The Honorable Michael Regan
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue, N.W.
Washington, DC 20460
Mail Code 1101A
Mr. Jaime A. Pinkham
Acting Assistant Secretary of the Army for Civil Works
Office of the Assistant Secretary of the Army (Civil Works)
108 Army Pentagon
Washington, DC 20310-0108
Submitted electronically at www.regulations.gov
RE: Docket ID No. EPA-HQ-OW-2021-0328 – Comments on Request for Recommendations: Waters of the United States
September 2, 2021
Dear Administrator Regan and Acting Assistant Secretary Pinkham:
On behalf of our organization’s members and supporters, who are hunters, anglers, outdoor recreationists, conservationists, and scientists, we call on you to not appeal the recent United States District Court for the District of Arizona’s ruling granting vacatur of the 2020 Navigable Waters Protection Rule (2020 Rule) nationwide. We further urge you to begin the process to engage with stakeholders, consider the extensive administrative record assembled during all past rule-making efforts, and find durable Clean Water Act protections for our country’s waters – including headwaters and ephemeral streams and our remaining wetlands—in the promulgation of a new rule.
Judge Rosemary Márquez’s ruling granting vacatur of the 2020 Rule is solid. The court’s ruling acknowledges that the 2020 Rule posed risk of serious environmental harm and is in line with both the science underlying the need for broader protections of streams and wetlands and with legal precedent. The court’s ruling also supports the overall direction the agencies are taking. Therefore, we strongly urge the agencies to abide by the court’s ruling, which stops implementation of the 2020 Rule and requires the use of the pre-2015 regime until a replacement rule is finalized.
The case for abiding by the court’s holding is strong. The Clean Water Act was passed to restore and maintain the chemical, physical and biological integrity of the nation’s waters. Unfortunately, the 2020 Rule left up to half of the country’s stream miles and millions of acres of wetlands at risk of being polluted or destroyed. These streams provide essential fish and wildlife habitat that support a robust outdoor recreation economy worth $887 billion. Overall, the 2020 Rule did not incorporate best available science regarding the connectivity of waters and is inconsistent with the objectives of the Clean Water Act which is to restore and maintain the chemical, physical and biological integrity of our waters.
Already, thousands of waterways were deemed non-jurisdictional under the 2020 Rule – including two recently revised jurisdictional determinations that removed protections from about 200 acres of wetlands and 10,000 linear feet of streams in Texas and from about 200 acres of wetlands that absorb floodwaters in a flood prone area for a large development near South Carolina’s Savannah National Wildlife Refuge. Overall, according to Environmental Protection Agency officials, at least 333 projects likely to harm streams or wetlands have received determinations allowing them to proceed without a permit.
These waters may sometimes be small, but they are enormously valuable. Headwaters, ephemeral and some at-risk intermittent streams provide drinking water to millions of Americans, support fish and estuaries prized for angling and recreation, and provide clean water to larger, beloved rivers, lakes, and bays. EPAs own scientific record underscores that the scientific literature demonstrates that streams, regardless of their size or frequency of flow, are connected to downstream waters and strongly influence their function. Wetlands, even non-floodplain wetlands such as prairie potholes, filter out pollutants, protect communities from flooding, and provide habitat for wildlife, including endangered species and by serving as stops along the country’s major international flyways for migratory birds. In short, protecting these waterways is essential to the Clean Water Act’s primary objective.
Restoring protections to these waters is also vital to the administration’s priorities of addressing climate change and environmental justice. As climate change drives more severe storms, wetlands’ flood protection will become even more vital. Wetland systems have also been demonstrated to mitigate the impacts of wildfire on aquatic ecosystems and wetland protection is critical to maintaining carbon sequestration benefits. And as climate change intensifies drought, more of our streams are less likely to run year-round, especially in the arid and semi-arid West. Wetlands can help address these drought concerns by assisting in restoring aquifer recharge and enhancing late season flows critical to fish and wildlife. Preserving wetlands and streams for communities already overburdened by pollution and flooding should also be viewed as an environmental justice imperative. Lack of durable protections of headwaters and ephemeral streams poses significant threats to the access or clean drinking water supplies, which is already a significant challenge disproportionately affecting low-income communities. Tribes recognize water as part of their culture, subsistence, and identity.
As hunters, anglers, outdoorsmen and conservationists, we believe the 2020 rule enabled the degradation of waterways that support our community. Without CWA protections, the resulting impacts on wildlife, water quality, climate resilience and environmental justice pose significant challenges to America’s outdoor heritage and the countless Americans who recreate and enjoy streams, wetlands and they biodiversity they support. For these reasons, our organizations urge you to begin the process of developing a science-based, durable rule that provides Clean Water Act protections for those waters that are critical to restoring and maintaining the chemical, physical, and biological integrity for our nation’s waters. Time is of the essence.
Given the court’s ruling and administrative record on the 2020 Rule — including widespread public opposition and criticism from EPA’s own science advisors and leadership–the agencies have the tools needed to begin replacing the 2020 Rule as soon as possible and complete it expeditiously. We urge you to do so.
Next year, our nation will celebrate the 50th anniversary of the Clean Water Act. As stewards of this bedrock environmental statute, we call on you to engage with stakeholders, consider the extensive administrative record assembled during all past rule-making efforts, and find durable Clean Water Act protections for our country’s waters—including headwaters and ephemeral streams and our remaining wetlands—before we reach that half-century milestone on October 18, 2022.
Theodore Roosevelt Conservation Partnership
American Sportfishing Association
American Fisheries Society
Backcountry Hunters and Anglers
Wild Salmon Center
Sportsmen for the Boundary Waters
National Wildlife Federation