From Jennifer Clary, Clean Water Action
I’m writing to ask for your support – The US EPA has recently released a draft “Guidance” document that clarifies in a very helpful and important way the question of what aquatic resources are protected by the federal Clean Water Act (CWA). If this draft Guidance is adopted it will lead to the protection of many our wetlands and streams that are currently at risk of destruction because they are presently not considered federal “waters”.
Arthur Feinstein (Citizens Committee to Complete the Refuge and the Clean Water Network) and I (Jennifer Clary of Clean Water Action) have drafted a sign-on letter in support of the Guidance and are hoping you will consider signing on to the letter for your organization or for yourself as an individual on or before Tuesday, June 28. As you might expect, developers and agribusiness are in high gear to defeat this proposal and we need a large showing of support to convince the US EPA and Army Corps to adopt this Guidance without weakening or abandoning it.
So first a short description of the current problem, then a description of the Guidance and then the support letter that we urge you to sign on to.
Federally protected waters are described by the term “Waters of the United States” in the CWA and that sounds very inclusive. But ever since the US Supreme Court issued its “SWANCC” and “Rapanos” decisions in 2001 and 2006, the Army Corps of Engineers and the US EPA have refused to protect huge numbers of our nation’s, and thus California’s, wetlands and streams. Any wetland that was not directly connected to a “navigable water” as well as most very small or intermittent streams were simply no longer considered Waters of the United States by these agencies and thus they received no protection under the Clean Water Act. As a result, most of our vernal pools and other seasonal wetlands were not considered jurisdictional (federally protected waters). Similarly intermittent streams and even perennial small streams were often abandoned by these agencies. As you may remember, even the Los Angeles River was declared to be non-jurisdictional (i.e., not a water protected under the CWA) until Heather Wylie rowed a canoe down the river and the US EPA reconsidered the issue.
As a result of these decisions by the US EPA and Army Corps of Engineers many thousands of acres of wetlands were lost as well as many hundreds, if not thousands, of miles of streams. And more will be destroyed every year!
NOW THERE IS HOPE!!
The US EPA and the Army Corps have released a “Draft Guidance on Identifying Waters Protected by the Clean Water Act” that will greatly improve the situation. Navigable waters are more broadly defined as
“…waters currently being used for commercial navigation, including commercial waterborne recreation (for example, boat rentals, guided fishing trips, or water ski tournaments); or • They have historically been used for commercial navigation, including commercial waterborne recreation; or • They are susceptible to being used in the future for commercial navigation, including commercial waterborne recreation.”
The Guidance further includes as jurisdictional waters,
“Non-navigable tributaries to traditional navigable waters that are relatively permanent, meaning they contain water at least seasonally…”
As a result, most of our seasonal or intermittent streams would now be considered Waters of the United States.
In a similar fashion, the Guidance makes it easier to identify isolated or seasonal wetlands, including vernal pools, as jurisdictional Waters of the United States.
It is a huge step forward. Before you can save wetlands and streams you need an agency to protect them. This Guidance will help get the US EPA and the Army Corps of Engineers back into the business of protecting our nation’s waters.
Please sign on to the attached letter. Send your approval (organization and name of signer) to either Jennifer Clary (firstname.lastname@example.org) or myself (email@example.com) and we’ll coordinate the signatories. Thanks for your help.
If you have any questions please feel free to email me or call me at 415-369-9171
U.S. Environmental Protection Agency
1200 Pennsylvania Ave. NW
Washington DC 20460
Comments on EPA and Army Corps of Engineers Guidance Regarding Identification of Waters Protected by the Clean Water Act
Docket ID No. EPA–HQ– OW–2011–0409
The undersigned organizations appreciate the opportunity to comment on the Environmental Protection Agency (EPA) and Army Corps of Engineers (ACE) Guidance Regarding Identification of Waters Protected by the Clean Water Act.
We urge the Agencies to finalize the Guidance and to undertake a formal rulemaking process in order to resolve the present confusion over which waters of the United States are protected under the Clean Water Act.
Guidance currently in place has caused unnecessary confusion and delay in the implementation of the Clean Water Act’s important programs, has interfered with effective enforcement activity, has removed many wetlands and streams from federal protections under the Clean Water Act and has put drinking water sources for at least 117 million people at risk. The proposed Guidance is a good first step in fixing this problem.
Since the Supreme Court decisions in SWANCC and Rapanos and ensuing EPA Guidance documents issued in 2003 and 2008, water bodies which Congress intended to protect when it passed the Clean Water Act in 1972 have been put at risk. Congress enacted the Clean Water Act “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” However, existing Guidance has resulted in the Army Corps of Engineers disclaiming federal jurisdiction over wetlands, streams and other water bodies that play a critical role in overall health of the nation’s watersheds and drinking water sources.
It is estimated that over 20 million acres of wetlands and 59% of our nation’s stream miles are at risk as a result of the Corps’ reluctance to assert jurisdiction over many of these waters as a result of the existing flawed Guidance. The newly released Guidance will correct many of these flaws. A formal rulemaking process should follow as soon as possible in order to further improve federal protection for all of the nation’s water resources including geographically isolated wetlands such as prairie potholes, playa lakes, and vernal pools.
We support the science-based approach articulated in the Guidance to insure appropriate protection as intended by Congress and understood by decades of administrative activity pursuant to implementation of the Clean Water Act. Science and implementation processes have long recognized the critical role that all the nation’s water resources play in preventing floods, filtering pollution and contributing to overall healthy watersheds. The approach outlined in the draft Guidance is a critical first step for protecting public health and ensuring the integrity of precious water resources.
In California, we had an eye-opening demonstration of the need for this guidance in 2008 when the Army Corps of Engineers determined that only four miles of the Los Angeles River qualified as a navigable waterway under the Bush administration guidance. The resulting outcry caused the EPA to review and rescind that decision, but thousands of rivers, streams and wetlands remain vulnerable and lack the support that saved the LA River from being stripped of Clean Water Act protections.
We urge the Agency to finalize Guidance and proceed rapidly to a formal rulemaking process in order to remedy the current situation.