{"id":5967,"date":"2022-02-08T20:31:24","date_gmt":"2022-02-08T20:31:24","guid":{"rendered":"https:\/\/clinics.law.harvard.edu\/environment\/?p=5967"},"modified":"2022-02-08T20:31:24","modified_gmt":"2022-02-08T20:31:24","slug":"emmett-clinic-submits-comments-on-biden-administrations-proposal-to-restore-clean-water-act-protections","status":"publish","type":"post","link":"https:\/\/clinics.law.harvard.edu\/environment\/2022\/02\/08\/emmett-clinic-submits-comments-on-biden-administrations-proposal-to-restore-clean-water-act-protections\/","title":{"rendered":"Emmett Clinic Submits Comments on Biden Administration\u2019s Proposal to Restore Clean Water Act Protections"},"content":{"rendered":"

February 8, 2022 \u2013 The Emmett Environmental Law & Policy Clinic submitted comments<\/a>\u00a0yesterday on the Biden Administration\u2019s proposal to revise the definition of \u201cthe waters of the United States\u201d under the Clean Water Act.\u00a0 That definition determines the scope of a wide range of the Act\u2019s programs to safeguard water quality.\u00a0 The Trump Administration had finalized a rule (the Navigable Waters Protection Rule or NWPR) which would have significantly reduced protections for many streams and wetlands.\u00a0 The new proposal would replace that rule with one that restores prior protections.<\/p>\n

The Clinic submitted the comments on behalf of the National Parks Conservation Association (\u201cNPCA\u201d).\u00a0 NPCA represents over 1.6 million supporters and members as \u201cthe voice of America\u2019s National Parks.\u201d\u00a0 It has been a leading independent, nonpartisan voice on natural resource issues since 1919.\u00a0 The rivers, streams, and lakes in many national parks across the country provide crucial habitat for fish and wildlife, offer recreational opportunities for visitors, and in many cases are central to the parks\u2019 unique character and value.\u00a0 The preservation of water quality and fish and wildlife habitat in national parks depends on the protection of upstream wetlands and ephemeral streams that would have lost protection under the NWPR.<\/p>\n

The Environmental Protection Agency and U.S. Army Corps of Engineers, which jointly implement the statute, have revised their interpretations of \u201cthe waters of the United States\u201d several times since the Clean Water Act\u2019s passage in 1972, shaped in large part by the Supreme Court and lower courts\u2019 rulings.\u00a0 By 1986, the agencies had settled on a basic framework that protected a broad range of tributaries, streams, and wetlands.\u00a0 Two decades later, the Supreme Court issued a fractured set of opinions on the issue in Rapanos v. United<\/em> States, 547 U.S. 715 (2006), creating regulatory uncertainty.\u00a0 To resolve that ambiguity, EPA and Army Corps during the Obama Administration issued the Clean Water Rule, which the Trump Administration then replaced with the far less protective NWPR.<\/p>\n

The Biden Administration\u2019s proposed rule would replace the NWPR and return to the structure of the 1986 regulations, updated to reflect Rapanos <\/em>and other Supreme Court decisions.\u00a0 In the comments, the Clinic generally supports the proposal while providing recommendations to improve it.\u00a0 Specifically, the comments support replacing the NWPR because, among other reasons, that rule threatened to harm national parks by removing protections for upstream waters, and was inconsistent with Supreme Court precedent, the purposes of the Clean Water Act, and the scientific record.<\/p>\n

The Clinic\u2019s comments also recommend that the agencies improve the proposal by:<\/p>\n