Waters of the US

FOR IMMEDIATE RELEASE: May 30, 2023 Contact: Drue Winters [email protected] FISHERIES, WATER QUALITY, AND HUMAN HEALTH AT RISK DUE TO LOSS OF WETLANDS PROTECTIONS UNDER SUPREME COURT SACKETT DECISION Last week’s U.S. Supreme Court decision on a significant Clean Water Act case, Sackett vs. EPA, dealt a crippling blow to the future of our nation’s fish and aquatic ecosystems.  The very narrow test established by the court for determining when wetlands are “Waters of the United States” (WOTUS) under the Clean Water Act removes federal safeguards for the majority of wetlands in the United States. The decision flies in the face of sound science and will have a staggering impact on fish, fisheries, wildlife, aquatic ecosystems, and human health. This decision leaves more than 50% percent of wetlands in some watersheds without Clean Water Act protections. A cascade of consequences from poorer water quality, increased flooding and pollution, lost fish and wildlife habitat, and reduced carbon storage will result from this decision. This U.S. Supreme Court case opinion is at odds with the Clean Water Act’s singular objective: restoring and maintaining the water quality of the Nation’s waters. The Clean Water Act’s mandate can only be met if the science regarding wetlands and streams is used to determine which waters the Clean Water Act protects. However, the court’s decision to provide Clean Water Act protections only to wetlands that have a “continuous surface connection” to a traditionally navigable water has no scientific basis. With this case, the court has ignored fifty years of science that demonstrates that traditional navigable waters are part of interconnected aquatic systems and that wetlands deliver important services such as consistent stream flows, floodwater storage, and water filtration to navigable waters through both surface and subsurface connections. Wetland loss in some regions of the U.S. already approaches or exceeds 85 percent. Unchecked dredging and filling of wetlands will cripple wetlands’ ability to filter pollutants, absorb flood waters, reduce drought, recharge groundwater aquifers, and stabilize shorelines. With climate change bringing more numerous extreme weather events such as flooding and droughts, this decision will most certainly impair the functioning of wetlands that help ensure that navigable waters are drinkable, fishable, and swimmable. In the face of climate change, it has never been more important to protect our valuable wetlands. The American Fisheries Society joined several other aquatic science societies in an amicus brief to the Supreme Court arguing for stronger Clean Water Act protections. We showed that narrowing the reach of the Clean Water Act would have devastating effects on wetlands, rivers and streams, fish and wildlife habitat, and for people. The U.S. Congress should and must act to ensure the Clean Water Act can meet the mandate of the law, to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters and preserve our drinkable, fishable, swimmable waters. # # # Editor’s Notes: Founded in 1870, the American Fisheries Society (AFS) is the world’s oldest and largest fisheries science society. The mission of AFS is 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. With five journals and numerous books and conferences, AFS is the leading source of fisheries science and management information in North America and around the world.

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,

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.

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

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 7, 2022 Mr. Michael S. Regan Administrator Environmental Protection Agency 1200 Pennsylvania Avenue NW, Washington, DC 20460 Mr. Jaime A. Pinkham Acting Assistant Secretary of the Army for Civil Works Department of the Army 108 Army Pentagon, Washington, DC 20310-0104 via https://www.regulations.gov Re: Waters of the U.S., Docket ID No. EPA-HQ-OW-2021-0602 Dear Administrator Regan and Assistant Secretary Pinkham: Thank you for your commitment to crafting an effective and durable definition of Waters of the United States (WOTUS) that protects public health, the environment, and downstream ecosystems and delivers the Clean Water Act mandate. The Consortium of Aquatic Science Societies (CASS) continues to support a science-based definition of WOTUS1 because of its importance to fish, fisheries, wildlife, watersheds, water quality and supply, flood control, ecosystem carbon storage and climate resilience services,2 as well as the people and economies that rely on them.3 CASS is composed of nine professional societies representing almost 20,000 individuals with diverse knowledge of the aquatic sciences. Our members work in the private sector, academia, nongovernmental organizations, and various tribal, state, and federal agencies. We appreciate the opportunity to comment on the proposed rule defining the scope of waters protected under the Clean Water Act, U.S. Docket ID No. EPA-HQ-OW-2021-0602, as published in the Federal Register on December 7, 2020 (Proposed Rule). We support the repeal of the harmful 2020 Navigable Waters Protection Rule (NWPR)4 and a return to a modified pre-2015 regulatory regime, as an interim step, while the Environmental Protection Agency and the U.S. Army Corps of Engineers (the Agencies) work to craft a more considered and durable definition of WOTUS consistent with current science and the Clean Water Act. We strongly support the science-based protections established in the 2015 Clean Water Rule5 because returning to a pre-2015 regulatory regime while the Agencies work to establish a new, durable definition will help limit the impacts of the harmful NWPR. We anticipate continued work with the Agencies to expeditiously re-establish a science-based definition of WOTUS that will facilitate the Clean Water Act (CWA) fulfilling its mandate to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. The NWPR significantly deviates from previous interpretations of CWA jurisdiction and the definition of WOTUS and largely ignores and oversimplifies basic science.6, 7 CASS fully supports the definition of WOTUS in the 2015 Clean Water Rule (CWR)8 as the basis for a new rule, which can be further informed by connectivity science that has emerged over the past 7 years.3, 7, 9, 10, 11, 12, 13 As documented in the EPA’s “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence,” the 2015 CWR was overwhelmingly supported by peer-reviewed science.14 The NWPR is inconsistent with more than a half century of scientific research that demonstrates that the integrity of “traditionally navigable” waters fundamentally depends on ephemeral (i.e., flow only after precipitation events), intermittent (i.e., flow seasonally), and perennial (flow year-round) streams, as well as on wetlands located both within (i.e., floodplain wetlands) and outside (i.e., nonfloodplain or geographically isolated wetlands) of floodplains.7, 14 If allowed to stand, the very narrow definition of WOTUS in the NWPR would allow continued loss of protections for millions of stream miles and acres of wetlands, including many types of isolated wetlands and ephemeral streams with ecological and economic value disproportionate to their areas.15, 16 Further, given the very real and substantial impacts of climate warming, land uses, and groundwater extraction on our nation’s waters and other aquatic resources, it is imperative that any definition of WOTUS consider the accelerating effects of those anthropogenic pressures on the chemical, physical, and biological integrity of the nation’s waters. Intermittent and ephemeral aquatic ecosystems and their associated biodiversity are particularly vulnerable and will need robust protections. Currently half of global river networks are prone to flow intermittence and because of climate change intermittency will increase.3,17,18 Rather than protecting our waters’ integrity, if left to stand the NWPR would have intensified the vulnerability of water resources to climate change and extensive and intensive land and water uses driven by agriculture, livestock grazing, forestry, mining, and urbanization.6,19,20 Science-based CWA protections can help protect aquatic ecosystems, maintain crucial ecosystem services for sequestration and storage of carbon, improve climate resilience, and promote our progress towards the drawdown of carbon from the atmosphere.2 We note that had the NWPR continued to be in effect, the resulting loss and impairment of previously protected WOTUS would have resulted in increased carbon releases into the atmosphere, further jeopardizing important goals to limit climate heating. As it stands, the Proposed Rule—while a vast improvement in water protection over the NWPR—does not fully align with the best-available science, leaving too many water bodies (e.g., ephemeral streams, multiple types of wetlands) vulnerable to discretionary determinations of jurisdiction. In particular, summer-dry or winter-wet streams and rivers,16,21,22 including spatially intermittent and temporally ephemeral systems, often host unique and diverse aquatic biota and they respond to water quality stressors in different manners than do permanent streams and rivers. Therefore, they must be monitored, assessed, and managed differently than permanent waters.22, 23,24,25 Thus, we want to continue working with you to quickly establish a science-based definition of WOTUS that will allow the CWA to fulfill its mandate to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. Thank you again for the opportunity to comment. 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 1 Letter from the Consortium of Aquatic Sciences

The Honorable Michael Regan Administrator 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. Sincerely, Theodore Roosevelt Conservation Partnership Trout Unlimited American Sportfishing Association

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 September 3, 2021 Mr. Michael S. Regan Administrator Environmental Protection Agency 1200 Pennsylvania Avenue NW, Washington, DC 20460 Mr. Jaime A. Pinkham Acting Assistant Secretary of the Army for Civil Works Department of the Army 108 Army Pentagon, Washington, DC 20310-0104 Re: Waters of the U.S. Docket ID No. EPA-HQ-OW-2021-0328 Dear Administrator Regan and Assistant Secretary Pinkham: Thank you for your commitment to crafting a reasonable, effective, and durable definition of Waters of the U.S. (WOTUS) that protects public health, the environment, and downstream communities. We applaud your intent to rescind the harmful 2020 Navigable Waters Protection Rule (NWPR) 1 and we urge you to quickly re-establish a science-based definition of WOTUS that will allow the Clean Water Act (CWA) to fulfill its mandate to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. The Consortium of Aquatic Science Societies (CASS) is on the record supporting a science-based definition of WOTUS for its importance to fish, fisheries, wildlife, watersheds, water quality and supply, flood control, as well as the people and economies that rely on them.2 The NWPR significantly deviates from previous interpretations of the CWA and largely ignores and oversimplifies science.3 CASS fully supports the definition of WOTUS in the 2015 Clean Water Rule (CWR)4, which was overwhelmingly supported by peer-reviewed science. CASS is composed of nine professional societies representing almost 20,000 individuals with diverse knowledge of the aquatic sciences. Our members work in the private sector, academia, nongovernmental organizations, and various tribal, state, and federal agencies. We support the development and use of the best-available science to sustainably manage our freshwater, estuarine, coastal, and ocean resources for the benefit of the U.S. economy, environment, and public health and safety. The NWPR is inconsistent with more than a half century of scientific research that demonstrates that the integrity of “traditionally navigable” waters fundamentally depends on ephemeral (i.e., flow only after precipitation events), intermittent (i.e., flow seasonally), and perennial (flow year-round) streams, as well as on wetlands located both within (i.e., floodplain wetlands) and outside (i.e., non-floodplain or geographically isolated wetlands) of floodplains.2 The very narrow definition of WOTUS in the NWPR resulted in the loss of protections for millions of stream miles and acres of wetlands, including five types of isolated wetlands with ecological value disproportionate to their area. The comprehensive Environmental Protection Agency scientific report that accompanied the 2015 CWR, “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence,”5 synthesized more than 1,200 peer-reviewed publications. Along with input from 49 experts and a 25-member panel of the EPA’s Scientific Advisory Board (SAB), this report provided the technical basis for the 2015 CWR. Substantial additional literature has emerged that reaffirms the report and the 2015 CWR. 6, 7, 8, 9, 10 11, 12 We stand by this science. The loss of protections for our nation’s waters under the NWPR threatens fish, fisheries, wildlife, aquatic ecosystems, and the human populations that rely on them and places the highly valued ecosystem services that are derived from these systems in great peril.7, 13 Unlike the 2015 definition of WOTUS that established protection based on the connectivity of waters, the NWPR defines a WOTUS in terms of its direct, consistent surface flows with traditionally navigable waters. This is inconsistent with the full mandate of the CWA and is a critical shortcoming of the NWPR since many waters that play an important part in maintaining ecological integrity flow ephemerally or intermittently and fluctuate substantially throughout any typical year. In the face of climate change, it has never been more important to protect streams and wetlands that store carbon, provide critical habitat for fish and wildlife, provide flood storage, and maintain downstream water quality and quantity.14,15,16, 17 Science-based Clean Water Act protections can help to protect the integrity of aquatic ecosystems, maintain crucial ecosystem services for sequestration and storage of carbon, improve climate resilience, and promote our progress towards the drawdown of carbon from the atmosphere.18 Rather than protecting our waters’ integrity, the NWPR intensifies their vulnerability to climate change and extensive and intensive land uses such as agriculture, livestock grazing, forestry, mining, and urbanization.3,13 Climate change is warming rivers, lakes, streams, and wetlands and significantly altering precipitation patterns (both increasing and decreasing precipitation depending on season and location) throughout America and is accelerating and intensifying water-quality problems, altering the functions of aquatic ecosystems, and impacting species’ ranges and survival.18 These impacts to our nation’s waters extend from small lakes and streams to large rivers like the once perennial Gila, lower Colorado, and Río Grande rivers. These changes are not just theoretical; scientists are already seeing massive shifts in seasonal flows, stream length, and surface flows from climate change and land use shifts, water withdrawal, and groundwater pumping.17, 7 By length, approximately half of stream channels in the conterminous United States are ephemeral, and 50% of these are no longer protected under the NWPR; thus, at least 25% of the nation’s stream channels have now lost protection.19 Removing previous protections from millions of miles of these ephemeral headwater streams will only exacerbate the transformation of historically perennial streams and rivers into highly vulnerable intermittent and ephemeral streams and rivers. The NWPR reduces protections across the nation, with some of the strongest impacts in arid areas of the country, such as in many states in the Southwest and Southern Plains. As such, the loss of CWA protections will be most acute where water quantity and quality issues already threaten the sustainability of watersheds and communities. The NWPR also abandons the bipartisan and long-standing “No Net Loss of Wetlands” national policy, first established by President George H. W. Bush, by excluding nonfloodplain wetlands, or

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 March 18, 2021 The Honorable Joseph R. Biden, Jr. President of the United States The White House 1600 Pennsylvania Avenue, NW Washington, DC 20500 Dear President Biden: Thank you for your commitment to reviewing the Navigable Waters Protection Rule (NWPR) that was finalized by the Environmental Protection Agency and U.S. Army Corps of Engineers in April 2020 and became effective in June 2020.1 This rule established a very narrow definition of “Waters of the U.S.” (WOTUS) under the Clean Water Act (CWA) that resulted in the loss of protections for millions of stream miles and acres of wetlands, including five types of isolated wetlands with ecological value disproportionate to their area. These losses have led to dire consequences for fish, fisheries, wildlife, watersheds, water quality and supply, flood control, as well as the people and economies that rely on them. In the face of climate change, it has never been more important to protect streams and wetlands that store carbon, provide critical habitat for fish and wildlife, provide flood storage, and maintain downstream water quality and quantity.2, 3, 4, 5 The NWPR significantly deviates from previous interpretations of the CWA and largely ignores and oversimplifies science.6 We greatly appreciate your recent Executive Order 13990 establishing your Administration’s policy to “listen to the science.” With that in mind, we urge you to quickly re-establish a science-based definition of WOTUS that will allow the CWA to fulfill its mandate to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. The Consortium of Aquatic Science Societies (CASS) is composed of nine professional societies representing almost 20,000 individuals with diverse knowledge of the aquatic sciences. Our members work in the private sector, academia, nongovernmental organizations, and various tribal, state, and federal agencies. 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. CASS is on the record as strongly opposing the NWPR as inconsistent with more than a half century of scientific research that demonstrates that the integrity of “traditionally navigable” waters fundamentally depends on ephemeral (i.e., flow only after precipitation events), intermittent (i.e., flow seasonally), and perennial (flow year-round) streams, as well as on wetlands located both within (i.e., floodplain wetlands) and outside (i.e., non-floodplain or geographically isolated wetlands) of floodplains.7 CASS fully supports the definition of WOTUS in the 2015 Clean Water Rule (CWR),8 which was overwhelmingly supported by peer-reviewed science. The comprehensive Environmental Protection Agency scientific report that accompanied the 2015 CWR, “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence,”9 synthesized more than 1,200 peer-reviewed publications. Along with input from 49 experts and a 25-member panel of the EPA’s Scientific Advisory Board (SAB), this report provided the technical basis for the 2015 CWR. Substantial additional literature has emerged that reaffirms the report and the 2015 CWR.10, 11, 12, 13, 14, 15, 16 We stand by this science. The loss of protections for our nation’s waters under the NWPR threatens fish, fisheries, wildlife, aquatic ecosystems, and the human populations that rely on them and places the highly valued ecosystem services that are derived from these systems in great peril.11, 17 Unlike the 2015 definition of WOTUS that established protection based on the connectivity of waters, the NWPR defines a WOTUS in terms of its direct, consistent surface flows with traditionally navigable waters. This is inconsistent with the full mandate of the CWA and is a critical shortcoming of the NWPR since many waters that play an important part in maintaining ecological integrity flow ephemerally or intermittently and fluctuate substantially throughout any typical year. Rather than protecting our waters’ integrity, the NWPR intensifies their vulnerability to climate change and extensive and intensive land uses such as agriculture, livestock grazing, forestry, mining, and urbanization.6, 17 Climate change is warming rivers, lakes, streams, and wetlands and significantly altering precipitation patterns (both increasing and decreasing precipitation depending on season and location) throughout America and is accelerating and intensifying water-quality problems, altering the functions of aquatic ecosystems, and impacting species’ ranges and survival.18 These impacts to our nation’s waters extend from small lakes and streams to large rivers like the once perennial Gila, lower Colorado, and Río Grande rivers. These changes are not just theoretical; scientists are already seeing massive shifts in seasonal flows, stream length, and surface flows from climate change and land use shifts, water withdrawal, and groundwater pumping.5, 11 By length, approximately half of stream channels in the conterminous United States are ephemeral, and 50% of these are no longer protected under the NWPR; thus, at least 25% of the nation’s stream channels have now lost protection.19 Removing previous protections from millions of miles of these ephemeral headwater streams will only exacerbate the transformation of historically perennial streams and rivers into highly vulnerable intermittent and ephemeral streams and rivers. The NWPR reduces protections across the nation, with some of the strongest impacts in arid areas of the country, such as in many states in the Southwest and Southern Plains. As such, the loss of CWA protections will be most acute where water quantity and quality issues already threaten the sustainability of watersheds and communities. The NWPR also abandons the bipartisan and long-standing “No Net Loss of Wetlands” national policy, first established by President George H. W. Bush, by excluding nonfloodplain wetlands, or wetlands that are not connected at the surface to navigable waters, from CWA protection. Relying on a surface connection of a wetland to navigable waters to establish CWA jurisdiction ignores the important biological and chemical connections with navigable waters that allow these wetlands to play

Seventeen states filed suit challenging the Navigable Waters Protection Rule (NWPR) in the U.S. District Court for the Northern District of California asserting that the NWPR is contrary to the Clean Water Act (CWA) and arbitrary and capricious, in part, because of the EPA’s and the Army Corps’ disregard of scientific evidence. The plaintiff’s asked the court to issue a nationwide injunction to prevent the Rule from going into effect. AFS, along with 11 science societies, filed an amicus brief with the court highlighting available data and a scientific tool that were part of the rulemaking record and demonstrate the negative impact the 2020 Rule would have on the nation’s waters. Last month, the finalized NWPR largely ignored the scientific understanding of how streams and wetlands contribute to the chemical, physical, and biological integrity of downstream waters. The agencies failed to quantify the number of waters that the Rule would remove from Clean Water Act protection and made no effort to estimate the reductions in water quality and ecosystem services. Read the brief here.

Dear Members of the American Fisheries Society Family, Fifty years ago, in the backyard of the American Fisheries Society’s (AFS), the Potomac River was filled with so much sewage it filled the air with a putrid, vile stench. Ohio’s polluted Cuyahoga River caught fire for the 13th time spurring an environmental revolution in the United States. As a result, Congress passed the landmark Clean Water Act in 1972. Yet on the eve of the 50th anniversary of Earth Day, the U.S. EPA and the Army Corps of Engineers finalized a new definition of the “Waters of the United States (WOTUS)” gutting the Clean Water Act by removing federal protection for millions of stream miles and acres of wetlands that keep waters and watersheds healthy. The rule threatens critical headwater and wetland ecosystem services, like water quality protection, aquifer recharge, organic material transport, safeguarding habitats for endangered species, and support for recreational and commercial fishing economies. “The published science demonstrates that the loss of protections for our nation’s most vulnerable waters will have far-reaching implications for fish, wildlife, and their habitats,” said American Fisheries Society Executive Director Doug Austen, PhD. Over the last few years, with the hard work of our members, AFS and our partners have been working to ensure that the redefinition of WOTUS is consistent with the best-available science. We’ve developed reports detailing the impacts of a narrower rule, submitted regulatory comments to the EPA and the Corps, conducted Capitol Hill briefings, shared information with members of Congress and their staff, and joined other aquatic science societies in an amicus brief to the U.S. Supreme Court. Advocating for science-based policy is one of the many critical programs managed by AFS. In the midst of today’s uncertainty, rest assured that for us the work continues. AFS intends to continue to fight for clean water so critically important for healthy fish and healthy humans. We do this work with your guidance, science, and support. Your contributions permit us carry on this work. Right now, we need your help. The conservation and stewardship of the world’s environment and natural resources is a cause worth championing. As we celebrate the 50th Anniversary of Earth Day, during the 150th Anniversary of the American Fisheries Society, we ask you to continue to do the work with us. You can help AFS by donating what you can to help support programs in the areas of policy and education; renew your membership; join the society for the first time or encourage a friend; or all of the above. Thank you for your commitment and support. Drue Banta Winters, JD

EPA’s Science Advisory Board (SAB) sharply criticized the agency’s recent decision to narrow the definition of the Waters of the US (WOTUS) under the Clean Water Act in a letter to EPA Administrator Andrew Wheeler on February 27. “In summary, current scientific understanding of the connectivity of surface and ground water, which has been reviewed by the SAB previously, is not reflected in the proposed Rule,” SAB concluded. “Specifically, the proposed definition of WOTUS excludes ground water, ephemeral streams, and wetlands which connect to navigable waters below the surface. The proposed Rule does not present new science to support this definition, thus the SAB finds that the proposed Rule lacks a scientific justification, while potentially introducing new risks to human and environmental health.” Read the full letter here.

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   FOR IMMEDIATE RELEASE January 23, 2020 Contact: Drue Winters [email protected] (301) 897-8616 x202 AQUATIC SCIENTISTS CRITICIZE REVISED DEFINITION OF WATERS OF THE U.S. (Bethesda, Md.) January 23, 2020 — The U.S. EPA and the Army Corps of Engineers have redefined the extent of protection for the nation’s freshwater resources. The Consortium of Aquatic Science Societies, a group of nine professional societies with a total of more than 20,000 member scientists, strongly criticized the new definition of the “Waters of the United States (WOTUS).” The redefinition is inconsistent with the best-available science. It removes protection for millions of stream miles and acres of wetlands that keep waters and watersheds healthy. The Clean Water Act’s mandate is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” The new rule eliminates protection for waters that otherwise maintain watershed integrity, thus rendering the objectives of the Clean Water Act unattainable. Impairment of headwaters and wetlands affects water quality and flow for entire watersheds. The rule threatens critical headwater and wetland ecosystem services, like water quality protection, aquifer recharge, organic material transport, safeguarding habitats for endangered species, and support for recreational and commercial fishing economies. Climate change and land use intensification have already shifted waters that were permanent to intermittent and intermittent to ephemeral. Under the revised WOTUS, more waters will lose protection, thus severely undermining our nation’s water quality and fisheries. “The published science demonstrates that the loss of protections for our nation’s most vulnerable waters will have far-reaching implications for fish, wildlife, and their habitats,” said American Fisheries Society Executive Director Doug Austen, Ph.D. “The Trump administration’s new rule is a blatant disregard for science. Over a thousand peer-reviewed studies have demonstrated the connectivity of inland waters. The well-being of our nation is dependent on the health of our waterbodies,” said Mike Pace, President of the Association for the Sciences of Limnology and Oceanography. “The new rule rolls back protections that have been in place for decades and will cause irreparable harm to our inland waters.” “We have a clear understanding of the critical functions provided by our wetlands, including maintenance of clean water.  We should be seeking ways to preserve and strengthen these benefits.  Instead, the proposed new rule, which flies in the face of good science, will weaken protection for headwater streams and associated wetlands, systems that are key to safeguarding healthy watersheds,”  said Loretta Battaglia, Ph.D., President-Elect of the Society of Wetland Scientists. Our nation’s estuaries and coastal waters are vital to our economic prosperity and sustainability. The health of these waters is influenced not just by the flow of streams and rivers, but also through groundwater connections to wetlands, dammed and diked areas, and ditches in coastal watersheds. “The proposed new rule will weaken protection of the water quality and biological integrity for these vital ecosystems,” said James Fourqurean, Ph.D., President of The Coastal and Estuarine Research Federation. Perry Thomas, Ph.D., President of the North American Lake Management Society, said, “Even our highest quality lakes are threatened by erosion and other degradation in their watersheds. If we are going to protect these incredibly valuable water bodies we need to manage stormwater and address erosion in these lake watersheds but that would be essentially lost under the proposed WOTUS definition that excludes many headwater streams and wetlands.” “Not only are the excluded headwaters and wetlands critical for the ecological integrity of our rivers and streams, they also are the required habitats for unique species and natural communities.  Removal of protections will make all our aquatic natural heritage more vulnerable to future development and climate change impacts,” said Braven Beaty, Ph.D., co-chair of the Freshwater Mollusk Conservation Society Environmental Quality and Affairs Committee. “The science on the connectivity between headwater streams, wetlands, and ecosystem services like clean water is undisputed,” asserts Amy Rosemond, Ph.D., President of the Society for Freshwater Science, “however, the EPA has chosen to ignore this science. This includes ignoring the conclusions of EPA’s own staff scientists and science advisory board. The new rule is simply not scientifically defensible and the decision to ignore the science was arbitrary and capricious.  The logical outcome of today’s rule will be a degradation in water quality and increasing threats to human health.” For more information on the Waters of the United States, see https://fisheries.org/policy-media/wotus/.   # # #

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.

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

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 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

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.

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

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

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).

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

Download PDF: Headwater Streams and Wetlands Are Critical for Sustaining Fish, Fisheries, and Ecosystem Services  

February 27, 2019, 1:00 – 2:00 p.m. EST 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 commence upon publication in the Federal Register. We encourage AFS members to submit formal comments on the rule to highlight proposed impacts on a state-by-state basis. Visit the AFS website for more information. PRESENTERS Gillian Davies will discuss the differences between existing regulations (the 2015 Clean Water Rule and pre-2015 regulations and guidance) and the proposed WOTUS rule revision.  Her presentation will outline the major proposed changes to federal regulation of waters, including the scope of the proposed rule, proposed expansion of exclusions from regulation, changes in how “adjacency” is defined, and the proposed relationship between federal and state regulations. Her presentation will also give a snapshot of the jurisdictions where the 2015 Clean Water Rule is in effect. Dr. Mažeika Sullivan will explain how 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” and will explain the many ways the rule is inconsistent with current science. He will highlight how the EPA and the U.S. Army Corps of Engineers are improperly interpreting 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 waters. Dr. Susan Colvin will discuss a compelling new AFS paper, “Headwater Streams and Wetlands are Critical for Sustaining Fish, Fisheries, and Ecosystems.” The paper details how the loss of Clean Water Act protections for headwaters would result in a loss of ecosystem services, increase the threat to imperiled species, affect commercial and recreational fisheries, and impact fisheries of cultural value to Native Americans and the recreating public. Drue Banta Winters, AFS Policy Director, will walk participants through the process of submitting an effective regulatory comment and how to broadly communicate the need to protect waters with a physical, chemical, and biological connection to navigable waters through a variety of channels. ABOUT THE PRESENTERS Gillian T. Davies, PWS is a registered Soil Scientist (SSSSNE), Sr. Ecological Scientist/Associate, BSC Group, and Visiting Scholar, Global Development & Environment Institute at Tufts University. Davies currently chairs the Society of Wetland Scientists (SWS) Public Policy and Regulation Section WOTUS committee, following a three-year term on the SWS Executive Board, during which she served as the 2016-2017 President of the Society. As a consultant, she provides a broad range of ecological services (e.g., ecological climate resiliency; wetland restoration and creation; federal, state, and local permitting; peer review; environmental monitoring; expert witness testimony), and manages projects, focusing on providing innovative solutions that often incorporate the latest research on wetlands and climate change.  Davies holds a Masters of Environmental Studies degree from the Yale School of Forestry and Environmental Studies and a Bachelor of Arts from Williams College. 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 Scientific Advisory Board “Connectivity of Streams and Wetlands to Downstream Waters” Panel (2013-2014), is a lead author of the AFS paper “Headwater Streams and Wetlands are Critical for Sustaining Fish, Fisheries and Ecosystem Services,” and is an active member of the Society for Freshwater Science, the American Fisheries Society, and the Ecological Society of America. Dr. Susan Colvin is an Assistant Professor of Sustainable Fisheries at Unity College in Maine. She is the lead author of the AFS paper “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 in fisheries from Oregon State University and Ph.D. in biological sciences from Auburn University. Drue Banta Winters is the AFS Policy Director where she leads the organization’s policy advocacy efforts through thoughtful engagement with decision makers on issues that impact aquatic resources. AFS capitalizes on the expertise of its members to influence policy outcomes to benefit aquatic resources by sharing management knowledge and the best available science with decision makers. Winters is a seasoned policy and strategic communications advisor with special expertise in translating and communicating complex, scientific information in ways that are understandable to

EPA Press Release: EPA and Army Announce Public Hearing on Proposed New “Waters of the United States” Definition Hearing will be held February 27-28, 2019 in Kansas City, Kansas 02/06/2019 Contact Information:  EPA Press Office ([email protected]) WASHINGTON  — Following President Trump’s directive to provide certainty to American farmers and landowners so that the economy can continue to expand while waters are protected, the U.S. Environmental Protection Agency (EPA) and the Department of the Army (Army) are moving to the next steps in proposing a new definition of the “Waters of the United States.” EPA and the Army will hold a public hearing on the proposed new “Waters of the United States” definition in Kansas City with sessions on February 27 and 28, 2019. All persons wanting to speak are encouraged to register in advance. EPA and the Army will also hold an informational webcast on February 14, 2019. Public Hearing Logistics: The Wednesday session of the public hearing will convene at 4:00 pm (local time) and will conclude no later than 8:00 pm. The Thursday session will convene at 9:00 am and will conclude no later than 12:00 pm. The public hearing will be held in the Wyandotte Ballroom of the Reardon Convention Center, 520 Minnesota Avenue, Kansas City, Kansas 66101. Those interested in speaking at the hearing can register for a three-minute speaking slot. The last day to pre-register to speak at the hearing is February 21, 2019. On February 26, 2019, the agencies will post a general agenda for the hearing on the EPA website at https://www.epa.gov/wotus-rule/proposed-revised-definition-wotus-public-hearing. It will list pre-registered speakers in approximate order. Registration for the public hearing is available through the EPA website. Additionally, requests to speak will be taken the day of the hearing at the hearing registration desk, pending availability, and a sign language interpreter will be available for the hearing. Webinar Logistics: EPA and the Army will also hold a public webcast to explain the key elements of the proposed “Revised Definition of Waters of the United States” on February 14, 2019, at 3:30 pm EST. A copy of the entire webcast will be made available afterwards. Webinar registration is limited to 2,000 attendees so interested parties are encouraged to view with colleagues. Registration is available at https://attendee.gotowebinar.com/register/1548544876509260301. Background: On December 11, 2018, EPA and the Army signed a proposed rule providing a clear, understandable, and implementable definition of “waters of the United States” that clarifies federal authority under the Clean Water Act while respecting the role of states and tribes in managing their own land and water resources. The agencies have submitted the proposed rule to the Office of the Federal Register for publication. Oral statements and supporting information presented at the public hearing will be considered with the same weight as written statements and supporting information submitted during the public comment period. The agencies will take comments on the proposal for 60 days after publication of the proposed rule in the Federal Register. Comments can be submitted online at https://www.regulations.gov. Please follow the instructions for submitting comments to Docket ID No. EPA-HQ-OW-2018-0149. More information about the public hearing, informational webcast, and the proposed rulemaking, including the pre-publication version of the Federal Register notice, are available at: https://www.epa.gov/wotus-rule/step-two-revise.

Efforts are underway by the Trump Administration to roll back Clean Water Act protections for our nation’s streams and wetlands. Last year, AFS convened a group of fisheries and aquatic science experts to synthesize the science around the importance of headwaters to fish in anticipation of a new, narrower, Waters of the U.S. rule. The result is a compelling new paper titled, Headwater Streams and Wetlands Are Critical for Sustaining Fish, Fisheries and Ecosystems (Headwaters Paper), that details how the loss of Clean Water Act protections for headwaters would have far reaching implications for fish, wildlife and their habitats, as well as economies dependent on those systems. The paper highlights the loss of ecosystem services, the increased threat to imperiled species, impacts to commercial and recreational fisheries, and the loss of cultural values from reduced Clean Water Act protections for headwater ecosystems. The paper appears in the February issue of Fisheries and a PDF version of the paper is available here. Headwater streams and wetlands contribute to the chemical, physical, and biological integrity of downstream waters and 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 can 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 precipitation event). Fish, fisheries, and ecosystem services are compromised when headwater habitats are polluted, impaired, or destroyed. In 2015, the EPA finalized a Clean Water rule, informed by the best scientific information available that based Clean Water Act protections for streams and wetlands on the degree of connectivity between navigable waters, wetlands, and headwater streams. However, in an effort to redefine the scope of jurisdictional waters, the EPA and U.S. Army Corps of Engineers (“the agencies”) released a new Waters of the U.S. rule in December 2018 that would exclude many wetlands and headwater streams, which make up more than 80 percent of the length of river networks and more than 6 million hectares of non-floodplain wetlands in the lower 48 states. The proposal would eliminate protections for all ephemeral streams and wetlands that do not have a direct hydrologic surface connection to navigable waters, and opens the door to removing protections for intermittent streams.  Activities such mining, industry, and development could move forward in these waters without federal safeguards. In compelling remarks before Congressional staff last week in Washington, DC, Dr. Mažeika Sullivan, Associate Professor in the School of Environment and Natural Resources and Director of the Ramsar-designated Schiermeier Oletnangy River Wetland Research Park at The Ohio State University, a co-author on the Headwaters Paper, and SAB member, eloquently explained the many ways in which the proposed rule is inconsistent with current science. He highlighted that the proposed rule ignores biological and chemical connectivity, as well as minimizes the importance of other types of physical connectivity, and thus does not 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.” Dr. Sullivan also cited the agencies’ improper use of a 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. He noted that the proposed rule fails to take into account the cumulative effects of streams and wetlands on downstream waters, stressing how their collective influence must be considered. Using the functioning of a hand as an analogy, he explained, that if one finger is broken, the hand can still function. If three fingers are broken, the hand has significantly decreased functioning and if all five fingers are broken, the hand ceases to work. The authors of the Headwaters Paper concluded with a recommendation that the agencies conduct a formal ecological and economic risk assessment to quantify the effects of a narrower rule. A team of researchers at St. Mary’s University of Minnesota has recently developed a GIS-based scenario model to predict the spatial extent of federally-protected waters and wetlands under the proposed rule based on case studies in three states with diverse watersheds. The results of the analyses in the case study watersheds show that narrowing the scope of federally protected waters would significantly reduce the number of streams, wetlands, and wetland acreage protected by the Clean Water Act, leading to a potential loss of benefits provided by wetlands that would no longer be protected. These benefits include water quality protection, floodwater attenuation, and fish and wildlife habitat. AFS urges the agencies to take the science into account as they seek to replace the WOTUS rule with one that offers fewer protections for headwater streams and wetlands. A 60-day public comment period on the proposed rule will commence upon publication in the Federal Register. We encourage AFS members to submit formal comments on the rule to highlight proposed impacts on a state-by-state basis. Stay tuned for updates on the comment period and information on an upcoming webinar on this topic.

Download a PDF of a new fact sheet of the Waters of the U.S. Rule (WOTUS) produced by the American Fisheries Society, National Wildlife Federation, Trout Unlimited, Backcountry Hunters & Anglers, American Fly Fishing Trade Association, Theodore Roosevelt Conservation Partnership, and the Izaak Walton League.    

By Leanne Roulson, AFS Second Vice President Originally published as a Guest Editorial from the AFS Western Division’s Tributary newsletter. On December 11th, the US Environmental Protection Agency (EPA) and the US Army Corps of Engineers (USACE) released a proposed rule that that regulates Waters of the US (WOTUS) to redefine the scope of Clean Water Act protections for certain streams and wetlands. This would replace the 2015 Clean Water Rule and seeks to remove protections for headwater and seasonally-flowing waterways. In Montana, where the west half holds the source of some of the US’s major rivers like the Missouri and the Columbia; and the east half has streams that dry out before the Fourth of July—that would leave a lot of us hanging. The Twitter version of the 253 pages of the proposed rule, is that many headwater streams, seasonally-flowing streams, and isolated ponds or wetlands would no longer be subject to the Clean Water Act. The changes in what is or is not jurisdictional (e.g., legally recognized as a Water of the US) would reduce protections from actions such as discharge into or placement of fill or bank stabilization on these waters. An important “so what” aspect is that the new rule dismisses the importance of these waters for maintaining the integrity of downstream waters. We all know that if you make changes to a watershed in one area, that often affects areas up and downstream. This rule dismisses that premise and ignores the scientific basis for the protections put in place under the 2015 rule. AFS convened a group of fisheries experts earlier this year to develop a manuscript describing the scientific evidence for the importance of headwater streams and the potential effects of adoption of this proposed rule on fish and fisheries. This scientific evidence will be published in Fisheries and submitted to the EPA as part of AFS’ comments to the new rule. AFS joined the Consortium of Aquatic Science Societies (CASS) in a statement urging the agencies to consider the far-reaching implications of a narrower rule. The CASS statement notes, “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.” Scientists and managers who deal with water quality, fisheries, wetlands, and impacts to waterways have been awaiting the rule. Should it become final, a fisheries biologist in Montana and other places in the West could see the following changes: Rivers and streams that contribute perennial or intermittent flow to downstream traditional navigable waters in typical year are jurisdictional under the proposal; no ephemeral features are considered jurisdictional under the proposal. Isolated lakes and ponds were considered adjacent waters together with isolated wetlands under the expanded definition of “neighboring” in the 2015 Rule. Under this proposed rule, fewer lakes and ponds may be jurisdictional than under the 2015 Rule because: Under the agencies’ new proposal wetlands must either abut jurisdictional waters or have a direct hydrological surface connection to jurisdictional waters in a typical year to be jurisdictional themselves; wetlands physically separated from jurisdictional waters by a berm, dike, or other barrier are not adjacent if they lack a direct hydrologic surface connection to a jurisdictional water in a typical year (EPA Fact Sheet). Most fisheries biologists recognize the value of tributary habitat and associated wetland habitats to fish and wildlife, and the origins and maintenance of almost 30 years of “no net loss” of wetlands policy in the US are firmly based on this valuation. In addition to the changes to stream protection, the proposed rule would make it much easier for wetlands to be lost without requiring mitigation for that loss. This is a prime example of how policy can and will affect your ability to manage fisheries effectively. Even with Montana’s Steam Permit system (including the 310 and SPA 124 permits and others) this new rule would potentially reduce the regulation of discharge and fill into streams and wetland areas. Waters in states that do not have similar stream protection laws would be at even higher risk. The science is being dismissed. If you would like to let the decision makers know that, as a scientist, you disagree with the proposed rule, you can submit a comment. Some of the most chilling aspects of this proposed rule are the types of comments the agencies state that they are seeking. Some of the suggested comment topics include: Should tributaries be limited to perennial flowing waters only (exclude intermittent streams)? Should tributaries be defined by flow level—with a suggested average annual flow of 5 cfs or more? Should aerial photos be used to determine whether a stream is perennial? Does a break in flow in a channel make a stream not a tributary? (think about the Colorado River on this one). If you wish to comment, the agencies will take comment on the proposal for 60 days after publication in the Federal Register. The agencies will also hold an informational webcast on January 10, 2019, and will host a public listening session on the proposed rule in Kansas City, KS, on January 23, 2019. Additional information on both engagements is available at https://www.epa.gov/wotus-rule. Comments on the proposal should be identified by Docket ID No. EPA-HQ-OW-2018-0149 and may be submitted online. Go to https://www.regulations.gov and follow the online instructions for submitting comments to Docket ID No. EPA-HQ-OW-2018-0149. References Link to proposed rule: https://www.epa.gov/wotus-rule/proposed-rule-definition-waters-united-states-recodification-pre-existing-rules EPA Fact Sheet on the Proposed WOTUS Rule: https://www.epa.gov/sites/production/files/2018-12/documents/factsheet_-_wotus_revision_overview_12.10_1.pdf

News for Immediate Release December 11, 2018 Contact: Kristyn Brady, 617-501-6352, [email protected] Replacing Clean Water Rule Would Threaten Fish, Waterfowl, and Outdoor Recreation Economy The EPA and Army Corps of Engineers proceeds with rolling back Clean Water Act protections for headwater streams and wetlands—harming trout, waterfowl, and outdoor recreation businesses.  WASHINGTON, D.C. — Today, the EPA and Army Corps of Engineers took the next step to replace an Obama-era rule that benefited headwater streams and wetlands across the country. The new rule would redefine which waters are eligible for Clean Water Act protections and leave important habitat for fish and waterfowl vulnerable to pollution and destruction. The rule proposed today would remove Clean Water Act protections for ephemeral streams, which only flow in response to rainfall, and likely excludes intermittent streams, which only flow during wet seasons. These waters are important for fish and wildlife, especially in the West. Under the new rule, adjacent wetlands will only receive protection if they are physically connected to other jurisdictional waters. This disregards the EPA’s own research that shows wetlands and ephemeral and intermittent streams, even those that lack surface connection, provide important biological and chemical functions that affect downstream waters. “No matter which party holds the power in Washington, the needs of America’s hunters and anglers have not changed since we supported the 2015 Clean Water Rule—all streams and wetlands are crucial to supporting healthy fish and waterfowl populations that power our sports, and an entire swath of these important habitats does not deserve to be overlooked or written off on a technicality,” says Whit Fosburgh, president and CEO of the Theodore Roosevelt Conservation Partnership. “Sportsmen and women will remain engaged in the public process of creating a new rule for how our smaller streams and wetlands are regulated, because our quintessentially American traditions in the outdoors depend on it.” “The agencies’ refusal to consider the science is detrimental to the integrity and security of our fish and wildlife resources,” says Doug Austen, executive director of the American Fisheries Society. “Headwater streams are key to the sustainability of fish stocks in both upstream and downstream waters. Now, species that are already in trouble will be harder to recover, and more species will be at risk of becoming imperiled. Loss of protections for these waters will have grave ecological consequences for fish and fisheries—and ultimately the communities across the U.S. will lose the economic, social, and cultural benefits that are derived from headwater streams.” “This proposal is fundamentally flawed for one simple reason: It focuses on the wrong criteria—continuous flow of water—rather than protecting water quality in our rivers, lakes, and drinking water reservoirs,” says Scott Kovarovics, executive director of the Izaak Walton League of America. “This misguided approach is completely unsupported by science and common sense, and it not only jeopardizes public health, it will undermine the $887-billion outdoor recreation economy.” The Obama administration finalized its Clean Water Rule in 2015 and clarified that the Clean Water Act protects smaller streams and wetlands. The Trump administration’s rule embraces the minority opinion written by late Supreme Court Justice Antonin Scalia on what constitutes the “Waters of the U.S.” Scalia’s definition was not adopted by the Supreme Court and is not supported by hunters and anglers. In fact, 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. “The administration’s new proposal turns its back on the importance of small headwater streams to healthy waterways and sportfishing recreation,” says Chris Wood, president and CEO of Trout Unlimited. “Small headwater streams are like the roots of our trees, the capillaries of our arteries. Sportsmen and women know that all the benefits of our larger streams, rivers, and bays downstream are dependent on the health of our small streams.” Today’s proposed rulemaking would roll back protections on diverse wetland habitats, including prairie potholes in the Great Plains region. Also known as America’s duck factory, these wetlands support more than 50 percent of our country’s migratory waterfowl. Since the Supreme Court created confusion about the application of the Clean Water Act in the 2000s, America has experienced accelerated wetlands loss—only 40 to 50 percent of the original prairie potholes remain. “From wetlands in the prairie potholes region to the riparian areas that are critical to 80 percent of all wildlife—including big game—our hunting and fishing traditions can’t exist without clean water,” says Land Tawney, president and CEO of Backcountry Hunters & Anglers. “Hunters and anglers will not stand for shortsighted policies that weaken protections and threaten the integrity of fish and wildlife habitats currently safeguarded by bedrock conservation laws like the Clean Water Act.” The new rulemaking could also threaten America’s outdoor recreation businesses and communities that rely on tourism spending related to hunting and fishing. “No one who loves the outdoors wants to fish a lake covered in toxic algae, duck hunt near a bulldozed wetland, or pitch a tent next to sewage ditch,” says Collin O’Mara, president and CEO of the National Wildlife Federation. “Yet more water pollution is exactly what will happen if the administration dismantles clean water protections. It’s bad for wildlife, and it’s bad for the nearly 8 million jobs powered by the outdoor recreation economy.” Today’s proposal will be published in the Federal Register here. At that time, the public will have 60 days to comment.

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 Aquatic Scientists Push Back Against Narrow WOTUS Rule The Consortium of Aquatic Science Societies (CASS) is deeply concerned with the proposed rule issued today by the EPA and the U.S. Army Corps of Engineers to replace the 2015 Clean Water Rule (Waters of the United States Rule or WOTUS). We urge the agencies to consider the far-reaching implications to our nation’s fish and aquatic resources, wildlife and communities from a narrower rule and call for any re-definition of ”Waters of the United States” to be informed by science. 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. Research specifically shows that downstream waters rely on headwaters and their associated wetland habitats for: uptake, retention, transformation and transport of nutrients and contaminants; control of runoff, streamflow and floodwaters moderation of water temperature and sediment delivery; food, thermal refuges, spawning sites, nursery areas and essential habitat for unique plants and animals, including numerous threatened and endangered species as well as recreationally and commercially important species. Dr. Arnold van der Valk, Immediate Past President, Society of Wetland Scientists and a professor at Iowa State University, decried the decision by the Trump administration to replace the current WOTUS rule and noted, “It will result in the loss of many of the nation’s wetlands. This decision is short-sighted and counterproductive. It will significantly reduce the multitude of ecosystem services that these wetlands currently provide us at no cost.  As a result the taxpayers will have to pay to build elaborate and expensive infrastructure to replace these free ecosystem services, such as flood reduction and cleaning up polluted water.” Dr. Robert Twilley, Past President of the Coastal and Estuarine Research Federation and a professor at Louisiana State University, said: “Estuaries and coastal waters rely on clean water from upland watersheds to support productive, commercially, and recreationally valuable fisheries of the United States.  The definition of ‘Waters of the United States’ was a joint effort of industry, private landowners, and government that recognized the importance of headland and other wetlands in providing the water quality that supports downstream economies.” Dr. Douglas Austen, Executive Director of the American Fisheries Society (AFS), noted that “the 2015 Clean Water Rule provided a scientifically sound definition of ‘Waters of the U.S.’ The move to replace the rule puts America’s headwater streams and wetlands at greater risk of being destroyed or polluted and imperils fish and aquatic resources.” 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. For more information, please contact: Ms. Drue Banta Winters [email protected] PH 301/897-8616 x202

The Environmental Protection Agency and the U.S. Army Corps of Engineers have taken a new tack to repeal the 2015 Waters of the U.S. Rule or WOTUS Rule.  On July 6, the agencies issued a supplemental notice of proposed rulemaking to amend a July 2017 proposed action that delayed the implementation of the WOTUS Rule with a 30-day comment period. The agencies are now seeking to repeal the 2015 Rule in its entirety and plan to keep the previous guidance in place that resulted in case by case jurisdictional determinations while it finalizes a new definition of “waters of the United States.” The rationale for this change is premised on the grounds that the 2015 rule was unlawful and inconsistent with Supreme Court precedent. AFS joined with other conservation organizations in support of the WOTUS Rule and requested additional time to comment on this new justification for the repeal. AFS supports the sound science underpinning the WOTUS Rule and firmly believes that it should be considered by the agencies in any attempt to repeal or replace it. AFS is on record endorsing EPA’s Connectivity Report, which informed the development of the WOTUS Rule, and represents the state of the science on how streams and wetlands contribute to the chemical, physical, and biological integrity of downstream waters.  This refusal to consider the science, including the most current understanding of how streams and wetlands contribute to the chemical, physical, and biological integrity of downstream waters, is detrimental to the integrity and security of our drinking water, public health, fisheries, and wildlife habitat and could significantly increase the risks and costs associated with flood and storm damage.  AFS urges the agencies to take this science into account as they seek to replace the WOTUS rule with one that offers fewer protections for headwater streams and wetlands. The Trump Administration has indicated that it plans to release a replacement rule this August. We encourage our members to continue to engage on this issue and promote the science as stated in the Connectivity Report. The public may comment here on the new supplemental grounds for the repeal before August 13, 2018. Read the letter that AFS and other organizations sent to the EPA and Corp requesting an extension of the comment period.

Last week, the White House released an updated timeline to repeal and replace the 2015 Clean Water Rule, also known as the Waters of the U.S. (WOTUS) rule. According to a document released on Friday, the Environmental Protection Agency (EPA) and the Army Corps of Engineers will not finalize their planned repeal of the Clean Water Rule until November and they are expected to release a “supplemental” proposal for the repeal this month.  In the meantime, the agencies will be working to release a new definition of “waters of the U.S.” to clarify which wetlands and waterways are covered by the Clean Water Act this August, with a final rule expected more than a year later, in September 2019. The FY2019 Energy and Water Development and Related Agencies Appropriations bill in the House of Representatives contains a provision that would repeal the 2015 Clean Water Rule. Earlier legislative efforts sought to exempt the repeal of the rule from the Administrative Procedures Act. AFS joined with its conservation partners to oppose the troublesome policy-rider in a letter to lawmakers and expressed support for the current rule that “conserves our nation’s critical headwater streams, shields communities from flooding, supplies drinking water to one in three Americans, and provides essential fish and wildlife habitat that supports an $887 billion outdoor recreation economy.” Congress hasn’t been able to make any traction to legislatively define “waters of the U.S.” in recent years, but two members of the U.S. House of Representatives are trying to insert a provision in the Farm Bill that would narrowly define the scope of the Clean Water Act.  E&E News reported today that Reps. Jaime Herrera Beutler (R-Wash.) and Paul Gosar (R-Ariz.) propose to limit the scope of the Clean Water Act to include only “relatively permanent, standing or continuously flowing bodies of water” and “wetlands that have a continuous surface water connection” to them. The Farm Bill is expected to go to the House floor this week. AFS supports a definition of “Waters of the U.S.” that provides protections for headwater streams and wetlands. Dr. Douglas Austen, Executive Director of the American Fisheries Society (AFS), stated that “the 2015 Clean Water Rule provided a scientifically sound definition of ‘Waters of the U.S.’ The move to roll back the rule puts U.S. headwater streams and wetlands at greater risk of being destroyed or polluted and imperils vital habitat for fish and aquatic resources.” It is important that policy-makers on the Hill and in the Administration understand the implications of a narrower rule for fish.  In order to more fully address the proposal to define the scope of the Clean Water Act, AFS is seeking experts for a working group charged with synthesizing information on the critical role of headwaters streams for fish and fisheries.  The group will be charged with developing a formal public comment to the administrative record on the replacement rule and a synthesis article for Fisheries magazine.  This effort will be relatively short in duration with a goal of having a document ready for submission following the release of a new rule in August. Contact AFS Policy Director Drue Winters ([email protected]) for more information.

On this World Water Day, AFS learned that a troubling policy rider related to the Clean Water Rule was removed from the Omnibus budget bill for Fiscal Year 2018.  The rider would have allowed EPA and the Army Corps of Engineers to repeal the 2015 Clean Water Rule without following the Administrative Procedures Act. That means the agencies could ignore public input in repealing the rule, or adopt a rule without any reasonable justification. The bill passed easily in the House and the Senate is currently working on the bill ahead of Friday’s deadline to beat a government shutdown. There continues to be a concern that a policy rider in a Senate Interior, Environment, and Related Agencies Appropriations bill that exempts the repeal of the Clean Water Rule from the Administrative Procedures Act might make its way to final passage of a Fiscal Year 2018 spending bill.  Earlier this year, the CASS groups sent a letter to Senate Appropriators urging them “not to adopt a policy rider that would allow the federal government to exempt the administration’s proposed repeal of the Clean Water Rule from the Administrative Procedures Act. The repeal of Clean Water protections requires a meaningful opportunity for stakeholders to engage in the process to ensure the best available science is considered. At a minimum, the public should have the opportunity to comment on this critically important issue.” Unfortunately, it is possible that a policy rider could still make its way into law and the ability of the public to comment on the process and the ability of the rule to be challenged in court under the APA would be severely limited. AFS believes that there should be no place in a funding bill for a policy rider that would allow the administration to avoid public comment as it takes steps to lift protections for our nation’s water that provide fish and wildlife habitat and deliver clean drinking water supplies.

There continues to be a concern that a policy rider in a Senate Interior, Environment, and Related Agencies Appropriations bill that exempts the repeal of the Clean Water Rule from the Administrative Procedures Act might make its way to final passage of a Fiscal Year 2018 spending bill.  Earlier this year, the CASS groups sent a letter to Senate Appropriators urging them “not to adopt a policy rider that would allow the federal government to exempt the administration’s proposed repeal of the Clean Water Rule from the Administrative Procedures Act. The repeal of Clean Water protections requires a meaningful opportunity for stakeholders to engage in the process to ensure the best available science is considered. At a minimum, the public should have the opportunity to comment on this critically important issue.” Unfortunately, it is possible that a policy rider could still make its way into law and the ability of the public to comment on the process and the ability of the rule to be challenged in court under the APA would be severely limited. AFS believes that there should be no place in a funding bill for a policy rider that would allow the administration to avoid public comment as it takes steps to lift protections for our nation’s water that provide fish and wildlife habitat and deliver clean drinking water supplies.

On January 22, the U.S. Supreme Court ruled that challenges to the Waters of the U.S. (WOTUS) rule must be heard in district courts rather than in U.S. Federal Courts of Appeal presenting a procedural hurdle to the Trump Administration’s efforts to repeal and replace the 2015 rule with a narrower rule. Industry and local governments challenged the WOTUS rule in the Sixth Circuit Court of Appeals asserting that the rule unconstitutionally expanded the CWA’s reach and misapplied Justice Anthony Kennedy’s “significant nexus” opinion in the 2006 Rapanos case.  The Sixth Circuit stayed the case while the Supreme Court decided the jurisdictional issues. Now that the Supreme Court has ruled that the district courts are the proper body to determine the merits of the case, the Sixth Circuit will likely lift the stay and the WOTUS rule could go back into effect in most of the country unless a district court agrees to issue a nationwide injunction. In late January, EPA and USACE sent a final rule to the White House Office of Information and Regulatory Affairs for review in hopes of wrapping up the “effective date” rule before the 6th Circuit lifts the stay. The agencies beat the clock by publishing a final rule on February 6 to add an “applicability date” to WOTUS that would delay the effective date of the 2015 rule until 2020. The finalization of the “effective date” rule will likely result in a new wave of lawsuits challenging the Trump Administration’s administrative actions since courts have ruled that the “effective date” of a rule cannot be changed after it takes effect. The 2015 rule had an effective date of August 28, 2015, but implementation is currently on hold due to the stay. The rule to repeal WOTUS will likely be finalized after the “effective date” rule.  These steps would give the Trump Administration until 2020 to replace the WOTUS rule with a new, narrower definition of “Waters of the U.S.” In testimony before the Senate Environment and Public Works Committee recently, EPA Administrator Scott Pruitt indicated the agency would propose a replacement rule this spring.    

By Steve McMullin, AFS President President Barack Obama once famously said, “Elections have consequences.” The first year of the Trump Administration clearly demonstrates the truth of that statement, and the consequences for fisheries and the environment are potentially “huge.” The Trump Administration’s approach to science and the environment during its first year in office included withdrawal from the Paris Climate Accords, attempts to roll back clean water protections through efforts to repeal the Waters of the United States (WOTUS) rule, political appointees disregarding science and established processes in fisheries management decisions, failure to fill science positions in the administration, and proposed budget cuts for aquatic research and conservation, just to name a few. In my brief remarks upon being installed as president of the American Fisheries Society (AFS), I stated that AFS must be the voice for fisheries because many of our members (i.e., those who work for government agencies) do not always feel free to publicly voice their concerns when science is ignored or misused in the policy process. However, we must keep in mind that AFS is a professional society and that serving as the voice for fisheries differs from environmental advocacy. Actively engaging in the policy process raises many questions. How will we choose from among the many issues that will affect fisheries and the profession? What form will our engagement in the policy process take? Where will we find the resources we need to effectively engage? I will address each of these questions in the remainder of this column. There are at least a dozen policy issues in play with important implications for fisheries as I write this column. In order to be most effective, AFS must focus its resources on a few, select issues. A proactive, focused, and deliberate approach to policy will ensure that we engage in a timely and effective manner in the most important national debates, while leaving room for smaller issues as time and resources will allow. We will assign highest priority to national issues where we can act proactively rather than reactively and where our efforts will have the greatest impact. The traditional approach employed by AFS of developing lengthy policy statements did not allow for timely engagement and those statements were not always germane to the national debate. Though well researched and documented, those policy statements often were out of date by the time they were adopted and were rarely updated as per AFS Procedures. Based on that reality, the AFS officers identified three issues as highest priority for the next year: engaging in the repeal/replacement of WOTUS to ensure consideration of the importance of wetlands and headwater streams to aquatic resources, supporting passage of the Recovering America’s Wildlife Act to secure funding for proactive conservation for imperiled fish, and ensuring that proposals for the reauthorization of the Magnuson–Stevens Act are informed by science and AFS collective management experience. AFS will continue to work to ensure that the value of wetlands and headwater streams are properly considered in the administration’s efforts to repeal the 2015 WOTUS rule and replace it with a rule that undermines protections for water quality and threatens aquatic resources. The Society has an established position on this issue and has a long history of engaging on WOTUS both individually and with its partners in the Consortium of Aquatic Science Societies. AFS will continue to ensure that the best available science is considered as the U.S. Environmental Protection Agency considers whether to repeal and replace the rule. In addition to WOTUS, AFS will take an active role in supporting passage of the Recovering America’s Wildlife Act. This proposed legislation would direct US$1.3 billion annually to state fish and wildlife agencies for proactive conservation. State wildlife action plans are designed to protect and recover nongame species of greatest conservation need, but the states need substantially more funding to ensure that species in decline are addressed before they become threatened or endangered. Studies of extinction rates among freshwater fauna suggest that North America is losing species as rapidly as tropical forests (Ricciardi and Rasmussen 1999). This proposed legislation provides an opportunity to address habitat loss, combat invasive species, improve water quality, and apply many other conservation strategies to prevent additional decline and improve the outlook for many other species. As an added benefit, if passed, the Recovering America’s Wildlife Act would significantly increase employment opportunities for fisheries biologists. This bill could be as transformational for state fish and wildlife agencies as Pittman–Robinson or Wallop–Breaux. We will be calling on our members to get involved in this opportunity of a lifetime. Lastly, but equally as important for marine species, AFS will engage in the reauthorization of the Magnuson–Stevens Act, the federal law that governs fisheries management in the U.S Exclusive Economic Zone. Discussions are underway in the current Congress that call for additional flexibility in the law. The last reauthorization in 2007 required National Oceanic and Atmospheric Administration–Fisheries to end current and prevent future overfishing by adopting a precautionary approach that relies on scientific stock assessments to set annual catch limits. In a relatively short time, the National Oceanic and Atmospheric Administration–Fisheries has recovered 41 previously overfished stocks using this approach to fisheries management. Despite the successful rebuilding of many overfished stocks, both commercial and recreational fishers are frustrated by what they perceive to be an inflexible management regime that limits harvest to these more abundant stocks. The involvement of AFS in the reauthorization debate will focus on ensuring that proposals for changes in the law are informed by good science, sound management strategies, and well-supported policies. AFS will evaluate existing provisions of the law and the proposals for flexibility to ensure that conservation gains are not reversed. Where possible, AFS will propose scientifically based solutions for federal fisheries managers with flexibility to harvest sustainably and without undermining conservation gains. Elections do indeed have consequences. There has never been a more important time to get involved in ensuring that aquatic resources and their habitat are conserved and protected.

AFS is joining with other science societies to oppose the EPA’s most recent proposal to add an “effective date” to the 2015 rule. We believe that this action is an attempt to amend the Clean Water Rule. AFS believes that any agency action concerning WOTUS—including the effective suspension of the Clean Water Rule—must be supported by peer-reviewed science and a valid economic analysis. The U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) are proposing to amend the effective date of the 2015 Waters of the United States (WOTUS) rule. The agencies are proposing that the 2015 rule would not go into effect until two years after final action on this proposed rule. The EPA and Corps have indicated that they will move quickly to take final action in early 2018. Based on this timeline, the 2015 WOTUS rule would not be effective until sometime in 2020, which would give the EPA another two years to rescind the 2015 rule and promulgate a replacement rule. The 2015 rule had an effective date of August 28, 2015, but implementation is currently on hold due to a stay imposed by the U.S. Court of Appeals for the Sixth Circuit. A torrent of federal litigation ensued after the Obama administration finalized the 2015 rule. Thirty-one states, many local governments, and private industry filed suit against the EPA and Corps in the Sixth Circuit Court of Appeals, asserting that the rule unconstitutionally expanded the Clean Water Act’s reach and misapplied Justice Anthony Kennedy’s “significant nexus” opinion in the 2006 Rapanos case. In early 2017, the U.S. Supreme Court agreed to resolve the jurisdictional wrangling and heard arguments in October over which lower court—U.S. federal appeals courts or district courts—would handle challenges to the rule. If the court hands down a decision before a new rule is in place, the stay could be lifted and the 2015 WOTUS rule could become effective, unless another rulemaking has rescinded the rule. The proposed rule to suspend the 2015 rule was published in the Federal Register on November 22, 2017. The agencies will be collecting public comment on this proposal for 21 days. Comments should be identified by Docket ID No. EPA-HQ-OW-2017-0644 and submitted here by December 13, 2017. Read the letter submitted by the Consortium of Aquatic Science Societies and others.

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.

The House Science, Space and Technology’s Subcommittee on the Environment is scheduled to discuss the future of the Waters of the U.S. Rule or “WOTUS” rule on Wednesday, November 29, 2017. The regulation determines which wetlands and small waterways are protected by the Clean Water Act.  The subcommittee will also examine state participation in administering Clean Water Act regulations this week. 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. 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. Details: Wednesday, Nov. 29, at 10 a.m. in 2318 Rayburn. Witnesses: Wesley Mehl, deputy commissioner, Arizona State Land Department James Chilton, owner, Chilton Ranch Reed Hopper, senior attorney, Pacific Legal Foundation  

In June, the EPA and the U.S. Army Corps of Engineers announced the proposed repeal of the 2015 Clean Water Rule in anticipation of replacing it with a narrower definition of “Waters of the U.S.” or “WOTUS.”   The EPA and the Army Corps of Engineers are currently soliciting recommendations for this new definition, the second step in the rulemaking process. AFS joined with several science societies in opposition to a new, narrower definition of WOTUS based on Justice Antonin Scalia’s plurality opinion in Rapanos v. United States, 547 U.S. 715 (2006).  This definition would include only those relatively permanent, standing or continuously flowing bodies of water and only those wetlands with a continuous surface connection to bodies that are “waters of the United States” in their own right. Additionally, it must be hard to distinguish the boundary between the primary water and the wetland that has the continuous surface connection between the primary water and the wetland, in order for the wetland to be jurisdictional. The societies believe such a definition is unsupported by the peer-reviewed science and that the proposed redefinition of WOTUS based on Justice Scalia’s opinion would make it impossible to achieve the objective of the Clean Water Act (CWA), which is, “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” AFS fully supports the 2015 rule and urged the agencies to include headwaters, tributaries and wetlands with a significant nexus to primary waters in any new definition of WOTUS even if they do not exhibit a continuous surface connection to primary waters. Excluding these waters poses a significant threat to the integrity and security of our drinking water, public health, fisheries, and wildlife habitat, while significantly increasing the risks and costs associated with flood and storm damage. It’s not too late to let the agencies know the impacts to aquatic resources from repealing and replacing the WOTUS rule with a narrower definition. Written recommendations must be received on or before November 28, 2017. Submit your recommendations, identified by Docket ID No. EPA-HQ-OW-2017-0480 here.

In early 2017, the U.S. Supreme Court agreed to resolve jurisdictional wrangling over which federal court should hear challenges to the Environmental Protection Agency’s contentious 2015 Waters of the U.S. (WOTUS) rule. That rule sought to clarify the definition of “navigable waters” in the Clean Water Act (CWA). Earlier this month, the nation’s highest court heard arguments over which lower court—U.S. federal appeals courts or district courts—would handle challenges to the rule. A torrent of federal litigation ensued after the Obama administration finalized the rule. Thirty-one states, many local governments, and private industry filed suit against the U.S. EPA and Army Corps of Engineers in the Sixth Circuit Court of Appeals asserting that the rule unconstitutionally expanded the CWA’s reach and misapplied Justice Anthony Kennedy’s “significant nexus” opinion in the 2006 Rapanos case. Wetland and water scientists actively involved in research and teaching about fresh and estuarine waters filed an amicus brief in support of the Clean Water Rule. The brief provided scientific support for the rule by describing how wetlands, streams, and adjacent waters significantly affect the chemical, physical, and biological integrity of traditional navigable waters, interstate waters, and the territorial seas. The brief was endorsed by AFS and six other scientific societies. The Supreme Court’s decision on the jurisdictional issue will determine where challenges to future Clean Water Act rules play out. The choice of court also affects the resources needed to litigate the merits of challenges, sets the statute of limitations for filing lawsuits, and helps determine whether actions can be challenged in subsequent civil or criminal proceedings. The issue is likely to re-occur despite the Trump Administration’s efforts to repeal the WOTUS rule. The Trump Administration has indicated that it plans to replace the rule before the end of the year with one in keeping with Justice Scalia’s interpretation of “navigable waters” in the Rapanos decision, a move that has environmental groups preparing for new legal battles over a rule many fear will reverse protections for wetlands and headwater streams. AFS, and its partners in the Consortium of Aquatic Science Societies (CASS), will continue to engage with the Trump Administration as it moves forward in repealing and replacing the Clean Water Rule to ensure that the value wetlands and headwater streams is considered.  Comments on the proposed replacement are due by November 27.

Time is running out to submit your comment to EPA and the Army Corps of Engineers on the proposed repeal of the Waters of the U.S. Rule (WOTUS).  The comment period will close on September 27, 2017.  Make your voice heard! Comment here. AFS and 11 other science societies submitted a joint comment letter to oppose the repeal.  The organizations, representing over 200,000 scientists, urged the agencies to consider the critical functions of our nation’s wetlands and headwater streams, in providing a broad suite of ecosystem services to society.  They asked that the agencies reaffirm WOTUS or develop a revised rule that is as scientifically, legally, and ecologically robust as WOTUS, taking into consideration costs associated with replacing those ecosystem services, the far-reaching implications for fish, wildlife, and their habitat from rescinding WOTUS, and the robust public participation that went into developing the safeguards. Read more here on the administration’s plan to roll back protections for our nation’s critical wetlands and headwater streams.  

In mid-September, the House passed an omnibus spending package containing all 12 of the major appropriations bills for fiscal year 2018. Senate appropriators are still working bills through the committee process. The House and Senate will need to reconcile their respective bills before the budget moves forward to President Trump for signature. Shortly after returning to Washington following the August recess and Labor Day, Congress quickly approved a compromise package of legislation that included a three-month continuing resolution, initial disaster relief for hurricanes, and a debt ceiling increase that will fund the government through early December. The measure was quickly adopted by the House and Senate and signed into law by President Trump. With the federal fiscal year ending on September 30, the move provides some additional time to pass a budget. There continues to be a lack of agreement on top-line budget numbers, which may be slowing the process. It appears that the budget cuts sought by the President may not be as severe as feared based on the fiscal year 2017 budget passed by Congress earlier this year and the House’s 2018 appropriations bills. We will be tracking the Senate action on the budget. AFS is watching budget bills for another reason, too. In late July, the House passed several appropriations bills containing a controversial provision to exempt the repeal of the 2015 Clean Water Rule or Waters of the United States (WOTUS) Rule from the Administrative Procedures Act, which would eliminate the requirement for public comment on the process. Democrats were unable to prevail in their efforts to strip the WOTUS policy rider from the bills. It remains to be seen whether the Senate appropriators will introduce similar language. In response, AFS joined with outdoor enthusiasts and conservation groups on a letter urging them not to adopt the WOTUS rider in the Interior, Environment, and Related Agencies Subcommittee markup, the process Congress uses to debate, amend, and rewrite proposed legislation. AFS believes that there should be no place in a funding bill for a rider that would allow the administration to avoid public comment as it takes steps to lift protections for our nation’s water. On September 21, AFS, in conjunction with the Consortium of Aquatic Science Societies (CASS), also submitted a letter to Chairman Murkowski and Ranking Member Udall requesting that the Interior, Environment and Related Agencies Appropriations subcommittee reject any policy rider that would exempt the repeal of the Clean Water Rule from the Administrative Procedures Act.

EPA Administrator Scott Pruitt is pursuing a two-step process to repeal the Obama administration’s 2015 Waters of the U.S. rule and craft a replacement, using a narrower legal definition promoted by the late Supreme Court Justice Antonin Scalia. The Trump administration will hold 10 teleconferences and one in-person meeting to solicit input as it prepares to write a new rule defining which streams and wetlands are subject to federal protection. EPA and the Army Corps of Engineers outlined a schedule of teleconferences to run through the fall and in-person meeting with small entities on Oct. 23. The newly announced meetings are to solicit input on the second step, a new proposed definition, which Pruitt has said he hopes to unveil by the end of the year. The agency proposed the first step, to repeal the Obama rule, in July, with the public comment period slated to close in late September. AFS is joining with partner organizations to formally oppose the repeal of the rule. EPA is setting up a docket for “written recommendations” that will be part of the administrative record for the replacement rule.  Those comments are due Nov. 28. This is an important opportunity to have your voice heard on the importance of headwater streams and wetlands! DATES: Written recommendation must be received on or before November 28, 2017. ADDRESSES: Submit your recommendations, identified by Docket ID No. EPA-HQ-OW-2017-0480, at http://www.regulations.gov. This docket, established as a courtesy to the stakeholder community, will be included in the administrative record of the regulation revising the definition of “Waters of the United States” under the Clean Water Act (CWA). The full schedule for the Waters of the U.S. webinars can be found here: Scientific organizations and academia have an opportunity to participate in a webinar on Tuesday, November 7, 2017.The agencies are also planning an in-person meeting with small entities, which will be held on Monday, October 23, 2017, from 9:00 to 11:00 a.m. Eastern Time at the U.S. EPA’s Headquarters located at 1200 Pennsylvania Avenue NW, Washington, DC 20003.

CASS WOTUS Comment Period Extension Request

Recently, the U.S. Army Corps of Engineers and U.S. Environmental Protection Agency proposed to rescind the Clean Water Rule. (Details available on the Federal Register). The Clean Water Rule, which was developed using the best available, peer-reviewed science, clarifies which waters are and are not categorically protected under the Clean Water Act. Specifically, the Clean Water Rule ensures that tributaries, including ephemeral and intermittent streams, and waters adjacent to those tributaries, including wetlands and oxbows, are protected as jurisdictional waters based on their physical, chemical, and biological connections to the navigable waterways that have traditionally been recognized as Waters of the United States. Repealing the rule will (again) put these ecologically significant waterways at risk. American Rivers drafted a letter opposing the repeal of the Clean Water Rule and is seeking individuals to sign on (limited to U.S. scientists only). This is a great way to engage if you do not have the time or capacity to draft a comment letter of your own, and signing does not preclude you from submitting other comments. Please note that while American Rivers authored the letter and is collecting signatures, it will be submitted without any organizational affiliation. You can review and sign the letter by following the link below by August 28, 2017: https://act.americanrivers.org/page/2330/petition/1

UPDATE: EPA and the Army Corps of Engineers have extended the comment period by 30 days for the proposed repeal of the Waters of the U.S. Rule (WOTUS) to provide additional time for stakeholders to weigh in. The comment period, as now extended, will close on September 27, 2017. https://www.epa.gov/wotus-rule/extension-comment-period-definition-waters-united-states-recodification-pre-existing The Environmental Protection Agency (EPA) is moving forward to repeal the 2015 Clean Water Rule.  This is the first step in the agency’s plan to repeal and replace the rule. The proposed rule was filed in the Federal Register yesterday. The public comment period is open until August 28, 2017. Let the agency know the importance of wetlands and headwater streams to fish and aquatic resources. Your voice is critical.  Submit comments to EPA here.

The Trump administration is moving forward to repeal the 2015 Clean Water Rule (WOTUS). Last month, EPA and the Army Corps issued a proposed rule that was filed in the Federal Register today. The public comment period is open until August 28, 2017. AFS joined with the members of the Consortium of Aquatic Science Societies on a press release warning that the repeal puts aquatic resources at risk. Read it here.

UPDATE: The House of Representatives passed a security-themed “minibus” appropriations package on July 27, containing Defense, Energy & Water, Legislative Branch, and Military Construction-Veterans Affairs spending bills. The bill includes a controversial provision to exempt the repeal of the 2015 Clean Water Rule from the Administrative Procedures Act (APA). The policy rider would allow for an expedited repeal process without opportunity for public comment or an evaluation of the costs of repealing the rule. Democrats’ attempts to strip the provision from the minibus failed.  It remains to be seen whether the Senate will use similar language to exempt the rulemaking from the APA. AFS will continue to provide periodic updates on this issue.

The Association of State Wetland Managers (ASWM) will host a webinar on July 11, 2017 from 12:00-2:00 p.m. ET featuring legal experts representing diverse perspectives on the Trump administration’s proposed repeal of the 2015 Clean Water Rule. The U.S. Environmental Protection Agency and the Department of Army are carrying out a two-step process to repeal and replace the 2015 Clean Water Rule. The first step is to repeal the Clean Water Rule regulation finalized by EPA and the Army in the spring of 2015 and replace it with the 1986 rule previously in place in conjunction with the Scalia Opinion in the Rapanos decision. The goal of the webinar is to help participants understand the current process, important issues, and potential outcomes of the rulemaking efforts. What’s Next for Clean Water Act Jurisdiction, July 11, 2017 at 12:00-2:00 p.m. ET PRESENTERS Jan Goldman-Carter, National Wildlife Federation Virginia Albrecht, Hunton and Williams, LLP Roy Gardner, Stetson University, College of Law The webinar is free and open to the public.  For more information and to register go to: https://www.aswm.org/aswm/aswm-webinarscalls/8386-aswm-hot-topics-webinar-series

The U.S. Army Corps of Engineers (USACE) and Environmental Protection Agency (EPA) have begun the process of rescinding the 2015 Clean Water Rule. The repeal of the 2015 rule and replacement could result in a rollback of Clean Water Act protections for a majority of the nation’s streams and wetlands, including the headwater streams and millions of acres of seasonal wetlands that provide valuable habitat for many species of fish. There is ample scientific evidence that there are strong and varied physical, chemical, and biological connections between wetlands, headwater streams, and downstream navigable or interstate waters. This is the first step in a two-step process to repeal and ultimately replace the rule, in accordance with the executive order signed by President Trump in February 2017.  The EPA released the proposed rule in advance of it being published in the Federal Register on June 27. AFS urges its members to take the opportunity to engage in the regulatory process to repeal and replace the rule so that the well-established science regarding the connectivity of waters and the value of wetlands and the ecosystem services they provide will be appropriately considered in the new rule. The 2015 rule was developed through a transparent, multi-year rulemaking process that used the best available science and included over 400 stakeholder meetings and an extended public comment period that produced over one million comments.  There will only be a 30-day public comment period for this first step to repeal the 2015 rule from the date of publication in the Federal Register. AFS will post updates on this process as it unfolds.

Earlier this week, President Trump issued an executive order to overturn the “Waters of the United States” (WOTUS) rule approved by the Obama administration. In anticipation of this action, which was part of the President’s agenda, AFS has worked with its partners to prepare a letter to our leaders in support of the scientific basis of the rule. Societies Letter to Support WOTUS Amici Curiae Brief to Congress Societies Letter to Support WOTUS Amici Curiae Brief to President Trump Article in Science magazine about the letter