Water Quality

Download PDF: Headwater Streams and Wetlands Are Critical for Sustaining Fish, Fisheries, and Ecosystem Services  

EPA Press Release: EPA and Army Announce Public Hearing on Proposed New “Waters of the United States” Definition Hearing will be held February 27-28, 2019 in Kansas City, Kansas 02/06/2019 Contact Information:  EPA Press Office ([email protected]) WASHINGTON  — Following President Trump’s directive to provide certainty to American farmers and landowners so that the economy can continue to expand while waters are protected, the U.S. Environmental Protection Agency (EPA) and the Department of the Army (Army) are moving to the next steps in proposing a new definition of the “Waters of the United States.” EPA and the Army will hold a public hearing on the proposed new “Waters of the United States” definition in Kansas City with sessions on February 27 and 28, 2019. All persons wanting to speak are encouraged to register in advance. EPA and the Army will also hold an informational webcast on February 14, 2019. Public Hearing Logistics: The Wednesday session of the public hearing will convene at 4:00 pm (local time) and will conclude no later than 8:00 pm. The Thursday session will convene at 9:00 am and will conclude no later than 12:00 pm. The public hearing will be held in the Wyandotte Ballroom of the Reardon Convention Center, 520 Minnesota Avenue, Kansas City, Kansas 66101. Those interested in speaking at the hearing can register for a three-minute speaking slot. The last day to pre-register to speak at the hearing is February 21, 2019. On February 26, 2019, the agencies will post a general agenda for the hearing on the EPA website at https://www.epa.gov/wotus-rule/proposed-revised-definition-wotus-public-hearing. It will list pre-registered speakers in approximate order. Registration for the public hearing is available through the EPA website. Additionally, requests to speak will be taken the day of the hearing at the hearing registration desk, pending availability, and a sign language interpreter will be available for the hearing. Webinar Logistics: EPA and the Army will also hold a public webcast to explain the key elements of the proposed “Revised Definition of Waters of the United States” on February 14, 2019, at 3:30 pm EST. A copy of the entire webcast will be made available afterwards. Webinar registration is limited to 2,000 attendees so interested parties are encouraged to view with colleagues. Registration is available at https://attendee.gotowebinar.com/register/1548544876509260301. Background: On December 11, 2018, EPA and the Army signed a proposed rule providing a clear, understandable, and implementable definition of “waters of the United States” that clarifies federal authority under the Clean Water Act while respecting the role of states and tribes in managing their own land and water resources. The agencies have submitted the proposed rule to the Office of the Federal Register for publication. Oral statements and supporting information presented at the public hearing will be considered with the same weight as written statements and supporting information submitted during the public comment period. The agencies will take comments on the proposal for 60 days after publication of the proposed rule in the Federal Register. Comments can be submitted online at https://www.regulations.gov. Please follow the instructions for submitting comments to Docket ID No. EPA-HQ-OW-2018-0149. More information about the public hearing, informational webcast, and the proposed rulemaking, including the pre-publication version of the Federal Register notice, are available at: https://www.epa.gov/wotus-rule/step-two-revise.

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. 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.

Download a PDF of a new fact sheet of the Waters of the U.S. Rule (WOTUS) produced by the American Fisheries Society, National Wildlife Federation, Trout Unlimited, Backcountry Hunters & Anglers, American Fly Fishing Trade Association, Theodore Roosevelt Conservation Partnership, and the Izaak Walton League.    

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. References 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

The Environmental Protection Agency and the U.S. Army Corps of Engineers have taken a new tack to repeal the 2015 Waters of the U.S. Rule or WOTUS Rule.  On July 6, the agencies issued a supplemental notice of proposed rulemaking to amend a July 2017 proposed action that delayed the implementation of the WOTUS Rule with a 30-day comment period. The agencies are now seeking to repeal the 2015 Rule in its entirety and plan to keep the previous guidance in place that resulted in case by case jurisdictional determinations while it finalizes a new definition of “waters of the United States.” The rationale for this change is premised on the grounds that the 2015 rule was unlawful and inconsistent with Supreme Court precedent. AFS joined with other conservation organizations in support of the WOTUS Rule and requested additional time to comment on this new justification for the repeal. AFS supports the sound science underpinning the WOTUS Rule and firmly believes that it should be considered by the agencies in any attempt to repeal or replace it. AFS is on record endorsing EPA’s Connectivity Report, which informed the development of the WOTUS Rule, and represents the state of the science on how streams and wetlands contribute to the chemical, physical, and biological integrity of downstream waters.  This refusal to consider the science, including the most current understanding of how streams and wetlands contribute to the chemical, physical, and biological integrity of downstream waters, is detrimental to the integrity and security of our drinking water, public health, fisheries, and wildlife habitat and could significantly increase the risks and costs associated with flood and storm damage.  AFS urges the agencies to take this science into account as they seek to replace the WOTUS rule with one that offers fewer protections for headwater streams and wetlands. The Trump Administration has indicated that it plans to release a replacement rule this August. We encourage our members to continue to engage on this issue and promote the science as stated in the Connectivity Report. The public may comment here on the new supplemental grounds for the repeal before August 13, 2018. Read the letter that AFS and other organizations sent to the EPA and Corp requesting an extension of the comment period.