Jeff Flake - U.S. Senator ~ Arizona

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Washington, D.C. – U.S. Sens. Jeff Flake (R-AZ) and John McCain (R-AZ) yesterday sent a letter to Environmental Protection Agency (EPA) Administrator Gina McCarthy calling on the EPA to abandon a proposed rule that would expand the agency’s regulatory authority to include Arizona’s dry streambeds. 

In the letter, the senators cite insufficient scientific evidence to support the categorical inclusion of all ephemeral features as jurisdictional “waters of the United States.” The public comment period for the proposed rule ends today.

“The EPA’s attempt to regulate water where there is none lacks even a drop of common sense. It’s a blatant power grab at the expense of Arizona’s landowners, businesses, and overall economy,” said the senators. “The EPA ought to abandon the proposed rule without delay and go back to the drawing board.”

The signed letter can be viewed here.

The text of the letter can be viewed at the bottom of this release.

Background: On Oct. 24, 2014, Flake and McCain called on the EPA to withdraw the rule in light of regulatory inconsistencies and the Small Business Administration’s Office of Advocacy stating that the proposed rule would have a “potentially significant economic impact” and a “direct and potentially costly impact on small business.” That letter can be viewed here.

On May 6, 2014, Flake and McCain wrote McCarthy to lay out their initial concerns with the proposed rule’s potential to cause adverse impacts specific to landowners, businesses and the economy of Arizona and the desert Southwest. That letter can be viewed here.


November 13, 2014

The Honorable Gina McCarthy


Environmental Protection Agency

1200 Pennsylvania Avenue, N.W.

Washington, DC  20460


Dear Administrator McCarthy,

We write to express concern with Environmental Protection Agency’s (EPA) proposed rule regarding Clean Water Act (CWA) jurisdiction. We have previously written regarding the disproportionate impact of the proposal on the desert southwest as well as its negative impacts on small businesses.  Today we raise questions surrounding the scientific basis for the agency’s attempt to expand its regulatory authority under the CWA.

The proposed rule would expand the “waters of the United States” definition to include all tributaries with a perceived significant nexus “based on the chemical, physical, and biological interrelationship between a water, the tributary network, and traditional navigable waters, interstate waters, and the territorial seas” However, the proposed rule does not distinguish between features that are ephemeral, intermittent, or perennial.   Because 94% of the waterways in Arizona do not flow continuously for the entire year,  the treatment of ephemeral features is troubling.

The EPA presented the scientific evidence for this rule in a draft report  as well as listing additional studies in the Federal Register announcement of the rule . Troublingly, the evidence presented in support of the contention that ephemeral features have strong physical, chemical, and biological interrelationships to jurisdictional waters is anything but settled. For example, gaps in the science can be illustrated with the 2004 study by Goodrich and others  that is cited as strong evidence of ephemeral tributary connectivity .  That study estimates the amount of water that infiltrates into the channel bed of a small ephemeral channel in the San Pedro River Basin, Arizona. Their estimates are then scaled up to the entire basin with “the very gross assumption that all the larger channels in the San Pedro behave similarly,” resulting in a “very crude” estimate of ephemeral channel recharge.  Additionally, to the extent the study demonstrates a physical connection, there is no demonstration of chemical or biological connections. In addition, the study does not purport to offer a proposed test for determining the presence of a “strong relationship” or what that would even constitute.  When other studies cited as scientific evidence for declaring ephemeral features jurisdictional are similarly subjected to rigorous scrutiny, they lack both a test for “strong relationship” and evidence of chemical and biological connections.  Without a means of proving or disproving a relationship, the presumption that ephemeral features hold a strong relationship to jurisdictional waters is subjective rather than scientific in nature.

Rigorously assessing the validity of the scientific evidence should be the role of EPA’s Science Advisory Board (SAB).  However, EPA’s management of the rulemaking process has resulted in a lack of transparency for the scientific review process. Instead of peer-reviewing the scientific literature used for rule-making before using the data, EPA promulgated the rule, asked for public comment, and then asked the SAB to evaluate the validity of the scientific evidence. Unfortunately, the extent to which the SAB has weighed in, they failed to address the lack of evidence for biologic and chemical connections between ephemeral features and jurisdictional waters. The SAB acknowledged that “waterbodies differ in degree of connectivity that affects the extent of influence they exert on downstream waters,” but then amazingly proceed to claim that essentially every waterway is strongly connected to jurisdictional water  and thus presumably jurisdictional in its own right.  Rather than highlighting scientific gaps, SAB advocated expanding the definition of jurisdictional waters to tributaries without any indication of high water marks and even to groundwater. It is difficult to view these suggestions as credible.

We find insufficient evidence to support the categorical inclusion of all ephemeral features as jurisdictional “waters of the United States.”  In light of the gaps in the scientific evidence presented above, we are deeply concerned with the scientific review process associated with this rulemaking.  We reiterate our call for the current proposal to be abandoned and a meaningful proposal be developed that limits federal jurisdiction and is supported by an open and transparent process that fairly weighs the scientific evidence available.  We would appreciate a written response to our concerns detailed in this letter and ask that this matter be handled in strict accordance with agency rules, regulations, and ethical guidelines.



United States Senator                                                



United States Senator