Position on Waters of the U.S. Regulations

On behalf of National Parks Conservation Association and our more than 1.3 million members and supporters, I write to offer our perspective on the impact of the Trump administration’s proposed rewrite of the Clean Water Act’s (“CWA”) “Waters of the U.S.” definition on America’s national parks. I ask that this letter be included in the record for the June 12, 2019 hearing “A Review of Waters of the U.S. Regulations: Their Impact on States and the American People.”

Every year, hundreds of millions of people visit America’s national parks. Many of these parks depend on waters that run through them. These waters provide crucial habitat for fish and wildlife, offer recreational opportunities for visitors, and in many cases are central to the parks’ unique character and value. Such water-dependent parks are found across the country from Acadia National Park in Maine, to the Colorado River running through Grand Canyon National Park and Glen Canyon National Recreation Area, and from the Buffalo National River in Arkansas to the Rio Grande National Wild & Scenic River in Big Bend National Park.

Many national parks are inseparable from the waters that are in, surround, and flow through them. Because many park waters originate on lands outside of park boundaries, where beyond boundary activities impact park water quality and availability, the National Park Service (“NPS”) often relies on the Environmental Protection Agency (“EPA”) and Army Corps of Engineers (“Army Corps”) to exercise their CWA authority to prevent impairment of park waters. Protecting upstream wetlands and intermittent and ephemeral streams is particularly important for preserving and restoring park water quality for visitors and wildlife.

That’s why we’re so concerned with the Trump administration’s proposal to eliminate protections for our nation’s wetlands and waters. The proposed changes to the CWA’s “Waters of the U.S.” definition will eliminate protection for many waters that have been considered jurisdictional for decades, a regulatory rollback that could lead to significant harm for our national parks and their waters.

The National Park System received over 318 million visitors in 2018.¹ The NPS estimates that visits in 2017 created about $18.2 billion in spending in “gateway regions” near National Parks.² Some of the most visited national parks are fundamentally connected to water and depend on its quality. For instance, Grand Canyon National Park and Glen Canyon National Recreation Area received over 6 million and 4.5 million visitors, respectively, in 2017.³ Both of these parks are in an arid region where intermittent and ephemeral streams play a significant hydrological role.⁴ Acadia National Park, on the coast of Maine, received over 3.5 million visitors in 2017, and the Chattahoochee National River in Georgia had over 2.7 million visitors.⁵ Clean water is an integral part of the experience at these parks, and its quality is critical to their preservation and conservation.

Visitors to national parks are also a part of the broader “outdoor recreation economy” estimated at $887 billion annually.⁶ The U.S. Department of Commerce’s Bureau of Economic Analysis found that outdoor recreation contributes 2.2 percent of the country’s annual GDP.⁷ Within that amount, boating and fishing amounted to the largest segment of economic activity at $36.9 billion annually.⁸ These activities depend on clean water. If the water quality in national parks is degraded because hydrologically-linked wetlands and ephemeral streams lose CWA protection, the result could be a loss of economic benefits if visitors were to choose to stay away from these places.

The connectivity of our nation’s waters and their economic importance should come as no surprise. The EPA and Army Corps’ themselves previously concluded that tributaries and wetlands are important to downstream water quality and outdoor recreational opportunities. EPA has stated that “wetlands play a crucial role in the life cycle of up to 90 percent of the fish caught recreationally,” while recognizing estimates of recreational fishing’s economic impact at $116 billion annually.⁹ The agencies also previously argued that “[p]rotection of tributaries under the CWA is critically important because they serve many important functions which directly influence the integrity of downstream waters.”¹⁰

Instead of enhancing these economic contributions, the administration’s proposal instead acknowledges that removing CWA protections would harm the outdoor recreation economy, including hunting and fishing activities specifically. The proposal notes that:

“…narrowing the scope of CWA regulatory jurisdiction over waters may result in a reduction in the ecosystem services provided by some waters, and as a result, some entities may be adversely impacted. Some business sectors that depend on habitat, such as those catering to hunters or anglers,…could experience a greater impact than others.”¹¹

The proposal’s accompanying economic analysis also correctly observes that “[c]hanges in water quality can also impact recreational activities and by extension those businesses and localities that support these activities.”¹² These impacts would harm the multibillion-dollar outdoor recreation economy with potentially significant concentrated impacts in national parks that support fishing and boating recreation. Despite identifying these impacts as issues of concern, at no point does the proposal attempt to quantify their overall magnitude or assess whether, in light of these detrimental impacts, the proposal will be beneficial for the nation.

What’s more, the proposal’s exclusion of ephemeral streams and non-adjacent wetlands from CWA protections would have profound ecological and water quality impacts on national parks across the country. Intermittent and ephemeral streams are particularly important to water quality and flows in the Southwest, where they make up over 81% of streams.¹³ Over a third of streams in the “arid west” would lose CWA protections under the proposal.

Scientific and technical studies demonstrate why the removal of CWA protection from ephemeral streams and non-adjacent wetlands would harm national parks in the West. In a 2008 scientific report on the Four Corners region, the U.S. Geological Survey (“USGS”) and NPS identified several “Parks with significant intermittent or ephemeral drainages,” including Chaco Wash in Chaco Culture National Historical Park, Pueblo Colorado Wash in Hubbell Trading Post National Historical Site, and the Little Colorado River in Petrified Forest National Park.¹⁴ That report notes that:

“[El Morro National Monument], Sunset Crater National Monument… and [Petroglyph National Monument] are dry most of the time. A vast network of perennial, intermittent, and ephemeral springs, pools, washes, and streams sustain the larger water bodies and their associated riparian corridor; these areas collectively support the diverse flora and fauna throughout the region. The intermittent and ephemeral features typically flow during spring runoff or following rainfall. Unique and significant water-dependent features such as hanging gardens and cottonwood stands are supported by springs.”¹⁵

Furthermore, “[m]ore than 90 side canyons fed by springs and ephemeral drainages are considered tributaries to the main body of Lake Powell.”¹⁶ The USGS-NPS study identified fourteen intermittent or ephemeral streams that drain into Lake Powell as suffering from “one or more water-quality standard exceedance.”¹⁷ The report shows the extensive network of intermittent and ephemeral streams that feed into Glen Canyon National Recreation Area, including streams that pass through other National Parks such as Canyonlands, Capitol Reef, and Arches National Parks. Protecting the water in Lake Powell depends on protecting the water in intermittent and ephemeral streams that already violate water-quality standards.

The EPA’s 2015 Connectivity Report also noted the extensive importance of ephemeral and intermittent streams in the Four Corners region. “Based on the National Hydrography Dataset, 94%, 89%, 88%, and 79% of the streams in Arizona, Nevada, New Mexico, and Utah, respectively, are nonperennial. Most of these streams connect to downstream waters.”¹⁸ These streams are “periodically connected to downstream waters by low-duration, high-magnitude flows.”¹⁹ According to that report, this “substantial connection [causes] important consequences of runoff, nutrients, and particulate matter originating from ephemeral tributaries on the integrity and sustainability of downstream perennial streams.”²⁰

EPA had previously published a report on The Ecological and Hydrological Significance of Ephemeral and Intermittent Streams in the Arid and Semi-arid American Southwest, which provided a “comprehensive review of the present scientific understanding of the ecology and hydrology of ephemeral and intermittent streams [to] help place them in a watershed context, thereby highlighting their importance in maintaining water quality, overall watershed health, and provisioning of the essential human and biological requirements of clean water.”²¹ In that report, EPA noted that lowland leopard frogs in Saguaro National Park depend on ephemeral pools for breeding.²² Furthermore, wildlife in Organ Pipe Cactus National Monument, including lizards and snakes, prefer mesquite woodlands that are “restricted to ephemeral and intermittent streams” in the monument.²³ These ephemeral habitats would lose CWA protections in the proposal.

The negative impacts of the proposal on water quality in national parks would not be limited to western parks with high concentrations of intermittent and ephemeral streams. Many eastern national parks also depend on non-adjacent wetlands or ephemeral streams for water quality that would not be covered by the proposal.

One example of a popular national park in the East facing water contamination issues is the New River Gorge National River in West Virginia, which receives over a million annual visitors. Particularly after heavy rains, the river suffers from impairment by fecal coliform. The USGS found that “tributary inflows to the New River are the major pathways for input of fecal contamination to the New River in the gorge.”²⁴ That study found multiple tributaries contaminated with fecal coliform with flows below five cubic feet per second.²⁵ These streams would lose CWA protection under the Proposal’s potential flow requirement of five cubic feet per second, which could result in increased contamination for this park.²⁶

America’s most popular national park, Great Smoky Mountains National Park, also faces coliform bacteria impacts to water sources, including along the Appalachian Trail.²⁷ Headwater streams in Great Smoky Mountains National Park also face threats from high acidity. According to the NPS, “acidic streams are suspected to be the main cause for the decline of the native brook trout population in the park.”²⁸ Although wetlands make up a small percentage of the park and the surrounding ecosystems, these wetlands include karst-depression wetlands.²⁹ Wetlands within park boundaries would retain protection by NPS, but karst-depression wetlands outside of the park would likely be considered non-adjacent in the proposal and therefore be at risk of dredging and filling. Wetlands can serve as buffers for acidity.³⁰ Karst-depression wetlands provides habitat for “plants and animals that are otherwise rare or absent in southern uplands” and the “ecological significance of karst wetlands is thus disproportionate to their limited area.”³¹ The loss of CWA protections for wetlands such as these in ecosystems near the park in North Carolina and Tennessee would undermine the benefits they provide in the acidity buffering and further threaten species such as native brook trout and reduce the benefits of the associated recreational fishery.

Instead of preserving existing protections necessary to protect our national parks, the administration’s proposal to revise the definition of “Waters of the U.S.” would significantly reduce the number of waters protected under the Clean Water Act. The proposal eliminates protection for ephemeral streams and for wetlands that do not have a continuous surface connection to waters covered by the new definition. As shown above, we believe the new proposal will cause significant ecological and economic harm to national parks by, among other things, impairing fish and wildlife habitat and impacting recreation.

Making such a dramatic change to the Clean Water Act demands that the proposal be based on sound science in order to meet the Clean Water Act’s water quality goals. The administration’s proposal, however, is an arbitrary and capricious attempt to revise such a significant policy. Neither the EPA or the Army Corps explains or justifies the departures they make from the scientific evidence underlying the 2015 rule. In fact, the administration’s 2019 proposal introduces several new and poorly defined terms in its attempt to delineate the scope of jurisdiction that could ultimately create greater uncertainty and increase the administrative burden for permitting agencies, regulated entities, and the American public.

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1. Visitation Highlights, NAT’L PARK SERV., available at https://www.nps.gov/subjects/socialscience/highlights.htm.

2. NAT’L PARK SERV., 2017 NATIONAL PARK VISITOR SPENDING EFFECTS (2018), available at https://www.nps.gov/nature/customcf/NPS_Data_Visualization/docs/NPS_2017_Visitor_Spending_Effects.pdf.

3. Annual Park Report for Recreation Visits in 2018, NAT’L PARK SERV., https://irma.nps.gov/Stats/SSRSReports/National%20Reports/Annual%20Park%20Ranking%20Report%20(1979%20-%20Last%20Calendar%20Year).

4. See JULIANE M. BOWEN, U.S. GEOLOGICAL SURVEY, REVIEW OF AVAILABLE WATER-QUALITY DATA FOR THE SOUTHERN COLORADO PLATEAU NETWORK AND CHARACTERIZATION OF WATER QUALITY IN FIVE SELECTED PARK UNITS IN ARIZONA, COLORADO, NEW MEXICO, AND UTAH, 1925 TO 2004, SCIENTIFIC INVESTIGATIONS REPORT 2008-5130, at 5 (2008).

5. Annual Park Report for Recreation Visits in 2018, supra note 3.

6. OUTDOOR INDUS. ASS’N, THE OUTDOOR RECREATION ECONOMY (2017), available at https://outdoorindustry.org/wp-content/uploads/2017/04/OIA_RecEconomy_FINAL_Single.pdf.

7. Outdoor Recreation Satellite Account: Updated Statistics for 2012-2016 (2018), BUREAU OF ECON. ANALYSIS, https://www.bea.gov/news/2018/outdoor-recreation-satellite-account-updated-statistics-2012-2016.

8. Id.

9. EPA, ECONOMIC BENEFITS OF WETLANDS 2 (2006), available at https://www.epa.gov/sites/production/files/2016-02/documents/economicbenefits.pdf.

10. EPA& U.S. DEPT. OF THE ARMY, TECHNICAL SUPPORT DOCUMENT FOR THE CLEAN WATER RULE: DEFINITION OF WATERS OF THE UNITED STATES 9 (May 27, 2015) [hereinafter “2015 Technical Support Document”], at 233 (emphasis added).

11. 84 Fed. Reg. at 4201–02.

12. EPA& ARMY CORPS, ECONOMIC ANALYSIS OF PROPOSED REVISED DEFINITION OF WATERS OF THE UNITED STATES 215 (2014) [hereinafter Economic Analysis].

13. 2015 Technical Support Document, at 259.

14. See JULIANE M. BOWEN, U.S. GEOLOGICAL SURVEY, REVIEW OF AVAILABLE WATER-QUALITY DATA FOR THE SOUTHERN COLORADO PLATEAU NETWORK AND CHARACTERIZATION OF WATER QUALITY IN FIVE SELECTED PARK UNITS IN ARIZONA, COLORADO, NEW MEXICO, AND UTAH, 1925 TO 2004, SCIENTIFIC INVESTIGATIONS REPORT 2008-5130, at 5 (2008).

15. Id.

16. Id. at 64.

17. Id. at 67.

18. EPA, CONNECTIVITY OF STREAMS &WETLANDS TO DOWNSTREAM WATERS: A REVIEW & SYNTHESIS OF SCIENTIFIC EVIDENCE (2015) [hereinafter “Connectivity Report”], at 5-7.

19. Id.

20. Id. at 5-8.

21. EPA, THE ECOLOGICAL AND HYDROLOGICAL SIGNIFICANCE OF EPHEMERAL AND INTERMITTENT STREAMS IN THE ARID AND SEMI-ARID AMERICAN SOUTHWEST 2 (2008), available at https://www.epa.gov/sites/production/files/2015-03/documents/ephemeral_streams_report_final_508-kepner.pdf.

22. Id. at 55.

23. Id. at 53–54.

24. MELVIN V.MATHES, ET AL., U.S. GEOLOGICAL SURVEY & NAT’L PARK SERV., PRESUMPTIVE SOURCES OF FECAL CONTAMINATION IN FOUR TRIBUTARIES TO THE NEW RIVER GORGE NATIONAL RIVER,WEST VIRGINIA, 2004, at 5 (2007).

25. See id. at 8.

26. See 84 Fed. Reg. at 4178.

27. Brian C. Reed & Mark S. Rasnake, An Assessment of Coliform Bacteria in Water Sources Near Appalachian Trail Shelters Within the Great Smoky Mountains National Park, 27 WILDERNESS & ENVTL.MED. 107 (2016).

28. NAT’L PARK SERV., Great Smoky Mountains: Water Quality, available at https://www.nps.gov/grsm/learn/nature/water-quality.htm.

29. See, e.g., U.S. GEOLOGICAL SURVEY, Gum Swamp in Great Smoky Mountain National Park, Tennessee, available at https://www.usgs.gov/media/images/gum-swamp-great-smoky-mountain-national-park-tennessee.

30. See, e.g., W.M. Mayes, et al., Wetland Treatments at extremes of pH: A review, 407 SCI. TOTAL ENV’T 3944 (2007).

31. WILLIAM J.WOLFE, USGS, HYDROLOGY AND TREE-DISTRIBUTION PATTERNS OF KARST WETLANDS AT ARNOLD ENGINEERING DEVELOPMENT CENTER, TENNESSEE 2 (1996).