Via the Emmett Environmental Law and Policy Clinic

Source: Pexels

The Emmett Environmental Law & Policy Clinic submitted comments in opposition to the Trump Administration’s proposal to revise the definition of “Waters of the United States” under the Clean Water Act.  This proposal, if finalized, will dramatically reduce the number of streams and wetlands that are protected under the Clean Water Act, with potentially catastrophic consequences for water quality across the country.

The Clinic submitted the comments on behalf of the National Parks Conservation Association (“NPCA”).  NPCA represents over 1.3 million supporters and members as “the voice of America’s National Parks.”  It has been a leading independent, nonpartisan voice on natural resource issues since 1919.  The rivers, streams, and lakes in many national parks across the country provide crucial habitat for fish and wildlife, offer recreational opportunities for visitors, and in many cases are central to the parks’ unique character and value.  The preservation of water quality and fish and wildlife habitat in national parks depends on the protection of upstream wetlands and ephemeral streams that would lose protection under the proposal.

The precise scope of federal jurisdiction under the Clean Water Act has long been uncertain.  The Supreme Court has weighed in on this issue several times, most recently in fractured set of opinions in Rapanos v. United States, 547 U.S. 715 (2006).  To resolve this ambiguity, the Environmental Protection Agency and the U.S. Army Corps of Engineers during the Obama Administration issued the Clean Water Rule, which identified simple categories of water subject to federal jurisdiction based on extensive scientific and technical analyses, including a synthesis of over 1,200 peer-reviewed scientific publications.  The Trump Administration now proposes to replace that rule with a new one that will substantially reduce Clean Water Act protections and increase regulatory uncertainty.

In the comments, the Clinic explains that:

  • The proposal will significantly reduce the number of waters protected under the Clean Water Act by eliminating protections for ephemeral streams and for wetlands that do not have a continuous surface connection to covered waters.
  • As a result, the proposal will result in significant ecological and economic harm by, among other things, damaging recreation and fish and wildlife habitat in national parks.
  • The agencies ignore the scientific evidence underlying the Clean Water Rule.
  • The proposal will create uncertainty and increase the administrative burden for permitting agencies and regulated entities by introducing several new and poorly defined terms to delineate the scope of jurisdiction.
  • The proposal is inconsistent with Congress’s purpose in enacting the Clean Water Act, which was to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. It also mischaracterizes Supreme Court authority and is based on a misunderstanding of the breadth of the agencies’ authority under the Commerce Clause.
  • The agencies are violating the Endangered Species Act and National Environmental Policy Act by not conducting the analyses required under those statutes.

Frank Sturges (JD ’20) wrote the comments in collaboration with Emmett Clinic Deputy Director Shaun Goho and Clinical Fellow Lynne Dzubow.