Science advisers slam EPA’s new stream and wetland protection rule

Originally published by E&E News

A U.S. Environmental Protection Agency (EPA) advisory panel has finalized a striking rebuke of the Trump administration's revamped Clean Water Act rule, saying critical elements are not adequately based on science.

Trump's EPA in January issued its Navigable Waters Protection Rule, which revises the definition of "waters of the United States," or WOTUS, clarifying which streams, wetlands, and marshes warrant federal protections.

The rule is significantly narrower in scope than one issued by former President Barack Obama’s administration, and it is sure to be met with lawsuits once published.

EPA's Science Advisory Board (SAB) said some of the changes are not sufficiently based in science.

In a commentary, the board took issue with, for example, the rule's exclusion of groundwater, ephemeral streams and wetlands that connect to bodies of water below the surface.

"The proposed Rule," the board wrote, "does not present new science to support this definition, thus the SAB finds that the proposed Rule lacks a scientific justification, while potentially introducing new risks to human and environmental health."

EPA spokeswoman Molly Block said the agency "appreciates and respects the work and advice of the SAB" and that its concerns were raised during the public comment period on the rule.

She added, however, that the SAB is not limited by congressional authority or muddled Supreme Court decisions on the jurisdictional issue.

"The agency's definition of 'waters of the United States' is informed by science," she wrote in an email, "but science cannot dictate where to draw the line between federal and state or tribal waters, as those are legal distinctions established within the overall framework and construct of the Clean Water Act."

The SAB offers technical and scientific advice to the agency on a wide range of rulemakings.

The criticisms of the WOTUS rule are notable because many of the board members were named by EPA Administrator Andrew Wheeler or Scott Pruitt, his predecessor in the Trump administration.

The commentary finalized Thursday is similar to a draft version obtained by E&E News in January. In the final version, the SAB acknowledged that the full board reviewed the draft commentary on Jan. 24. Four members did not concur with it.

It offered sweeping criticisms of the rule.

"The SAB," it said, "finds that the proposed revised definition of WOTUS ... decreases protection for our Nation's waters and does not provide a scientific basis in support of its consistency with the objective of restoring and maintaining 'the chemical, physical and biological integrity' of these waters."

In particular, it criticized how the rule treats hydrologic connectivity between wetlands and groundwater with traditionally navigable waters.

The rule "does not fully incorporate the body of science on connectivity of water reviewed previously by the SAB and found to represent a scientific justification for including functional connectivity in the rule making," the commentary said.

Moreover, it said, the rule "offers no comparable body of peer reviewed evidence, and no scientific justification for disregarding the connectivity of waters accepted by current hydrological science."

It also criticized the regulation for excluding irrigation canals, noting that E. coli found in leafy greens is often traced to animal contamination from feedlots or pastures near such waters.

And the board said there is no scientific basis for adopting a surface water-based definition for WOTUS.

"[T]he approach neither rests upon science," it said, "nor provides long term clarity."

Reprinted from Greenwire with permission from E&E News. Copyright 2020. E&E provides essential news for energy and environment professionals at www.eenews.net