Policy Update Apr 25, 2017

Position on the WOTUS Rule

NPCA submitted the following position to the Senate Committee on Environment and Public Works ahead of a hearing entitled “A Review of the Technical, Scientific, and Legal Basis of the WOTUS Rule."

NPCA believes that the final Clean Water Rule is the important next step to better protect and restore our nation’s park waters. We understand that the agencies have undertaken the authority granted to them by Congress under the Clean Water Act to legally clarify the statute’s jurisdiction. NPCA strongly supported this rulemaking, which we requested, and supports the final rule.

NPCA is committed to the protection of our national parks and the waters that surround and flow through them. From Acadia to the Grand Canyon, Everglades to Glacier, water is central to the health of our national parks’ natural systems, features, wildlife, recreation, aesthetics, and visitor experience. National parks are inseparable from their watersheds, and waterways transcend park boundaries – boundaries that usually include only a portion of watershed lands that are critical to park waters.

Because of this, the most serious threats to park waters mostly arise from activities on lands that lie upstream and outside of park boundaries. These threats include pollution from landfills, toxic dumps, mining practices, inadequate septic and wastewater disposal systems, and contaminated runoff from agriculture and urban development. Because EPA and the Army Corps have primary responsibility for implementing and enforcing the CWA, the National Park Service and park visitors rely on these agencies to help prevent impairment of park waters from activities that take place beyond park boundaries. It is imperative that the CWA protect all waters that feed into national park units and wetlands as they provide flood protection, safe drinking water, and wildlife habitat, among other things, that directly affect park ecosystems and the health of park visitors.

Until the final rule many of the wetlands, streams, lakes, and headwaters, which are critical to the protection of park waters, were threatened because of the regulatory confusion and legal uncertainty created by both the Supreme Court and agency guidance. This confluence of legal and policy decisions had potentially removed protection for at least 20 million acres of wetlands, including prairie potholes and seasonal wetlands, and jeopardized tens of thousands of miles of intermittent and headwater streams that comprise 60 percent of stream miles in the United States. According to the U.S. Environmental Protection Agency, over 117 million Americans depend on drinking water from public water systems that are fed in whole or in part by intermittent, headwater or ephemeral streams that were left unprotected due to the uncertainty about which waters are jurisdictional under our nation’s laws.

The uncertainty of which waters are protected under the CWA as “waters of the United States” left vulnerable waters that provide numerous services to national park units. For example, a 2009 National Park Service report found that northern prairie wetlands, which provide essential habitat for many wildlife populations, were at risk of being lost due to changes in land use and climate. Previous CWA guidance exacerbated this threat leaving this region more vulnerable to wildfires, wildlife habitat loss, and vegetation shifts in grassland communities. With 31 park units located in this region of the country, the impact on the natural and cultural resources is significant.

The national park units located in southern regions have also been altered and affected by water quality problems, which threaten the viability of protected areas and jeopardize the economic benefits that these natural systems provide. In South Florida, urban development and nutrient and pesticide pollution currently impact waters that flow into Everglades National Park. According to EPA data, 30 percent of streams in Florida were at risk of losing protection under the CWA because they are headwater streams. Seasonal wetlands, which provide flood protection and critical wildlife habitat, were also at risk of being lost to development and land use changes under the former interpretation of the CWA. Without adequate protection of waterways upstream, polluted water will further degrade the water quality of Lake Okeechobee, subsequently flowing downstream and polluting Everglades and Biscayne National Parks and Big Cypress National Preserve. This would be directly adverse to the goals of the Comprehensive Everglades Restoration Plan (CERP), the Aquatic Ecosystem Restoration Program and the Presidential “no net loss” policy pertaining to Florida’s wetlands.

Aquatic habitats that are signature features of the national parks in the Midwest are also better protected under the rule. Indiana Dunes National Lakeshore contains many streams and wetlands, including dunal ponds, marshes, lagoons, seasonally-flooded pannes, and bogs. These sensitive aquatic habitats are readily impacted by activities occurring on waterways outside park boundaries. Without CWA protections, these adjacent and directly connected water bodies are subject to degradation that will negatively impact park resources. According to a 2006 NPCA technical report, Indiana Dunes’ water resources – including Lake Michigan, the source of drinking water for 10 million people – has been severely impacted by outside factors including contamination from urban and agricultural runoff, industrial pollution, and sewage systems. Maintaining the resource conditions and quality of the waters within the park is dependent on protecting outside waters that transcend park boundaries.

NPS studies show that nonpoint source pollution and sedimentation are responsible for more than 70 percent of the known threats to park water quality and wetland loss. At Big Hole National Battlefield in southwestern Montana, the North Fork of the Big Hole River flows through the park and is impaired from flow alterations and nonpoint source pollution from upstream creeks and tributaries. At Colonial National Historical Park, upstream rural and urban land disturbances on watersheds are polluting creeks and streams. Ultimately, these waterways flow into the James River and subsequently in the Chesapeake Bay. As a result, the marshes and wetlands of Colonial National Historical Park are being harmed by increased streambank soil erosion and sediment deposition. At Acadia National Park and St. Croix National Scenic Riverway, nutrient runoff from expanded residential development on watershed lands adjacent to these parks are polluting park waters. Similarly, the unique mineralized and freshwater springs of Chickasaw National Recreation Area, which lures in visitors as the park’s main attraction, are being degraded from leaky sewer pipes from municipalities.

Now, the U.S. EPA and the U.S. Army Corps of Engineers have finished a rule that should restore former protections to America’s waters. NPCA believes that the rule provides clearer and more predictable guidelines and a science-based and legal framework for determining which waters are protected by the CWA. In particular, the rule clarifies how smaller and seasonal streams and wetlands – waters that are particularly important to the visitors and wildlife in national parks – are connected physically, chemically, and biologically to larger water bodies downstream and will now be covered under federal law similar to coverage prior to 2001. The rule also provides clear and predictable protections for many streams, wetlands, and other waters while giving greater certainty to the regulated community by providing better guidance to federal and state regulators, which helps streamline the permitting process. It covers only water bodies that the Clean Water Act has traditionally covered. It also relies on the best scientific understanding of stream and wetland science to clarify the scope of the Clean Water Act, and enhance protection for streams, wetlands, and other waters nationwide.

The rule also sets clear lines for what is not covered. For example, it does not cover any new types of waters that haven’t been historically covered under the Clean Water Act, like groundwater. The rule does not add any new requirement for agriculture or regulate most ditches. It does not cover any artificial lakes, ponds, and artificial ornamental waters or water-filled depressions incidental to construction activity.

In conclusion, NPCA supports this rule. The National Park Service cannot protect national park waters alone. They need the help from the Clean Water Act to ensure all the rivers, streams, and wetlands within and surrounding parks can provide clean drinking water for visitors, habitat for wildlife, and safe opportunities for fishing, paddling and swimming. The rule’s clarifications will provide just that support.