Legal, Water Quality
April 15 2019

Surfrider Opposes Proposed Regulations Severely Reducing Protections for U.S. Waters

by Staley Prom

The Surfrider Foundation has filed comments opposing an unprecedented proposal that would narrow the federal Clean Water Act’s application, threatening more than half of the country's wetlands and at least approximately 20 percent of the nation's streams. 

In mid-February, the Environmental Protection Agency and the U.S. Army Corps of Engineers (the "agencies") proposed a regulation revising the definition of the "Waters of the U.S.," to which the federal Clean Water Act applies.

The Clean Water Act is the nation’s principal law protecting the country’s waterways. It was enacted in 1972, in response to the severe degradation of many of our country’s waters. For example, polluted water was so bad in the Cuyahoga River in Ohio that the river caught fire in 1969. Congress enacted the Clean Water Act “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” (33 U.S.C. § 1251(a)). The Act establishes the basic structure for regulating water quality standards for our rivers, streams, and at our beaches. It also prohibits the discharge of pollutants into waters unless in compliance with a permit, and prohibits the unpermitted “dredge and fill” of waters (that is, you can’t fill in wetlands unless permitted by the Army Corps). Thus, the definition of the “waters” which the Act and its regulations apply to is critically important. If a body of water isn’t considered jurisdictional, polluters don’t need a federal permit to dump harmful chemicals into it, or to fill it in – meaning entire bodies of water and wetlands could be eliminated entirely.  

In 2017, in response to a Presidential Executive Order, the agencies proposed repealing the prior administration’s 2015 “Clean Water Rule” which clearly defined which waters come within the Act’s jurisdictional scope. The Surfrider Foundation was united in our support for this common sense, science-based rule with hundreds of other environmental organizations nationwide. This past February, the agencies proceeded to publish the proposed revised rule, which severely narrows the definition. It is particularly devastating for wetlands and tributaries that flow in response to precipitation. Under the proposed rule, only wetlands that are “adjacent” to – meaning they have a direct hydrological surface connection to – another traditional navigable waterway, including the sea, are covered. All other wetlands, which do not directly abut another jurisdictional water, would no longer be protected. According to a conservative estimate, this means more than half of the country’s wetlands would lose protection. Meanwhile, tributaries covered by the rule would be limited to those with “perennial” year-round flow, and “intermittent” flow, which the agencies propose to mean flowing continuously during “certain times of a typical year,” but not merely in direct response to precipitation. A conservative estimate is this would reduce protections for at least approximately 20% of the country’s streams.   

The agencies took public comment on this proposal through April 15th. As Surfrider’s comments provide, the rule is completely unacceptable. Our ocean and waterways are public trust resources that require protection, and our waterways are connected. By nature, water is fluid; it moves, from upstream to downstream, through our watersheds, where it eventually reaches a common surface body water, frequently the sea. This basic principle underscores the need to ensure widespread jurisdictional coverage of the Clean Water Act.

Surfrider’s comments emphasize Justice Kennedy’s concurrence in the U.S. Supreme Court case Rapanos v. United States, 547 U.S. 715 (2006), which addressed the Clean Water Act's jurisdiction: 

“As Justice Kennedy correctly observed in his concurrence in Rapanos, with respect to the plurality’s requirement for permanent standing water or continuous flow, at least for a period of “some months,” this “makes little practical sense in a statute concerned with downstream water quality. The merest trickle, if continuous, would count as a “water” subject to federal regulation, while torrents thundering at irregular intervals through otherwise dry channels would not.” It is this reality which requires including rain driven ephemeral streams under the Clean Water Act’s jurisdiction. To not do so disregards the very purpose of the Act – to restore and maintain the integrity of our nation’s waters.” 

Furthermore, in disregard of Justice Kennedy’s concurrence which held that waters with a “significant nexus” to traditionally navigable waters were jurisdictional (meaning the water significantly affects the chemical, physical and biological integrity of downstream traditional navigable waters – even if they don’t touch), the proposed rule improperly follows the Rapanos plurality decision, penned by Justice Scalia, which a majority of justices disagreed with, eliminating any significant nexus analysis.

Surfrider’s comments also focused on the numerous immeasurable benefits that wetlands, including isolated wetlands, provide. These include:

•    Flood reduction benefits - For example, one study found that coastal wetlands prevented more than $625 million in property damage during Hurricane Sandy in 2012; and an acre of wetland can typically store about three-acre feet of water, or one million gallons. With climate change causing more frequent and severe storms, especially along our coasts, the value of wetlands and their ability to reduce flooding impacts and make our coastlines more resilient cannot be underestimated;

•    Water quality benefits - For example, a 1990 study showed that the Congaree Bottomland Hardwood Swamp in South Carolina removes pollutants equivalent to that which would be removed annually by a $5 million waste water treatment plant; another study at a 2,500 acre wetland in Georgia indicated that it saves $1 million in water pollution abatement costs annually; and the economic value of the Charles River Basin’s wetlands near Boston was estimated to be over $24 million for pollution reduction, in 2003); as well as 

•    Other numerous benefits associated with species, recreation, and groundwater recharge - For example, 17 million Americans participate in wetland dependent recreational fishing every year generating at least $18 billion for local coastal economies; as of 2005, 86 plant and animal species listed as threatened or endangered under the Endangered Species Act (and 274 at-risk plant and animal species) were supported by isolated wetlands, and more than half of the threatened or endangered species (52%) were completely dependent on isolated wetland habitat.

Given these demonstrated invaluable benefits that wetlands, including isolated wetlands, provide, Surfrider argued that the agencies should not be reducing jurisdictional coverage for these resources.  

Additionally, Surfrider argued that, given how watersheds function, with water draining to and affecting downstream coastal areas, including our Great Lakes, the proposed rule will have devastating impacts on water quality along our coasts. This, in turn, will have immeasurable negative impacts on the millions of people who visit and recreate along our coasts each year. Coastal water based recreation is immensely popular and enjoyed by millions of Americans and is a significant part of the American economy. The health risks and number of annual beach closures are already concerning, and with such profoundly reduced federal Clean Water Act protections proposed in this rule revision, further significant water quality impairment is guaranteed.  

Surfrider encouraged its members to voice their opposition to this proposed “Dirty Water Rule” via an action alert, and we joined a coalition of 155 organizations across the nation in asking EPA to drop this proposal. Surfrider has also joined up with other outdoor recreationalists, represented by the Outdoor Alliance, to speak out against the harmful impacts that this rule will have on recreation throughout the watershed.  

Learn more about how the Surfrider Foundation is encouraging our members and supporters to #Stand Up for Clean Water here.