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Sign-on Letter to Support Wetlands and Streams

Hi – The US EPA has recently released a draft “Guidance” document that clarifies in a very helpful and important way the question of what aquatic resources are protected by the federal Clean Water Act (CWA). If this draft Guidance is adopted it will lead to the protection of many our wetlands and streams that are currently at risk of destruction because they are presently not considered federal “waters”.

Jennifer Clary (Clean Water Action) and I, Arthur Feinstein (Citizens Committee to Complete the Refuge and the Clean Water Network) have drafted a sign-on letter in support of the Guidance and we hope you will consider signing on to the letter for your organization or for yourself as an individual on or before Tuesday, June 28. As you might expect, developers and agribusiness are in high gear to defeat this proposal and we need a large showing of support to convince the US EPA and Army Corps to adopt this Guidance without weakening or abandoning it.

So first a short description of the current problem, then a description of the Guidance and then the support letter that we urge you to sign on to.

Federally protected waters are described by the term “Waters of the United States” in the CWA and that sounds very inclusive. But ever since the US Supreme Court issued its “SWANCC” and “Rapanos” decisions in 2001 and 2006, the Army Corps of Engineers and the US EPA have refused to protect huge numbers of our nation’s, and thus California’s, wetlands and streams. Any wetland that was not directly connected to a “navigable water” as well as most very small or intermittent streams were simply no longer considered Waters of the United States by these agencies and thus they received no protection under the Clean Water Act. As a result, most of our vernal pools and other seasonal wetlands were not considered jurisdictional (federally protected waters). Similarly intermittent streams and even perennial small streams were often abandoned by these agencies. As you may remember, even the Los Angeles River was declared to be non-jurisdictional (i.e., not a water protected under the CWA) until Heather Wylie rowed a canoe down the river and the US EPA reconsidered the issue.

As a result of these decisions by the US EPA and Army Corps of Engineers many thousands of acres of wetlands were lost as well as many hundreds, if not thousands, of miles of streams. And more will be destroyed every year!

NOW THERE IS HOPE!!

The US EPA and the Army Corps have released a “Draft Guidance on Identifying Waters Protected by the Clean Water Act” that will greatly improve the situation. Navigable waters are more broadly defined as

“…waters currently being used for commercial navigation, including commercial waterborne recreation (for example, boat rentals, guided fishing trips, or water ski tournaments); or • They have historically been used for commercial navigation, including commercial waterborne recreation; or • They are susceptible to being used in the future for commercial navigation, including commercial waterborne recreation.”

The Guidance further includes as jurisdictional waters,
“Non-navigable tributaries to traditional navigable waters that are relatively permanent, meaning they contain water at least seasonally…” As a result, most of our seasonal or intermittent streams would now be considered Waters of the United States.
In a similar fashion, the Guidance makes it easier to identify isolated or seasonal wetlands, including vernal pools, as jurisdictional Waters of the United States.
It is a huge step forward. Before you can save wetlands and streams you need an agency to protect them. This Guidance will help get the US EPA and the Army Corps of Engineers back into the business of protecting our nation’s waters.
Please sign on to the attached letter. Send your approval (organization and name of signer) to either Jennifer Clary (jclary@cleanwater.org) or myself (arthurfeinstein@earthlink.net) and we’ll coordinate the signatories. Thanks for your help.

If you have any questions please feel free to email me or call me (Arthur) at 415-680-0643.
yours, Jennifer and Arthur

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