New York A.G. leads water protection coalition

Sep 22nd, 2014 | By | Category: Water

A.G. Schneiderman: Clean Water Is Fundamental To Our Health, Environment, And Economy. All States Must Share Responsibility For Its Protection

Attorney General Eric T. Schneiderman, leading a coalition of eight states, today backed a federal proposal designed to ensure that the nation’s lakes, rivers, streams, and wetlands receive proper protection under the federal Clean Water Act (CWA).  The coalition’s support came in comments submitted to the heads of the U.S. Environmental Protection Agency and the Army Corps of Engineers’ Civil Works Office on their joint Waters of the United States Proposed Rule.

The proposed rule seeks to clarify what types of waters are covered by the CWA – an issue that has become muddled by two recent U.S. Supreme Court decisions.  This lack of clarity has led to uncertainty among businesses, citizens, and state and local pollution control officials as to their obligations under the CWA.  It has also potentially stripped large numbers of waterways of federal protection, leaving them – and the downstream waters with which they connect – vulnerable to degradation.  All the Lower 48 states have waters that are downstream of other states.

“Every New Yorker has an equal right to clean water, which is fundamental to the health, environment, and economy of our states,” said Attorney General Schneiderman. “The degradation of waters in upstream states can increase flooding, add pollution, damage hunting and fishing habitat, and foul the drinking water supplies of their downstream neighbors.  We applaud EPA and the Corps for recognizing that the interconnectedness of our waters requires their comprehensive coverage under the Clean Water Act.  This proposal will protect our states’ hard-earned gains in water protection by ensuring that all states share responsibility for clean water.”

A lake, river, stream, wetland, or any other kind of surface water is afforded protection under the CWA only if it is a “water of the United States.”  Supreme Court decisions in 2001 and 2006 have led to substantial uncertainty as to whether some waters – particularly, small, seasonal, or rain-dependent streams, wetlands, and tributaries – are still considered waters of the United States.  As a result, roughly 20,000,000 wetland acres and 2,000,000 miles of streams in the Continental U.S. have lost, or have been placed in jeopardy of losing, their protections under the CWA.  And many of these threatened waters cannot rely on protections under state laws.   A 2013 study by the Environmental Law Institute found that 36 states have laws in place that could prevent state agencies or municipalities from protecting waters not covered by the CWA.

In today’s comments, the coalition cites three primary reasons for supporting the proposal:

  • The rule is grounded in solid, peer-reviewed science, particularly with respect to the “connectivity” of waters.   Scientific studies demonstrate that many waters are connected by networks of tributaries and wetlands.  Because of these connections, physical, chemical, and biological pollution from upstream waters often impacts the health of associated downstream waters.
  • The rule sets a strong floor for protecting our nation’s interconnected waters.  Such a floor ensures basic consistency and effectiveness in water pollution control among states, protecting downstream states from the effects of unregulated discharges from upstream states.
  • By clarifying the scope of waters of the United States, the rule addresses the current confusion and disagreements in the courts regarding the application of the CWA.  States need this legal clarity to efficiently and confidently administer their water protection programs.

Frances Beinecke, President of the Natural Resources Defense Council, said, “I commend the Attorneys General for their leadership on this critical action to restore protections for vulnerable waters across the nation.  This proposed rule strikes the right balance between state autonomy and the national imperative to control dangerous water pollution.”

Jimmy Hague, Director of the Center for Water Resources at the Theodore Roosevelt Conservation Partnership, said, “America’s hunters and anglers support this rulemaking because Clean Water Act confusion has put our fisheries and waterfowl habitat at risk.  Today’s comments from the attorneys general underscore how important it is to restore protections to wetlands and headwater streams. They understand that clarifying which waters are covered by the Act – and just as importantly, which waters are not covered – benefits the states, sportsmen, and everyone else who cares about clean water.”

Jeanne Christie, Executive Director of the Association of State Wetland Managers, said, “The Clean Water Act must be implemented using sound science or the goals of the Act can never be achieved.   Study after study confirms that wetlands, streams, rivers, lakes and oceans are interdependent and that the loss or pollution of one part affects others.   The proposed rule recognizes that clean, abundant water is necessary to support a healthy environment and a strong economy. “

Kim Diana Connolly, Professor of Law and Director of Environmental and Natural Resources Law Program at SUNY Buffalo Law School, said, “The United States federal government has invested multiple decades attempting to clarify the appropriate regulatory role for the United States over waters of the U.S..  Based on this extensive research and analysis, EPA and the Corps have proposed an excellent revision to the definition of ‘waters of the United States.’ If approved, all stakeholders in the regulatory process will more clearly know whether a particular undertaking is compliant with the law, allowing the money that would otherwise be spent disputing this issue with the Corps, with EPA, in federal court, or in U.S. Congress, to instead be invested in efficient, environmentally-responsive infrastructure.”

Lakes, rivers, streams, wetlands, and other kinds of surface waters trap floodwaters, remove pollution, provide habitats for fish and wildlife, and maintain drinking water supplies.  The health and cleanliness of these waters is critical to their role in fishing, hunting, agriculture, recreation, energy generation, and manufacturing.  For example, approximately one in three Americans gets drinking water from public systems that rely on small, seasonal, or rain-dependent streams – the waters placed at greatest risk by the uncertainty created by recent Supreme Court decisions.

Joining Attorney General Schneiderman in co-signing today’s letter are the Attorneys General from Connecticut, Delaware, Illinois, Maryland, Rhode Island, Washington State, and the District of Columbia.

The matter is being handled by Watershed Inspector General Philip Bein, Assistant Attorney General Timothy Hoffman, and Environmental Scientist Charles Silver, of the Attorney General’s Environmental Protection Bureau, with support from Bureau Chief Lemuel M. Srolovic, Executive Deputy Attorney General for Social Justice Alvin Bragg, and First Deputy for Affirmative Litigation Janet Sabel.

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