RE: Public Comments on EPA-HQ-OW-2017-0203, Definition of “Waters of the United States” - Recodification of Pre-existing Rules
We, the undersigned, are professional scientists with broad knowledge of the physical, chemical, and biological characteristics of streams, wetlands, and other aquatic ecosystems. Because we support science-based environmental policy, we write in unequivocal opposition of the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers’ (Corps) proposed Revised Definition of “Waters of the United States”. The proposed revised definition of Waters of The United States (WOTUS) will eliminate Clean Water Act (CWA) protections for more than 18% of streams and 51% of wetlands nationwide1 without scientific justification and with likely costs to the nation’s water quality.
Congress passed the Clean Water Act in 1972 to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,” and for decades the CWA has safeguarded our rivers, streams, lakes, and wetlands. The CWA defines traditionally navigable waters, interstate waters, and territorial seas as “waters of the United States”; this definition has been further refined by case law and agency guidance over the last few decades. However, uncertainty regarding the jurisdictional reach of the CWA following several Supreme Court decisions [United States v. Riverside Bayview Homes, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, and Rapanos v. United States] has hampered protection for many of the nation’s waters, putting our rivers, small streams, and wetlands at risk.
The Clean Water Rule2, which was finalized in 2015, ensures that tributaries, including ephemeral and intermittent streams, and waters adjacent to those tributaries, including wetlands and oxbows, are protected as jurisdictional waters based on scientific evidence of their connections to the navigable waterways that have traditionally been recognized as Waters of the United States. The EPA’s Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence”3, and the over 1,200 peer-reviewed scientific publications on which it was based, clearly established the vital importance of these natural features to clean water and the health of the nation’s rivers. The EPA and Corps seek to replace the scientifically-justified ‘significant nexus’ standard of the Clean Water Rule with a narrow interpretation that excludes many of the streams, wetlands and adjacent waters that directly affect the physical, chemical and biological conditions of the nation’s primary jurisdictional waters, making it impossible to achieve the objectives of the CWA.
Streams, wetlands, and adjacent waters affect the function and integrity of downstream waters through the delivery of water (i.e., flow); transport of nutrients, sediment, and contaminants; and by providing foraging, breeding, spawning, and nursery habitat for organisms (e.g., fish, macroinvertebrates, waterbirds) residing in, or associated with, waterways that are unarguably protected by the CWA, as well as pathways for the movement of these organisms. Streams, wetlands, and adjacent waters can also delay or control the release of materials to downstream waters: they store water and sediment; retain and transform nutrients, metals, and pesticides; and recharge groundwater.
Degradation of these connected aquatic ecosystems has been shown to lead to the loss or reduction of important ecological functions that benefit downstream waterbodies—including flood attenuation, sediment trapping, and nutrient and pollutant removal. As a result, communities almost certainly will be impacted by increased flood damage, reduced recreational opportunities, impeded navigation, compromised fisheries, and increased costs of water filtration for drinking supply and industrial use if these waterways are not protected. The streams and wetlands that would lose federal protection under the proposed rule are also critical to protecting communities from the worsening impact of droughts, floods, and hurricanes under climate change.
We strongly and unequivocally oppose the proposed Revised Definition of “Waters of the United States,” which is scientifically unwarranted and damaging to the Nation’s natural resources and water quality. We encourage the EPA and Corps to maintain protections for all ephemeral, intermittent, and perennial streams; and rely on physical features (i.e., streambed, banks, and an ordinary high-water mark) to identify those channels that carry water of a sufficiently permanent duration to contribute to downstream physical, chemical, and biological conditions. We also encourage the agencies to maintain protections for all wetlands and adjacent waters with an ecologically meaningful and scientifically-defensible connection to ephemeral, intermittent, and perennial streams, rather than protecting only those wetlands with continuous surface connections to intermittent and perennial streams, as proposed.
We ask the agencies to thoroughly consider how a narrowed definition of WOTUS will negatively impact our nation’s aquatic resources and communities and to reject any re-definition of WOTUS that is not grounded in the best available science.
1 Based on data from the National Hydrography Dataset, U.S. Geological Survey, Reston, Virginia. 2002-2016 and U.S. Fish and Wildlife Service, National Wetlands Inventory website, U.S. Department of the Interior, Fish and Wildlife Service, Washington, D.C. http://www.fws.gov/wetlands/
2Final Rule, Clean Water Rule, Definition of “Waters of the United States,” 80 Fed. Reg. 37,054, 37,057 (June 29, 2015)
3U.S. Environmental Protection Agency, Office of Research and Development, Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence, See https://cfpub.epa.gov/ncea/risk/recordisplay.cfm?deid=296414. Hereafter, "Connectivity Report".
*Please note that while American Rivers authored this letter and is organizing the sign-on effort, it will be submitted without organizational affiliation. If you have any questions, please contact Laura Craig at firstname.lastname@example.org.