Protecting Small Streams and Wetlands Currently At-Risk

The Clean Water Act (CWA) was intended to protect all of our waters – from the smallest streams to the mightiest rivers. And for 30 years, that’s how the law was interpreted.

In recent years, however, Supreme Court decisions and subsequent agency guidance have jeopardized protections for over half of our streams that provide drinking water to 117 million Americans and removed protections for 20 million acres of wetlands.

Problem

Since a 2001 Supreme Court decision (the SWANCC case), protections under the Clean Water Act have been narrowed. Following an overbroad 2003 Environmental Protection Agency (EPA) policy interpreting this ruling, many waters are no longer considered covered under the scope of the Clean Water Act, leaving many small streams and wetlands in jeopardy and vulnerable to destruction and pollution. Because small streams make up approximately 80% of stream miles in a drainage network, protecting small streams and wetlands is critical for downstream clean water, flood protection, nutrient retention, and healthy wildlife habitat.

In 2006, the Supreme Court handed down a splintered decision in two cases (Rapanos v. United States and Carabell v. United States) that asked the Court to narrow the Clean Water Act’s coverage in an attempt to allow discharges of toxic chemicals, sewage, and other pollutants into a great majority of the nation’s streams and wetlands. The confusing outcome from the Court has led to much uncertainty about what waters are protected, potentially affecting millions of acres of wetlands and a majority of the nation’s stream miles.

Some federal courts are using the decision to justify stripping protections from small streams. The current and unnecessarily narrow guidance places a huge burden on EPA and the Army Corps of Engineers’ field staff who must evaluate permit applications, to repeatedly prove what we already know scientifically – that small streams and wetlands are integrally linked to the health of downstream waters – as a prerequisite for stream protection. This also ignores the Rapanos ruling that directed agencies to look at the cumulative impacts of destroying small streams on downstream water quality and flooding. Only two years after the Rapanos decision, it was revealed that the EPA’s enforcement of Clean Water Act cases has also declined dramatically [PDF] as a result of these Court cases. The current lack of clarity in where the Clean Water Act applies has also led to uncertainty for businesses requiring permitting, thereby delaying construction and other activities where Clean Water Act permits are needed. 

Solution Needed

To remedy these problems and protect clean water, the longstanding and broad scope of protection as originally intended by Congress should be restored.  Legislative attempts have failed in recent years, but short of legislation there are other opportunities to better protect our waters. The Obama Administration has proposed Guidance to clarify, under existing law, how the scope of the CWA is determined as a step towards enhancing protection for streams and wetlands. Over 200,000 comments have been received on the Guidance, the majority of which were supportive.

There is also robust support in the scientific community given the critical linkages between small streams and clean water.   Scientists have long researched the importance of small streams and documented their importance within landscape and aquatic ecosystems as well for downstream communities. The impact to drinking water for communities nationwide is critical as almost two-thirds of our drinking water comes from rivers. Los Angeles, for example, passed a resolution supporting the Guidance and a rulemaking due to the importance of small streams for clean and reliable water.

The Administration must act to finalize this Guidance and then move to a rulemaking to better define what waters are protected that would go even further towards restoring critical protections to the small streams and wetlands that are vital to the health of our nation’s rivers and the protection of our safe, clean drinking water supplies. Unfortunately, even the small steps needed to clarify the scope of the CWA through a guidance are being opposed by some in Congress.

Resources