Coalition backs joint EPA-Army Corps “Waters of the United States” proposal to clarify Clean Water Act protections for nation’s waters

Wilmington – Delaware Attorney General Beau Biden has joined a coalition of eight states in supporting 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). That support came in comments submitted this week to the Environmental Protection Agency and the Army Corps of Engineers on their joint Waters of the United States Proposed Rule.

“Delaware’s wetlands, steams, and other waterways are fragile ecosystems whose health depends on their connections to upstream waterways in other states,” Biden said. “That’s why it’s so important that they receive the necessary protections across state lines that are provided by the federal Clean Water Act. Those protections, along with the stewardship they currently enjoy from our State’s environmental statutes, are needed to adequately safeguard our environment and public health.”

The proposed rule seeks to clarify the types of waters that 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 federal law. The rulings also potentially jeopardize large numbers of waterways across the nation – and the downstream waters with which they connect – of important federal environmental protections. Delaware and all other Lower 48 states have waters that are downstream of other states.

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.

In this week’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.

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.

Biden joined the Attorneys General from New York, Connecticut, Illinois, Maryland, Rhode Island, Washington State, and the District of Columbia in co-signing this week’s letter.

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