AFS Briefs Congress on WOTUS

On February 9, the Clean Water For All Coalition in concert with the House Transportation and Infrastructure Committee Minority hosted a Capitol Hill briefing on Waters of the U.S. for House Democrats. Drue Banta Winters spoke on behalf of AFS regarding the importance of a science-based definition of Waters of the US that recognizes the multiple dimensions of waterbody connectivity and its importance to fish.

The event was moderated by Julian Gonzalez, Senior Legislative Counsel, Earthjustice.  Other speakers included Jon Devine, Director of Federal Water Policy, Natural Resources Defense Council and Tricia Kilgore, Director of Technology & Innovation, Beaufort-Jasper Water and Sewer Authority.

The briefing came on the heels of a House T&I hearing on the Biden Administration’s new rule. There was significant misinformation presented at the hearing and the briefing sought to clarify some of that. AFS submitted testimony and Rep. Grace Napolitano entered it into the record at the hearing. Republicans in both chambers have filed bills to pull back the 2023 WOTUS Biden Rule under the Congressional Review Act.  The U.S. Supreme Court is expected to issue an opinion in the Sackett case this spring/summer, but a decision could come at any time.

Hi-I’m Drue Winters and I’m here today on behalf of the American Fisheries Society or AFS, the world’s oldest and largest professional society of fisheries managers and scientists.

The society publishes peer reviewed journals and holds conferences where scientists present their fisheries research. The Society isn’t an advocacy organization, but we do weigh in on important conservation and sustainability topics where they impact fish.

At the core of AFS is science. More than a half century of scientific research demonstrates that the integrity of “traditionally navigable” waters fundamentally depends on tributaries – including headwater ephemeral, intermittent, and perennial streams – as well as many associated lakes, wetlands, and off-channel habitats

Science tells us that aquatic ecosystems depend upon transfer of chemical components, organisms, sediment, and organic materials among waterbodies to support the life in and around their shores.

That’s why AFS has long supported a science-based definition of Waters of the U.S. for its importance to fisheries, flood control, carbon storage, and biodiversity and also for the people and communities that rely on clean water. And fish have a big economic impact, freshwater fishing contributes $41.9 billion and over 500,000 jobs our economy. Healthy waters fuel the outdoor recreation economy, support angling and hunting, boating, commercial fisheries and the fishing industry.

The 2015 Clean Water Rule is considered the Gold Standard because based CWA protections on multiple dimensions of waterbody connectivity. In contrast, the 2020 Navigable Waters Protection Rule established in the last administration did just the opposite. In based jurisdiction only on hydrologic surface connections.  In doing so, it removed protections for millions of miles of headwater streams and millions of acres of wetlands. When headwaters are polluted or destroyed, fish, fisheries, and ecosystem services are compromised.

Headwaters are key to the sustainability of fish stocks in both upstream and downstream waters. Threatened and endangered species will be harder to recover, and more species will be at risk of becoming imperiled.

So what are headwaters?  Broadly it’s those portions of a river basin that contribute to the development and maintenance of downstream navigable waters including rivers, lakes, and oceans.

Headwaters can be wetlands outside of floodplains, small streams that flow year round, ones that flow periodically or seasonally from groundwater or precipitation, or ones that flow only after a rainfall event.  Fish, in their stages of their life, live in these streams.  These waters aren’t connected at the surface all the time to navigable waters, but biologically and chemically connected.

Let’s simplify this: if you dredge and fill the small streams and wetlands that are chemically and biologically important to the downstream navigable waters and you only protect the waters that are connected at the surface, then you impair the functioning of the whole network of waters. Without the safeguards of the Clean Water Act for these streams and wetlands, the ability of these waters to convey nutrients, provide pathways for migrating fish and wildlife,  and drainage and storage system for floodwaters is severely undermined.

40 percent of freshwater fish are already imperiled. And this will only become worse as Climate change intensifies. Aquatic resources in many states, particularly in the central and western U.S., are already stressed by overuse of water and extreme weather patterns. Many streams will shift from perennial to intermittent or even ephemeral.

Let me take you to a stream in Colorado that is important for imperiled fish.

Cottonwood Creek is an intermittent tributary of the Gunnison River  in western Colorado that hosts large numbers of Bluehead Suckers, Flannelmouth Sucker, and Roundtail Chub during spring spawning. Intermittent tributaries like these are critical for sustaining populations of these three species, which are the subject of rangewide conservation efforts to prevent listing under the ESA.  Today it is intermittent, tomorrow who knows.

The mandate of the Clean Water Act is to  restore and maintain the chemical, physical, and biological integrity of the nation’s waters. This can only be achieved if the definition of WOTUS is grounded in sound science that recognizes the multiple dimensions of waterbody connectivity:

The 2023 Rule is a vast improvement over the 2020 NWPR and represents a step forward in protecting our Nation’s waters and the critical ecosystem services they provide for people and the environment. It appropriately recognizes that science is complex and cannot be ignored for the convenience of administering the Clean Water Act. The 2023 Rule addresses the major flaws with the 2020 NWPR, seeks to balance the science with efficiency, and provides additional clarity for implementation. We cannot return to a rule that is not science-based.

For AFS this isn’t a trivial fight, it isn’t about federal control or more regulations. It’s about protecting what we hold dear, for some it’s fish, for others, our health, our way of life, how we connect with nature, and for the economy.