Defending Our Waters
What’s at Risk, How to Comment and Talking Points
The Trump Administration wants to remove Clean Water Act protections from 2 million miles of waterways and millions of acres of wetlands.1 Rollback of this rule would put drinking water at risk for 117 million Americans.2
Part 1: Deadline for Public Comment on Rollback Proposal
Part 2: Changing the Definition of “Waters of the US”
Docket ID No. EPA-HQ-OW-2017-0480
The Trump Administration has posted a notice to begin the public process to re-define “Waters of the US.” As expected, the Administration has signaled its intent to redefine “waters of the US” to include only navigable waters (the “Scalia” opinion).* https://www.epa.gov/wotus-rule/rulemaking-process
The process outlined by the Trump Administration for Part 2 is unusual. The agencies have not proposed a rule and it’s not clear when they will do so. EPA and the COE have scheduled ten “outreach” teleconferences and one in-person meeting to gather public comments. Meetings are scheduled between September 19 and November 21, with each session targeted to a specific stakeholder group. Each meeting is two hours long, with speakers to be selected on a first-come basis. “The agencies will not be formally responding to verbal or written recommendations” at these meetings. It is not clear if there will be public hearings once a rule is proposed.
You can access the teleconference schedule here https://www.epa.gov/wotus-rule/outreach-meetings
EPA has set up a docket to accept comments on these teleconferences. You may submit supporting materials or comments to https://www.regulations.gov/docket?D=EPA-HQ-OW-2017-0480
We will post more information as it becomes available.
Why the Clean Water Rule Was Created
The Clean Water Act was passed in 1972 with strong bi-partisan support. It is acknowledged to be one of our country’s most successful laws to protect human health and the environment. However, since the Clean Water Act was passed, the science of “hydrology” (the study of water) has substantially expanded our knowledge of how water moves and is affected by contaminants.
The original law does not contain a clear definition of which “waters” (rivers, streams, lakes, etc.) are protected by the Clean Water Act. The U.S. Supreme Court has considered this question several times, and created confusion by providing several different interpretations of which “waters” are protected by federal law.
From a scientific perspective, all waters are connected – and we all live downstream. Rivers that carry large volumes of water year round are fed by thousands of smaller streams (“headwaters”) and by adjacent wetlands. Pollution discharged into smaller streams and wetlands upstream will impact larger rivers downstream. This connectivity – including pollution flowing from smaller waterbodies into downstream waters – is a hydrologic reality.
But regulations adopted some time ago to implement the Clean Water Act do not reflect this scientific reality. The Supreme Court decisions (containing contradictory legal tests) also don’t reflect the science. As a result, there has been considerable uncertainty for regulators and the regulated community about which waters are protected by the Clean Water Act.
EPA Final Rule (Before Proposed Rollback)
The Clean Water Rule (“Waters of the U.S.” or WOTUS rule) was issued in 2015 to more clearly define which “waters” are protected under the Clean Water Act. The Rule’s definition of protected waters is based on hydrologic science. It recognizes the real-world connectivity between large volume, “navigable” waters and smaller non-navigable streams and wetlands. The hydrologic system works a lot like our own blood system. Small blood vessels are connected to larger veins and arteries, and anything happening within those small veins can greatly impact the larger system. The Clean Water Rule protects tributary streams and wetlands that have impacts on downstream water.
Before finalizing the Clean Water Rule in 2015, EPA held more than 400 meetings with stakeholders across the country, and published a synthesis of more than 1200 peer-reviewed scientific publications. This scientific review showed that the small streams and wetlands protected by the Rule are vital to larger downstream waters. More than one million people commented during the Clean Water Rule’s rule-making process.
Trump Administration Rollback Proposal
The Trump Administration has a two-step plan to narrow the scope of Clean Water Act protections.
First, the Administration would eliminate (“rescind”) the 2015 Clean Water Rule. This action (open for public comment now) would return us to the legal uncertainty (and case-by-case determinations) that the Clean Water Rule was designed to clear up.
Second, the Trump Administration would issue a new Rule with a different definition of which “waters” are protected by the Clean Water Act. The Administration would have to go through a new rule-making process to adopt its preferred definition. The Administration has indicated it won’t have a proposal ready until the end of this year.
The Trump Administration has signaled its intent to define Clean Water Act protections very narrowly, providing protections only to “navigable waters.” This definition would exclude thousands of miles of smaller streams and millions of acres of wetlands all across the U.S.. Since many of these smaller waterways are in the headwaters of larger rivers, pollution from these excluded streams would inevitably impact “navigable” waters downstream.
The Trump Administration is allowing only 30 days to comment on this proposal, giving public the minimum time the law allows to weigh in on a change with far-reaching consequences to our public health and environmental protections. When you comment, please ask that the comment period by extended by at least 120 days.
Myth-busting: Clearing Up Distortions About the Clean Water Rule
- The Clean Water does NOT extend protection to “puddles” (a claim Scott Pruitt has made). The Clean Water Rule provides clearly defined physical and measurable boundaries to determine which waters are covered.3
- The Clean Water Rule DOES protect streams that may be dry for some parts of the year – for the reasons outlined above. The Rule says that a tributary must show physical features of flowing water – a bed, bank, and ordinary high water mark – to be protected under the Clean Water Act.4
In the Western U.S., most of our rivers and streams are not “navigable” year around. Western watersheds characteristically include many miles of waterways where water may be only be present seasonally. The “navigability” test would remove Clean Water Act protections from most of our Western rivers – waterways that we depend on for drinking and irrigation, and that are critical to to the survival of fish and wildlife.
- The Rule does NOT regulate irrigation ditches or eliminate existing agricultural exemptions from permit requirements. In fact, the Rule expands permit exclusions for farming, ranching and forestry.5
- The Rule does NOT change the status of waters that are part of Municipal Separate Storm Systems (MS4s). Most MS4s are currently covered by statewide General Permits (although some states use individual permits). The status of these permits is not changed by the Clean Water Rule.6 Municipal wastewater treatment systems are also excluded.
- The Rule does NOT regulate groundwater, shallow subsurface flows and tile drains.7
What To Say
First, explain why you’re commenting on this rule – why it matters to you.
If you have relevant expertise, say so. You don’t have to be an expert to make a valid and valuable comment, but if you do have expertise, share your knowledge.
If you have information relevant to the rule (for example, news articles about events in your community or anecdotal information showing how the public is impacted) include that information and highlight it.
Be constructive and civil. Don’t write a lot if less will do.
Suggested Talking Points About This Rule
- Clean water is essential to our public health as well as to our economy (cite local examples, i.e. tourism, agriculture, brewing industry, etc.).
- Nearly 45 years after the passage of the Clean Water Act, we have made tremendous progress, but many of our rivers, lakes, and bays are still not safe for swimming or fishing. Rolling back the Clean Water Rule will set that progress back.
- The Trump Administration’s proposed changes to the Clean Water Rule, coupled with the dramatic cuts to EPA budget, represent and all-out assault on public health and our environment.
- The proposed rescinding of the 2015 Clean Water Rule would severely limit what waters are protected under the Clean Water Rule. It would put drinking water supplies for millions of Americans at risk.
- Low income communities and communities of color are already disproportionately impacted by contaminated water. Contaminated water can cause a variety of health problems, especially for children. Repealing the Clean Water Rule could put many of these communities at further risk.
- Small and rural communities, who rely on private wells or whose water systems lack the resources to deal with polluted sources, may be hit the hardest by the roll back.
- We can’t support and grow small businesses by putting the natural water infrastructure they rely on at risk of destruction. We won’t protect public health by ignoring the science that water quality throughout a watershed depends on what happens to upstream waterways.
- In the semi-arid West, most of our waterways are not “navigable” year around but rather flow seasonally or intermittently, and any pollution from these waterways will ultimately flow downhill into “navigable waters.”
- Sportsmen, conservationists, and recreationalists know the critical importance of clean water and it’s essential role in maintaining fish and wildlife populations.
- Rescinding the 2015 Clean Water Rule will result in regulatory confusion and uncertainty for the regulated community. The “repeal and replace” process for the Clean Water Rule is similar to the on-going process for health care and will result in similar confusion.
- Rolling back the rule will result in the same regulatory confusion that resulted in broad-based calls for clarity about which “waters” the Clean Water Act protects. Rolling back the rule is bad governance, bad for businesses who rely on regulatory certainty, and bad for our communities that deserve clean water.
- Rescinding the 2015 Clean Water Rule will also place additional burdens on EPA and the Army Corps of Engineers at a time when these agencies are already under difficult staffing and budgetary constraints.
- The 30-day comment period for the proposed changes is totally inadequate for such a critical and complex issue and represents a blatant attempt to minimize public input. The comment period should be extended to at least 120 days.
- Any revision of the 2015 Clean Water Rule should be based on sound science and public input. Unfortunately, the proposed process allows for neither.
How to Submit Your Comment to EPA
EPA will accept written comments on the proposal until September 27, 2017. You can submit comments on line at: https://www.regulations.gov/comment?D=EPA-HQ-OW-2017-0203-0001
If you wish to submit comments by mail, fax, or other means, see directions at https://www.epa.gov/dockets/where-send-comments-epa-dockets. Comments should be identified by the following Docket ID:
▪ Docket ID: EPA-HQ-OW-2017-0203
Links for more information
- EPA’s 2015 summaries of the Clean Water Rule
- EPA’s 2017 “Waters of the United States (WOTUS) Rulemaking” page https://www.epa.gov/wotus-rule
- Federal Register notice opening the public comment period https://www.regulations.gov/document?D=EPA-HQ-OW-2017-0203-0001
Tools for Defenders
- Background on the Clean Water Rule http://protectcleanwater.org/
(Includes State-by State Fact Sheets)
- The National Wildlife Federation, “The Clean Water Rule: Protecting America’s Waters” http://www.nwf.org/What-We-Do/Protect-Habitat/Waters/Clean-Water-Act.aspx
(Background and history of the Clean Water Rule)
- The CLEAN WATER RULE – Why “Navigability” Matters
5 https://blog.epa.gov/blog/2015/06/clean-water-rule-and-agriculture/; https://archive.epa.gov/epa/cleanwaterrule/what-clean-water-rule-does-not-do.html; http://source.colostate.edu/farmers-ranchers-think-epa-clean-water-rule-goes-far/