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 aquatic scientists from # states with broad knowledge of the physical, chemical, and biological characteristics of streams, wetlands, and other aquatic ecosystems. We write in opposition to repeal of the Clean Water Rule because we support science-based environmental policy, and current science overwhelmingly supports the existing Clean Water Rule.
We are concerned that rescinding the Clean Water Rule will have detrimental impacts on ephemeral and intermittent streams and wetlands. The EPA’s Connectivity Report, and the over 1,200 peer-reviewed scientific publications on which it is based, clearly established the vital importance of these natural features to clean water and the health of the nation’s rivers. Repealing the Clean Water Rule, and thus removing protections for a significant portion of waters in the United States, violates the letter and spirit of the Clean Water Act.
The Clean Water Act (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] hampered protection for many of the nation’s waters, putting our rivers, small streams, and wetlands at risk. The Clean Water Rule provides clarity regarding the scope of the protections afforded by the CWA and describes which types of waters are and are not categorially protected by the CWA. In so doing, the Clean Water Rule 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 their connections to the navigable waterways that have traditionally been recognized as Waters of the United States. Repealing the Rule will again put these ecologically significant waterways at risk.
Scientific studies demonstrate that tributary streams, adjacent waters, and wetlands are chemically, physically, and biologically connected to downstream waters, including traditional navigable waters, interstate waters, and territorial seas.1 Streams, wetlands, and adjacent waters affect the functions 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 can 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 may 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 Clean Water Rule was developed using the best available science from high-quality, peer-reviewed studies and was subject to an exhaustive outreach, review, and public comment process. We are disappointed that the current Administration has proposed dismantling the Rule with minimal consultation and without scientific justification. The undersigned scientists strongly oppose the repeal of the Clean Water Rule.
1 U.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