits from the proposed regulation. First, we urge the agencies to examine whether federal protections would also have benefits in states that legally define protected waters more broadly than required under the proposed rule. Second, we suggest that the agencies better document benefits that cross state borders, such as certain recreational and existence values. Third, we point out that the agencies method for valuing unique local benefits of wetlands and watersheds may not work well for large states like California and Texas, and propose that they incorporate additional studies to improve the geographical range in their analysis as well as consider using an empirically determined decay function in their model. Fourth, we note that the agencies make a number of assumptions in their analysis without a full explanation, and recommend that they clearly articulate the reasons for their methodological approach. Finally, we encourage the agencies to more fully assess the rule’s potential benefits to waters governed by Sections 311, 401, and 402 of the Clean Water Act.