AFS Paper on Loss of Clean Water Act Protections for Headwater Streams and Wetlands

Efforts are underway by the Trump Administration to roll back Clean Water Act protections for our nation’s streams and wetlands. Last year, AFS convened a group of fisheries and aquatic science experts to synthesize the science around the importance of headwaters to fish in anticipation of a new, narrower, Waters of the U.S. rule. The result is a compelling new paper titled, Headwater Streams and Wetlands Are Critical for Sustaining Fish, Fisheries and Ecosystems (Headwaters Paper), that details how the loss of Clean Water Act protections for headwaters would have far reaching implications for fish, wildlife and their habitats, as well as economies dependent on those systems. The paper highlights the loss of ecosystem services, the increased threat to imperiled species, impacts to commercial and recreational fisheries, and the loss of cultural values from reduced Clean Water Act protections for headwater ecosystems. The paper appears in the February issue of Fisheries and a PDF version of the paper is available here.

Headwater streams and wetlands contribute to the chemical, physical, and biological integrity of downstream waters and are broadly defined as portions of a river basin that contribute to the development and maintenance of downstream navigable waters including rivers, lakes, and oceans. Headwaters can include wetlands outside of floodplains, small stream tributaries with permanent flow, tributaries with intermittent flow (e.g., periodic or seasonal flows supported by groundwater or precipitation), or tributaries or areas of the landscape with ephemeral flows (e.g., short-term flows that occur as a direct result of a precipitation event). Fish, fisheries, and ecosystem services are compromised when headwater habitats are polluted, impaired, or destroyed.

In 2015, the EPA finalized a Clean Water rule, informed by the best scientific information available that based Clean Water Act protections for streams and wetlands on the degree of connectivity between navigable waters, wetlands, and headwater streams. However, in an effort to redefine the scope of jurisdictional waters, the EPA and U.S. Army Corps of Engineers (“the agencies”) released a new Waters of the U.S. rule in December 2018 that would exclude many wetlands and headwater streams, which make up more than 80 percent of the length of river networks and more than 6 million hectares of non-floodplain wetlands in the lower 48 states. The proposal would eliminate protections for all ephemeral streams and wetlands that do not have a direct hydrologic surface connection to navigable waters, and opens the door to removing protections for intermittent streams.  Activities such mining, industry, and development could move forward in these waters without federal safeguards.

Dr. Mažeika Sullivan, The Ohio State University

In compelling remarks before Congressional staff last week in Washington, DC, Dr. Mažeika Sullivan, Associate Professor in the School of Environment and Natural Resources and Director of the Ramsar-designated Schiermeier Oletnangy River Wetland Research Park at The Ohio State University, a co-author on the Headwaters Paper, and SAB member, eloquently explained the many ways in which the proposed rule is inconsistent with current science. He highlighted that the proposed rule ignores biological and chemical connectivity, as well as minimizes the importance of other types of physical connectivity, and thus does not align with the original intent of the Clean Water Act to “to restore and maintain the chemical, physical, and biological integrity of the nation’s waters.” Dr. Sullivan also cited the agencies’ improper use of a theoretical model developed by the EPA Science Advisory Board to illustrate how gradients in connectivity might be used to evaluate downstream impacts of changes to streams and wetlands. He noted that the proposed rule fails to take into account the cumulative effects of streams and wetlands on downstream waters, stressing how their collective influence must be considered. Using the functioning of a hand as an analogy, he explained, that if one finger is broken, the hand can still function. If three fingers are broken, the hand has significantly decreased functioning and if all five fingers are broken, the hand ceases to work.

The authors of the Headwaters Paper concluded with a recommendation that the agencies conduct a formal ecological and economic risk assessment to quantify the effects of a narrower rule. A team of researchers at St. Mary’s University of Minnesota has recently developed a GIS-based scenario model to predict the spatial extent of federally-protected waters and wetlands under the proposed rule based on case studies in three states with diverse watersheds. The results of the analyses in the case study watersheds show that narrowing the scope of federally protected waters would significantly reduce the number of streams, wetlands, and wetland acreage protected by the Clean Water Act, leading to a potential loss of benefits provided by wetlands that would no longer be protected. These benefits include water quality protection, floodwater attenuation, and fish and wildlife habitat.

AFS urges the agencies to take the science into account as they seek to replace the WOTUS rule with one that offers fewer protections for headwater streams and wetlands.

A 60-day public comment period on the proposed rule will commence upon publication in the Federal Register. We encourage AFS members to submit formal comments on the rule to highlight proposed impacts on a state-by-state basis. Stay tuned for updates on the comment period and information on an upcoming webinar on this topic.