Waterkeepers Chesapeake comments on rule support a broad, science-based definition of the waters of the U.S. and urges EPA to strengthen the rule to ensure full protection of the nation’s waters.
The Environmental Protection Agency’s (EPA) proposed a new rule that slashes Clean Water Act protections for millions of people by redefining “waters of the U.S.” In this blatant giveaway to polluting industries, in the Chesapeake region, streams and tributaries in the upper reaches of the Susquehanna, Potomac, Shenandoah, James and many other rivers, as well as a vast number of wetlands, would not receive protections under the Trump administration’s scheme to gut the Clean Water Act.
On April 15, Waterkeepers Chesapeake submitted comments opposing the EPA’s proposed re-definition of the “waters of the U.S.”, through the elimination of the “significant nexus” test and the abandonment of the overwhelming scientific findings that was the basis for the current rule. Waterkeepers Chesapeake also argued against the EPA’s continued efforts to categorically exclude a large number of waters because such exclusions are not grounded in science and law. In particular, EPA’s approach of excluding groundwater is not warranted by science as demonstrated by the many comments by individual members of EPA’s Science Advisory Board (SAB). Finally, Waterkeepers Chesapeake objected to EPA continuation of the so-called “waste treatment” exclusion which allows mining and coal interests to use our precious water resources as dumping grounds for their wastes.
The EPA’s data shows that at least 18% of streams and 51% of wetlands nationwide would no longer be protected under the Clean Water Act under this rule. In the Chesapeake Bay Watershed alone, at least 34,000 acres of non-tidal wetlands and headwater streams would lose protections.
As EPA research and reporting repeatedly shows year after year, we still have a long way to go in applying the Clean Water Act and meeting its directives. We still discharge toxics into our waters. Agricultural discharges that are almost wholly unregulated account for nearly half of the pollution entering waterways and a significant portion of the waters that are currently failing to meet basic standards of cleanliness.
EPA summary of states’ reported water quality data shows that states have a poor record of assessment. But of the waters assessed, 53% of assessed rivers and streams, 68% of assessed lakes, and 66% of assessed bays/estuaries are failing to meet one or more water quality standards. This data shows that we have not eliminated nor controlled discharges of pollutants into our nation’s water.
Wetlands are critical ecosystems to wildlife, and are essential as nature’s water-cleaning and flood control mechanisms. In just the last decade, agencies reported that we had lost over 50% of our wetlands nationwide. In parts of the Midwest and coastal areas, the figure is as high as 90% or more with attendant disastrous results for clean water.
The Clean Water Act’s comprehensive protections are so critical to the well-being of the nation and its citizens, and still sorely needed. Waterkeepers Chesapeake supports EPA’s science-based efforts, within the law, to ensure that all waters that are or can be affected by pollution be protected consistent with the intent and purpose of Congress in passing the Clean Water Act. We urge EPA to strengthen the rule as outlined in our comments (and summarized below) and to abandon the ill-conceived and unsupported categorical exclusions portion of the rule.
“Waters of the U.S.” - Waterkeepers Chesapeake believes that the proposed definition of “waters of the United States,” constitutes an abandonment of the scientific and technical data that the EPA collected in determining the existing definition and results in an arbitrary and capricious decision.
Tributaries - Waterkeepers Chesapeake opposes the decision to only include tributaries with perennial or intermittent streams in the definition of waters of the United States. There is no scientific or legal reason to exclude tributaries of any water that is identified as a water of the United States through this rule regardless of the frequency of the tributary’s flow. Tributaries affect downstream waters, and if the downstream water is a water of the United States, then its tributaries must be protected under the Clean Water Act. The exclusion of any tributary that does not provide at least a perennial or intermittent flow to traditional navigable water is another arbitrary and capricious decision that ignores volumes of scientific data.
Adjacent wetlands - Waterkeepers Chesapeake opposes the definition of adjacent wetlands to mean “wetlands that abut or have a direct hydrologic surface connection to other ‘waters of the United States’ in a typical year”. SAB previously concluded that a more scientifically accurate definition of adjacency would include the outer extent of the flood plain and all riparian areas not merely defined by the physical touching of wetlands to waters of the United States.
Categorical exclusions - Waterkeepers Chesapeake objects to EPA’s proposal to exclude whole categories of water from receiving Clean Water Act protections. Categorical exclusions are not supported by Supreme Court case law nor the language of the Clean Water Act. While some members of the Supreme Court expressed concern over ensuring that certain waters, specifically wetlands, had a connection to waters of the U.S., at no time has the Court addressed wholesale exclusion of certain types of waters. While EPA may desire categorically excluding some waters for the sake of convenience, such a result is not supported by case law and is contrary to the intent and purpose of the Clean Water Act.
- The groundwater exclusions are not fully-supported from a scientific perspective and may lead to regulatory confusion. EPA should revise the proposed rule to provide that groundwater is protected as a water of the U.S. where it is hydrologically connected to surface water in a way that is not insignificant.
- Waterkeepers Chesapeake strongly objects to the “waste treatment exclusion” for waters of the U.S. that should receive full Clean Water Act protections. This exclusion allows mining, coal or utility industries to dump pollutants into the stream, lake, or wetland. Waterkeepers Chesapeake presses EPA to eliminate this exclusion not only because it promotes continued permitting of polluting and damaging practice, but also because EPA never allowed for public notice and comment on this section of the rule.