Policy Statements » Letters from the President:
Proposed CWA Regulations
March 19, 2003
Environmental Protection Agency
Mail Code 4101T
1200 Pennsylvania Avenue NW
Washington, DC 20460
Attention: Docket ID No. OW-2002-0050
I am writing as the President of the Ecological Society of America, the nation's premier scientific society of ecologists with over 8,000 members. I am pleased to respond to this opportunity for public comment on the Advanced Notice of Proposed Rulemaking on the Clean Water Act Regulatory Definition of "Waters of the United States" (ANPR). The research of many of our members has significant implications for issues raised in the ANPR and I would like to offer some insights as you continue in the rulemaking process.
In light of the Supreme Court's recent finding in Solid Waste Agency of Northern Cook County v. US Army Corps of Engineers (SWANCC), the Ecological Society of America recognizes the limitations faced by the EPA in regulating intrastate, 'isolated' bodies of water. We offer these comments in the hope that they will be helpful in devising regulations that will both fulfill the goals of the Clean Water Act and comply with the SWANCC decision.
First, I would like to emphasize the importance of wetlands and headwater streams in maintaining the ecological integrity of a watershed. Wetlands serve as key nurseries for fish species, including some commercial species, as well as many endangered or threatened species. They serve to remove toxins from runoff and they slow the rush of floodwaters. Headwater streams are also important habitats, particularly for species intolerant of pollution levels found downstream. In addition, ongoing research has shown that headwater and ephemeral streams are sites of significant uptake of nutrients, decreasing eutrophication downstream. Due to the importance of these water bodies, we urge the EPA to ensure their protection under the CWA.
Second, I would like to directly respond to the EPA's request for comments regarding whether the regulations should define "isolated waters". This is an incredibly important step for the agency to take given that the Court has indicated that bodies of water which have "significant nexus" (United States v. Bayside Riverview Homes) with navigable waters fall under EPA jurisdiction.
The science of hydrology and ecology indicate that very few wetlands can be truly defined as isolated. Even wetlands with no visible surface link are critical elements of watersheds. They provide ecosystem services that impact the health of water systems that are deemed navigable, including the removal of pollution and toxics and the slowing of floodwaters. Such services are vital to retaining water quality downstream. Furthermore, in many cases, wetlands that appear isolated are in fact connected by groundwater to larger bodies of water. These factors must be considered before deeming a wetland isolated.
The connectivity of headwater and ephemeral streams to waters that are navigable is also compelling. As mentioned above, they serve to buffer larger bodies of water from nutrient overloading. This key linkage maintains the chemical integrity of larger, downstream bodies of water. Maintaining the ecological, physical and chemical health of navigable waters - the goal of the CWA - cannot be accomplished without protecting the sources of these water bodies, whether they flow seasonally or year round.
I urge EPA to fully use ecological principles and our knowledge of ecosystems when determining the definition of 'isolated' for jurisdictional purposes. As outlined above, an ecological perspective reveals important, yet not immediately apparent, connections between water bodies that are mutually dependent. The ambition of the CWA cannot be achieved without acknowledging and incorporating such connections into the regulations.
Finally, given the ecological importance of wetlands and headwaters streams we urge EPA to fully use the factors listed in 33CFR 328.3 (a)(3)(i)-(iii) to maintain jurisdiction over these vital natural resources.
The research of many of our member ecologists focuses on the issues touched on in this letter. We have included ESA's position paper on freshwater resources, "Meeting Ecological and Societal Needs for Freshwater," as well as an ESA publication titled, "Sustaining Healthy Freshwater Ecosystems." We hope that you will find these resources useful. If you would like more information we would be happy to put you in touch with a scientific expert on the topic. Please Contact Maggie Smith, Policy Analyst, at firstname.lastname@example.org or (202) 833-8773 ext. 224.