Comments on Environmental Protection Agency Advanced Notice of Proposed Rulemaking on the Clean Water Act Definition of "Waters of the United States" FR 68, No. 10/Wednesday, January 15, 2003, 1991-1998

 

Submitted on behalf of Washington Trout

By

Nick Gayeski

April 15, 2003

 

 

Washington Trout believes that the proposed Rulemaking is poorly motivated and is singularly inappropriate as a reaction to the US Supreme Court ruling in the SWANCC case. We are equally concerned with the issuance of the associated guidance memorandum to field staffs of agency's with responsibility for enforcing Clean Water Act rules and regulations. This guidance presumes the advisability of the Proposed Rulemaking prior to its receiving a careful and full public review. We believe that both should be withdrawn and rescinded immediately.

 

We believe that the public interest and federal agency duties and responsibilities are best served by a narrow construal of the SWANCC ruling, in which the Court limited itself to a narrow construal of the scope of the Migratory Bird Rule. The assertion in FR 68, No. 10, 1996 that the ruling "calls into question whether CWA jurisdiction over isolated waters could now be predicated on the other factors listed in the Migratory Bird Rule…" is presumptuous and without foundation in light of the Court's careful and narrow construal of the issues before it in the SWANCC case.

 

The protection of so-called "non-navigable isolated bodies of water" is vital to the protection of the water quality of the nation and the health and diversity of the nation's aquatic ecosystems. The Proposed Rulemaking directly places thousands of small water bodies and water courses in every state in the Union in peril of continued destruction and loss and impairment of function.

 

Few small water bodies are truly "isolated", being connected by subsurface flow to regional aquifers, other nearby open bodies of standing water, and/or streams and rivers. The same is true of intermittently-flowing stream channels. Alteration, pollution, or destruction of such water bodies and stream channels generally has both immediate and cumulative harmful impacts on local and regional ecosystems and on aquatic and terrestrial species associated with them. A majority of these kinds of water bodies are already imperiled due to past and present neglect of their importance and the associated failure of regulatory agencies to protect them through enforcement of existing statutes and regulations under the Clean Water Act and related protective regulations. The Proposed Rulemaking would both accelerate and sanction this neglect.

 

The guidance is particularly pernicious in requiring that decisions to protect "isolated" intrastate, non-navigable waters be made on a case-by-case basis in Washington, D.C.. This completely reverses the presumption that such bodies of water are protected by Clean Water Act regulations in the absence of appropriate scientific evidence to the contrary. Such a presumption is essential to the protection of irreplaceable natural resources from threat of irreversible harm. Reversing the burden of proof by establishing the contrary presumption that a body of water is not subject to CWA protection until proven so abandons the protection of the public interest that it is the duty of the Environmental Protection Agency and all other federal agencies to uphold.

 

The situation is even worse in that neither the guidance nor the Proposed Rulemaking provide a clear working definition of "isolated", a term that is not even used in the Clean Water Act itself. Nor do they provide objective and scientifically credible quantitative standards for identifying the relevant "isolated" bodies of water that would be subject to the Proposed Rulemaking and guidance. This failure alone warrants the rescinding of both the guidance and the Proposed Rule. It not only allows but actually invites arbitrary and capricious use of the discretion of agency field staff and their superiors to identify water bodies as either deserving or not deserving of protection under the CWA.

 

In fact, Washington Trout believes that such inexcusable vagueness and the associated invitation to arbitrary and capricious interpretation and enforcement is essential to the intent of the guidance and the Proposed Rulemaking. The provision of a clear and scientifically credible standard and associated field methodology for determining and delineating an "isolated" water body as failing to qualify for protection under the CWA is a simple prerequisite of any credible Rulemaking in the present context. For this reason alone, we believe the guidance and the Proposed Rule be withdrawn.

 

As a general principle of sound public policy-making, we believe that any similar proposed rulemaking or agency guidance be grounded in clear and scientifically credible definitions, objective standards, and measurable criteria. These are required in order to assure the public that agency personnel will be clearly able to identify the kinds of objects (such as "isolated water bodies") that are to be subject to agency action or inaction. Such definitions, standards, and criteria should be clearly stated and scientific sources referenced in all documents and communications requiring public review.

 

The health of the nation's surface waters and ground waters has declined considerably over the past 20 years and the recent trend of decline has been accelerating. Lists of impaired water bodies, such as the 303(d) list, are growing. The nation's ground waters in particular have, until recently, been neglected in regulations such as the CWA, yet the quantity and quality of both confined and unconfined aquifers across the nation has been in alarming decline over the past decade.

 

The loss of aquatic habitat and health has been reflected in increasing declines of native terrestrial and aquatic animals and plants. This loss has only been imperfectly reflected in the increase in listings and petitions for listing under the Endangered Species Act (ESA) over the past decade. Quite apart from costs associated with the application of the ESA in these cases, the loss of aquatic health results in a huge cost to the public, both present and future generations, in lost ecosystem services that are vital to a healthy economy and to a democracy.

 

Protection of small water bodies and their associated landscapes is vital to arresting the tide of decline of clean water and healthy ecosystems, and to preserving a healthy and diverse national economy driven by a healthy, well-educated and culturally diverse workforce. Vigorous, diligent, and responsible enforcement of Clean Water Act standards is essential to securing this protection. EPA, COE, and other federal agencies with jurisdiction and responsibilities to protect the health of the nation's water and waterways need to be encouraged to discharge these responsibilities and to assert their jurisdiction under the guidance of clear, objective, scientific standards. The Proposed Rulemaking and guidance will only accomplish the opposite. They fail to provide the leadership and direction that is needed to accomplish the huge task of stemming the tide of environmental destruction that is upon all citizens.