The EPA should be applauded for its continued interest in natural resource protection through the Clean Water Act. However, the application of the New Rule is likely to result in ineffective and arbitrary application of regulatory policy, federal policies that cannot survive litigative challenges, and continued unacceptable hindrances to voluntary habitat restoration and enhancement efforts nationwide.
EPA staff are fond of blaming Rapanos for CWA's failings. However, let us recall that EPA was directed to clean all of the nation's waters - and not just federally jurisdictional waters - by 1984. Let us also recall that in 1989, President George HW Bush implemented a federal "no net loss" policy for federally jurisdictional wetlands, which was to be tabulated annually. Presidents Clinton, George W Bush, and Obama have reiterated the pledge. Yet, EPA has never achieved "no net loss," in the ensuing 25 years, and in fact, the agency lacks a credible strategy for achieving it. EPA refused to enforce CWA for the Chesapeake Bay's main stem - one of the world's largest remaining estuaries supporting a wild-caught fishery - until litigation in 2010 compelled the agency to follow its own existing regulations. Most practitioners now envision a clean Chesapeake Bay by roughly 2040 - a far cry from EPA's Congressional mandate to accomplish that goal in 1984.
Combining these unacceptable shortcomings in natural resource conservation with the ambiguous and unpredictable policies described above make the New Rule unworkable, and in fact, a hazard to the remaining protections afforded to significant habitats by the Clean Water Act. I urge the EPA to devise well thought out regulations that will survive litigation and help guide our nation toward a healthy balance between economic production and ecosystem conservation.