Lineup set for Feb. 4 WOTUS hearing on Capitol Hill

 Clean Water Act, Congress, Corps, EPA, Wetlands  Comments Off on Lineup set for Feb. 4 WOTUS hearing on Capitol Hill
Feb 032015
 

McCarthy

Rep. Bill Shuster (R-Pa.), T&I chairman

The lineup is set for the hearing tomorrow on the EPA/Corps proposed rule to define "waters of the United States" under the Clean Water Act. The hearing is being held jointly by the Full Committee on Transportation and Infrastructure and the Senate Committee on Environment and Public Works.

Witnesses representing state attorneys general, state departments of agriculture and counties will be in D.C.

There are unlikely to be any surprises, as the views of the panelists are already well known. Below, we've included links to comments they have made on the proposal that are contained in the docket. Since both committees are in Republican hands, the first three panelists chosen to speak after EPA Administrator Gina McCarthy and Army Corps of Engineers Assistant Secretary Jo-Ellen Darcy are strongly or moderately opposed to the proposal as written; the final two are in favor of it.

Darcy

The event will be an opportunity, however, for congressional representatives to express their opposition to -- or support of -- the proposal. With 59 T&I members (more than 13 percent of the entire House of Representatives) and 20 EPW members, that means the lawmakers' opening statements could last till well past lunch. (Addendum: They didn't. The top four officials gave opening statements, then allowed McCarthy and Darcy to speak, then moved to statements and questions from the assembled committee members.)

House Transportation & Infrastructure page (hearing will be live-streamed)

Summary of subject matter from committees

WOTUS docket (more than 1 million comments received, but many are form letters or postcards)

Witness List:

Panel I

  • The Honorable Gina McCarthy, Administrator, U.S. Environmental Protection Agency |  Written Testimony
  • The Honorable Jo-Ellen Darcy, Assistant Secretary of the Army, for Civil Works |   Written Testimony

Panel II

  • E. Scott Pruitt, Attorney General, State of Oklahoma | | Written Testimony | Comment from Attorneys General Of West Virginia, Nebraska, Oklahoma, Alabama, Alaska, Georgia, Kansas, Louisiana, North Dakota, South Carolina, and South Dakota and the Governors of Iowa, Kansas, Mississippi, Nebraska, North Carolina, and South Carolina) (Proposed rule "impermissibly seeks to broaden federal authority under the Clean Water Act and which we believe will impose unnecessary barriers to advancing water quality initiatives nationwide.")
  • Adam H. Putnam, Florida Commissioner of Agriculture, Florida Department of Agriculture and Consumer Services; on behalf of the National Association of State Departments of Agriculture Written Testimony (Comment from docket: "The proposed rule is ill-conceived and exceeds the legal and statutory boundaries of the CWA. Rather than clarify the intent of Congress and the Supreme Court, the proposed rule would add complexity and uncertainty, disrupt the timely use of FIFRA-registered pesticide products, and cause significant adverse economic impacts to state departments of agriculture and other agencies.")
  • Sallie Clark, Commissioner, District 3, El Paso County, CO; on behalf of the National Association of Counties Written Testimony (Comment from Pikes Peak Area Council of Governments -- many changes needed; comment from NACO)
  • Timothy Mauck, Commissioner, District 1, Clear Creek County, CO Written Testimony  (Comment from Colorado state and local lawmakers, in support of proposal)
  • Lemuel M. Srolovic, Bureau Chief, Environmental Protection Bureau, Office of New York State Attorney General Eric T. Schneiderman  Written Testimony   (Comment, on behalf of 7 state attorneys general and D.C.'s AG, in support of proposal. States are New York, Delaware, Maryland, Connecticut, Illinois, Rhode Island, Washington)
Jan 292015
 

An Arizona congressman was joined by more than 100 House members in introducing a bill that would prevent EPA and the Army Corps of Engineers from "developing, finalizing, adopting, implementing, applying, administering, or enforcing" the proposed rule defining "waters of the United States" under the Clean Water Act.

Rep. Paul Gosar (R-Ariz.)

Rep. Paul Gosar (R-Ariz.)

Echoing a theme that has been sounded repeatedly by farmers and other water users opposed to the EPA/Corps rulemaking, Rep. Paul Gosar (R-Ariz.) said the agencies are trying "to obtain control over practically all standing water throughout the U.S. by unilaterally expanding the Clean Water Act."

Said Gosar: “The Waters of the United States Regulatory Overreach Protection Act rejects this overreach and requires relevant federal agencies to go back to the drawing board and consult with states and other local officials to formulate a proposal that will then be submitted to Congress for approval. Only Congress has the authority to change or redefine the scope of the CWA, not bureaucrats in Washington. This fact has been confirmed several times by the Supreme Court. Americans can't afford more economic hurdles and thievery of precious water supplies from an unaccountable federal government operating in hyper mode.”

Gosar said the bill has 114 co-sponsors, which is a few more than are listed at Congress.gov, probably because of a time lag.

The congressman touted the bill as bipartisan. Congress.gov listed two Democrats among the co-sponsors: Rep. Brad Ashford of Nebraska and Rep. Collin Peterson of Minnesota. Ashford is newly elected, while Peterson has served in Congress since 1990 and supported a similar effort in the previous Congress.

Text of the bill follows:

Jan 152015
 

Table of Contents, list of members, preface, figures, tablesconnectivityreport-cover (links in this doc only work within the Table of Contents)

Executive Summary

Introduction

Chapter 2 - An Integrated Systems Perspective on Interactions of Watersheds, Streams, Wetlands and Downstream Waters

Chapter 3 - Streams: Physical, Chemical and Biological Connections to Rivers

Chapter 4 - Wetlands: Physical, Chemical and Biological Connections to Rivers

Chapter 5 - Applications and Discussion: Connectivity Case Studies (Carolina and Delmarva Bays, Oxbow Lakes, Prairie Potholes, Prairie Streams, Southwestern Intermittent and Ephemeral Streams, Vernal Pools) (SUMMARY of Appendix B)

Chapter 6 - Conclusions

Chapter 7 - References

Appendix A - Glossary | Appendix B - Case Studies  (Carolina and Delmarva Bays, Oxbow Lakes, Prairie Potholes, Prairie Streams, Southwestern Intermittent and Ephemeral Streams, Vernal Pools)

Jan 152015
 

Editor's note: Made a change after looking at this again. Instead of saying the report concluded that "waters are generally connected to one another," (a statement I believe is likely true if one considers the volume of water across the landscape, but which I cannot support empirically), I have written, "even isolated wetlands can affect downstream waters."

Go here for a summary of the report and here (EPA page) or here (ESWR) for the full report.

WOTUS rulemaking page (WOTUS stands for "waters of the United States"). Scroll to bottom for more links


EPA has released its final report on connectivity of streams and wetlands.

It's probably not going to please too many critics of the agency's effort to define the meaning of "waters of the United States" under the Clean Water Act. Those critics -- including farmers; congressional representatives who represent farmers; builders, and too many others to mention -- have said previously the agency (along with the Army Corps of Engineers, which is working on the WOTUS rule with EPA) should not move forward with the rule until it had the final connectivity report in hand.

But the appearance of the final report is unlikely to quiet criticism of the effort, since it appears, at first glance, to conclude that even isolated wetlands can affect downstream waters.

We here at ESWR have not read the entire report as yet. But we have seen the major conclusions, reprinted below, which suggest that the very isolation of certain wetlands is what makes them important. As that conclusion -- one of five highlighted in the report's summary -- put it,

There is ample evidence that many wetlands and open waters located outside of riparian areas and floodplains, even when lacking surface water connections, provide physical, chemical, and biological functions that could affect the integrity of downstream waters. Some potential benefits of these wetlands are due to their isolation rather than their connectivity. Evaluations of the connectivity and effects of individual wetlands or groups of wetlands are possible through case-by-case analysis. (emphasis added by ESWR)

Here is the report summary:

The U.S. Environmental Protection Agency's (USEPA) Office of Research and Development has finalized the report Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence. The report reviews more than 1,200 peer-reviewed publications and summarizes current scientific understanding about the connectivity and mechanisms by which streams and wetlands, singly or in aggregate, affect the physical, chemical, and biological integrity of downstream waters. The focus of the report is on surface and shallow subsurface connections by which small or temporary streams, nontidal wetlands, and open waters affect larger waters such as rivers, lakes, reservoirs, and estuaries.

This report represents the state-of-the-science on the connectivity and isolation of waters in the United States. It makes five major conclusions, summarized below, that are drawn from a broad range of peer reviewed scientific literature.

  • The scientific literature unequivocally demonstrates that streams, regardless of their size or frequency of flow, are connected to downstream waters and strongly influence their function.
  • The scientific literature clearly shows that wetlands and open waters in riparian areas (transitional areas between terrestrial and aquatic ecosystems) and floodplains are physically, chemically, and biologically integrated with rivers via functions that improve downstream water quality. These systems act as effective buffers to protect downstream waters from pollution and are essential components of river food webs.
  • There is ample evidence that many wetlands and open waters located outside of riparian areas and floodplains, even when lacking surface water connections, provide physical, chemical, and biological functions that could affect the integrity of downstream waters. Some potential benefits of these wetlands are due to their isolation rather than their connectivity. Evaluations of the connectivity and effects of individual wetlands or groups of wetlands are possible through case-by-case analysis.
  • Variations in the degree of connectivity are determined by the physical, chemical and biological environment, and by human activities. These variations support a range of stream and wetland functions that affect the integrity and sustainability of downstream waters.
  • The literature strongly supports the conclusion that the incremental contributions of individual streams and wetlands are cumulative across entire watersheds, and their effects on downstream waters should be evaluated within the context of other streams and wetlands in that watershed.

This report was developed to inform rulemaking by the U.S. EPA and the U.S. Army Corps of Engineers on the definition of "waters of the United States" under the Clean Water Act (CWA). Because this report is a technical review of peer-reviewed scientific literature, it neither considers nor sets forth legal standards for CWA jurisdiction, nor does it establish EPA policy.

Links

Scientific Review Supports New Clean Water Protections (NRDC, 1/15/15)

Natl. Wildlife Federation release   (1/15/15)

Greenwire's coverage

Earlier:

EPA Review Board Stands By Waters of the U.S. Proposal (Farm Futures site)

Oct 232014
 

EPA and the Corps of Engineers have announced the release of the final peer review of EPA's "connectivity" report -- literally, Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence.

Here is the final peer review, posted on Endangered Species & Wetlands Report's website.

Here's part of the letter from SAB Chair David T. Allen and Amanda D. Rodewald, chair of the panel that reviewed the report. (The full letter is at the beginning of the "final peer review" link in the preceding paragraph.)

The EPA Report is a thorough and technically accurate review of the literature on the connectivity of streams and wetlands to downstream waters. The SAB agrees with two of the three major conclusions in the Report. The SAB finds that the review of the scientific literature strongly supports the conclusions that streams and “bidirectional” floodplain wetlands are physically, chemically, and/or biologically connected to downstream navigable waters; however, these connections should be considered in terms of a connectivity gradient. The SAB recommends revisions to improve the clarity of the Report, better reflect the scientific evidence, expand the discussion of approaches to quantifying connectivity, and make the document more useful to decision-makers. The SAB disagrees with the conclusion that there is insufficient information available to generalize about the connectivity of wetlands in “unidirectional,” non-floodplain settings. In that case, the SAB finds that the scientific literature supports a more definitive statement that reflects how numerous functions of non-floodplain wetlands sustain the physical, chemical, and/or biological integrity of downstream waters, although the degree of connectivity can vary widely. The SAB’s major comments and recommendations are provided below.

  • The Report often refers to connectivity as though it is a binary property (connected versus not connected) rather than as a gradient. In order to make the Report more technically accurate, the SAB recommends that the interpretation of connectivity be revised to reflect a gradient approach that recognizes variation in the frequency, duration, magnitude, predictability, and consequences of those connections. The SAB notes that relatively low levels of connectivity can be meaningful in terms of impacts on the chemical, physical, and biological integrity of downstream waters.
  • The SAB recommends that the EPA consider expanding the brief overview of approaches to measuring connectivity. This expansion would be most useful if it provided examples of the dimensions of connectivity that could most appropriately be quantified, ways to construct connectivity metrics, and the methodological and technical advances that are most needed.
  • The Report presents a conceptual framework that describes the hydrologic elements of a watershed and the types of connections that link them. The literature review supporting the framework is technically accurate and clearly presented. However, to strengthen and improve its usefulness, the SAB recommends that the framework be expressed as spatially continuous physical, hydrological (surface and subsurface), chemical, and biological flowpaths that connect watersheds. Layers of complexity should be included in the conceptual framework to represent important aspects of connectivity such as spatial and temporal scale. The water body classification system used in the Report (i.e., classification of waters according to landscape settings) should be integrated into the flowpath framework to show that continuous phenomena interact across landscape settings. In addition, the SAB recommends that each section of the Report be clearly linked to the conceptual framework.
  •  The SAB recommends that the Report more explicitly address the scientific literature on cumulative and aggregate effects of streams, groundwater systems, and wetlands on downstream waters. In particular, the Report should contain a discussion of the spatial and temporal scales at which streams, groundwater systems, and wetlands are functionally aggregated. The SAB also recommends that, throughout the Report, the EPA further discuss several important issues including the role of biological connectivity, biogeochemical transformation processes, and the effects of human alteration of connectivity.
  • In the Report, the EPA has classified waters and wetlands as having the potential for either “bidirectional” or “unidirectional” hydrologic flows with rivers and lakes. The SAB finds that these terms do not adequately describe the four-dimensional (longitudinal, lateral, vertical, and temporal) nature of connectivity, and the SAB recommends that the Report use more commonly understood terms that are grounded in the peer-reviewed literature.
  • The SAB commends the EPA for the comprehensive literature review in the Report, although additional citations have been suggested to strengthen it. To make the review process more transparent, the EPA should more clearly describe the approach used to screen, compile, and synthesize the information. The Report should also clearly indicate that the definitions used for rivers, streams, and wetlands are scientific, rather than legal or regulatory definitions, and may differ from those used in the Clean Water Act and associated regulations.
  • The SAB finds that the review and synthesis of the literature describing connectivity of streams to downstream waters reflects the pertinent literature and is well grounded in current science. The literature review provides strong scientific support for the conclusion that ephemeral, intermittent, and perennial streams exert a strong influence on the character and functioning of downstream waters and that tributary streams are connected to downstream waters. However, the EPA should recognize that there is a gradient of connectivity. The SAB also recommends that the literature review more thoroughly address hydrologic exchange flows between main channels and off-channel areas, the influence of stream connectivity on downstream water temperature, and the movement of organisms throughout stream systems to use critical habitats.
  • The SAB finds that the review and synthesis of the literature on the connectivity of waters and wetlands in floodplain settings is somewhat limited in scope (i.e., focused largely on headwater riparian wetlands) and should be expanded. However, the literature review does substantiate the conclusion that floodplains and waters and wetlands in floodplain settings support the physical, chemical, and biological integrity of downstream waters. The SAB recommends that the Report be reorganized to clarify the functional role of floodplain systems in maintaining the ecological integrity of streams and rivers and that the Report more fully reflect the literature on lateral exchange between floodplains and rivers.
  • The SAB finds that, in general, the review and synthesis of the literature on the connectivity of non-floodplain (“unidirectional”) waters and wetlands is technically accurate. However, additional information on biological connections should be included. The SAB has provided numerous additional literature citations addressing the roles of multiple biological taxa in this regard, such as transporting propagules and nutrients and providing critical habitat.
  • The SAB disagrees with the EPA’s conclusion that the literature reviewed did not provide sufficient information to evaluate or generalize about the degree of connectivity (absolute or relative) or the downstream effects of wetlands in “unidirectional” non-floodplain landscape settings. The SAB finds that the scientific literature supports a more definitive statement about the functions of “unidirectional” non-floodplain wetlands that sustain the physical, chemical and/or biological integrity of downstream waters. In this regard, the SAB recommends that the EPA revise the conclusion to better articulate: (1) what is supported by the scientific literature and (2) the issues that still need to be resolved.