Policy Documents

The National Association of Wetland Managers (NAWM) actively monitors many issues of concern to our members and provides comments on proposed policies and other actions when appropriate. Below are NAWM comment letters and other input, organized by topic:

           
     
     

Definition of “Waters of the United States” (WOTUS)

June 17, 2022 
NAWM Helps Provide State-Tribal Perspectives on WOTUS to the U.S. Supreme Court in Sackett

NAWM joined with other water resource management organizations and filed an amicus (“friend of the Court”) brief in the Sackett case currently before the U.S. Supreme Court, to provide a state and tribal water resource management perspective on issues before the Court. To read the amicus brief, click here. In Sackett, the Supreme Court is deciding whether the Ninth Circuit Court of Appeals and the Environmental Protection Agency were correct when they used Kennedy’s “significant nexus” standard to conclude that wetlands on the Sackett’s Idaho property were jurisdictional. Oral arguments are scheduled for the first day of their 2022-23 Term, on Monday October 3, 2022, with a decision anticipated in the spring of 2023. All briefs and other documents in the Sackett case can be found at Search - Supreme Court of the United States.

February 13, 2022 
ASWM Comments on Revised Definition of "WOTUS"

The National Association of Wetland Managers (NAWM, formerly the Association of State Wetland Managers (ASWM)) submitted comments in response to the proposed rule, “Revised Definition of ‘Waters of the United States’,” EPA-HQ-OW-2021-0602. The NAWM letter addresses the following key issue areas: 1) importance of working with states and tribes to define WOTUS; 2) importance of a durable regulatory definition of WOTUS; 3) importance of proceeding to Rule 2; 4) environmental justice concerns; 5) need to consider climate change; 6) waters included in the definition of WOTUS; 7) WOTUS tools and implementation issues; and 8) considerations for Rule 2. The full comment letter can be found here.

October 4, 2021 –
ASWM Submits re-Proposal Comments on WOTUS

ASWM submitted comments in response to the request from the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers for written feedback as the agencies revise the definition of “waters of the United States” (WOTUS), and as part of federalism discussions. The full comment letter can be read here.

February 15, 2019 –
ASWM Submits Comment Letter on Revised Definition of Waters of the U.S.

ASWM submitted its comment letter to the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers on February 15, 2019, in response to the proposed new definition of Waters of the U.S. ASWM views the proposed rule as being of paramount importance in maintaining the gains in water quality protection and management that have been achieved under the Clean Water Act (CWA) during past decades. ASWM’s comments address multiple areas of concern, including the impact of the proposed rule on the balance of state and federal authorities; the potential ecological impact of the proposed rule and the related impact on public health and well-being; the practicality of implementing the proposed rule at both the national level, and the state level in cooperation with federal agency programs, and the resulting impact on state agencies; and the legal and scientific justification for modification of the scope of the CWA as it has been administered since 1972. The letter can be read here.

February 14, 2019 –
ASWM Joins WOTUS Comment Period Extension Request

The Association of State Wetland Managers (ASWM), the Association of Clean Water Administrators (ACWA) and the Environmental Council of States (ECOS) requested a 60-day extension to the comment period for the revised definition of Waters of the United States. The proposed rule was published in the Federal Register on Feb.14th and can be read here. The extension request from ASWM, ACWA and ECOS can be read here.

August 18, 2018 –
ASWM Comments on the Supplemental Notice of Proposed Rulemaking: “Definition of Waters of the United States” – Recodification of Pre-existing Rule

ASWM provided comments in response to the Federal Register Supplemental Notice of Proposed Rulemaking regarding definition of “Waters of the United States” – recodification of preexisting rule. ASWM’s comments question the basis for the repeal of the 2015 Clean Water Rule and highlight the potentially significant impacts and consequences of a Scalia-based rule among other concerns. Read the letter here.

December 13, 2017 –
ASWM Comments on Proposal to Amend the Effective Date of the 2015 Clean Water Rule

ASWM responded to the rule proposed by the U.S. Environmental Protection Agency and the Department of Army that would change the effective date of the 2015 Clean Water Rule from August of 2015 to two years after the rule proposed to accomplish this is finalized. Click here to read the ASWM Cover Letter and Attachment

November 28, 2017 –
ASWM Comments in Response to Outreach Request on CWA Jurisdiction Step 2 Rulemaking

ASWM responded to the request for recommendations on a revised definition of ‘waters of the United States’ as the U.S. Environmental Protection and Department of Army’s initiate rulemaking as called for by the Presidential Executive Order on "Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the 'Waters of the United States' Rule." The Executive Order directed the agencies to “consider interpreting the term "navigable waters," as defined in 33 U.S.C. 1362(7), in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006).” The agencies have previously completed a comment period on a proposal to rescind the 2015 CWA jurisdiction rule (Step 1) and were requesting public input on developing a new rule consistent with the Scalia opinion (Step 2). Click here to read the ASWM Cover Letter and Attachment

September 11, 2017 –
ASWM Comments on Proposal to Rescind the 2015 Clean Water Rule

The Association of State Wetland Managers has responded to the request for comments on the rule proposed by the U.S. Environmental Protecting Agency and the Department of Army to rescind the 2015 Clean Water Rule and replace it with the regulations and guidance that were previously in place. Click here to read the ASWM Cover letter and Attachment

Section 401 Water Quality Certification

August 8, 2022 
ASWM Comments on the Proposed Section 401 Certification Improvement Rule

On June 9, 2022, the Environmental Protection Agency (EPA) proposed the Clean Water Act Section 401 Water Quality Certification Improvement Rule. NAWM commented on the EPA proposed section 401 rule. NAWM believes section 401 is a powerful authority granted by Congress to states and authorized tribes, and welcomed the proposed rule that acknowledges state authority and cooperative federalism. The sixty-day comment period closed on August 8, and as of August 6 the docket at regulations.gov recorded 2,493 public comments received on the proposal. See NAWM’s comment letter. To view the proposal and the full range of comments received, visit the docket at Regulations.gov.

July 30, 2021 
ASWM Pre-Proposal Comments on Clean Water Act Section 401

The Association of State Wetland Managers (ASWM) submitted comments in response to the U.S. Environmental Protection Agency’s (EPA) Federal Register Notice of Intention to Reconsider and Revise the Clean Water Act Section 401 Certification Rule (Docket # EPA-HQ-OW-2021-0302). ASWM strongly supports EPA’s intention to revise those regulations and submitted a comment letter to assist in development of a proposed rule. The comment letter can be read here.

November 27, 2019 –
ASWM Submits Comments on S. 1087 Water Quality Certification Improvement Act of 2019

ASWM submitted comments to Chairman Barrasso and Ranking Member Carper of the U.S. Senate Environment and Public Works Committee (EPW) regarding S. 1087 Water Quality Certification Improvement Act of 2019. On November 19, 2019, the EPW committee held a hearing on S. 1087. The recording of the hearing can be found on the EPW’s website here and ASWM’s comment letter can be read here.

October 21, 2019 –
ASWM Submits Comments on Clean Water Act Section 401 Proposed Ru
le

ASWM submitted comments regarding the U.S. Environmental Protection Agency’s (EPA) proposed rule, Updating Regulations on Water Quality Certification, for inclusion in Docket ID No. EPA-HQ-OW-2019-0405. The important and unique role of states in the management of water resources is clearly established in Clean Water Act (CWA) Section 401. The proposed rule, published in the Federal Register on August 22, 2019, erodes cooperative federalism by tipping the power balance to federal agencies and limiting state authority to condition water quality certifications through changes in the timing, scope federal agency ability to deny state/tribal conditions in the 401 process. ASWM’s comment letter can be read here.

September 12, 2019 –
ASWM & ASFPM Request Comment Period Extension for 401 Proposed Rule

The Association of State Wetland Managers (ASWM) and the Association of State Floodplain Managers’ (ASFPM) review of EPA’s proposed CWA § 401 rule finds that the new rule includes more than 100 specific requests for comment, which when broken into individual questions equate to at least 130 individual questions. More than half of these questions require some level of formal legal analysis, with many to benefit from legal expertise of many state agencies. Review of the rule’s accompanying economic analysis is a major review task as well because it is so limited in scope (only analyzes two cases) and would be better served by inclusion of other cases during comment. Accordingly, ASWM and ASFPM submitted a letter requesting a 60-day extension to the existing 60-day comment period – the request can be read here.

May 20, 2019 –
Clean Water Act Section 401 Pre-Proposal Comment Letter Submitted

ASWM submitted a comment letter with pre-proposal recommendations to the U.S. Environmental Protection Agency as they examine the Section 401 Handbook as directed by Executive Order 13868, Promoting Energy Infrastructure and Economic Growth. ASWM recommends no changes to the scope of water quality review for §401 certifications and no restrictions on the types of conditions that states or tribes may judge to be reasonably appropriate to include in a certification. ASWM also rejects overly restrictive review times. The full comment letter can be read here. ASWM also signed on to a group comment letter regarding EPA’s review of the Section 401 Handbook, along with nine other state associations and non-governmental organizations that can be read here.

February 20, 2019 –
CWA Section 401 Process Reforms Letter

A group of state associations sent the U.S. EPA and the Army Corps of Engineers a list of suggested process reforms aimed at improving the CWA Section 401 water quality certification process while preserving states’ well-established legal authority over water resources. These recommendations are intended to provide federal regulatory bodies positive suggestions for measures that could strengthen the efficiency and efficacy of CWA Section 401 programs by clarifying responsibilities of parties regarding consultation and better defining information required by project proponents in the application process. The letter was co-signed by Western Governors’ Association, National Conference of State Legislators, Association of Clean Water Administrators, Association of State Wetland Managers, Council of State Governments-West, and Western States Water Council. The letter can be read here.

December 3, 2018 –
ASWM Joins Coalition in Letter to EPA Regarding Sec. 401

ASWM joined a broad coalition of regional and national organizations in writing to the Office of Water about potential changes to state authority under sec. 401 of the Clean Water Act (CWA). The coalition includes ASWM, the Western Governors’ Association, Western States Water Council, National Conference of State Legislators, Association of Clean Water Administrators, Council of Governments, Council of Governments West, Association of Fish and Wildlife Agencies, Conference of Western Attorneys General, and the Western Interstate Energy Board. The letter calls on EPA to reject any changes to section 401 authority that would preempt states’ CWA authority and to engage in a thorough and collaborative engagement process with state officials before moving forward with any proposed reforms. Read the coalition letter here.

September 6, 2018 –
ASWM & ACWA Submit Letter to Senators Barrasso and Ca
rper

The Association of Clean Water Administrators (ACWA) and the Association of State Wetland Managers (ASWM) sent a joint letter to Senators Barrasso and Carper expressing concerns regarding the Water Quality Certification Improvement Act of 2018 (S. 3303). If enacted as written, S. 3303 would modify the Clean Water Act and limit the states’ authority under §401 to protect state water quality and provide critical input on the impacts posed by federal permits and licenses. Both organizations expressed an interest in discussing the proposed legislation to ensure that any efforts to enhance efficiency do not come at the expense of water quality and do not minimize state experience, expertise, and statutory authority. Read the joint letter here.

August 15, 2018 –
ECOS/ACWA/ASWM Urge Caution in Water Certification Debate

The Environmental Council of the States (ECOS), a nonpartisan group that represents the heads of state environmental agencies, along with the Association of Clean Water Administrators (ACWA) and the Association of State Wetlands Managers (ASWM), sent a joint letter to congressional leaders in advance of an August 16 Senate Environment & Public Works Committee hearing on the Water Quality Certification Improvement Act. Committee Chairman John Barrasso (R-WY) introduced this bill recently to clarify issues states can consider in exercising their authority under Section 401 of the Clean Water Act. Read the joint letter here.

August 19, 2018 –
National Coalition Urges Congress to Reject Efforts to Diminish States’ Authority to Manage Water Quality Under Section 401 of Clean Water Act

On August 9, 2018, ASWM joined nine other leading policy associations of state officials, urging Congressional leadership to reject legislative and administrative efforts to diminish states’ authority to manage water quality within their boundaries under Section 401 of the federal Clean Water Act (CWA). The August 9 letter was sent to House Speaker Rep. Paul Ryan and Minority Leader Rep. Nancy Pelosi, as well as Senate Majority Leader Sen. Mitch McConnell and Minority Leader Sen. Charles Schumer. Read the letter here.

Section 404 Program Addressing Dredged or Fill Material

November 16, 2020 –
ASWM Comments on the Proposed Rule to Reissue Nationwide Permits

ASWM submitted comments the September 15, 2020, Federal Register supplemental notice of proposed rulemaking (SNPRM) for “Proposal to Reissue and Modify Nationwide Permits” (Docket ID No. COE–2020–0002). ASWM’s comment letter can be read here.

August 13, 2019 –
ASWM& ASFPM Submit Pre-Proposal Comments on Proposed Changes to CWA § 404(c)

The EPA held an intergovernmental briefing on potential revisions to the CWA Section 404(c) in response to a June 26, 2018, memo from former EPA Administrator Pruitt directing the Office of Water to propose revisions to 40 CFR Part 231: Section 404(c) permit veto procedures to “provide greater clarity and certainty to the regulated public.” Since 1972, over 2 million section 404 permits have been issued by the U.S. Army Corps of Engineers, but there have been only 30 cases initiated under 404(c), thirteen of which resulted in Final Determination and 17 of which have been terminated upon resolution of issues. Given the extremely rare and judicial use of this authority in the nearly 50 years since Congress enacted the Clean Water Act, the Association of State Wetland Managers (ASWM) and the Association of State Floodplain Managers (ASFPM) do not believe there is any documented cause to revise the regulations. On Sept. 13, 2019, ASWM and ASFPM submitted pre-proposal comments on the proposed changes which can be read here.

August 9, 2019 –
Proposed Mitigation Rulemaking

The U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency have proposed a rulemaking to revise the compensatory mitigation regulations. Potential changes identified by the agencies include: removal of the IRT Process; alternatives to add efficiencies in mitigation bank and ILF program evaluation; compliance with Miscellaneous Receipts Statute; ILF program accounting; multi-purpose compensation projects; changes to the mitigation regulations to address State/Tribal assumption of the Section 404 program; and clarity for principal unit of credits for stream mitigation projects. A pre-proposal comment period was initiated on Thursday, June 20 and concluded on Friday, August 9, 2019. ASWM submitted comments in response to a request for feedback from the Corps and EPA on questions regarding specific components of the 2008 Mitigation Rule that can be read here.

January 28, 2018 –
ASWM and ACWA Submit Comments on EPA’s Plan to Revise Section 404
(g)

The Association of State Wetland Managers (ASWM) and the Association of Clean Water Administrators (ACWA) submitted comments to the U.S. Environmental Protection Agency on its plan for the first comprehensive revision to the existing Section 404(g) veto regulations as posted in the 2018 Spring Regulatory Agenda. The joint comment letter provides several considerations for EPA and encourages EPA to continue an engaged stakeholder process with states and tribes. Read the letter here.

Other EPA Rulemaking or Water Program Policies

October 1, 2021 –
ASWM Submits Comments on EPA Office of Water 2023-2024 NWPG

The Association of State Wetland Managers submitted comments on the EPA FY 2023-2024 National Water Program Guidance (NWPG). The comment letter can be read here.

May 28, 2021 –
ASWM Comments on Regulations Governing Take of Migratory Birds

ASWM submitted comments to the Federal Register in response to the May 7, 2021, Federal Register notice of proposed rulemaking for “Migratory Bird Permits; Regulations Governing Take of Migratory Birds” (Docket ID No. FWS-HQ-MB-2018-0090). ASWM strongly supports the proposed rule to revoke the January 7, 2021, final rule that defined the scope of the Migratory Bird Treaty Act (MBTA) to not prohibit incidental take. The comment letter can be read here.

November 30, 2020 –
ASWM Provides Feedback on Priorities for the Biden-Harris Administration

ASWM’s Executive Director met with members of the EPA Agency Review Team section of the Biden-Harris Presidential Transition Team on November 19th, 2020, to discuss priorities for Clean Water Act program implementation. Following the meeting, the Board of Directors met and crafted a letter outlining recommended priorities for the new Administration on day 1 and the first 100 days and submitted the final letter to the EPA Agency Review Team on November 30th. ASWM’s letter can be read here.

May 18, 2020 –
ASWM Comments on Strengthening Transparency in Regulatory Science

ASWM submitted a comment letter on the importance of transparency in regulatory science. ASWM strongly agrees that environmental regulatory decisions should be based on the best available science, including both peer-reviewed science and other pertinent information. However, we are greatly concerned that the proposed rule would unnecessarily limit the use of available sound science to an extent that would undermine EPA’s mission to protect public health and the environment. ASWM’s comment letter can be read here.

June 26, 2018 –
120-day Comment period and Three Public Hearings on Proposed Rule on Increasing Consistency and Transparency in Considering Costs and Benefits in the Rulemaking Process Request
ed

The Association of State Wetland Managers joined eight other associations representing state and local decision-makers, in forwarding a letter requesting that EPA extend to 120 days the public comment period for the proposed rule, “Increasing Consistency and Transparency in Considering Costs and Benefits in the Rulemaking Process,” (83 Fed Reg. 27524, June 13, 2018). The associations also requested that EPA hold at least three public hearings to gather additional public input on the proposal. Read letter here.

National Environmental Policy Act (NEPA)

March 6, 2020 –
ASWM Submits Comments on Updates to NEPA

ASWM submitted a formal comment letter to the Council of Environmental Quality in response to their proposed rule, Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act, for inclusion in Docket ID No. CEQ-2019-0003. ASWM’s comments can be read here.

August 17, 2018 –
ASWM Comments on the Federal Register Notice “Update to the Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act”

ASWM provided comments to CEQ in response to the Federal Register Notice “Update to the Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act.” ASWM’s comments focus on: 1) encouraging inclusion of a pre-review for §401 Certification during the NEPA process to increase coordination, transparency, and predictability but in ways that do not, in any way, limit the post-NEPA §401 certification process; 2) encouraging more involvement of state and tribal agencies as “Cooperating Agencies” in the NEPA Process, and 3) encouraging initiation of discussion about data needs earlier in the NEPA process. Other more general comments in response to questions also are included. Read the letter here.

Coastal Wetlands and Related Policies

December 5, 2019 –
ASWM Joins Coalition Urging Secretary Bernhardt to Reverse CBRA Decision

ASWM signed on to a group letter along with the National Audubon Society, American Littoral Society, Association of State Floodplain Managers, Natural Resources Defense Council, R Street Institute, and the Southern Environmental Law Center, urging the Secretary of the Interior to reverse its decision to open up the Coastal Barrier Resources System to sand mining. The full letter can be read here.

November 14, 2018 –
ASWM Signs Letter in Support of H.R. 5787, Strengthening Coastal Communities Act

ASWM joined the Association of State Floodplain Managers, the National Audubon Society and 13 other organizations in support of H.R. 5787, the Strengthening Coastal Communities Act, introduced by Rep. Neal Dunn (R-FL). This bill would take steps to modernize the Coastal Barriers Resources Act (CBRA) by updating the maps that denote the boundaries of the Coastal Barrier Resources System (CBRS). To read the letter sent to the House, click here and the Senate version here.

Other Relevant Wetland and Water Policies

May 11, 2020 –
ASWM Comments on FEMA Docket for Hazard Mitigation Assistance: Building Resilient Infrastructure and Communities

ASWM submitted comments to FEMA in response to Federal Register Docket No. FEMA-2019-0017, “Hazard Mitigation Assistance: Building Resilient Infrastructure and Communities.” The Building Resilient Infrastructure and Communities Policy appears to provide a solid framework for states, tribes, territories, and local governments to follow in accessing and implementing Building Resilient Infrastructure and Communities (BRIC) funding. In particular, ASWM is pleased to see capability and capacity building identified as the first principle in the policy. This funding will support state, tribal, and local governments in their ability to participate in the program and to take the lead in mitigation in the future. Read letter here.

February 5, 2019 –
ASWM Submits Comments on NRCS Wetland Conservation Compliance Interim Rule

ASWM submitted comments to the Federal Register on the Wetland Conservation Compliance Interim Rule proposed by the USDA Natural Resources Conservation Service (NRCS). Among other recommendations, ASWM urges NRCS to discontinue the certification of pre-1996 wetland determinations and resume the use of up-to-date, technically rigorous methods for wetland determinations. The comment letter can be read here.

July 25, 2018 –
ASWM Comments on FERC Natural Gas Pipeline Certification Process

ASWM provided comments in response to FERC’s Notice of Inquiry (Federal Register Docket No. PL18-1-000) for help exploring whether, and if so how, it should revise its approach to the certification of new natural gas transportation facilities. ASWM’s comments identify ways to support protection of aquatic resources that are impacted by new pipelines and in particular how states can assist in those efforts. Read letter here.

May 16, 2018 –
ASWM Supports Natural Infrastructure

ASWM joined the Association of State Floodplain Managers, the American Society of Civil Engineers and others in supporting the inclusion of natural and nature-based infrastructure in the next Water Resources Development Act (WRDA) currently under consideration in Congress. The provisions supported by the co-signers would allow the U.S. Army Corps of Engineers to implement natural infrastructure alternatives to reduce flood and storm risks while providing additional environmental benefits. The letter can be read here.

January 9, 2018 –
ASWM, ASFPM and Others Sign Letter on Disaster Recovery Reform Act (DRRA)

ASWM and the Association of State Floodplain Managers joined with other organizations in a letter to Senate Leadership raising concerns about a provision of the Disaster Recovery Reform Act (DRRA) that would enable Hazard Mitigation Grant program funds administered by FEMA to be redirected to fund structural flood control projects carried out by the U.S. Army Corps of Engineers. The Senate is in the process of very quickly developing a companion bill to H.R. 4467. The letter can be read here.

December 22, 2017 –
State Associations Co-Sign Letter on the Vessel Incidental Discharge Act (S. 1120)

ASWM joined with the Environmental Council of States, the Association of Clean Water Administrators and the Association of Fish and wildlife Agencies in a letter to members of Congress this week detailing the potential consequences for environmental quality if the Vessel Incidental Discharge Act (S. 1129, known as VIDA) were enacted with the current provisions regarding removing protections that limit dumping of ballast water in nearshore areas. ASWM signed onto a similar letter on VIDA in June of 2016. December 22, 2017 letter on VIDAJune letter on VIDA

October 5, 2017 –
ACWA, ECOS, and ASWM Send House Leadership Letter Highlighting Concerns About H.R. 3043, Hydropower Policy Modernization Act of 2017

ASWM signed on to a letter with the Environmental Council of States (ECOS) and the Association of Clean Water Administrators (ACWA) raising concerns about provisions of H.R. 3043, the Hydropower Policy Modernization Act of 2017. If enacted as written, the draft bill would modify Federal Energy Regulatory Commission (FERC) licensing requirements under the Federal Power Act and may conflict with state authority under Section 401 of the Clean Water Act to protect water quality and provide critical input on federal dredge and fill permits to wetlands and other waters under section 404. The joint letter can be read here.