Clean Water Act

In the Sackett v EPA ruling, the Supreme Court narrowed the scope of the Clean Water Act by ruling that the CWA only applies to wetlands that are “indistinguishable from Waters of the United States.” This excludes millions of acres of wetlands from CWA oversight and places our communities, public health, and local ecosystems in danger – particularly as climate disasters intensify.

This is unconscionable and sets the US back decades in protecting OUR water.

Fortunately, Connecticut has strong protections for our wetlands and watercourses. But we can still lose wetlands through federal projects that fall under Army Corps jurisdiction.

Congress must act fast to right this wrong! We’ll let you know what you can do to help.

The National Environmental Policy Act (NEPA) was signed into law in 1970 with the purpose of establishing national policies for the environment and was the first major environmental law in the United States. In order to implement these policies, NEPA requires agencies to assess the environmental effects of their proposed actions prior to making decisions. The NEPA also established the Council on Environmental Quality (CEQ) within the Executive Office of the President to oversee NEPA implementation. This is primarily done through issuance and interpretation of NEPA regulations that implement the procedural requirements of NEPA. It also reviews and approves the NEPA procedures of other Federal Agencies. In August 2017 President Trump issued Executive Order 13807 which directed the CEQ to review its existing NEPA regulations and to “modernize and accelerate the Federal Environmental review and decision-making process.”

On July 15th 2020, the federal Council on Environmental Quality (CEQ) issued its final rule to update its regulations for Federal agencies to implement NEPA. The CEQ claims that the final rule, “facilitate[s] more efficient, effective, and timely NEPA reviews by Federal agencies in connection with proposals for agency action.” A number of problematic revisions were present in the proposed rule change released on January 10th, 2020 and were addressed by Rivers Alliance and others in the comment period that ended on March 10th, 2020. Unfortunately, many of those changes have persisted in the final rule update. Among the most harmful are:

Removal of Cumulative Impacts: The rule change removes “cumulative” and “indirect” from the definition of “effects.” In 1997, the CEQ itself acknowledged that there is increasing evidence that, “the most devastating environmental effects may result… from the combination of individually minor effect or multiple actions over time.” An agency should not look at a proposed action in isolation.

Ambiguity on What Actions Require Review: The addition of the world “may” in the definition of “Major Federal Action” leaves too much room for administrative discretion on what actions need a NEPA review.

Removal of Conflict-of-Interest Protection: The rule change allows applicants to prepare environmental analysis themselves and eliminates previous conflict-of-interest requirements.

Page Limits: the rule change places a page limit on Environmental Impact Statements, a limit Connecticut’s Council on Environmental Quality (CT CEQ) calls arbitrary and unrealistic. CT CEQ points out that a fixed page limit could result in analysis that is, “inadequate in its scope,” and imperfect projects could be approved that could otherwise have been better designed. While the page limit allows for an extension by an agency administrator, CT CEQ argues that the granting of such an extension is unrealistic.

Time Limits: The rule change calls for environmental assessments to be completed within 1 year, and environmental impact statements within 2 years, time limits that CT CEQ calls “arbitrary and unworkable.” Such time limits in many cases would prevent proper assessments, as an area may need to be evaluated over the course of many seasons.

Action Authorized Before Completion of NEPA Process: The rule change authorizes, “such activities, including, but not limited to, acquisition of interests in land” while the NEPA process is still ongoing. This is in direct conflict with the NEPA prohibition on “irreversible and irretrievable commitment of resources” prior to the completion of environmental review and public participation.

“Reasonable Alternatives”: The rule change has weakened the language around “reasonable alternatives,” removing the direction “to rigorously explore and objectively evaluate,” and the word “all.”

On July 29th 2020, a group of 17 environmental groups, largely based in North Carolina, South Carolina, and Virginia, filed a lawsuit against the CEQ and its Chair Mary Neumayr. Among other complaints, the lawsuit alleges that the government “cut corners” in enacting the regulation changes and that the CEQ removed the central provisions of NEPA.

For more information visit the Southern Environmental Law Center’s Website: Lawsuit: Government illegally “cut corners” to ram through NEPA changes.

Ultimately, these modifications, described by the CEQ as a “modernization”, significantly weaken the NEPA and as such should be of serious concern to all of us who care about the future health of our environment and natural resources.

The federal Council on Environmental Quality (CEQ) is proposing to update its regulations for implementing the procedural provisions of the National Environmental Policy Act (NEPA). According to the federal CEQ, “This proposed rule would modernize and clarify the regulations to facilitate more efficient, effective, and timely NEPA reviews by Federal agencies in connection with proposals for agency action.”

However, our own Connecticut Council on Environmental Quality says:
” … the Draft Regulations are contrary to the original intent of NEPA and would result in measurable deterioration of Connecticut’s environment. If implemented, many of the proposed changes that are presented as efficiencies would, in fact, result in unnecessary delays and expense” (Mar 4, 2020 Comments on the Proposed Changes to NEPA)

We urge you to read Rivers Alliance’s comments, as well as the CT CEQ’s comments, then go to https://www.regulations.gov/docket?D=CEQ-2019-0003 to investigate this issue further. When you are ready, click the “Comment Now!” button on that webpage.

Here are the federal CEQ’s instructions:
You may submit comments, identified by docket number CEQ-2019-0003, by any of the following methods:

• Federal eRulemaking Portal: https://www.regulations.gov. Follow the instructions for submitting comments.
• Fax: 202-456-6546.
• Mail: Council on Environmental Quality, 730 Jackson Place NW, Washington, DC 20503.

Instructions: All submissions received must include the agency name and docket number for this rulemaking. All comments received will be posted without change to https://www.regulations.gov, including any personal information provided. Do not submit electronically any information you consider to be private, Confidential Business Information (CBI), or other information whose disclosure is restricted by statute.

Docket: For access to the docket to read background documents or comments received, go to https://www.regulations.gov.

The comment instruction webpage for this rule change is at: https://www.regulations.gov/document?D=EPA-HQ-OW-2017-0203-0001. When you are ready to tell EPA and the Corps of Engineers to keep and enact the 2015 Rule, click the Comment Now button on that page. Be sure to identify yourself in the text box with your comment or you will be listed as anonymous. Please send a copy of your comments to our congressional delegation too.

In 2015, Rivers Alliance joined with many groups, individuals and government bodies across the state and nation and across party lines to support the creation of this Rule. The implementation of the Rule was blocked by a lawsuit by a few states dominated by powerful special-interest groups. Now, the new EPA administration under President Trump is trying to abandon the adoption of this Rule and regress permanently to regulations with weaker protection of our precious water resources.

River Network has a Clean Water Rule toolkit with talking points, social media and more.