Refining The New Topic re Proposed Redefinition of what constitutes the Waters of the United States (Part 1 of 2)

On April 18, 2019, this website published two moderately complex discussions of the proposal of the EPA and Army to redefine what constitutes the Waters of the United States. The redefinition is just another example of regulatory roll back. The Trump administration is consciously trying to free polluters so they can contaminate the water we use to drink, wash and grow plants. Equally important, the water is essential to plant and animal life across this nation.

On April 15, 2019, the attorney editors of filed formal comments about the agencies’ proposed rule.
The first comment discussed, inter alia, Endangered Species Act and National Environmental Policy Act issues. In that first comment we said:
Revised Definition of “Waters of the United States” – Proposed Rule (“the PR”)
Docket ID No. EPA-HQ-OW-2018-014

That first comment read in part:

We are writing, both as editors of and individually, to provide comments on and objections to the proposal by the United States Environmental Protection Agency (“EPA”) and United States Army (“Army”) to redefine what constitutes Waters of the United States (“WUS”). In this comment, we will address four issues. Although each issue is part of just one subset of arguments that show why the PR is invalid and should be withdrawn, each issue is independently sufficient to require administrative withdrawal of the proposal or judicial invalidation of the proposal. This comment discusses issues related to the Endangered Species Act (“ESA”), the National Environmental Policy Act (“NEPA”) and more.

First, at the risk of stating the obvious, the proposal will dramatically undercut federal enforcement of the ESA because most endangered and threatened species (collectively “ETS”) can be found on privately owned land. In this context, the federal interest in protecting the water on those lands is paramount and the PR is a flagrant attempt to undo years of good work.
For example, even extremely conservative groups like the Reason Foundation necessarily concede that “Private landowners own most of the habitat for endangered and imperiled species.” Testimony before the House Constitution and Civil Justice subcommittee on the state of property rights in America ten years after Kelo v. City of New London. See:

The Importance of Property Rights for Endangered Species Conservation

The PR conflicts with the ESA and is therefore invalid.

Second, even if the EPA and the Army could legally adopt the PR, the PR’s obvious impact on ETS means that an EIS is required BEFORE the PR is adopted. Indeed, Reason Foundation notes:

“1. Private landowners own most of the habitat for endangered and imperiled species. Almost 80% of endangered species depended on private land for all or some of their habitat, compared to 50% for federal land. In addition, 91% of all endangered species had at least some habitat on nonfederal land.
“2. Private lands are also crucially important for endangered species in states with large amounts of federal land because private landowners own most of the well-watered land, which also tends to be the land with the most biodiversity.”


Moreover, the tremendous public controversy caused by the PR makes an EIS doubly important. See: EPA analogous rule that even when a categorical exclusion from NEPA could apply, NEPA’s requirements apply if “[t]he proposed action is known or expected to cause significant public controversy about a potential environmental impact of the proposed action.” 40 CFR, part 6(B) section 204(b)(8). In the present case, two weeks before the end of the comment period, over sixty thousand public comments have already been submitted making the preparation of an EIS critical. Compliance with NEPA through preparation of a proper EIS will refine the public’s understanding of the risks presented by the proposed action and educate the EPA, Army and the general public. In the present case, an EIS is required. The PR cannot be adopted before EPA and Army prepare a proper EIS for the regulation.

Third, the Resource and Programmatic Assessment for the Proposed Rule (“Assessment”) is illogical and patently invalid. For example, the Assessment concedes that the Assessment’s ”exploratory analysis cannot appropriately or accurately assess the potential effects of the proposed rule on PWSs.” Assessment, page 109. The concession is honest but that is why NEPA requires that a full EIS which can analysis the PR’s devastating effects on PWSs.

Indeed a full EIS is required to carefully examine each of the PR’s numerous potential impacts, including, but not limited to the PR’s potential impacts that are discussed in pages 109 to 114 of the Assessment. Protests that the agencies cannot do an adequate job at the assessment stage (page 109) simply underscores the need for a full EIS. Similarly, acknowledging the agencies’ ignorance and “solicit[ing] public comment and data” to better assess the PR’s impact on page 110 does not excuse the agencies’ failure to prepare the required EIS.

Nor does the agencies’ idle speculation that local state, municipal or tribal government may address and even solve the environmental problems caused by the PR (see, e.g., Assessment pages 110 and 113) obviate NEPA’s EIS requirement.

Forth, the Agencies decision to lump numerous complex issues into as single programmatic assessment is a particularly galling abuse of programmatic NEPA tools since each of the many statutes impacted the PR requires a separate EIS to analyze and publicly disclose the PR’s multiple environmental impacts with respect to the statute.
In sum, given the Assessment’s numerous defects, the PR cannot be adopted before EPA and Army prepare a separate proper EIS for the regulation’s environmental impacts as to each affected statute.

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