EPA Scientists Were Suppressed from Commenting on Stream and Wetland Protections

Published Mar 6, 2020

What happened: The Environmental Protection Agency’s (EPA) political appointees suppressed the ability of EPA staff to provide scientific input during the public comment process on a proposed rule. The proposed rule (now finalized), called the Waters of the United States (WOTUS), attempted to redefine the types of waterways that will be protected under federal law such that wetlands and certain streams (streams that do not flow year-round) could be subjected to more threats like pollution.

Why it matters: EPA scientists were ordered by EPA officials to not comment or to exclude scientific information when replying to a public comment on the WOTUS rule. Public comments enter the administrative record – by blocking EPA staff and scientists from providing scientific evidence during the public comment process, the agency explicitly hindered the ability to use science to inform the rulemaking process. This is damaging to the science-based rulemaking process that is fundamental to how we safeguard US waterways.

According to a complaint filed by the nonprofit advocacy group Public Employees for Environmental Responsibility in January 2020, the top officials at the Environmental Protection Agency (EPA) directed expert staff to refrain from submitting public comments that contained scientific evidence on the Waters of the United States (WOTUS) rule. Specifically, the complaint says that EPA employees were “explicitly cautioned” to not provide any formal comments that would become part of the docket. Additionally, when responding to public comments, EPA employees were required to only do so from a “policy or legal stance, not a scientific one.” These actions, according to the complaint, amount to forbidding scientists from publicly expressing their scientific concerns, and that it suppressed scientific evidence and stifled experts’ opinions during the WOTUS rulemaking process. The complaint names EPA administrator Andrew Wheeler and a half-dozen top officials in the EPA’s Offices of Water and General Counsel as responsible for these actions.

The complaint was co-signed by 44 former and current federal scientists and lawyers, consisting mostly of EPA employees, but also of Army Corps of Engineers and Fish and Wildlife Service employees. Taken together, the federal employees contained “hundreds of years of experience in aquatic and wetland science and law” and they called on the EPA inspector general and scientific integrity officer to launch investigations into the issue. The EPA’s inspector general, an internal “watchdog” for the agency, stated that they had received the complaint and that it will be reviewed by its leadership team. All signatories of the complaint attested to the fact that science was sidelined during the WOTUS rulemaking process and that the rule will have “potentially long-term negative effects on human health and the environment.”

The WOTUS rule, finalized by the EPA in January 2020, consists of dramatically shrinking what bodies of waters and waterways are protected by the federal government. In what is considered the largest rollback of the Clean Water Act since the law was passed in 1972, the WOTUS rule will cause millions of miles of streams and roughly half the country’s wetlands to lose federal protections from agricultural, industrial, and other pollution sources. A draft commentary by the EPA’s Scientific Advisory Board said that the WOTUS rule “neglects established science” showing that the contamination of groundwater, wetlands, and waterways can spread to drinking water supplies.

We previously classified another portion of the WOTUS rulemaking process as an attack on science. The EPA had falsely claimed that quantifying the impact of the rollback was not possible, despite the fact that an earlier federal analysis (which had calculated the percentage of different types of streams and wetlands across the country) could be used to estimate the amount of waterways that will lose federal protections under the WOTUS rule.

Public comments are an important component of the policymaking process, as it allows the public to weigh in on proposed rules and these comments are often used as evidence in court when judges are deliberating whether agency rules or rollbacks are necessary or appropriate. But by forbidding EPA staff, including scientists, from carrying out two public comment activities – officially commenting and including scientific evidence in a comment reply – EPA officials have undermined an important avenue for bringing needed scientific evidence into the WOTUS rulemaking process. When rules like WOTUS are no longer informed by the best available science, the scientific processes that protect public health and the environment can be undermined in favor of political or corporate interests, which could have devasting impacts on the health and safety of people and the flora and fauna across the nation.