Overview

EPA is trying to eliminate protection for our streams, rivers, lakes, and wetlands. This Trump administration action is one of the very worst and could be enormously damaging. Help stop this by submitting a comment to EPA and sharing your thoughts with your representatives.

Take Action

(1) Submit your Comment to EPA. By April 15th, click here to submit your comment at regulations.gov.

Note: Public comments are important! Federal agencies are required to publish responses to comments and justify their decisions with evidence-based information. If they do not, the comments provide fuel for suits against the agency. Suits in turn result in halting or delaying the rules (in this case their weakening) until a ruling. Comments are also a way to show the public’s support for strong environmental protection.

(2) Share your comment with your members of congress.
Note: Sharing comments with members of congress is working! The new House and members of the Senate are listening to environmental concerns and seeking out environmental information/education almost every day. They are writing letters to EPA protesting its actions. We need to continue to reinforce our priorities and let them know we are behind them.

  • Senator Dianne Feinstein: (415) 393-0707, (310) 914-7300, (202) 224-3841, or email.
  • Senator Kamala Harris: (415) 355-9041, (213) 894-5000, (202) 224-3553, or email.

Find your Representative:

  • Rep. Mark DeSaulnier - 11th district: (510) 620-1000, (202) 225-2095, or email.
  • Rep. Nancy Pelosi - 12th district: (415) 556-4862, (202) 225-4965, or email.
  • Rep. Barbara Lee - 13th district: (510) 763-0370, (202) 225-2661, or email.
  • Rep. Jackie Speier - 14th district: (650) 342-0300, (202) 225-3531, or email.
  • Rep. Eric Swalwell - 15th district: 510-370-3322, 202-225-5065, or email.

Suggested Comment

Note: Our suggested script is longer than usual, but this Trump administration action is one of the most damaging. You may use all or part of the script. The more issues raised, the better. As usual, it is best to personalize or modify the wording. You do not need to be a scientist or expert to submit your comments. Add any personal concerns or experiences you, your family or friends have had. You may also create your own comments using information from the references below.

EPA’s proposal would result in a profound weakening of the requirements that keep our waters safe for recreation, wildlife, and drinking water for millions of Americans. Since its overwhelmingly bipartisan inception in 1972, the Clean Water Act (CWA) has successfully brought the quality of surface waters back from decades of serious pollution, reduced the loss of protective wetlands, and led to improved scientific understanding of the connections among different water bodies. EPA’s proposal would deeply undermine the improvements achieved and return us to a cycle degradation. This proposal makes the public less safe.

EPA should extend the public comment period to match the 200-day period provided for the 2015 Waters of the US rule and provide public hearings throughout the country. For a proposal of this magnitude, it is critical that EPA provide multiple opportunities for public input throughout the country, where diverse hydrologic conditions exist, rather than just two in Kansas City.

EPA’s proposal should quantify the number of water bodies, including stream miles and wetlands acreage that would lose federal protection. Intermittent streams are 59% of streams in the US outside of Alaska, and 81% or more in the arid southwest. Outside organizations estimate that 50-80% or more of wetlands could lose protection. These are enormous and alarming numbers.

EPA’s proposal removes federal protection from tributary bodies unless they have a “direct” hydrologic connection. EPA should instead recognize the science that clearly demonstrates that indirect hydrologic, biologic and chemical connections have a substantial impact on the quality of receiving water bodies.

EPA’s proposal defines “intermittent” flows as those that flow seasonally in normal years and are not the result of rainfall, snowmelt or flooding. This definition cannot be scientifically supported. The warming climate is dramatically changing weather patterns, and what we have traditionally considered normal years or seasons is no longer valid.

The proposal would eliminate protection for the estimated 60% of US waterways that are “ephemeral,” flowing as a result of precipitation, snowmelt or flooding or that are connected to other bodies through groundwater flow. These flows, when contaminated, have an enormous impact on public and environmental health. They are especially significant in arid and variable climates. In the west where I live, large numbers of streams are classified as ephemeral. My state, California, has experienced long periods of drought, as well as periods of heavy rain, increasingly severe due to climate change. During droughts, ground water, having received seepage from surface water bodies, provides an increasing amount of the drinking water supply - up to 80%. During rains, ephemeral flows have a significant effect on downstream waters. Many smaller water supply systems rely on a single source of drinking water, making them extremely vulnerable to contamination and drought. At the same time, population has grown dramatically, requiring more clean drinking water.

EPA states in its proposal that it is drawing a line between intermittent and ephemeral flows “for administrative efficiency.” Rather than an arbitrary distinction, this decision should be based on hydrological science. It is important that ephemeral waterways continue to be protected by the CWA as described and justified in the 2015 Waters of the US Rule.

Instead of clarifying which waters would be protected, the proposal creates uncertainty by removing language about physical characteristics or distances to related waters. In practice, this would require complex case-by-case determinations and lead to extensive delays in establishing protections. The definitions in the 2015 Waters of the US Rule should be maintained.

EPA has dropped from its definition of wetlands the “significant nexus” standard authorized by the Supreme Court in 2006, which recognized the impacts of wetlands on connected waters. This change will do great harm to wildlife, bird and fish habitat, including habitat for endangered species. The definitions would do grave harm to the protections promised by the Endangered Species Act. Both direct and indirect connections among water bodies significantly affect breeding grounds that in turn affect wildlife abundance in the ecosystems of larger water bodies. Half of bird species need wetlands, and one third of endangered species live in wetlands. Ninety-five percent of commercially harvested fish and shellfish depend on wetlands.

EPA’s proposal would allow wetlands and tributaries to be contaminated with discharges of sewage or industrial effluents or filled in by developers. It would allow wetlands to be destroyed with no federal oversight. The US has lost more than half of the wetlands in the contiguous 48 states. Efforts under both Republican and Democratic presidents have reduced the losses. But recognizing the considerable benefits they provide for pollution abatement, wildlife habitat and flood mitigation - particularly in light of increasingly severe flooding and sea level rise due to climate change - EPA should extend protections to wetlands as defined in the 2015 Waters of the US Rule.

The proposal eliminates protection for interstate waters unless they are navigable or directly connected to a navigable water. Yet water clearly flows across state boundaries and effects downstream waters to which it is indirectly connected. The rule proposes that states and tribes will oversee waters within their own boundaries, but need not consider impacts to downstream jurisdictions and citizens. This runs directly counter to the purpose of the CWA.

EPA proposes that for waters no longer protected by the federal government, states may “…be in a better position than the federal government to regulate local environmental public goods…”. This proposal does not hold up to scrutiny. Implementing such a change, if it were possible at all, would lead to the same ineffective patchwork of state laws that led to the need for the CWA in 1972. Many states have laws preventing or obstructing them from having clean water rules that exceed EPA requirements. Only 11 states have the legal flexibility to develop protections that exceed federal law if they choose to. Even if states chose to overcome the considerable legal barriers, they would confront grossly inadequate funding to implement the programs. As a member of the public, I have a right to expect strong federal oversight that provides equal protection across the country. Implementation of the 2015 Waters of the US Rule would provide that oversight.

One of the biggest remaining sources of water pollution in many areas is non-point pollution from diffuse sources that is carried by rainwater or snowmelt over and through the ground. Non-point pollution is just as important in carrying contamination as are specific point sources. EPA’s proposal to eliminate regulation of much of this pollution would dangerously increase the degradation of the nation’s waters. Lake Tahoe and the Gulf of Mexico are just two examples where improvements in quality have been substantially due to reducing non-point pollution under the CWA. These sources should continue to be regulated.

EPA’s economic analysis over-represents costs to industry and underrepresents the benefits of protecting waterways. The analysis should provide an accurate and complete accounting of losses, benefits and costs associated with the proposal. EPA should, for example, quantify the negative impacts on public health, welfare and ecology from withdrawing protections. It should quantify the losses from extreme weather events and flooding as a result of eliminating protections for ephemeral flows and wetlands. It should quantify losses to the fishing and recreational industries. Using most of the same studies as the 2015 rule, EPA’s current analysis finds more than an order of magnitude drop in the benefits of wetlands preservation; this conclusion requires more detailed explanation.

EPA includes an analysis of the elevated costs expected from the 2015 rule and should, likewise, include the elevated costs expected from the current proposal. The analysis should address the increased cost of wastewater and drinking water treatment due to additional contamination from unregulated sources. The analysis should address the the long-term increased costs to states and tribes if they take on the role of regulating waters that EPA no longer protects. Fundamentally, the analysis overestimates the extent of state regulation that would exist and, therefore, underestimates the environmental losses as compared to the 2015 rule. The less states are able to take over regulation, the greater the environmental losses.

The rule does not add legal clarity and instead provides greater uncertainty. The 2015 Waters of the US Rule, which was based on over 1,200 scientific and technical publications, 400 stakeholder meetings and a robust economic analysis, was supported by 87% of public comments and should become effective throughout the country immediately.

Background

The Southern Environmental Law Center calls EPA’s new proposal, “the most far reaching assault on environmental protections our country has ever seen.” The scope of the changes EPA is proposing is enormous and would take clean water protections back decades. In 1972, overwhelming majorities of both houses of Congress adopted the Clean Water Act (CWA). The law addressed pollution in our rivers, lakes, and estuaries, which had become dangerous to drink from and lethal to fish, shellfish, and waterfowl. The Act gave protection to not only “navigable waters,” which were protected under previous laws, but to “waters of the United States.” It charged EPA and the US Army Corps of Engineers (USACE) with “defining waters of the United States” using the broadest possible interpretation of the term.

The EPA has primary responsibility for implementing the CWA. In doing so it partners with states and tribes and ensures that CWA protections are implemented and enforced consistently across the country. One of the most important provisions under the CWA is a permit system that regulates discharges of pollutants from facilities such as industrial, commercial and sewage treatment plants. These permits set discharge limits, conditions of discharge and monitoring requirements for effluents reaching water bodies such as lakes, streams, rivers and oceans. The USACE has another key responsibility in issuing permits for dredging and filling waterways, including wetlands. The current proposal is a joint EPA-USACE action. (It is sufficient to comment to just one agency.)

The definition of what is included in “waters of the US” is what drives the protections under the CWA. If the definition, for example, includes wetlands and ephemeral streams, those water bodies are protected under the CWA, permits must be issued for discharges into them, and dischargers must comply with the permit requirements. If they are not included in the definition, they do not receive any federal protection under the CWA and discharges of industrial, commercial and wastewater treatment effluents are not regulated.

Over the years, industry has challenged the definition through the courts with the aim of narrowing it. While most court decisions have upheld EPA’s broad definition, other cases have both clarified and confused the issue. In 2015, in an attempt to clarify the definition of what bodies and flows would receive protection, the Obama administration issued the “Waters of the United States Rule.” Development of this rule included a comprehensive Science Advisory Board Review of more than 1,200 publications substantiating the hydrologic, biologic and chemical connections, both direct and indirect, that upstream waters have on downstream bodies. It found that ephemeral and small water bodies are enormously important to preventing pollution. The rule provided a broad definition of “waters of the US” and allowed for case-by-case determinations for certain waters without a clear connection. Over 400 stakeholder meetings were held in developing the rule, and more than one million public comments were received over a 200-day comment period, 87% of which favored the rule. Due to industry suits, the law is currently in effect in 22 states, the U.S. territories and the District of Columbia.

EPA’s current proposal is the second step in a process under the Trump administration to dramatically reduce the scope of waters that are protected under the CWA. If enacted, this rule would not only undo the rule issued by the Obama administration, but would set clean water protections back even further to pre-1988 levels of protection.

Additional information can be found in the suggested script and in the reference links below.

References