Native Plant Conservation Campaign March 2003 report

These are draft comments from Emily Roberson, NPCC director, on an Army Corps of Engineers advance notice of proposed rulemaking regarding eliminating Clean Water Act coverage for several classes of wetlands and streams.
The public comment period has been extended to April 16. Please contact Emily if you have comments or questions at emilyr@cnps.org .

t!!! DRAFT DRAFT DRAFT DRAFT DRAFT DRAFT DRAFT !!!

Water Docket

Environmental Protection Agency

Mailcode 4101T, 1200 Pennsylvania Ave., NW

Washington DC 20460

Attention: Docket ID No. OW-2002-0050

To Whom It May Concern:

The following are the comments of the Native Plant Conservation Campaign (NPCC) on the Advance Notice of Proposed Rulemaking on the Clean Water Act Regulatory Definition of "Waters of the United States" (Advance Notice) (Federal Register 68: 1991 et seq., January 15, 2003).

The Native Plant Conservation Campaign (NPCC) is a coalition of 27 affiliate native plant conservation organizations, representing more than 56,000 laypersons and professional botanists in 27 states. The mission of the NPCC is to promote appreciation and conservation of native plant species and communities through education, law, policy, land use and management. NPCC affiliate organizations and their members work closely with state and federal agencies to manage and conserve the native plants and ecosystems of the United States.

We also extensively use public lands and wetlands for research, education, and recreation.

We are extremely concerned by the policy proposals in the Advance Notice and the policy changes in the accompanying Guidance (Advance Notice Appendix A). The proposals are poorly based in law, science or logic. They are also fiscally imprudent. The purpose of the Clean Water Act (CWA) is to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters" (33 U.S.C. Section 1251(a)). Healthy, intact, and well distributed wetlands are essential to this mission. The regulatory changes discussed in the Advance Notice will destroy the ability of the law to fulfill that purpose.

We recommend that this rulemaking be abandoned and that the accompanying Guidance be withdrawn.

Ecological and Hydrological Importance of Wetlands

The term "isolated wetlands" is not defined in the Advance Notice. This omission makes it difficult for the public fully to understand what the impacts of the proposed rule may be and which wetlands, streams or other riparian areas may be affected. Thus, for the purposes of these comments the term "wetlands" will be defined to include (i) isolated wetlands (those not permanently connected by surface waters to navigable waters) (ii) non-navigable tributaries of larger rivers, lakes and streams, and (iii) ephemeral streams and wetlands, including vernal pools. All of these classes of wetlands may be excluded from CWA jurisdiction under the Advance Notice (see Advance Notice Appendix A).

Wetlands are among the most ecological and economically important of all ecosystems. On a per area basis, wetlands provide habitat for more plants and animals than any other habitat type. In the United States, over 35,000 rare plants and animals are associated with wetlands (NatureServe, 2003).

Wetlands are also critical to the functioning of human society. Wetlands purify and store water. Wetlands, including "isolated wetlands", have been repeatedly shown to be connected to groundwater and to shallow subsurface flows of water through watersheds which are essential for recharge and purification of groundwater supplies (e.g. Kaplan 2001, U.S. Fish and Wildlife Service, 2002; Cook, 2001). This function is extremely important in places where people rely on groundwater for drinking and irrigation. This is true in many parts of California (California Groundwater Association, 2003) and elsewhere. For example, 70% of Indiana citizens use groundwater for drinking (Kaplan, 2001). Wetlands are also important in flood control as they store floodwaters during high flow events.

A 2002 Fish and Wildlife Service report provides a useful table summarizing some of the hydrological and ecological functions of isolated wetlands (Tiner et al., 2002):

Wetlands, including isolated wetlands, are also particularly important in coastal states like California because the groundwater recharge and water storage functions help resist intrusion from saltwater along the San Francisco Bay Delta and throughout the State (U.S. Geological Survey, 2003).

Finally, as the Advance Notice points out, the primary jurisdictional scope of the CWA is navigable waters. However, it is a basic fact of hydrology that navigable waters are made up of the waters that flow into them, both above and below ground. Thus it is impossible to implement the CWA’s mandate to "prevent, reduce and eliminate pollution" (CWA 33 USC 1251(b)) in navigable waters without protecting the upstream wetlands and waters, navigable or not, ephemeral or not, that flow into and compose navigable waters. Current CWA regulations recognize and reflect this hydrologic reality. The Advance Notice ignores it. If the proposals in the Advance Notice are adopted, and pollution and filling of numerous classes of waters are deregulated, downstream navigable waters will unavoidably be polluted and otherwise damaged as well.

Thus, if we are to fulfill the goals of the Clean Water Act, continued, indeed enhanced, protection of wetlands, including isolated wetlands, ephemeral streams, non navigable waters, is essential. The proposals in the Advance Notice would directly undercut the purposes and functions of the Clean Water Act itself.

Economic Values of Wetlands

In addition their ecological and societal values, healthy functioning well distributed wetlands contribute significantly to local, state and national economies. An increasing number or economists are studying the economic value of so called "ecosystem services" - the valuable commodities and processes produced and performed by wildland ecosystems. Numerous studies have calculated values for various wetland ecosystem services.

For example, one study found that the marshes of Louisiana alone produced over $200 million in commercial fish and shellfish harvest (U.S. Environmental Protection Agency, 2003). Marshes are generally at least partially non-navigable and so may be excluded from CWA jurisdiction under the Advance notice.

Purification of water by wetlands is tremendously valuable. Wetlands remove excess nutrients, sediment, and other anthropogenic pollutants as waters pass through them. Many studies have examined the replacement value for wetlands in local communities and cities. The replacement value is the cost to a local government to construct a water purification plant to provide similar water purification services. One example, for the Congaree Bottomland Hardwood Swamp in South Carolina, found a minimum cost of $5 million in initial capital investment would be required to replace the wetland services of the swamp. Annual maintenance of such a plant would require additional ongoing expenditures of tax dollars (U.S. Environmental Protection Agency, 2003).

Wetlands control floods by capturing and storing high water flows and releasing them slowly into streams and rivers over time. As we fill or otherwise destroy wetlands, flood costs to society and taxpayers increase. The Environmental Protection Agency explains these costs (U.S. Environmental Protection Agency, 1995):

In one small example, the Minnesota Department of Natural Resources has computed an average cost of $300 to replace one acre-foot of wetland flood water storage. The cost to replace the 5,000 acres of wetlands lost annually in Minnesota under current CWA regulation would be $1.5 million (in 1991 dollars) (U.S. Environmental Protection Agency, 2003). Clearly reduced CWA jurisdiction would lead to increased wetlands loss and associated flood damage and cost. The U.S. Army Corps of Engineers has found that loss of wetlands in the Charles River watershed in Massachusetts would result in $17 million in annual flood damage (U.S. Army Corps of Engineers, 1971, 1976).

Thus, if the proposal in the Advance Notice is adopted, and wetland protection is dramatically reduced, the resulting acceleration in wetland loss will have considerable effects on local, regional and national economies through increased flood losses, increased need for construction and maintenance of water treatment plants and loss of revenue associated with fishing and recreation. We request that, if the Army Corps is unwise enough to proceed with this rulemaking, that supplementary information for the proposed rule include an analysis of the costs to taxpayers at the local, state, and federal level, that would accompany such a regulatory change.

Flaws in Legal Reasoning for Advance Notice

The Advance Notice is theoretically a response to a decision of the U.S. Supreme Court in the case Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) (Advance Notice Summary p. 1991). However, the proposals in the Advance Notice massively and unjustifiably expand the very narrow scope of the SWANCC decision.

The Advance Notice proposes possible exclusion of numerous waters including isolated wetlands (undefined in the Advance Notice), ephemeral streams and non-navigable tributaries of navigable waters from CWA jurisdiction (Advance Notice Appendix A. Fed. Reg. 68 p. 1995). However the SWANCC decision applied only to a single isolated wetland: "an abandoned gravel pit in northern Illinois", a anthropogenic artificial pond. SWANCC was an "as applied" decision: the court made it clear that the decision applies only to the circumstances of the pond in question and does not change larger CWA policy. SWANCC does not apply to any natural isolated or other wetlands, much less ephemeral streams, non-navigable tributaries of navigable waters or other waters or wetlands that bear no resemblance to the man-made gravel pit in SWANCC. As one legal analysis explained before the Advance Notice was released,

Even if we were to ignore the fact that SWANCC was an "as applied" decision and accept that SWANCC may change CWA jurisdiction for non-anthropogenic waters, the case would still fail to justify the sweeping changes proposed in the Advance Notice. The only possible basis for CWA coverage for the "abandoned gravel pit" in the SWANCC case was the Migratory Bird Rule (see SWANCC decision). Thus, at its broadest possible interpretation, SWANCC cannot affect CWA jurisdiction of the other classes of waters covered in current CWA Section 404 regulations, including:

• all…waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use degradation or destruction of which could affect interstate or foreign commerce, including any such waters (i) which are or could be used by .. travelers for recreational or other purposes, (ii) from which fish or shellfish are or could be taken and sold in interstate or foreign commerce.
• Tributaries of waters used for interstate or foreign commerce, including wetlands

Thus, SWANCC provides no legal basis for the regulatory changes proposed in the Advance Notice and implemented in the Guidance.

Conclusion

We recommend that the Army Corps withdraw the Guidance and abandon this proposed rulemaking. Thank you for the opportunity to present these comments.

Sincerely,

Emily B. Roberson, Ph.D.

Director

NOTE: Due to space considerations, I did not include the many references that Emily had at the end of these comments, but would be happy to forward the complete document to anyone who’s interested. Just drop me an e-mail at lwagner@intrepid.net