Wetland Wednesday

January 8, 2020

The USEPA has established a new Science Advisory Board (SAB) to consider a scientific rational for establishing jurisdiction over Waters of the US (WOTUS). The stated goal of this effort is to establish a scientific basis for making a waterway jurisdictional. This was done in the past to justify the Obama era Clean Water Rule and is now being used for the proposed WOTUS replacement rule.

In the past several years the SAB has met less frequently and its member makeup has changed dramatically. Historically, the SAB had mainly consisted of academics. Today, according to the Union of Concerned Scientists, the number of industry experts on it has tripled and the number of academics has been cut nearly in half.

However, despite or perhaps because of the political nature of the recent WOTUS rules and challenges there is some honestly about the EPA’s position. In a recent email obtained by the Washington Post, EPA spokeswoman Corry Schiermeyer said several of the proposed changes, such as the water pollution rule, reflect limits imposed by the Supreme Court as well as Congress. She said, “As a result, the definition of ‘waters of the United States’ may be informed by science, but science cannot dictate where to draw the line between federal and state or tribal waters.”

Despite this statement, the EPA SAB concludes, “The proposed definition of WOTUS is not fully consistent with established EPA recognized science, may not fully meet the key objectives of the CWA – “to restore and maintain the chemical, physical and biological integrity of the Nation’s waters,” and is subject to a lack of clarity for implementation.”