Policy News

American Fisheries Society * Arizona Wildlife Federation * Backcountry Hunters & Anglers Fly Fishers International * Indiana Wildlife Federation * Izaak Walton League of America National Wildlife Federation * Nevada Wildlife Federation * Ohio Conservation Federation Theodore Roosevelt Conservation Partnership * Trout Unlimited   The Honorable Charles E. Schumer Majority Leader United States Senate S-221 Capitol Building Washington, D.C. 20510 The Honorable Mitch McConnell Minority Leader United States Senate 317 Russell Senate Office Building Washington, D.C. 20510 CC: United States Senate March 14, 2023 Re: Oppose H.J. Res. 27/S.J. Res. 7 – Support a Strong Clean Water Act. Dear Majority Leader Schumer and Minority Leader McConnell, The below-signed members of the hunting, fishing, and scientific community urge you to OPPOSE H.J. Res. 27/S.J. Res. 7, the Congressional Review Act joint resolution of disapproval of the Revised Definition of the “Waters of the United States” rule. H.J. Res. 27/S.J. Res. 7 would invalidate the Biden administration’s recently finalized “waters of the United States” regulation, which restores long-standing protections for small streams and wetlands that are critical not just for trout and salmon fisheries but also for healthy watersheds and clean water for downstream businesses and communities. In virtually every respect, the rule is a codification of the approach that the Environmental Protection Agency and Army Corps have used for most of the past 15 years to identify waters that qualify as “waters of the United States.” This commonsense, science-based approach recognizes that pollution upstream can have downstream impacts, and thus we must protect the whole system to safeguard downstream communities and the environment. The rule also maintains longstanding Clean Water Act permitting exemptions for routine farming and ranching activities like plowing, cultivating, minor drainage, and harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices, protecting these important economic activities. Using the CRA to attack this rule would prevent future administrations from issuing rules that are “substantially the same,” meaning that both protections and exemptions codified in this rule, including those for the agriculture industry, could be called into question in future rules to define “waters of the United States.” In addition to providing drinking water for our homes and businesses, the small streams and wetlands under threat also provide clean water for farmers, keep the economy afloat, protect communities from floods, serve as natural features to promote water recharge and drought resilience, provide critical wildlife habitat, and enhance outdoor recreation opportunities including hunting and fishing. Wetlands alone can absorb vast quantities of water during heavy rains or storms – one acre of wetlands can store up to 1.5 million gallons of floodwater which can reduce downstream impacts to critical infrastructure and promote resilience to drought. The fish and wildlife that sustain our outdoor passions and support the nation’s $887 billion outdoor recreation economy rely on these small streams and wetlands as well. Ephemeral and tributary streams serve as important spawning grounds as well as nursery habitat for juvenile fish, such as salmon and trout. Roughly half of North American waterfowl hatch in the Prairie Pothole Region, shallow, depressional wetlands that are particularly at risk, and more than a third of North American bird species rely on wetlands for food, shelter, breeding, nesting, and rearing their young. The economic benefits of hunting and fishing alone – which total $200 billion a year – are especially pronounced in rural areas, where money brought in during fishing and hunting seasons can be enough to keep small businesses operational for the entire year. Without clear federal protections for these waters and everything they feed into, hunting and angling across the country would be irreversibly harmed, devastating the outdoor recreation economy. H.J.Res.27/S.J. Res. 7 is a dangerous attempt to open up our wetlands and streams to pollution and destruction. This effort to undo fifty years of progress to protect clean water threatens the water resources that are critical for fish and wildlife, downstream communities, and the drinking water for millions of Americans. We urge you to oppose H.J.Res.27/S.J. Res. 7 when it comes to the floor for a vote. Thank you for considering our views. Sincerely, Douglas J. Austen, Ph.D. Executive Director American Fisheries Society Scott Garlid Executive Director Arizona Wildlife Federation John Gale Vice President Backcountry Hunters & Anglers Tom H. Logan Chairman/Senior Advisor – Conservation Fly Fishers International Board Conservation Committee Dan Boritt Executive Director Indiana Wildlife Federation Jared Mott Conservation Director Izaak Walton League of America Jim Murphy Director of Legal Advocacy National Wildlife Federation Russell Kuhlman Executive Director Nevada Wildlife Federation Tom Butch President Ohio Conservation Federation Alexander Funk Director of Water Resources Theodore Roosevelt Conservation Partnership Kate Miller Director of Government Affairs Trout Unlimited

March 9, 2023 Chairman Tom Carper U.S. Senate Committee on Environment and Public Works 410 Dirksen Senate Office Building Washington, DC 20510 Re: 2023 Biden Administration Waters of the U.S. Rule Dear Chairman Carper: On behalf of the American Fisheries Society (AFS), we write today to urge you to vote against S.J. Res. 7, the joint resolution of disapproval seeking to invalidate the Biden Administration’s Waters of the United States (WOTUS) rule (2023 Rule) published in the Federal Register on January 18, 2023. AFS has long supported a science-based definition of WOTUS. AFS fully supported the 2015 Clean Water Rule (2015 CWR) because it was informed by the best scientific information available and based protections on the many physical, chemical, and biological connections of headwaters to downstream navigable waters. We are on record in opposition to the 2020 Navigable Waters Protection (2020 NWPR) rule because it removed federal Clean Water Act protections for millions of miles of headwater streams and millions of acres of wetlands. 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. Invalidating the 2023 rule in an attempt to return to the very limited protections in the 2020 NWPR threatens highly valued fish, fisheries, ecosystem services, and the communities that rely on them. AFS is the world’s oldest and largest professional society of fisheries and aquatic scientists and managers. The Society seeks to improve the conservation and sustainability of fisheries and aquatic ecosystems by advancing science and promoting the development of fisheries professionals. We greatly value the country’s clean waters and healthy aquatic ecosystems as they are critical to maintaining fisheries and other critical ecosystem services such as supporting biodiversity, flood control, and carbon storage. 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: physical/hydrologic, chemical, and biological. AFS has long supported a science-based definition of WOTUS. The 2023 Rule seeks to balance the science with efficiency and provides additional clarity for implementation of the rule. We are on record in opposition to the 2020 Navigable Waters Protection (2020 NWPR) rule. The limited protections it provides for our nation’s waters threaten highly valued fish, fisheries, ecosystem services, and the communities that rely on them (Colvin et al. 2019). The 2020 NWPR removed protections for millions of miles of headwater streams and millions of acres of wetlands and would have resulted in severe ecological and economic losses and caused irreparable cultural and social damage (Cohen et al. 2016; Fesenmyer et. al. 2021; Creed et. al. 2017; Sullivan Declaration 2020.) 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 (USEPA, 2015). Aquatic ecosystems depend upon transfers of chemical components, organisms, sediment, and organic materials among waterbodies to support the life in and around their shores. 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 organisms such as fish and wildlife, and serve as a drainage and storage system for floodwaters is severely undermined. AFS fully supported the 2015 Clean Water Rule (2015 CWR) because it was based on the demonstrated importance of the many physical, chemical, and biological connections of headwaters to the ecological condition of downstream and downslope navigable waters and their biota. The 2015 CWR was informed by the best scientific information available as set forth in the comprehensive scientific report that accompanied the rule, i.e., the “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence” (herein the “Connectivity Report” but described in the 2015 CWR as the “Science Report”). The Connectivity Report synthesized over 1,200 peer-reviewed publications and provided the technical basis for the 2015 CWR. In the intervening years, interdisciplinary scientific efforts have further demonstrated the importance of protecting non-permanent waterbodies, including intermittent and ephemeral headwater streams and wetlands that are hydrologically and biologically connected to navigable waters (e.g., Cohen et al. 2016, Rains, et al. 2016, Fritz et al. 2018, Harvey et al. 2018, Leibowitz et al. 2018, Schofield et al. 2018, Colvin et al. 2019). In contrast, the 2020 NWPR was not based on current science and reversed decades of protections that were put in place to ensure clean water would be available for future generations (Sullivan et al. 2019, Sullivan et al. 2020). The 2020 NWPR rule focused only on hydrological surface connections to establish jurisdiction. It ignored many key biological and chemical connections that are critical for fully functioning aquatic ecosystems. It only recognized a limited subset of connectivity conditions, and it relied on flow permanence and physical abutment as measures of jurisdiction. Hence, it arbitrarily ignored other ecologically critical aspects of physical connectivity such as bed, banks, and high-water marks, and chemical, biological and ecological connectivity that were incorporated in the 2015 CWR. The 2020 NWPR eliminated protections for a staggering number of headwater streams, which are broadly defined as portions of a river basin that contribute to the development and maintenance of downstream navigable waters including rivers, lakes, and oceans. Headwaters include wetlands outside of floodplains and small streams with permanent flow, intermittent flow, and ephemeral flows. Headwaters affect downstream and downslope streams and wetlands; that is, they are hydrologically, chemically, physically, biologically and ecologically connected to what happens downstream. Headwaters are key to the sustainability of fish stocks in both upstream and downstream waters and should be protected (Colvin et al., 2019). The loss of Clean Water Act protections for headwaters would diminish ecosystem services provided by those waters, increase threats to imperiled species,

February 7, 2023 Chairman David Rouzer U.S. House of Representatives Committee on Transportation and Infrastructure Subcommittee on Water Resources and Environment 2165 Rayburn House Office Building Washington, DC 20515 Ranking Member Grace Napolitano U.S. House of Representatives Committee on Transportation and Infrastructure Subcommittee on Water Resources and Environment 2165 Rayburn House Office Building Washington, DC 20515 Dear Chairman Rouzer and Ranking Member Napolitano: On behalf of the American Fisheries Society (AFS), thank you for the opportunity provide testimony on the impacts of the Biden Administration’s Waters of the United States (WOTUS) rule (2023 Rule) published in the Federal Register on January 18, 2023. AFS is the world’s oldest and largest professional society of fisheries and aquatic scientists and managers. The Society seeks to improve the conservation and sustainability of fisheries and aquatic ecosystems by advancing science and promoting the development of fisheries professionals. We greatly value the country’s clean waters and healthy aquatic ecosystems as they are critical to maintaining fisheries and other critical ecosystem services such as supporting biodiversity, flood control, and carbon storage. 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: physical/hydrologic, chemical, and biological. AFS has long supported a science-based definition of WOTUS. The 2023 Rule, seeks to balance the science with efficiency and provides additional clarity for implementation of the rule. We oppose returning to the 2020 Navigable Waters Protection (2020 NWPR) rule. The limited protections in the 2020 NWPR threaten highly valued fish, fisheries, ecosystem services, and the communities that rely on them (Colvin et al. 2019). The 2020 NWPR removes protections for millions of miles of headwater streams and millions of acres of wetlands and would result in severe ecological and economic losses and cause irreparable cultural and social damage (Cohen et al. 2016; Fesenmyer et. al. 2021; Creed et. al. 2017; Sullivan Declaration 2020.) 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 (USEPA, 2015). Aquatic ecosystems depend upon transfers of chemical components, organisms, sediment, and organic materials among waterbodies to support the life in and around their shores. 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 organisms such as fish and wildlife, and serve as a drainage and storage system for floodwaters is severely undermined. AFS fully supported the 2015 Clean Water Rule (2015 CWR) because it was based on the demonstrated importance of the many physical, chemical, and biological connections of headwaters to the ecological condition of downstream and downslope navigable waters and their biota. The 2015 CWR was informed by the best scientific information available as set forth in the comprehensive scientific report that accompanied the rule, i.e., the “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence” (herein the “Connectivity Report” but described in the 2015 CWR as the “Science Report”). The Connectivity Report synthesized over 1,200 peer-reviewed publications and provided the technical basis for the 2015 CWR. In the intervening years, interdisciplinary scientific efforts have further demonstrated the importance of protecting non-permanent waterbodies, including intermittent and ephemeral headwater streams and wetlands that are hydrologically and biologically connected to navigable waters (e.g., Cohen et al. 2016, Rains, et al. 2016, Fritz et al. 2018, Harvey et al. 2018, Leibowitz et al. 2018, Schofield et al. 2018, Colvin et al. 2019). In contrast, the 2020 NWPR was not based on current science and reversed decades of protections that were put in place to ensure clean water would be available for future generations (Sullivan et al. 2019, Sullivan et al. 2020). The 2020 NWPR rule focused only on hydrological surface connections to establish jurisdiction. It ignored many key biological and chemical connections that are critical for fully functioning aquatic ecosystems. It only recognized a limited subset of connectivity conditions, and it relied on flow permanence and physical abutment as measures of jurisdiction. Hence, it arbitrarily ignored other ecologically critical aspects of physical connectivity such as bed, banks, and high-water marks, and chemical, biological and ecological connectivity that were incorporated in the 2015 CWR. The 2020 NWPR eliminated protections for a staggering number of headwater streams, which are broadly defined as portions of a river basin that contribute to the development and maintenance of downstream navigable waters including rivers, lakes, and oceans. Headwaters include wetlands outside of floodplains and small streams with permanent flow, intermittent flow, and ephemeral flows. Headwaters affect downstream and downslope streams and wetlands; that is, they are hydrologically, chemically, physically, biologically and ecologically connected to what happens downstream. Headwaters are key to the sustainability of fish stocks in both upstream and downstream waters and should be protected (Colvin et al., 2019). The loss of Clean Water Act protections for headwaters would diminish ecosystem services provided by those waters, increase threats to imperiled species, impair commercial and recreational fisheries in both fresh and salt waters, and degrade fishes of great cultural value to Native Americans and the recreating public. Climate change will only exacerbate those losses. Aquatic resources in many states, particularly in the central and western U.S., are already stressed by overuse of water and extreme weather patterns. The reduction in groundwater has greatly impaired flow regimes, causing many streams to shift from perennial to intermittent or even ephemeral (Colvin et al., 2019). Under the 2020 NWPR rule, streams and playas may no longer be protected that were historically perennial but now have impaired flows because of groundwater depletion. Whereas water rights and use largely fall outside the jurisdiction of the Clean Water Act, the negative impacts of unregulated dredge and fill within those streams and