Connections among streams, wetlands, rivers and lakes are at the heart of a new rule proposed today to clarify the intent of the federal Clean Water Act and to spell out the authority of federal agencies.
Specifically, the rule proposed jointly by the U.S Environmental Protection Agency and Army Corps of Engineers calls for protecting most natural water features under the Clean Water Act. The rule embodies the notion that small tributaries and wetlands are likely connected to larger tributaries, rivers, wetlands and natural channels, even though they may not always appear connected.
The proposed rule is designed to reconcile scientific understanding of hydraulic connections with two U.S. Supreme Court rulings, which hold that federal jurisdiction applies only to permanent water features and their connecting waters. In the 2006 decision “Raponos v. United States” (PDF 535 kb), the court was highly critical of the Army Corps of Engineers for its effort to squeeze a wide variety of waterways under the definition of “waters of the United States”:
“In applying the definition to ‘ephemeral streams,’ ‘wet meadows,’ storm sewers and culverts, ‘directional sheet flow during storm events,’ drain tiles, man-made drainage ditches, and dry arroyos in the middle of the desert, the Corps has stretched the term ‘waters of the United States’ beyond parody. The plain language of the statute simply does not authorize this ‘land is waters’ approach to federal jurisdiction….
“In sum, on its only plausible interpretation, the phrase ‘the waters of the United States’ includes only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams, oceans, rivers [and] lakes.’ See ‘Webster’s Second.’ The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.”
The Supreme Court ruling has caused confusion, especially in situations where hydraulic connections were not obvious and could be questioned by property owners who wished to avoid federal regulators.
A scientific report was requisitioned by the EPA to fill the gap created by the court. Some findings from the report “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence” (PDF 11.3 mb):
“All tributary streams, including perennial, intermittent, and ephemeral streams, are physically, chemically, and biologically connected to downstream rivers via channels and associated alluvial deposits where water and other materials are concentrated, mixed, transformed, and transported…
“Wetlands and open-waters in landscape settings that have bidirectional hydrologic exchanges with streams or rivers … are physically, chemically, and biologically connected with rivers via the export of channel-forming sediment and woody debris, temporary storage of local groundwater that supports base flow in rivers, and transport of stored organic matter.”
In the Puget Sound region, the connections among waterways are fairly obvious. In more arid states, however, the connections may occur only during rainy periods, if then.
In a press release, EPA Administrator Gina McCarthy said the proposed rule fits the Supreme Court’s narrower reading of the Clean Water Act while maintaining the historical coverage of the federal agencies:
“We are clarifying protection for the upstream waters that are absolutely vital to downstream communities. Clean water is essential to every single American, from families who rely on safe places to swim and healthy fish to eat, to farmers who need abundant and reliable sources of water to grow their crops, to hunters and fishermen who depend on healthy waters for recreation and their work, and to businesses that need a steady supply of water for operations.”
Jo-Ellen Darcy, assistant secretary of the Army for civil works, added:
“Today’s rulemaking will better protect our aquatic resources, by strengthening the consistency, predictability, and transparency of our jurisdictional determinations. The rule’s clarifications will result in a better public service nationwide.”
Specifically, the proposed rule clarifies that under the Clean Water Act:
- Most seasonal and rain dependent streams are protected.
- Wetlands near rivers and streams are protected.
- Other types of waters with more uncertain connections to downstream water will be evaluated through a case specific analysis of whether the connection is or is not protecting similarly situated waters.
- Agricultural exclusions are retained, and agencies have identified 53 conservation practices that will be considered exempt from Corps permits.
EPA’s webpage: Waters of the United States
Environmental groups were thrilled that the Obama administration stepped up to protect waterways where state laws are not as strong.
Stated Trip Van Noppen, president of Earthjustice:
“The EPA’s new Clean Water Act rule finally restores protections so that we can begin the hard work of cleaning up our waters for our children to swim in, fish in, and drink from.
“No doubt, polluters will rail and lobby against this rule and any other clean water safeguards that keep them from dumping their toxic waste in our communities and waters, or that hold them accountable for their pollution.”
“We cannot back down on protecting the waters that eventually flow through our faucets. Our children, our health, and our very drinking water are at stake. We urge the Obama administration to resist the polluter lobbies and quickly move forward in protecting our waterways and our families.”
Not everyone was thrilled with the new rule. Colorado Gov. John Hickenlooper and Nevada Gov. Brian Sandoval of the Western Governors Association wrote a letter to McCarthy and Darcy complaining that state officials have been left out of the conversation, despite state authority to regulate water use.
In a March 10 letter, Phillip Ward of the Western States Water Council urged agency officials to delay publication of the proposed rule until EPA’s connectivity report undergoes peer review:
“EPA has indicated that its draft connectivity report will serve to inform the final rule on CWA jurisdiction. However, the draft rule’s submission to the Office of Management and Budget (OMB) before the finalization of the connectivity report raises concerns that the final report will have little or no influence on the final rule….
“Additionally, many western states have submitted individual comments for the EPA’s Science Advisory Board (SAB) to consider in its review of the draft connectivity report. EPA should carefully evaluate the SAB’s consideration of these comments and any subsequent recommendations from the final report.”
Kevin Kelly, president of the National Association of Homebuilders said the promise of clarification has brought a greater regulatory burden:
“EPA was told to make changes to the rule so that everyone understands exactly when a builder needs a federal wetlands permit before turning the first shovel of dirt. Instead, EPA has added just about everything into its jurisdiction by expanding the definition of a ‘tributary’ — even ditches and manmade canals, or any other feature that a regulator determines to have a bed, bank and high-water mark.”
Comments from others in favor of the proposed