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Arizona Chambers Sign On to Oppose EPA's Proposed Rule to Redefine "Waters of the US" Under the Clean Waters Act

November 14, 2014

Donna Downing Jurisdiction Team Leader, Wetlands Division U.S. Environmental Protection Agency Water Docket, Room 2822T 1200 Pennsylvania Avenue NW Washington, DC 20460

Stacey Jensen Regulatory Community of Practice U.S. Army Corps of Engineers 441 G Street NW Washington, DC 20314

Re: U.S. EPA and U.S. Army Corps of Engineers Proposed Rule on Definition of "Waters of the United States” Under the Clean Water Act," Docket No. EPA-HQ~OW-2011-0880

Dear Ms. Downing and Ms. Jensen:

The undersigned organizations represent Arizona’s job creators and business leaders, and we write to express our opposition to the proposed rule by the Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (“Corps”) regarding Definition of Waters of the U.S. Under the Clean Water Act, Docket No. EPA-HQ-OW-2011-0880. (“proposed rule”). The proposed rule would amend the definition of "waters of the United States" under the Clean Water Act and expand the range of waters that fall under federal jurisdiction.

As Arizona’s business leaders and job creators, we understand the importance of ensuring a safe water supply, and we certainly believe that regulation of the nation's waterways must be done in a manner that responsibly protects the environment. We want to ensure Arizona has both the quality and quantity of water necessary for our state to continue to grow and prosper and we sincerely appreciate the EPA and the Corps’ attempt to provide clarity to the definition of “waters of the United States.” However, this must be done in a manner that does not impose massive costs on local governments and small businesses, and in a way that respects the unique needs and geographical characteristics of the individual states.

We are concerned that the EPA cannot factually certify that the proposed rule would not impose a major economic impact on a substantial number of small governments, organizations, and businesses, when the rule would subject vast areas to federal jurisdiction under the Clean Water Act for the first time. Despite the obvious additional burdens, the U.S. Chamber has raised additional concerns that EPA didn’t gather feedback from small businesses and communities who would be affected by the regulations as required by the Regulatory Flexibility Act. The EPA simply deemed that the proposed rule will “not have a significant economic impact” on them.

Perhaps our greatest concern with the proposed rule is the failure of the EPA and the Corps to engage important stakeholders in the individual states — like farmers, ranchers, homebuilders, industry and local government representatives – in the development of a rule that has the potential to directly and negatively impact their work environments and constituencies.

For example, under the proposed rule, Arizona’s canal systems, drainage systems, ditches and private property could be subject to federal government control and frustrate Arizona’s local governments’ and tribes’ abilities to manage water allocation and usage efficiently.  According to a recent economic analysis, our system of canals is responsible for more than 30 percent of Arizona’s gross state product. To propose a rule that could, even hypothetically, bring one-third of Arizona’s economic engine under federal jurisdiction without consulting the appropriate stakeholders is unconscionable.

Water is a precious resource and is particularly important in the West because of its scarcity. In Arizona, we are proud of our innovative, collaborative water management that has allowed our state to grow and prosper while providing a safe, sufficient water supply. We are concerned about the proposed rule’s potential to interfere with this, and are deeply troubled by the EPA and the Corps’ failure to engage Arizona stakeholders to address our distinctive needs and concerns.

The proposed rule also improperly attempts to extend federal jurisdiction to all tributaries to traditional navigable waters, including all ephemeral tributaries (i.e., tributaries that flow only in response to storm events).  The proposed expansion of federal jurisdiction to all ephemeral features in Arizona’s desert lands is not supported by science and clearly exceeds the EPA and Corps’ authority under the Clean Water Act. 

The science underlying this proposal was developed in Eastern states that receive far more rain and is simply not applicable to the arid West, where hydrologic drainage conditions are very different.  The proposal to extend jurisdiction to all ephemeral tributaries no matter how small or remote from traditional navigable waters would have a disproportionate impact on states such as Arizona that have vast areas of desert lands characterized by sparse vegetation, highly erodible soils, and infrequent, but high intensity, rain events.  These conditions result in numerous erosional features, such as small dry desert washes and arroyos that crisscross the desert landscape.   Although these erosional features would seldom if ever contribute flow to a traditional navigable water, the proposed rule appears to suggest that the mere presence of bed and banks and ordinary high water mark is sufficient evidence of flow to extend jurisdiction to even ephemeral drainage features in arid landscapes.

The use of the ordinary high water mark concept to define what waters may be subject to jurisdiction is problematic as applied to arid landscapes.  What may be considered as an “ordinary” high water mark on ephemeral drainage features in the arid West may, in many instances, have been formed by a single storm event and does not relate in any way to where water may flow in the future.  Indeed, the Corps’ own research demonstrates that the presence of an “ordinary” high water mark in arid landscapes has no relationship to present or future flows.  Thus, rather than being an indicator of ordinary conditions or potential flows—as is the case in more humid environments—the “ordinary” high water mark will result in a broad regulatory overreach when used to define “waters” in the arid West.

Although the proposed rule seeks to regulate ephemeral tributaries while exempting “gullies” and “rills” the rule proposes to distinguish between regulated tributaries and exempt gullies and rills using the presence of an ordinary high water mark.  This is an unworkable and improper method for attempting to distinguish between jurisdictional and non-jurisdictional waters in the arid West.

On behalf of Arizona’s business community, we urge you to reject the proposed rule to modify the definition of “water of the United States” under the Clean Water Act for the reasons set forth above. EPA and the Corps should not move forward on any subsequent proposal until they have fully engaged Arizona’s stakeholders to fully understand and address our distinctive concerns and conditions, including our canal systems and ephemeral erosional features, such as dry desert washes and arroyos.  We appreciate the opportunity to comment.


Apache County Chambers of Commerce Arizona Association of REALTORS Arizona Chamber of Commerce and Industry Arizona Chapter of NAIOP Arizona Cotton Growers Association Arizona Farm Bureau Federation Arizona Manufacturers Council Arizona Rock Products Association Arizona Small Business Association Buckeye Valley Chamber of Commerce Chandler Chamber of Commerce Cottonwood Chamber of Commerce Gilbert Chamber of Commerce Fountain Hills Chamber of Commerce Greater Casa Grande Chamber of Commerce Greater Flagstaff Chamber of Commerce Greater Oro Valley Chamber of Commerce Greater Phoenix Chamber of Commerce Greater Phoenix Leadership Green Valley Sahuarita Chamber of Commerce Kingman Area Chamber of Commerce Lake Havasu Area Chamber of Commerce Marana Chamber of Commerce Nogales-Santa Cruz County Chamber of Commerce Scottsdale Area Chamber of Commerce Sierra Vista Hispanic Chamber of Commerce Springerville-Eager Regional Chamber of Commerce Tempe Chamber of Commerce Tucson Hispanic Chamber of Commerce Tucson Metro Chamber of Commerce Western Growers Wickenburg Chamber of Commerce Yuma County Chamber of Commerce