Waters of the United States Rule under the Clean Water Act

Cottonwood Creek is an intermittent tributary of the Gunnison River (Colorado River basin) in western Colorado that hosts large numbers of Bluehead Sucker, Flannelmouth Sucker, and Roundtail Chub during spring spawning. Intermittent tributaries like these are critical for sustaining populations of these three species, which are the subject of rangewide conservation efforts to prevent listing under the ESA. Photo credits: Kevin Thompson and Dan Kowalski.

On December 11, the EPA and the U.S. Army Corps of Engineers (“the agencies”) released a new rule to replace the 2015 Waters of the U.S. Rule (WOTUS) that will result in a rollback of Clean Water Act protections for a majority of the nation’s streams and wetlands, including the headwater streams and millions of acres of seasonal wetlands that provide valuable habitat for many species of fish.

Headwater streams, including ephemeral streams, and wetlands contribute to the chemical, physical, and biological integrity of downstream waters.  The agencies’ 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. Particularly vulnerable ecosystems like playa lakes, prairie potholes, Carolina and Delmarva Bays, pocosins, and vernal pools that provide valuable habitat for fish and other organisms would no longer be protected under the new rule.

The 2015 Clean Water Rule or WOTUS Rule clarified the jurisdiction of the Clean Water Act to include protections for intermittent headwater streams and hydrologically connected wetlands, with wetlands outside of the floodplains to be evaluated on a case-by-case basis. With the release of the rule, the EPA and the U.S. Army Corps of Engineers have now taken the second step in a two-step process to repeal the 2015 Waters of the U.S. rule with one that would provide fewer protections for headwaters and wetlands.

Headwaters 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 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 rainfall event). Headwater streams comprise the majority of river networks globally; in the conterminous United States, headwater streams comprise 79% of river length, and they directly drain just over 70% of the land area. Along with wetlands, these ecosystems are essential for sustaining fish and fisheries in the U.S. When headwaters are polluted, or headwater habitats are destroyed, fish, fisheries, and ecosystem services are compromised.

Because of the importance of headwaters, any rule that excludes their protection will have far reaching implications for fish, wildlife and their habitats, as well as economies dependent on those systems. Headwaters are key to the sustainability of fish stocks in both upstream and downstream waters. Threatened and endangered species will be harder to recover, and more species will be at risk of becoming imperiled. Simply put, loss of protections for headwaters would have grave consequences for fish and fisheries. Ultimately, communities across the U.S. would lose the economic, social, and cultural benefits derived from headwaters.

The American Fisheries Society (AFS) supports the 2015 rule and the science underpinning its development, as documented by review of more than 1,200 peer-reviewed scientific studies by technical experts to determine degrees of connectivity and their ecological consequences between navigable waters, wetlands, and headwater streams. AFS fully supports the 2015 WOTUS rule and is concerned that this new, narrower rule would have far-reaching implications for fish, wildlife, and their habitat.

We encourage our members to continue to engage on this issue and promote the importance of headwaters to fish and fisheries. The public may comment by February 11, 2019 (estimated date).

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