Protecting the Roots of Rivers


Fall Creek Monroe Co. Pocono Plateau, PA | © Nicholas A. Tonelli

Despite nearly thirty years of comprehensive protection under the Clean Water Act, two Supreme Court decisions in 2001 and 2006 put protections for small streams and wetlands into question | © Nicholas A. Tonelli

Trees draw in water, nutrients, and oxygen from thousands of tiny roots in the soil. Damage to even the smallest of these structures can affect the health of the tree itself. A river system works in much the same way. Rivers don’t start in just one place, but rather arise from a network of small streams and wetlands that gradually join together as they flow downstream.

Small headwater streams and wetlands [PDF] provide the greatest connections between land and water, trapping and storing nutrients, providing critical habitat, storing floodwaters, and filtering out pollutants. Scientific studies repeatedly demonstrate that the health of downstream lakes, rivers, and estuaries are tied to the health of small streams and wetlands upstream.

Aren’t small streams and wetlands already protected under the Clean Water Act?

The science is clear that what’s upstream affects downstream waters. Unfortunately, the current state of the policy is less so. Despite nearly thirty years of comprehensive protection under the Clean Water Act, two Supreme Court decisions in 2001 and 2006 put protections for small streams and wetlands into question.

In Solid Waste Agency of Northern Cook County (SWANCC) v. Army Corps of Engineers, the Supreme Court in a 5-4 opinion ruled that the use of seasonal interstate ponds, or so-called “isolated” ponds, by migratory birds was not enough to protect those waters under the Clean Water Act. Five years later, the Supreme Court in Rapanos v. United States was unable to reach a majority opinion on the question of whether wetlands that were near to tributaries of traditionally navigable waters were protected under the Clean Water Act. Four justices in the plurality opinion would protect only “relatively permanent waters,” excluding waters that flow seasonally or after rainfall, that are connected to traditionally navigable waters and only protect wetlands with a “continuous surface connection” to other protected waters. Justice Kennedy’s concurring opinion held that some wetlands would require demonstration of a “significant nexus” to traditionally navigable waters through a case-by case basis to be protected under the Clean Water Act.

In effect, these two cases created significant uncertainty about what types of waters were actually protected under the law. Agency guidance documents designed to help field staff apply these rulings made it substantially more difficult to include certain types of waters under the Clean Water Act. Guidance released in 2003 following the SWANCC decision effectively removed protections for non-navigable, intrastate, and so-called “isolated” waters such as vernal pools and playa lakes. Guidance [PDF] following the Rapanos decision added to this uncertainty which effectively removed protections for streams that flow seasonally or after rain, requires resource-intensive case-by-case analyses, and essentially stripped tributaries of categorical protection.

The end result? Significant confusion, delayed implementation, and declining enforcement [PDF] of the Clean Water Act. In other words, the uncertainty surrounding the scope of the Act leaves small streams and wetlands vulnerable to pollution. For example, when crude oil was discharged into the seasonally flowing Edwards Creek near Talco, TX, the EPA did not pursue enforcement of this spill because it was too complicated to prove that the creek was covered under the Clean Water Act. More than half of the County’s residents get their drinking water supplies from these types of seasonally flowing creeks.

What is the proposed “waters of the United States” rule?

The recently proposed “waters of the United States” rule is an effort to clarify the uncertainty surrounding the types of waters that are protected under the Clean Water Act following these decisions and the resulting guidance from the Environmental Protection Agency and the Army Corps of Engineers. Requests to the EPA for a rulemaking process on this issue came from a wide variety of stakeholders [PDF], ranging from local watershed organizations to agriculture and industry groups.

The proposed rule is based on sound science, drawing from the Scientific Advisory Board’s Connectivity Study [PDF] which compiles more than 1,000 peer-reviewed scientific publications. The proposed rule will be available for public comment and review.

What will it do?

Attempts to clarify the existing definitions of “waters of the United States” – The proposed rule is an effort to more clearly define what types of waters are covered under the Clean Water Act.

  • Traditionally navigable waters, interstate waters, the territorial seas, and impoundments of “waters of the United States” remain protected - The proposed rule makes no substantive changes to the existing provisions for traditional navigable waters (TNWs), interstate waters, the territorial seas, or impoundments of “waters of the United States.” These remain categorically protected under the law.
  • Tributaries to these covered waters as well as waters that are along the banks of, or in the floodplain of, covered waters (including tributaries) are categorically protected. Essentially, the agencies concluded that the scientific evidence supports the inclusion of tributaries within a stream network that drain to other protected waters based on their impact to the biological, physical, and chemical integrity of downstream waters. The scientific evidence also supports categorical protections for “adjacent” waters that lie near or in the floodplain of other protected waters. Categorical protections for tributaries and adjacent waters would eliminate the need for a case-by-case analysis and effectively restores protections for tributaries, including those that may flow seasonally or only after rain.
  • Waters that lie outside of the floodplain, also known as “other waters,” require a case-by-case analysis. The proposed rule does not fully protect “other waters,” such as prairie potholes, playa lakes, and vernal pools. These waters may be protected under the Clean Water Act if it can be demonstrated that they collectively have a more than speculative effect on the biological, physical, and chemical integrity of downstream waters. In other words, the agencies need to determine that there is a significant connection between those “other waters” and downstream protected waters.

Re-affirms and Codifies Existing Exemptions

Additionally, the proposed rule makes clear that previous exemptions in the regulations for waste treatment systems, including treatment ponds and lagoons, as well as prior converted cropland remain. It also codifies exemptions that were already practiced in policy but not specifically formalized in regulations for certain types of ditches and features such as artificial ponds and swimming pools. Exemptions for mining, forestry, ranching, and other specific activities remain. The agencies also clarify permitting exemptions for specific agricultural conservation practices.

What Can You Do?

Whether or not a river, stream, or wetland is a “water of the United States” determines if Clean Water Act protections apply to that water body. It determines whether or not a polluter must get a permit that puts limits on how much pollution can be dumped into that water. For instance, a developer that wants to fill in a wetland to build new properties would need to get a permit if the wetland was a “water of the United States” and therefore protected under the Clean Water Act.

Right now, you can make your voice heard and tell EPA to finalize a strong rule that protects clean water for the health of our rivers and the communities that depend upon them.