New EPA Rule Would Increase Protection of Headwaters and “Intermittent Flows”

In a news conference today the U.S. Environmental Protection Agency and U.S. Army Corp of engineers jointly proposed a rule change that should help clarify protections provided by the Clean Water Act to isolated wetlands and intermittent and ephemeral streams.  As Trout Unlimited CEO Chris Wood noted in his blog post today, those protections were “all thrown into question in 2001 and 2006 when two Supreme Court rulings removed the protections of the law from these streams and bodies of water.”

Wood continues: “In fact, 80 percent of all streams are headwater streams.  They provide the flow for larger rivers; are important spawning and rearing habitat for young fish and bugs; and help to determine the quality of downstream habitat for fish.”

Regarding it’s goals, the EPA said its goal is to remove confusion about which waters are covered under the Clean Water Act.  Specifically the new rule says:

• Most seasonal and rain-dependent streams are protected.
• Wetlands near rivers and streams are protected.
• Other types of waters may have more uncertain connections with downstream water and protection will be evaluated through a case specific analysis of whether the connection is or is not significant. However, to provide more certainty, the proposal requests comment on options protecting similarly situated waters in certain geographic areas or adding to the categories of waters protected without case specific analysis.

In today’s conference call, EPA representatives noted that “60 percent of stream miles in the U.S. only flow seasonally or after rain, but have a huge impact on the downstream waters.”

Today’s call also made clear that the rule change “does not reverse the more narrow ruling of the US Supreme Court about types of stream protected,” it “does not add additional protections for groundwater,” and it includes more narrow protections for “ditches.”  The public can comment on the draft rule for 90 days.

Editor’s Note: If you’re still confused about the likely impact of the proposed rule on “intermittent waters,” here’s our short analysis:  The Supreme Court rulings threw into doubt whether these types of waters would or should be protected because of language that required proof of an environmental “nexus” between them and the waters they feed.   While the new rule doesn’t specifically add new types of waters to the list of protected streams and rivers, it would effectively restore protection to waters like headwaters, feeder streams and streams that sometimes go dry.