This template is the result of discussions among legal and policy experts and is intended to give you general recommendations of key concepts to cover in responding to the Advance Notice of Proposed Rulemaking regarding Clean Water Act jurisdiction. These concepts can be incorporated into your substantive comment letters and illustrated with local examples. The more detailed your letter, the better, but don't feel like your letter has to be long. A short letter is better than no letter at all! Comments are due April 16 and should be directed to:

• Comment on the important role the Clean Water Act has played in cleaning up your state’s waters over the past 30 years (maybe cite the figures for how many more waters are fishable and swim-able now and how much wetlands losses have slowed).
• Note your opposition to the Advance Notice of Proposed Rulemaking and guidance memorandum published in the Federal Register on January 15 (68 Fed. Reg. 1991) and why you or your organization feel this way (what waters, types of waters or functions and values of these waters are especially important to you or your group).
• Include a statement about how this proposal would eliminate all Clean Water Act protections from certain waters in your state, putting all waters in your state at risk of increased pollution and degradation (give an example of a major river or lake - maybe one where a significant investment has been made in cleaning up the waters - that might be impacted by pollution upstream in supposedly "isolated" wetlands or intermittent streams.).

• The SWANCC decision required only the elimination of federal Clean Water Act jurisdiction over isolated, intrastate, non-navigable wetlands and ponds where the only basis for federal regulation was the presence of migratory birds. Since this policy of extending protection based on use by migratory birds was never included in the formal, Clean Water Act rules, no changes to the rules are needed to implement SWANCC.
• The Administration ANPRM and guidance memo suggest a retreat from federal Clean Water Act jurisdiction that goes considerably beyond that required by the SWANCC Supreme Court decision.
• Instead of rulemaking, all that is needed is careful instruction to federal regulators that ensures that the ONLY waters removed from Clean Water Act jurisdiction are those intrastate, non-navigable waters for which the absence of any hydrological, biological or functional connection to other waters has been demonstrated and where the only basis for their regulation is the presence of migratory birds.

• The January 15 guidance memo provides no real guidance to regulators and simply creates new hurdles to finding wetlands jurisdictional while requiring no accountability for decisions where jurisdiction is declined.
• The guidance goes far beyond proper implementation of the SWANCC decision. It questions jurisdiction for any "isolated" water and directs staff to immediately stop asserting jurisdiction over so-called "isolated" waters based on their use as habitat for endangered species or to irrigate crops. Existing grounds for Clean Water Act protection were not invalidated by the Supreme Court.
• The guidance should include a presumption that all waters that have been protected by Clean Water Act jurisdiction for the last three decades remain jurisdictional unless site-specific evidence can be provided that there is no basis for federal jurisdiction under the existing statute and regulations.
• A revised and narrowed Corps/EPA guidance should also require DOCUMENTATION clearly identifying all connections to waters, wildlife, and commerce and PUBLIC REPORTING of "no jurisdiction" determinations.

• Loss of unique and valuable isolated wetlands (provide an estimate of the extent of potentially affected waters if this is available and/or characterize the types of waters potentially affected and their functions and values).
• Potential loss of headwater streams and their adjacent wetlands (provide an estimate of intermittent/ephemeral streams in your state if available and talk about how important these are to maintaining healthy watersheds and wildlife species).
• Increased chemical pollution in headwaters and adjacent wetlands and downstream waters.
• Increased flooding in downstream waters and floodplains (are flooding statistics available for your area or state that you could include?).
• Increased costs to repair and replace flood-damaged homes, businesses, and infrastructure (any economic statistics available?).
• Reductions in groundwater recharge and the quality and quantity of aquifer water supplies.
• Increased costs to treat drinking water supplies (any estimates available of how much treatment costs might increase?).
• Declines in wildlife diversity and productivity associated with degraded and destroyed aquatic habitat.
• Declines in revenue and quality of life due to the loss of recreational and commercial opportunities associated with fish, wildlife, and wetland diversity and productivity (wildlife recreation-associated cost estimates?).

• The term "isolated" is not used anywhere in the Clean Water Act.
• Almost no headwater streams, wetlands, and small ponds that do not have an obvious or year-round surface water connection with other waters are really "isolated." They serve as integral parts of watersheds, performing essential functions affecting the health of water systems. There is abundant scientific evidence that pollution dumped into the upper reaches of watersheds not only damages and destroys those waters, but ends up harming lakes, rivers and coastal waters downstream as well.

• Hydrologic Connections - surface and subsurface (including through man-made conveyances such as culverts, dams, canals, channelization, etc), groundwater, drainage connections, overflow and flooding connections, etc. These connections should not be considered severed by man-made levees, berms, roads, etc.
• Wildlife Connections -- endangered species, waterfowl, other wetland-dependent bird species, amphibians, reptiles, etc. While the Supreme Court held that use by migratory birds alone is not sufficient to establish jurisdiction, combined with other factors, even use by migratory birds could contribute to establishing jurisdiction over a water.
• Economic, other connections/commerce clause connections (e.g. tourism and recreation, industrial use).

• Lack of legal authority and/or regulations (if your state does not have a program) for controlling discharges and/or dredge or fill activities in waters likely to lose protection under rulemaking.
• Gaps or loopholes in state authority - weaker than federal Clean Water Act.

• No provisions for public involvement, citizen suits, etc.
• Waivers for certain types, sizes or geographical locations of waters.
• Waivers for certain activities or industries that are not exempted in the Clean Water Act.
• No, or limited meaningful mitigation provisions for dredge or fill activities.
• State "No More Stringent Than" laws that prevent or impeded state environmental or clean water regulations that are more stringent than federal law (at least 20 states have laws or regulations that forbid or create a higher standard for state environmental quality rules that are stronger than federal rules, so if federal Clean Water Act jurisdiction is restricted, it may affect laws in those states as well.)

• Lack of resources to take a bigger role in protecting state waters.
• Neighboring states have weaker or no programs and their waters flow into your state’s waters.
• Some of your state’s wildlife resources are shared with states with weaker programs or no programs.

• Swampbuster, which requires farmers that receive federal subsidies to refrain from draining wetlands on their property, is very poorly enforced, only applies to farmers who get subsidies, and does not include protection from point source discharges of pollutants.
• The Wetland Reserve Program and several other farm bill programs, help farmers to restore wetlands previously drained for agriculture. While these programs have enabled farmers to restore over one million acres of wetlands, it would have been far cheaper and environmentally preferable if these wetlands had never been converted in the first place.
• Other state, private acquisition, voluntary programs provide some funding for wetland restoration, but they have focussed principally on larger, deeper-water wetland systems, not the unique, diverse wetlands most at risk due to this rulemaking.
• Despite all the existing acquisition, restoration and management programs, the National Wetlands Inventory found that the nation was still losing over 60,000 acres of wetlands a year (prior to the SWANCC decision), a figure many believe is a gross underestimate.
• Are there any (even inadequate) non-regulatory programs to protect streams and ponds? Or to limits discharges of toxic and other industrial wastewater and other pollutants?

8. Closing Statements

• The Administration's pronouncements ignore the basic scientific premise - long-established in legislative history, Supreme Court precedent, and federal agency policy -- that water moves in hydrologic cycles and the pollution of one part of the aquatic system will affect the chemical, physical, and biological functioning of other waters within that aquatic system.
• Congress envisioned a federal/state partnership in cleaning up and protecting our nation’s waters. Our state is not able to, nor do we want it to "go it alone."
• The Clean Water Act is a 30-year success story. This is no time to retreat from federal Clean Water Act protections.

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