WOTUS Hearing Update

The House Science, Space and Technology’s Subcommittee on the Environment held a hearing to discuss the future of the Waters of the U.S. Rule or “WOTUS” rule on Wednesday, November 29, 2017. The Trump Administration is seeking to repeal the rule that clarifies which wetlands and small waterways are protected by the Clean Water Act.  The subcommittee also examined state participation in administering Clean Water Act regulations.

Ken Kopocis, who served as the Deputy Assistant Administrator for the Office of Water at the U.S. Environmental Protection Agency during the development of the 2015 rule, testified in support of it. Kopocis cautioned that the “repeal and retreat” to a rule based on the Scalia opinion in the Rapanos case will only cover a very narrow set of waters and would eliminate protection for up to 60% of the nation’s waters.  He characterized that move as “a serious, serious retreat from what this Congress enacted in 1972.” He touted the “best available science” that EPA considered during the development of the rule to inform how upstream waters and their pollution and destruction affects downstream and adjacent waters. He added, “Nobody has put forth better science or said that the science was bad.”

AFS joined with conservation organizations in a letter to the committee expressing support for the rule and highlighting the state-of-the-science on the connectivity and isolation of waters in the United States that went into the development of the rule. Hunters and anglers broadly celebrated the Clean Water Rule and supported the science that went into its development. According to the letter, the rule would conserve the roughly 60 percent of stream miles and 20 million acres of wetlands (and thereby the downstream waters into which they flow) at risk of being polluted or destroyed because of the jurisdictional confusion that existed prior to the development of the rule.

U.S. EPA Administrator Scott Pruitt has argued that states will take on wetland protection that would be lost if WOTUS were repealed. AFS joined with a number of science societies to oppose the repeal of the WOTUS rule and urged the EPA and the Army Corps of Engineers to fully evaluate the impact of such a change at the state level and the capacity and willingness of states to take on the responsibility for wetland protections. In states that have no state wetland protection laws, many wetlands and headwater streams would be unprotected at both the federal and state levels. AFS shared this information with committee staff.

States have had the option to assume responsibility for the Section 404 permit program since the Clean Water Act passed in 1972, yet only two states, Michigan and New Jersey, have chosen to do so.  An additional 21 states have some type of dredge-and-fill permit program, many of which rely on federal grant funding and collaboration. The majority of states rely on the technical and financial support of the federal government in administering wetlands protection policies, and thus are not likely to have the capacity or the inclination to take on wetland protection in the absence of federal protection.  In addition, the Trump Administration has proposed drastic reductions to the EPA budget, which would result in diminished federal financial support of state wetland programs. The reduction of federal funding must also be considered when evaluating the capability of states to administer wetland programs.

The hearing can be viewed here.