February 8, 2022

The Emmett Environmental Law & Policy Clinic submitted comments yesterday on the Biden Administration’s proposal to revise the definition of “the waters of the United States” under the Clean Water Act.  That definition determines the scope of a wide range of the Act’s programs to safeguard water quality.  The Trump Administration had finalized a rule (the Navigable Waters Protection Rule or NWPR) which would have significantly reduced protections for many streams and wetlands.  The new proposal would replace that rule with one that restores prior protections.

The Clinic submitted the comments on behalf of the National Parks Conservation Association (“NPCA”).  NPCA represents over 1.6 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 have lost protection under the NWPR.

The Environmental Protection Agency and U.S. Army Corps of Engineers, which jointly implement the statute, have revised their interpretations of “the waters of the United States” several times since the Clean Water Act’s passage in 1972, shaped in large part by the Supreme Court and lower courts’ rulings.  By 1986, the agencies had settled on a basic framework that protected a broad range of tributaries, streams, and wetlands.  Two decades later, the Supreme Court issued a fractured set of opinions on the issue in Rapanos v. United States, 547 U.S. 715 (2006), creating regulatory uncertainty.  To resolve that ambiguity, EPA and Army Corps during the Obama Administration issued the Clean Water Rule, which the Trump Administration then replaced with the far less protective NWPR.

The Biden Administration’s proposed rule would replace the NWPR and return to the structure of the 1986 regulations, updated to reflect Rapanos and other Supreme Court decisions.  In the comments, the Clinic generally supports the proposal while providing recommendations to improve it.  Specifically, the comments support replacing the NWPR because, among other reasons, that rule threatened to harm national parks by removing protections for upstream waters, and was inconsistent with Supreme Court precedent, the purposes of the Clean Water Act, and the scientific record.

The Clinic’s comments also recommend that the agencies improve the proposal by:

  • adding more detail and explanation in the regulatory language about upstream waters’ functions of reducing pollution in downstream waters,
  • codifying longstanding guidance about fundamental protections for waters used in commercial waterborne recreation,
  • establishing categories of waters that are jurisdictional by rule, which would improve the administrability and protectiveness of the rule,
  • clarifying that field staff can make “significant nexus” determinations for “other waters” without seeking approval from headquarters, and
  • restoring protections to the categories of “other waters” protected under the 1986 regulations based on how the use, degradation, or destruction of the water could affect interstate or foreign commerce.

The agencies are expected to finalize the regulation later this year.  At the same time, the Supreme Court is wading into these waters yet again, having recently agreed to hear the case Sackett v. Environmental Protection Agency.

The Clinic’s comment letter is available here:  Comments on Proposed Rule: Revised Definition of “Waters of the United States,” 86 Fed. Reg. 69,372 (Docket ID No. EPA-HQ-OW-2021-0602)

Seran Gee (JD ’22) wrote the comments in collaboration with Emmett Clinic Acting Director Shaun Goho and Clinical Fellow Tommy Landers, with contributions from Samuel Yang (JD ’22).

Filed in: Legal & Policy Work

Tags: Emmett Environmental Law & Policy Clinic

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