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.

The 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. In the spring of 2014, the Obama Administration released a proposed rulemaking 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 is currently available for public comment and review until October 2014.

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.
  • Reaffirms and codifies 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.

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.

There are over 600,000 supportive comments already in the docket prior to the close of the comment period in October 2014. Additionally, there is 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.

The Administration must act to finalize this 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.