The Merrimack Canal, part of the extensive canal system that runs through Lowell National Historical Park.
National Park Service photo.
Amicus brief argues new unlawful water regulation will negatively impact health of national parks and surrounding communities.
December 21, 2020 - Washington, D.C. – Last week, the National Parks Conservation Association (NPCA) filed a legal brief in the U.S. District Court for the District of Massachusetts, supporting several environmental groups challenging the Trump administration’s revised definition of Waters of the United States (2020 rule). The administration’s final rule eliminates protections for more than half of America’s wetlands, along with many rivers and streams that were once protected under the Clean Water Act (CWA) — threatening drinking water for millions of people and national park waterways across the country. NPCA is calling for the courts to vacate the final rule and reinstitute the prior CWA protections.
Through the amicus brief, NPCA argues that the Environmental Protection Agency and the U.S. Army Corps of Engineers (collectively, the agencies) violated the Administrative Procedure Act by failing to sufficiently analyze the 2020 rule’s impacts on the scope of protected CWA waters, and the serious and adverse environmental, ecological, and recreational consequences it will have on water sources, including those in and around our national parks. The brief also argues that the final rule unlawfully undermines the CWA’s primary goals to prevent, reduce, and eliminate pollution in the nation’s waters.
“The Trump administration’s illegal removal of Clean Water Act protections will be felt by communities and national parks across the country,” said Shaun Goho, Deputy Director and Senior Staff Attorney of the Harvard Law School’s Emmet Environmental Law and Policy Clinic. “The agencies’ failure to analyze the rule’s impacts or provide any scientific support for their actions is unacceptable and puts people and our parks at risk. We must continue fighting against this administration’s harmful rollbacks to clean water protections.”
NPCA is represented by Harvard Law School’s Emmett Environmental Law and Policy Clinic. To learn more about our years-long efforts to restore clean water protections, please visit here.
Statement from Chad Lord, Senior Director of Water Policy for the National Parks Conservation Association:
“The Trump administration’s reckless repeal and replacement of the 2015 Clean Water Rule erases decades of significant improvements made for the health of our nation’s waterways. We need more protections, not less when it comes to the water we drink and the health of our communities, our parks, and the wildlife that live there.
“The revised rule is in direct opposition to the very actions these agencies are responsible for implementing and enforcing, notably – protecting human health and the environment. The 2020 rule does neither. Instead, it paves the way for more pollution from mining, manufacturing, and other industries, sending it downstream into waterways in our parks and communities, jeopardizing the water we all depend on for drinking, fishing, swimming and paddling.
“Maintaining the health of wetlands, rivers, lakes, and streams outside park boundaries benefits and improves the health inside our parks. With a majority of our park waterways already considered impaired by Clean Water Act standards, we’re urging the court to reject this rule and look forward to working with the Biden administration to increase clean water protections for all.”
IMPACTS TO PARKS: A sampling of case studies from parks throughout the country by the Harvard Law School’s Emmett Environmental Law and Policy Clinic, estimates the detrimental impact the rule would have on already impaired park waterways, including:
• Lowell National Historic Park, Massachusetts – 80 percent of the park’s waterways are already considered impaired. Under the new regulations, 30–51% of the watershed’s streams that were protected prior to the 2020 Rule are now unprotected, as well as 25 percent of the wetlands in the Merrimack River.
• Boston Harbor Islands National Recreation Area, Massachusetts – roughly 76 percent of the park’s shoreline is impaired. Under the new regulations, nearly 60 percent of the wetlands within the broader park watershed will lose protections.
• Indiana Dunes National Park, Indiana – nearly 70 percent of the park’s waterbodies are impaired. Under the new regulations, an estimated 86 percent of the watershed’s wetlands will not be protected.
• Everglades National Park, Florida – nearly 100 percent of waters within the park are impaired due to activities upstream, outside the park boundaries. Under the new rule, more than 80 percent of the wetlands in the watershed will lose protections.
BACKGROUND: The Trump administration’s repeal and replacement of the 2015 Waters of the United States (WOTUS) removed protections for more than half of America’s wetlands and many rivers and streams, many which flow into or through America’s national parks. The 2015 rule was developed over a multi-year process that included bipartisan and scientific support. The goal was to end confusion about which of our nation’s streams, wetlands, lakes and rivers — the source of drinking water for millions of Americans — are protected under the Clean Water Act. Almost immediately after taking office, President Trump issued an executive order instructing the Environmental Protection Agency and Army Corps of Engineers to revisit and rewrite the Clean Water Rule. The Trump administration’s replacement rule was finalized in April 2020.
The National Park Service oversees 150,000 of miles of rivers and streams and another four million acres of lakes, oceans, and other waterways throughout the country – from trout streams in Yellowstone to wetlands in the Everglades. Of the 360 national parks that contain a body of water, about two-thirds of them have impaired waters. These waters are integral aspects of our park experiences from offering clean drinking water, to fishing, swimming and ensuring the health of wildlife habitat and the broader park ecosystem. The Outdoor Industry Association found that consumers spend $887 billion annually on outdoor recreation, with nearly $140 billion on kayaking, rafting, canoeing, scuba diving and other water and recreation activities, all of which takes place in our parks. And for more than 20 years, national park visitors have consistently ranked water quality or water access as a top-five most valued attribute when visiting national parks.
About the National Parks Conservation Association: Since 1919, the nonpartisan National Parks Conservation Association (NPCA) has been the leading voice in safeguarding our national parks. NPCA and its nearly 1.4 million members and supporters work together to protect and preserve our nation’s most iconic and inspirational places for future generations. For more information, visit www.npca.org.
The Emmett Environmental Law and Policy Clinic at Harvard Law School is directed by Professor Wendy B. Jacobs. It is dedicated to addressing major environmental issues in the United States and abroad and to providing its students an opportunity to do meaningful, real-life, and real-time environmental legal and policy work. Students and clinic staff work on ground-breaking environmental and energy issues such as defending the role of science in decision-making, enabling and supporting citizen enforcement of environmental laws, fighting for energy and environmental justice, and advising municipalities in their efforts to build resilience and fight climate change.