Water Quality

Policy Letters

Science Societies Oppose Changes to Water Quality Rules

PDF version of letter October 21, 2019 Mr. Andrew R. Wheeler Acting Administrator U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, NW Washington, DC 20460 Via regulations.gov Re: Submission of Comments to EPA regarding the proposed rule “Updating Regulations on Water Quality Certification” (84 FR 44080; Docket Number EPA-HQ-OW-2019-0405-0025) Dear Administrator Wheeler: On behalf of the undersigned science societies, we respectfully submit the following comments in response to the proposed Rule “Updating Regulations on Water Quality Certification” (proposed Rule) (84 FR 44080; Docket Number EPA-HQ-OW-2019-0405-0025), published in the Federal Register on August 22, 2019. We appreciate this opportunity to provide comments to the Environmental Protection Agency (EPA) in response to this proposed rule. The undersigned scientific societies represent more than 200,000 individuals with diverse areas of expertise in the aquatic, ecological, hydrologic, biogeochemical, biological and ecological restoration sciences. Our members have deep subject matter expertise and a commitment to independent objectivity and peer-review of science and work in the private sector, academia, and various tribal, state, and federal agencies. We promote the development and use of the best available science to sustainably manage and restore our freshwater, estuarine, coastal, and ocean resources for the benefit of the U.S. economy, environment, and public health and safety. Cooperative federalism is at the core of the Clean Water Act (CWA). The Water Quality Certification (WQC) process serves as a successful model of cooperative federalism under the act. The CWA requires that federal agencies and actions respect state authority and control over water quality within their respective state boundaries. New rulemaking is of immense importance to the states and tribes that rely on Section 401 as a means of protecting the quality of surface waters within their boundaries and to the citizens of the states and tribes. The proposed Rule threatens the partnership between the states and the federal government in administering the law and undermines the ability of both to uphold the mandate of the CWA, which is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters. We respectfully request that any changes made to Section 401 maintain existing state and tribal authority, as established by Congress and the United States Constitution, to review and approve permits through the Section 401 WQC process. In the absence of any rigorous analysis, restriction of a state’s or tribe’s ability to administer a Section 401 WQC program in a manner that the state/tribe deems appropriate can be viewed as an arbitrary and capricious limitation of the cooperative federalism goals of the CWA. Indeed, Justice Stevens, concurring with the 7 – 2 majority opinion in PUD No. 1 of Jefferson County v. Washington Department of Ecology, 511 U.S. 700 (1994), stated, “Not a single sentence, phrase, or word in the CWA purports to place any constraint on a State’s power to regulate the quality of its own waters more stringently than federal law might require. In fact, the Act explicitly recognizes the States’ ability to impose stricter standards.” As justification for the proposed Rule, EPA claims that state regulations and/or processes for water quality certifications are hindering infrastructure development and asserts that there is confusion and uncertainty around the Section 401 certification process. Yet no published data exists regarding the annual number of Section 401 WQC denials or delays on a national basis. In the absence of relevant data, any attempt to develop a new rule is unwarranted. A revision based on a faulty premise would lead to unintended consequences and would undermine the successful model that protects the chemical, physical, and biological integrity of our nation’s waters. While there are complex elements of the WQC process that could be improved or streamlined, none of those improvements require rulemaking that entails a reduction in the states’ authority to review permits, develop conditions suitable to their respective standards, and issue certifications. To this end, we recommend that no changes be made to the scope of WQC review and that no restrictions be placed on the conditions or requests for information that states or tribes may judge to be reasonably appropriate to include in a certification. We oppose any revision of guidance or rulemaking that would reduce the states’ role and their authority to complete adequate review of federal permits, and we oppose the proposed Rule’s provisions that would allow federal agencies to limit the states’ and tribes’ decision-making timeframes, limit their scope of review, and overrule state water quality decisions at federal discretion. In addition, we submit to the record the following specific comments for consideration: Section II.D. Guidance Document The June 7, 2019 Guidance Document1 cannot provide guidance for a rule that has not yet been promulgated. To contemplate that the guidance document in question be retained after promulgation of the final rule implies that it has been pre-determined as to what the final rule will entail, despite an ongoing and open public comment period. In addition to being akin to manipulating the data to fit the preferred conclusion, the proposed process is clearly contrary to the intent of the Administrative Procedure Act,2 which requires the EPA to consider public comment in the rulemaking process. We recommend that the June 7, 2019 Guidance Document be immediately rescinded or superseded by new guidance that reflects the contents of the new rule upon its promulgation. Furthermore, we suggest that EPA work with state regulators and professional organizations to update Clean Water Act Section 401 Water Quality Certification: A Water Quality Protection Tool for States and Tribes (2010), as this document has served as an excellent resource (albeit not formal guidance) for state regulators working in Section 401 WQC. Section III.A. When Section 401 Certification Is Required We recommend that the words “may result” be retained in the sentence “Any applicant for a license or permit to conduct any activity which may result in a discharge shall provide the Federal agency a certification from the certifying authority in accordance with this part.” The EPA should place emphasis on the words “may result” to avoid situations

October 21, 2019 No Comments

Press Releases

AFS Joins Conservation Organizations Opposing EPA’s Move to Finalize Clean Water Rule Rollback

News for Immediate Release September 12, 2019 Contact: Marnee Banks, 202-639-8727 x19, [email protected] Conservation Organizations Oppose EPA’s Move to Finalize Rollback of Clean Water Protections Groups rally together to voice support for fish and wildlife habitat, wetlands, and headwater streams (Washington, D.C.) – Conservation groups are opposing the Administration’s rollback of the 2015 Clean Water Rule, which was finalized today. The Administration’s action will leave roughly 50 percent of wetlands and 60 percent of stream miles across the country vulnerable to pollution and destruction. The 2015 Clean Water Rule had clarified longstanding Clean Water Act protections for millions of acres of wetlands and many headwater streams that protect communities from flooding, contribute to the drinking water supplies of one in three Americans, and provide essential fish and wildlife habitat that supports a robust outdoor recreation economy worth $887 billion. “Sportsmen and women are outside every day experiencing the benefits of clean water,” says Whit Fosburgh, president and CEO of the Theodore Roosevelt Conservation Partnership. “Rolling back these protections for wetlands and headwater streams threatens our hunting and fishing traditions and the outdoor economy that powers our communities.” “No one wants to fish a lake covered in toxic algae, duck hunt in a bulldozed wetland, or pitch a tent next to a creek filled with feces,” says Collin O’Mara, president and CEO of the National Wildlife Federation. “Unfortunately, this Administration is working on multiple fronts to rewrite the rules that protect our waters, hoping no one will notice. The collective impact of these changes would be devastating for public health and wildlife across the country—and we will continue to fight to protect America’s waterways every step of the way.” “Clean water is a basic right of every American,” says Chris Wood, president and CEO of Trout Unlimited. “To be effective, the Clean Water Act must be able to control pollution at its source. Unfortunately today’s action by the EPA places the health of 60 percent of the stream miles and the drinking water of one in three Americans at risk. Trout Unlimited will not rest, and will use all of the tools at our disposal, to compel EPA to reverse course on this misguided direction.” “More than 100 million people across the US engage in fish- and wildlife-based recreation, approximately half of whom participate in fishing,” says Patrick Berry, president and CEO of Fly Fishers International. “It is clear the opportunities available to enjoy these outdoor pursuits is directly limited by the health of our natural systems and their ability to support healthy and abundant populations of fish and wildlife. Rolling back protections of wetlands, our lakes streams and rivers—some of the most diverse and productive wildlife habitats—not only compromises our natural heritage, but threatens the cultural and economic value of recreational fishing.” “This rule will irreparably impact wetlands in America’s duck factory – the prairie pothole region – and threaten the health of riparian habitat critical for big game and 80 percent of all wildlife species,” says Land Tawney, president and CEO of Backcountry Hunters and Anglers. “Weakened protections translate to lost access and reduced opportunities for hunting and fishing. Hunters and anglers must not stand for shortsighted polices that compromise the integrity of fish and wildlife habitats that have been safeguarded for decades under the Clean Water Act.” “EPA’s decision to repeal the Clean Water Rule is wholly unsupported by science, can’t be squared with the clear intent of the Clean Water Act, and fails the common sense test,” says Scott Kovarovics, Executive Director of Izaak Walton League of America. “To make matters worse, this is only a prelude to the second blow when EPA finalizes a new rule later this year that will further undermine protections for small streams, wetlands, and drinking water supplies across America.” “The EPA is tossing out 50 years of peer-reviewed science and in doing so threatens to undermine the integrity of the Nation’s waters that support fish and wildlife,” says Doug Austen, executive director of the American Fisheries Society. “Allowing unchecked pollution and destruction in the waters and wetlands in the upper reaches of a watershed imperils the sustainability of fish stocks in both upstream and downstream waters and places valuable recreational fisheries and endangered species at risk.” 80 percent of sportsmen and women in a 2018 poll said Clean Water Act protections should apply to headwater streams and wetlands. Additionally, 92 percent believe that we should strengthen or maintain current clean water standards, not relax them. More information about the proposed changes to the Clean Water Rule is available here.

September 12, 2019 3 Comments

Policy Letters

AFS Joins Hunting and Fishing Groups in Filing Final Comments Opposing Clean Water Rollback

News for Immediate Release April 15, 2019 Contact: Kristyn Brady, 617-501-6352, [email protected] Hunting and Fishing Groups File Final Comments Opposing Clean Water Rollback 14 national groups and 70 local affiliate chapters oppose the proposed weakening of clean water standards that would threaten fish and wildlife habitat (Washington, D.C.) — Today, dozens of national, regional, and local hunting and fishing groups submitted final comments on the EPA’s proposed rollback of Clean Water Act protections for 50 percent of wetlands and 18 percent of stream miles in the U.S. Their comments underscore the potential economic consequences for rural communities and outdoor recreation businesses and the species that stand to lose habitat if clean water standards are weakened. The Theodore Roosevelt Conservation Partnership has also mobilized more than 3,500 individual sportsmen and women to submit comments opposing the rollback during the brief comment period. “At every step of the EPA’s rule replacement process on what waters qualify for Clean Water Act protections, hunters and anglers have been clear about their support for safeguards on headwaters and wetlands,” says Whit Fosburgh, president and CEO of the Theodore Roosevelt Conservation Partnership. “The science supports protecting these habitats as interconnected to larger water systems, the economics of defending outdoor recreation opportunities and businesses makes sense, and Americans will continue to stand up for clean water to power their outdoor pursuits.” The groups write that the proposed rule represents a “wholesale gutting of the Clean Water Act’s 47 years of protection for our nation’s waters,” with habitat that supports trout, salmon, pintails, mallards, teal, and snow geese in the crosshairs. Read the detailed comments here. Fourteen national groups and 70 state and local affiliate chapters signed in support. Source: TRCP press release

April 16, 2019 No Comments

WOTUS

American Fisheries Society and The Wildlife Society Oppose Changes to the Waters of the US Rule

American Fisheries Society 425 Barlow Place, Suite 110, Bethesda, Maryland 20814 Telephone: 301-897-8616 www.fisheries.org The Wildlife Society 425 Barlow Place, Suite 200, Bethesda, Maryland 20814 Telephone: 301-897-9770 www.wildlife.org April 12, 2019 Mr. R.D. James Assistant Secretary of the Army for Civil Works U.S. Army Corps of Engineers 441 G Street, N.W. Washington, D.C. 20314 Via regulations.gov: Docket ID No. EPA-HQ-OW-2018-0149 Re: Revised Definition of “Waters of the United States” (84 FR 4154; Docket ID No. EPA-HQ-OW-2018-0149) Dear Administrator Wheeler and Assistant Secretary James: On behalf of the more than 20,000 members of the American Fisheries Society (AFS) and The Wildlife Society (TWS), we respectfully submit the following comments in response to the proposed rule (proposed Rule), “Revised Definition of ‘Waters of the United States’” (84 FR 4154; Docket ID No. EPA-HQ-2018-0149) published in the Federal Register on February 14, 2019. AFS is the world’s oldest and largest professional society of fishery and aquatic scientists and managers. The Society seeks to improve the conservation and sustainability of fishery resources and aquatic ecosystems by advancing fisheries and aquatic science and promoting the development of fisheries professionals. TWS and its network of affiliated chapters and sections represent professional wildlife biologists, managers, and educators dedicated to excellence in wildlife stewardship. The Society’s mission is to inspire, empower, and enable wildlife professionals to sustain wildlife populations and habitat through science based management and conservation. Our societies are strongly opposed to the proposed Rule. We greatly value the country’s clean waters and healthy aquatic ecosystems as they are critical to maintaining fisheries, ecosystem services, and biodiversity. The limited protections proposed for our nation’s waters under the proposed Rule threaten fish, fisheries, and the terrestrial wildlife and human populations that rely on them, and places the highly valued ecosystem services that are derived from these systems in great peril. AFS and TWS fully support the definition of Waters of the U.S. (WOTUS) in the 2015 Clean Water Rule (2015 CWR), which was overwhelmingly supported by peer-reviewed science. The EPA’s Office of Research and Development prepared a comprehensive scientific report to accompany the 2015 CWR, the “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence” (herein the “Connectivity Report” but which was described in the 2015 CWR as the “Science Report”). The Connectivity Report synthesized more than 1,200 peer-reviewed publications and provided the technical basis for the 2015 CWR. The 2015 CWR also underwent an extensive stakeholder review process. Since the completion of the Connectivity Report, substantial additional literature has emerged that reaffirms the report and the 2015 CWR (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.) The 2015 CWR reflects the best available science in regards to connectivity, but unfortunately, the proposed Rule is unsupported by peer-reviewed science. It was developed without the critical scientific analysis that supported the 2015 CWR rulemaking process and it has not been subjected to a rigorous independent review process. Further, the proposed Rule fails to align with the original intent of the Clean Water Act to ‘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 and recognizes all five parameters of connectivity (hydrologic, chemical, physical, biological, ecological), as documented in the Connectivity Report (EPA 2015). Unfortunately, the proposed Rule only recognizes a limited subset of connectivity and relies on flow permanence and physical abutment as measures of jurisdiction while arbitrarily ignoring other 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 proposed Rule is inconsistent with more than a half century of scientific research that demonstrates that the integrity of “traditionally navigable” waters fundamentally depends on ephemeral, intermittent, and perennial headwater streams, as well as the many associated lakes, wetlands, and off-channel habitats (USEPA, 2015). The proposed Rule would eliminate protections from many headwaters across the country. Headwaters 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. The waters and wetlands in the upper reaches of a watershed, including ephemeral, intermittent, or perennial streams, affect downstream waters and wetlands; that is, they are hydrologically, chemically, physically, biologically and ecologically connected to what happens downstream. Aquatic ecosystems depend upon transfer of chemical components and organic materials to support the life in and around their shores. Headwater streams act as a conveyor of nutrients, a path for migrating organisms such as fish and wildlife, and a drainage and storage system for floodwaters. These and other ecosystem services depend on watershed connectivity. AFS convened a group of scientists to look at the value of headwater streams for their critical importance to fish and fisheries. As detailed in their report, “Headwater Streams and Wetlands are Critical for Sustaining Fish, Fisheries and Ecosystems,” (Colvin et al. 2019) the loss of Clean Water Act protections for headwaters would diminish ecosystem services provided by those waters, increase the threat to imperiled species, affect commercial and recreational fisheries, and degrade fishes of great cultural value to Native Americans and the recreating public. Headwaters are key to the sustainability of fish stocks in both upstream and downstream waters and should be protected. In addition to the loss of protection for headwaters, the proposed Rule seeks to eliminate protections for wetlands that do not abut or have a direct hydrologic surface connection to other WOTUS. Wetlands provide essential ecosystem services such as protection of drinking water quantity and quality, provision of flood storage, storm damage mitigation, resilience against sea level rise and drought, and essential fish, shellfish, waterfowl, and wildlife habitat. Wetland loss in some regions of the U.S. already approaches or exceeds

April 12, 2019 No Comments

Policy Letters

Science Societies Urge EPA Not to Change the Waters of the US Rule

April 10, 2019 Mr. R.D. James Assistant Secretary of the Army for Civil Works U.S. Army Corps of Engineers 441 G Street, N.W. Washington, D.C. 20314 Via regulations.gov: Docket ID No. EPA-HQ-OW-2018-0149 Re: Scientific Societies Comments on Proposed Rule – Revised Definition of “Waters of the United States” (84 FR 4154; Docket ID No. EPA-HQ-OW-2018-0149) CC: Michael McDavit, Oceans, Wetlands, and Communities Division, Office of Water, EPA Jennifer A. Moyer, Regulatory Community of Practice, U.S. Army Corps of Engineers Dear Administrator Wheeler and Assistant Secretary James: On behalf of the undersigned science societies, we respectfully submit the following comments in response to the proposed Rule “Revised Definition of ‘Waters of the United States” (proposed Rule) (84 FR 4154; Docket ID No. EPA-HQ-OW-2018-0149), published in the Federal Register on February 14, 2019. The undersigned scientific societies represent more than 200,000 individuals with diverse areas of expertise in the aquatic, ecological, hydrologic, biogeochemical, biological and ecological restoration sciences. Our members have deep subject matter expertise and a commitment to independent objectivity and peer-review of science and work in the private sector, academia, and various tribal, state and federal agencies. We support wetland, aquatic, and ecological resource research, education, restoration and sustainable management. We promote the development and use of the best available science to sustainably manage and restore our freshwater, estuarine, coastal, and ocean resources for the benefit of the U.S. economy, environment, and public health and safety. The undersigned societies strongly oppose the proposed Rule and the U.S. Environmental Protection Agency’s and the U.S. Army Corps of Engineers’ (Agencies) decision to re-write and rescind the science-based definitions contained in the 2015 Clean Water Rule (2015 CWR). By redefining waters of the United States (WOTUS), and related terms, the Agencies have cast aside the “significant nexus” standard from the 2015 CWR, based on Justice Kennedy’s opinion in Rapanos v. United States, 547 U.S. 715 (2006), in favor of a much narrower standard based on Justice Scalia’s opinion in Rapanos. The proposed Rule is not based on sound science or the best-available peer-reviewed information and will, as a result, exclude numerous waters and wetlands that directly affect the chemical, physical, and biological integrity of primary waters making it impossible to achieve the objectives of the Clean Water Act (CWA). We fully support the definition of WOTUS in the 2015 CWR, which was overwhelmingly supported by peer-reviewed science. The EPA’s Office of Research and Development prepared a comprehensive scientific report to accompany the 2015 CWR, the “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence” (herein the “Connectivity Report” but which was described in the 2015 CWR as the “Science Report”). The intent of the CWA is to restore and maintain the physical, chemical, and biological integrity of the nation’s waters. This can only be achieved if the definition of WOTUS is grounded in sound science and recognizes all five parameters of connectivity (hydrologic, chemical, physical, biological, ecological), as documented in the Connectivity Report (EPA 2015). The Connectivity Report synthesized more than 1,200 peer-reviewed publications and provided the technical basis for the 2015 CWR. The 2015 CWR also underwent an extensive stakeholder review process. Since the completion of the Connectivity Report, substantial additional literature has emerged that reaffirms the report and the 2015 CWR (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.) We oppose1 the proposed Rule because it is unsupported by peer-reviewed science. It has not been developed using the critical scientific analysis that supported the 2015 CWR rulemaking process, and it has not been subjected to a rigorous independent scientific review process. The proposed Rule only recognizes a limited subset of connectivity. Its reliance on flow permanence and physical abutment as measures of jurisdiction arbitrarily ignores other aspects of physical connectivity such as bed, banks, and high-water marks, as well as chemical, biological and ecological connectivity. In contrast, the 2015 CWR is built upon a scientific basis that incorporates these elements. The 2015 CWR reflects the best available science regarding connectivity. In essence, what happens to the waters and wetlands in the upper reaches of a watershed, including ephemeral, intermittent, or perennial streams, will affect downstream waters and wetlands. That is, they are hydrologically, chemically, physically, biologically and ecologically connected to what happens downstream. Aquatic ecosystems cannot function properly without functional biological and chemical connectivity, as well as physical connectivity, and therefore cannot provide essential ecosystem services without it. The functioning of the circulatory system in the human body is a useful metaphor to demonstrate the importance of watershed connectivity. Introduction of toxins, such as cigarette smoke, to the smallest capillaries in the lungs ultimately delivers those toxins to the larger blood vessels and the main organs. The heart itself can ultimately be damaged beyond repair by the cumulative effect of toxins introduced at the peripheries of the circulatory system. The health of the whole organism cannot be preserved without consideration of the smaller features. Watersheds function in a similar way. Pollutants introduced into ephemeral waters and wetlands ultimately make their way to the largest waterways and water bodies with deleterious effects on the functioning of downstream ecosystems. Eliminating protections for smaller, intermittent, non-floodplain, geographically isolated and/or ephemeral waters degrades the large downstream waters in the same way that introduction of toxins to small blood vessels jeopardizes the health of the human body if the toxins are potent enough and in large enough quantities. Restoring and maintaining the structural and functional integrity of the Nation’s waters is only possible if the ephemeral and headwater aquatic systems are protected. Many of the definitions and terms in the proposed Rule lack clarity, are not based in science or the criteria for determining jurisdiction are not based in science. Particularly problematic are the definitions for “adjacent”, “intermittent”, and “tributary” as discussed below. Adjacent: The Agencies have proposed a significant re-definition of “adjacent” that strays from the

April 12, 2019 1 Comment

Past Webinars

Webinar recording: Waters of the US (WOTUS)

Waters of the US (WOTUS): What You Need to Know About the Rule and How to Take Action from fisheries on Vimeo. This webinar was recorded on February 27, 2018. The video contains some sections with poor audio quality, and AFS staff will work to edit portions of this recording. Presenter slides: Gillian Davies – Comparison of Proposed Rule to Devise the Definition of “Waters of the United States” and Existing WOTUS Rules and Regulations Mazeika Sullivan – Where’s the Science in the Proposed ‘WOTUS’ Rule? Susan Colvin – Headwater Streams & Wetlands are Critical for Sustaining Fish, Fisheries, & Ecosystem Services Part 1 Part 2 Drue Winters/Patrick Shirey – WOTUS: What You Need to Know about the Rule and How to Take Action Efforts by the Trump administration are underway to roll back Clean Water Act protections for our nation’s streams and wetlands. The newly proposed rule to revise the definition of waters of the United States (WOTUS) aims to exclude many wetlands and headwater streams that are critical to fish, fisheries, and ecosystem services. In 2015, the EPA finalized a WOTUS rule that based Clean Water Act protections on the degree of connectivity between navigable waters, wetlands, and headwater streams. The 2015 rule was informed by the best scientific information available, but the new WOTUS rule proposes to eliminate protections for all ephemeral streams and wetlands that do not have a surface connection to, or touch, navigable waters, and opens the door to removing protections for intermittent streams. Activities such as mining, industry, and development could move forward in these waters without federal safeguards, thereby having far-reaching implications for fish, wildlife, and ecosystem functioning, as well as economies dependent on those systems. Join us for an informative and timely webinar to learn more about the proposed WOTUS rule, the science that contradicts it, and how to submit an effective regulatory comment. A 60-day public comment period on the proposed rule will end on April 15. We encourage AFS members to submit formal comments on the rule to highlight proposed impacts on a state-by-state basis. Visit https://fisheries.org/policy-media/wotus/ for more information.

February 28, 2019 No Comments

Policy Letters

CASS Requests Extension of Waters of the US Comment Period and Additional Public Hearings

American Fisheries Society • Association for the Sciences of Limnology and Oceanography • Coastal and Estuarine Research Federation • Freshwater Mollusk Conservation Society • International Association for Great Lakes Research • North American Lake Management Society • Phycological Society of America • Society for Freshwater Science • Society of Wetland Scientists February 22, 2019 Mr. Andrew R. Wheeler Acting Administrator U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, NW Washington, DC 20460 Mr. R.D. James Assistant Secretary of the Army for Civil Works U.S. Army Corps of Engineers 441 G Street, N.W. Washington, D.C. 20314 Via regulations.gov: Docket ID No. EPA-HQ-OW-2018-0149 Re: Request for 200-day Comment Period and Additional Public Hearings on Proposed Rule – Revised Definition of “Waters of the United States” (84 FR 4154; Docket ID No. EPA-HQ-OW-2018-0149) Dear Administrator Wheeler and Assistant Secretary James: On behalf of the undersigned organizations representing 20,000 wetland and aquatic science professionals, we respectfully request that EPA and the US Army Corps of Engineers extend the public comment period from 60 days to a minimum of 200 days in length for the proposed rule “Revised Definition of ‘Waters of the United States’” (84 FR 4154; Docket ID No. EPA-HQ-OW-2018-0149). We also request that EPA hold additional public hearings in different geographic locations to gather sufficient and extensive input on the proposed rule. For example, over 400 meetings were held with a wide range of stakeholders during the process of developing the 2015 Clean Water Rule. Although the Administrative Procedure Act (APA; 5 U.S.C. §§ 551-559) does not specify a minimum or maximum period for a comment period to remain open, the duration of a comment period often varies with the complexity of the proposed rule. In this regard, the Agencies provided a 6-month comment period for the 2015 Clean Water Rule. Over one million comments were submitted regarding the 2015 Clean Water Rule, and it seems likely that a similar level of interest and engagement will attend the proposed “Revised Definition of ‘Waters of the United States’”, which inarguably has the potential to profoundly affect implementation of the Clean Water Act (CWA), one of the nation’s landmark and most comprehensive environmental laws. Because of this potential, EPA should provide sufficient time and resources to the stakeholder community, including the wetland and aquatic science professionals represented by the undersigned organizations for their review of the proposed rule, and in acknowledgement of the benefits that will be provided based on this community’s collective knowledge and expertise. The risk of unintended consequences and adverse long-term effects resulting from such a sweeping rule must be addressed with diligence and caution. As addressed in EPA’s own statements to the press, this risk is further complicated by the unavailability of quality data to complete rigorous analyses in a short timeframe. Therefore, 60 days is not sufficient to allow for an adequate, scientifically defensible review, as called for by the complexity and scope of the proposed rule. Additionally, a robust and geographically extensive public meeting program on a par with that of the 2015 Clean Water Rule is important in order to ensure that stakeholder concerns are identified and addressed, and that there is sufficient time for the public to conduct a thorough and science-based review of the proposed rule. Wetlands and headwater streams provide essential services to communities, such as protection of drinking water quality and quantity, provision of flood storage, storm damage prevention, resilience against sea level rise and drought, and essential fish, shellfish, waterfowl and wildlife habitat. The economic value of these services is inestimable and is increasing as we face increasing risks from storms, drought, wildfires and rising seas. Wetlands occupy a small portion of the landscape yet deliver outsized benefits and economic value to society. Many of our members participated in preparation of the EPA’s 2013 “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence”1 report that documents the connectivity of wetlands and headwaters to downstream waters and would appreciate the opportunity to contribute their scientific expertise to a public comment process of sufficient length to allow for meaningful input from stakeholders. CASS is composed of nine professional societies representing almost 20,000 individuals with diverse knowledge of the aquatic sciences. Those members work in the private sector, academia, non-governmental organizations, and various tribal, state, and federal agencies. CASS represents professional scientists and managers with deep subject matter expertise, a commitment to independent objectivity, and the critical review of environmental information. We support the development and use of the best available science to sustainably manage our freshwater, estuarine, coastal, and ocean resources to the benefit of the U.S. economy, environment, and public health and safety. Thank you for considering this extension request. If you have further questions, please do not hesitate to contact Drue Banta Winters by email at [email protected] or telephone at 301-897-8616. Sincerely, American Fisheries Society Association for the Sciences of Limnology and Oceanography Coastal and Estuarine Research Federation Freshwater Mollusk Conservation Society International Association for Great Lakes Research North American Lake Management Society Phycological Society of America Society for Freshwater Science Society of Wetland Scientists CC: Michael McDavit, Oceans, Wetlands, and Communities Division, Office of Water, EPA Jennifer A. Moyer, Regulatory Community of Practice, U.S. Army Corps of Engineers 1 U.S. Environmental Protection Agency (USEPA) 2013 Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence. U.S. Environmental Protection Agency, Washington, D.C. EPA/600/R-11/098B. Docket # EPA-HQ-OW-2018-0149

February 26, 2019 No Comments

Policy Letters

AFS Requests Extension on Waters of the US Comment Period

December 21, 2018 Andrew Wheeler, Acting Administrator Environmental Protection Agency 1200 Pennsylvania Avenue NW Washington, DC 20460 R.D. James Assistant Secretary of the Army (Civil Works) Department of the Army 108 Army Pentagon Washington, D.C. 20310-0108 Email delivery to: [email protected] RE: Request for Extension to Comment on Docket ID No. EPA–HQ–OW–2018–0149 Dear Acting Administrator Wheeler and Assistant Secretary James: On behalf of our millions of members and supporters, the undersigned hunting, fishing, and conservation groups respectfully urge your agencies to extend the period during which you will accept citizen input on the comment period for the above-referenced docket to ensure at least a 200-day comment period to address the agencies’ proposal to replace the 2015 Clean Water Rule. The planned 60-day comment period minimizes the input of the more than one million people who participated in the development of the 2015 Rule and more than 685,000 people who submitted comments during the initial attempt to repeal the Rule. It is also an inadequate amount of time for stakeholders to engage meaningfully in this rulemaking process. Many of our members and supporters are currently out pursuing their hunting passions, and a shortened comment period leaves them with little time to voice their opinions about a rulemaking that will greatly affect their way of life. EPA and the Army Corps adopted the 2015 Clean Water Rule to clarify longstanding confusion over which water bodies were protected under the Clean Water Act. The Rule was also based upon well-established legal interpretations of the Clean Water Act, closely tracking Justice Kennedy’s pivotal “significant nexus” standard for determining the “waters of the U.S.” With this rulemaking, the agencies propose to remove Clean Water Act protections for streams that only flow following rainfall, as well as wetlands that are not physically connected to larger waterways. Based on the Army Corps and EPA’s own analysis, at least 18 percent of stream miles and 51% of wetlands nationwide would lose Clean Water Act protections, irreversibly harming the habitat for fish and wildlife that hunters and anglers rely on. Given the agencies’ numerous requests for detailed feedback during this comment period and the length of the comment period for the 2015 Rule, a minimum of a 200-day comment period should be required. Replacing the 2015 Clean Water Rule would have significant ramifications our nation’s waters and for the effective and efficient implementation and enforcement of the Clean Water Act. For a rule of this nature, the agencies must provide an opportunity for “meaningful and informed” comment. S. Carolina Coastal Conservation League v. Pruitt, Case # 2:18 cv 00330-DCN, D. Ct. (S. Car.) (8/16/18). That court found the abbreviated public comment period for the administration’s attempt to delay the effective date of the 2015 Clean Water Rule an important factor in its ruling that the delay rulemaking was invalid under the Administrative Procedures Act. This proposed rulemaking must be subject to the same rigorous review applied to the 2015 Clean Water Rule, developed over four years during which the agencies held 400 meetings with a variety of stakeholders including small business owners, farmers, energy companies, states, counties, municipalities, other federal agencies, sportsmen and conservation groups, and environmental organizations. Additionally, the agencies allowed for more than 200 days of public comment that generated over one million comments, and supported the 2015 rulemaking with a 408-page scientific justification. Yet the Army Corps and the EPA propose to replace the Rule with virtually no public process aside from an informal request for recommendations. In view of the significant ramifications of proposed Rule and the fact that the agencies have provided no scientific basis for changing the existing rule, the public comment period for this proposal should be at least 200 days from the publication of the proposal in the federal register and the public posting of all relevant supporting documents. Respectfully submitted, American Fisheries Society American Woodcock Society Angler Action Foundation Backcountry Hunters & Anglers Bass Anglers Sportsman Society (B.A.S.S.) Colorado Trout Unlimited Fly Fishers International Guy Harvey Ocean Foundation Izaak Walton League of America Montana Trout Unlimited National Deer Alliance National Wildlife Federation Pheasants Forever Pope & Young Club Quail Forever Ruffed Grouse Society Theodore Roosevelt Conservation Partnership Trout Unlimited

February 21, 2019 No Comments

WOTUS

How to Submit Comments on the Revised Waters of the US (WOTUS)

Opportunity for public comment is now open. The comment period will close on Monday, April 15th at 11:59 p.m. Eastern. Download a PDF flyer on how to comment. The very narrow rule fails to account for the full range of physical, chemical, and biological connections between navigable waters and the streams and wetlands. The limited protections proposed for our nation’s waters threatens fish and fisheries and the communities that rely on them. When headwaters are polluted, or headwater habitats are 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. Simply put, loss of protections for headwaters would have grave consequences for fish and fisheries and would have far reaching implications for fish, wildlife and their habitats, as well as economies dependent on those systems. The proposed rule is an unprecedented rollback of the Clean Water Act, yet the agencies have not offered an analysis of the impacts of the new rule. This narrow rule fails to properly consider the well-established science and imperils fish and aquatic resources and communities that rely on them. A shift of this magnitude merits a full assessment of the impacts of eliminating protections for so many waterways. Here’s the link to the rule and the comment period: https://www.federalregister.gov/documents/2019/02/14/2019-00791/revised-definition-of-waters-of-the-united-states The comment period details are below: Docket ID No. EPA-HQ-OW-2018-0149 DATES: Comments must be received on or before April 15, 2019. ADDRESSES: You may submit comments, identified by Docket ID No. EPA-HQ-OW-2018-0149, by any of the following methods: Federal eRulemaking Portal: http://www.regulations.gov/ (our preferred method). Follow the online instructions for submitting comments. Email: [email protected]. Include Docket ID No. EPA-HQ-OW-2018-0149 in the subject line of the message. Mail: U.S. Environmental Protection Agency, EPA Docket Center, Office of Water Docket, Mail Code 28221T, 1200 Pennsylvania Avenue NW, Washington, DC 20460. Hand Delivery/Courier: EPA Docket Center, WJC West Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004. The Docket Center’s hours of operations are 8:30 a.m.-4:30 p.m., Monday-Friday (except Federal Holidays).

February 15, 2019 No Comments

Press Releases

WOTUS Rule Fails to Consider Science and Threatens Fish and Fisheries

New Paper, “Headwater Streams and Wetlands are Critical for Sustaining Fish, Fisheries and Ecosystem Services,” demonstrates threats to ecosystem services, imperiled species, commercial and recreational species, and culturally valuable fish from narrow rule. The American Fisheries Society (AFS) is deeply concerned with the proposed rule released Thursday, February 14, by the EPA and the U.S. Army Corps of Engineers to revise the definition of “Waters of the United States (WOTUS).” The very narrow rule fails to account for the full range of physical, chemical and biological connections between navigable waters and the streams and wetlands. The limited protections proposed for our nation’s waters threatens fish and fisheries and the communities that rely on them. More than a half century of scientific research has unequivocally demonstrated that the physical, chemical, and biological integrity of “traditionally navigable” waters fundamentally depend on ephemeral, intermittent, and perennial headwater streams, as well as the myriad associated lakes, wetlands, and off-channel habitats. Recently, AFS convened a group of scientists to look at the value of headwater streams to fish and fisheries. Headwaters 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, small stream tributaries with permanent flow, tributaries with intermittent flow (e.g., periodic or seasonal flows supported by groundwater or precipitation), or tributaries or areas of the landscape with ephemeral flows (e.g., short-term flows that occur as a direct result of a rainfall event). Many of these waters would be left unprotected by the new rule. A new paper, titled “Headwater Streams and Wetlands are Critical for Sustaining Fish, Fisheries and Ecosystems,” details how the loss of Clean Water Act protections for headwaters would diminish ecosystem services provided by those waters, increase the threat to imperiled species, affect commercial and recreational fisheries, and impact fishes of cultural value to Native Americans and the recreating public. Dr. Susan Colvin, co-author of “Headwater Streams and Wetlands are Critical for Sustaining Fish, Fisheries and Ecosystem Services,” stated: “When headwaters are polluted, or headwater habitats are 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. Simply put, loss of protections for headwaters would have grave consequences for fish and fisheries and would have far reaching implications for fish, wildlife and their habitats, as well as economies dependent on those systems.” Dr. Mažeika Sullivan, co-author of “Headwater Streams and Wetlands are Critical for Sustaining Fish, Fisheries and Ecosystem Services” and member of the EPA Science Advisory Board “Connectivity of Streams and Wetlands to Downstream Waters” Panel (2013-2014) noted, “The rule fails to align with the original intent of the Clean Water Act to ‘to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters’ and is inconsistent with current science. The EPA and the U.S. Army Corps of Engineers have improperly interpreted the theoretical model developed by the EPA Science Advisory Board to illustrate how gradients in connectivity might be used to evaluate downstream impacts of changes to streams and wetlands to eliminate protections for these vulnerable waters.” Dr. Douglas Austen, Executive Director of the American Fisheries Society (AFS) stated: “The proposed rule is an unprecedented rollback of the Clean Water Act, yet the agencies have not offered an analysis of the impacts of the new rule. This narrow rule fails to properly consider the well-established science and imperils fish and aquatic resources and communities that rely on them. A shift of this magnitude merits a full assessment of the impacts of eliminating protections for so many waterways.” # # # For more information, please contact: Ms. Drue Banta Winters [email protected] PH 301/897-8616 x202 Dr. Susan Colvin is an Assistant Professor of Sustainable Fisheries at Unity College in Maine. She is the lead author of “Headwater Streams and Wetlands are Critical for Sustaining Fish, Fisheries and Ecosystem Services.” Her research focuses on studying fishes across aquatic ecosystems with emphasis on assemblage changes along gradients of stream size, type, measures of heterogeneity, and anthropogenic influence. Colvin holds a Masters of Fisheries from Oregon State University and Ph.D. in Biological Sciences from Auburn University and is an active member in the American Fisheries Society. Dr. Mažeika Sullivan is an Associate Professor in the School of Environment and Natural Resources at The Ohio State University (OSU) and the Director of the Ramsar-designated Schiermeier Olentangy River Wetland Research Park. He received a B.A. in Anthropology from Dartmouth College, and earned his M.S. in Biology and Ph.D. in Natural Resources from the University of Vermont. Subsequently, he was a Postdoctoral Research Fellow at the University of Idaho before joining the OSU faculty in 2008. Sullivan’s research focuses on water quality and aquatic ecosystems, where his work integrates community and ecosystem ecology, fluvial geomorphology, and biogeochemistry. He also served as a member of the EPA SAB “Connectivity of Streams and Wetlands to Downstream Waters” Panel (2013-2014), and is an active member of the Society for Freshwater Science, the American Fisheries Society, and the Ecological Society of America. Dr. Doug Austen has been Executive Director since 2013, but has been involved with AFS since the early 1980s beginning as an undergraduate student at South Dakota State University. He served as president of the Illinois Chapter and North Central Division, wrote articles for several AFS journals and books, and also served as an associate editor for the North American Journal of Fisheries Management. Prior to AFS, Austen was the U.S. Fish and Wildlife Service national coordinator for Landscape Conservation Cooperatives, executive director of the Pennsylvania Fish and Boat Commission, and worked for 10 years each with the Illinois Department of Natural Resources and the Illinois Natural History Survey. He has a Ph.D. from Iowa State University and an M.S. from Virginia Tech. Founded in 1870, the American Fisheries Society (AFS) is

February 15, 2019 No Comments

About

Quick Links

Contact