What’s Up With WOTUS?

By Leanne Roulson, AFS Second Vice President

Originally published as a Guest Editorial from the AFS Western Division’s Tributary newsletter.

On December 11th, the US Environmental Protection Agency (EPA) and the US Army Corps of Engineers (USACE) released a proposed rule that that regulates Waters of the US (WOTUS) to redefine the scope of Clean Water Act protections for certain streams and wetlands. This would replace the 2015 Clean Water Rule and seeks to remove protections for headwater and seasonally-flowing waterways. In Montana, where the west half holds the source of some of the US’s major rivers like the Missouri and the Columbia; and the east half has streams that dry out before the Fourth of July—that would leave a lot of us hanging.

The Twitter version of the 253 pages of the proposed rule, is that many headwater streams, seasonally-flowing streams, and isolated ponds or wetlands would no longer be subject to the Clean Water Act. The changes in what is or is not jurisdictional (e.g., legally recognized as a Water of the US) would reduce protections from actions such as discharge into or placement of fill or bank stabilization on these waters. An important “so what” aspect is that the new rule dismisses the importance of these waters for maintaining the integrity of downstream waters. We all know that if you make changes to a watershed in one area, that often affects areas up and downstream. This rule dismisses that premise and ignores the scientific basis for the protections put in place under the 2015 rule.

AFS convened a group of fisheries experts earlier this year to develop a manuscript describing the scientific evidence for the importance of headwater streams and the potential effects of adoption of this proposed rule on fish and fisheries. This scientific evidence will be published in Fisheries and submitted to the EPA as part of AFS’ comments to the new rule. AFS joined the Consortium of Aquatic Science Societies (CASS) in a statement urging the agencies to consider the far-reaching implications of a narrower rule. The CASS statement notes,

“More than a half century of scientific research has unequivocally demonstrated that the physical, chemical, and biological integrity of ‘traditionally navigable’ waters fundamentally depend on ephemeral, intermittent, and perennial headwater streams, as well as the myriad associated lakes, wetlands, and off-channel habitats.”

Scientists and managers who deal with water quality, fisheries, wetlands, and impacts to waterways have been awaiting the rule. Should it become final, a fisheries biologist in Montana and other places in the West could see the following changes:

  • Rivers and streams that contribute perennial or intermittent flow to downstream traditional navigable waters in typical year are jurisdictional under the proposal; no ephemeral features are considered jurisdictional under the proposal.
  • Isolated lakes and ponds were considered adjacent waters together with isolated wetlands under the expanded definition of “neighboring” in the 2015 Rule. Under this proposed rule, fewer lakes and ponds may be jurisdictional than under the 2015 Rule because:
    • Under the agencies’ new proposal wetlands must either abut jurisdictional waters or have a direct hydrological surface connection to jurisdictional waters in a typical year to be jurisdictional themselves; wetlands physically separated from jurisdictional waters by a berm, dike, or other barrier are not adjacent if they lack a direct hydrologic surface connection to a jurisdictional water in a typical year (EPA Fact Sheet).

Most fisheries biologists recognize the value of tributary habitat and associated wetland habitats to fish and wildlife, and the origins and maintenance of almost 30 years of “no net loss” of wetlands policy in the US are firmly based on this valuation. In addition to the changes to stream protection, the proposed rule would make it much easier for wetlands to be lost without requiring mitigation for that loss. This is a prime example of how policy can and will affect your ability
to manage fisheries effectively. Even with Montana’s Steam Permit system (including the 310 and SPA 124 permits and others) this new rule would potentially reduce the regulation of discharge and fill into streams and wetland areas. Waters in states that do not have similar stream protection laws would be at even higher risk.

The science is being dismissed. If you would like to let the decision makers know that, as a scientist, you disagree with the proposed rule, you can submit a comment.

Some of the most chilling aspects of this proposed rule are the types of comments the agencies state that they are seeking. Some of the suggested comment topics include:

  • Should tributaries be limited to perennial flowing waters only (exclude intermittent streams)?
  • Should tributaries be defined by flow level—with a suggested average annual flow of 5 cfs or more?
  • Should aerial photos be used to determine whether a stream is perennial?
  • Does a break in flow in a channel make a stream not a tributary? (think about the Colorado River on this one).

If you wish to comment, the agencies will take comment on the proposal for 60 days after publication in the Federal Register. The agencies will also hold an informational webcast on January 10, 2019, and will host a public listening session on the proposed rule in Kansas City, KS, on January 23, 2019. Additional information on both engagements is available at https://www.epa.gov/wotus-rule.

Comments on the proposal should be identified by Docket ID No. EPA-HQ-OW-2018-0149 and may be submitted online. Go to https://www.regulations.gov and follow the online instructions for submitting comments to Docket ID No. EPA-HQ-OW-2018-0149.

Link to proposed rule: https://www.epa.gov/wotus-rule/proposed-rule-definition-waters-united-states-recodification-pre-existing-rules
EPA Fact Sheet on the Proposed WOTUS Rule: https://www.epa.gov/sites/production/files/2018-12/documents/factsheet_-_wotus_revision_overview_12.10_1.pdf