One hundred and seventeen Democratic members of the United States House of Representatives sent a February 7th letter to the Administrator of the United States Environmental Protection Agency (“EPA”) and Assistant Secretary of the Army for Civil Works (“Corps of Engineers”) stating that they:
. . . Applaud the Agencies for taking this positive and concrete step towards restoring strong clean water protections that all Americans and our constituents rely on. Clean water is essential for our economy. Federal protections that adhere to the Clean Water Act and are based upon sound science are vital.
WOTUS is one of three crucial jurisdictional terms in Clean Water Act. Its importance is magnified since it is relevant to both National Pollution Discharge Elimination System (“NPDES”) permitting and non-NPDES programs such as:
- Section 404 of Clean Water Act permits wetland.
- Section 311 Oil/hazardous substance release requirements
- Clean Water Act spill control and countermeasure regulations
Since 1972, when the Clean Water Act was enacted, the scope of WOTUS has been the subject to frequent litigation, legislative oversight, and public policy debate.
The Corps of Engineers and the EPA announced a revised definition of WOTUS on November 19, 2021. They had previously withdrawn the Clean Water Act revisions that were promulgated under the Trump Administration.
The Corps of Engineers and EPA proposed a new rule on December 7, 2021 to revise WOTUS’s definition.
The Democratic Congressmen in their February 7th letter state that the current rulemaking is “critical to protecting water quality across the nation and the furthering of Congress’s intent when it enacted the Clean Water Act.” They take the position that the Trump Administration’s Navigable Waters Protection Rule (“NWPR”) undercut the Clean Water Act’s objective to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”
The February 7th letter addresses the Infrastructure Investment and Jobs Act. It notes that $55 billion has been allocated to increase access to clean water through programs such as:
- Replacement of lead service line lines
- PFAS Contamination Prevention Measures
- Improved wastewater infrastructure
The $47 billion is also mentioned. It is supposed to be allocated to:
- Climate resilience
- Community preparedness for worsening floods
Healthy wetlands are and headwater streams are key measures to combat flooding. Protecting such wetlands is important for both natural carbon sinks and flood protection.
The Congressmen also characterized clean water protections as playing a key role in what it describes as the Biden Administration’s and EPA’s commitments to environmental justice. They believe that the NWPR had harmed waterways across the United States, but not all Americans. They argue that communities of color and low-income communities felt the effects of the withdrawal of clean waters protections more than other communities. Finally, they argue that clean water act protections are crucial to protecting national, local, and regional economies. Because of the need to clean water, they identify agricultural operations as those most in need of Clean Water Act protections. A majority of agricultural activities are exempt from the Clean Water Act permits because:
- Stormwater discharges from agricultural stormwater are not permitted
- Irrigation return flows cannot be excluded
- Normal forming techniques like building or maintaining stock tanks or irrigation ditches as well as building and maintaining farm roads, maintaining ditches, or farming are exempted.
You can download a copy of the letter Here.
