The Honorable Thomas R. Carper, Chair
The Honorable Shelley Moore Capito, Ranking Member
United States Senate Committee on Environment and Public Works
Re: Letter for the Record, EPW Oct. 18, 2023 Hearing: “Examining the Implications of Sackett v. Environmental Protection Agency for Clean Water Act Protections of Wetlands and Streams.”
Dear Chairman Carper and Ranking Member Moore Capito:
The under-signed hunting and fishing organizations and their members write to highlight the risk to America’s hunting and fishing heritage resulting from the Supreme Court’s ruling, Sackett v. EPA,
143 S. Ct. 1322 (2023), and the recent conforming rule issued by the US Environmental Protection Agency (EPA) and Army Corps of Engineers (Corps) (collectively, the Agencies). 88 Fed. Reg. 61964 (Sept. 8, 2023). We appreciate the opportunity to voice our concern with you and the Members of your Committee at this hearing coinciding with the 51st year of the Clean Water Act.
Wetlands and Tributary Streams Vital to Hunting and Fishing. The health of our nation’s watersheds is the barometer of our wildlife and fish populations. Aquatic habitat and connectivity in the vital network of small, tributary streams and in their downstream rivers not only provide fish habitat, but also provide key migration corridors for elk, deer, bears, and many other wildlife species. The vast category of “non-adjacent” wetlands—no longer under the jurisdiction of the Clean Water Act after the Agencies’ conforming rule—provides essential migratory bird and duck habitat, such as the deservedly famous prairie pothole region. Wetlands provide breeding grounds for over half of North American Waterfowl. Comment on Rule by Susan Colvin, Asst Prof, Sustainable Fisheries, & Randall Colvin, Instructor, Unity College School of Biodiversity Conservation (2019).
Aquatic Resources at Risk. These aquatic resources, vital to the “ . . . physical, chemical, and biological integrity of the Nation’s waters,” Section 101(a) of the Clean Water Act, 33 U.S.C. 1251(a), are now at risk. No longer is a 404 Permit required prior to their destruction or harm if non-adjacent wetlands are located where a new development, road, bridge, pipeline, or transmission line is proposed. This means that a 404 Permit’s requirement to avoid, minimize, or mitigate harm no longer applies to non-adjacent wetlands. EPA estimates that between 51-63% of wetlands are at risk of loss under its conforming rule. (King, Pamela, “Supreme Court sides with Sacketts to narrow Clean Water Act, Greenwise, E&E News (May 25, 2023). In addition to the loss of wetlands, the conforming rule’s limitation to “relatively permanent, standing, or continuously flowing” tributary streams as coming under Clean Water Act jurisdiction, 33 C.F.R. 328.3(a)(3), means that ephemeral streams are at risk.
The below map (Fig. d) displays the percent of the nation’s total stream network estimated to consist of ephemeral streams, based on the analysis in Fesenmyer, K. A., Wenger, S. J., Leigh, D. S., & Neville, H. M.
(2021), Large portion of USA streams lose protection with new interpretation of Clean Water Act, Freshwater Science, 40(1), 252-258:
This map displays the regional variations in the prevalence of ephemeral streams, with the arid southwest having the greatest proportion of ephemeral streams. This analysis calculated that 57% of the nation’s total stream miles are ephemeral.
Outdoor Recreation is a Sustainable Economic Driver. Clean water is a lynchpin of an outdoor recreation economy that creates 4.3 million jobs and generates $689 billion in consumer spending annually. What’s more, the entire outdoor recreation industry is built on sustaining and protecting aquatic resources, as opposed to industries that encroach on or pollute these vital, national resources. A national bipartisan poll shows that 92% of hunters and anglers support clean water protections.
Conclusion. Over the past 50 years, the Clean Water Act has been the driving force to protect water quality and enhance the condition of rivers, lakes, wetlands, and other water bodies of the United States. The next 50 years present even greater challenges, from newly-discovered toxins in drinking water to extreme weather events super-charged by climate change. High-functioning watersheds are the best bulwark of protection from these threats.
We call on Congress to take action to protect and restore our nations’ waters, specifically the approximately half of our nations’ wetlands and stream miles at risk of loss in the wake of Sackett. The future of hunting and fishing opportunities for our children, and our children’s children, depend on it.
Sincerely,
Dr. Douglas J. Austen, Executive Director, American Fisheries Society
Kathleen Bergeron, Chair, Conservation Committee, Fly Fishers International
Jared Mott, Conservation Director, Izaak Walton League of America
Alex Funk, Director of Water Resources & Senior Counsel, Theodore Roosevelt Conservation Partnership
Kate Miller, Director of Government Affairs, Trout Unlimited
Jessica Helsley, Director of Government Affairs, Wild Salmon Center
Read more about Sackett v. EPA.
Founded in 1922, the Izaak Walton League fights for clean air and water, healthy fish and wildlife habitat and conservation of our natural resources for future generations. The League plays a unique role in supporting community-based science and local conservation and has a long legacy of shaping sound national policy. See www.iwla.org.
Contacts Izaak Walton League of America
Michael Reinemer, Communications Director, mreinemer@iwla.org; 301-548-0150 ext. 220
Jared Mott, Conservation Director, jmott@iwla.org; 301-548-0150, ext. 224