Feds propose clarification to tighten Clean Water Act

Washington. — The headwaters of many of America’s trout streams, left partly unprotected by a pair of U.S. Supreme Court decisions, appear flowing back into coverage by the federal Clean Water Act.

Ditto for some waterfowl-producing wetlands.

A proposed rule unveiled by the U.S. Army Corps of Engineers and the Environmental Protection Agency aims to clarify resource-management waters muddied by a pair of U.S. Supreme Court decisions that affirmed Clean Water Act coverage of some waters, but left its application to others confused.

Early reviews of the proposed rule by conservationists were positive.

The proposed rule, issued in late March for a 90-day comment period, would return Clean Water Act protection to most seasonal and rain-dependent streams, and to wetlands near rivers and streams.

Left still murky are protections accorded to other waters particularly important to duck hunters and other waterfowl enthusiasts – isolated and seasonal “prairie potholes” in the upper Great Plains, stand-alone wetlands, and playas, which are shallow depressions that alternately dry and fill with rainwater to form lakes.

They come under the category of “other types of waters” in the proposed rule, which suggests they be considered on a case-by-case basis. The proposal even invited suggestions on how they might be grouped for more efficient management and protection.

Participants in a teleconference panel convened by the Theodore Roosevelt Conservation Partnership generally welcomed the proposed rule, saying it at last brought some clarity to the question of Clean Water Act protection.

When pressed by questioners, panel members said they hoped the “other waters” feature could be tightened up – or the issue taken to Congress sometime down the line, but probably not during its current fierce partisanship.

John Crabtree of the Nebraska-based Center for Rural Affairs said that the Supreme Court rulings and administrative guidance issued in their wake had left water protection “chaotic and unclear,” and that the proposed rules would set the stage for easier participation by farmers and ranchers in federal conservation programs.

Said Charlie Johnson, an organic farmer from South Dakota, “Clarity leads to certainty, and that’s what farmers need,”

Chris Wood, president and CEO of Trout Unlimited, noted that many blue-ribbon trout streams have their origins in seasonal flows – headwaters that had been left unprotected by the court decisions, but would regain protection under the proposed rule.

Ducks Unlimited CEO Dale Hall said in a news release that, “The release of the draft rule gets us one step closer to better defining Clean Water Act regulations in regard to wetlands.”

“EPA’s draft science report last year,” Hall noted, “showed many categories of wetlands, including prairie potholes, may be geographically isolated but are still connected to, and have a significant impact on, downstream waters.”

Need for the clarifying rules proposed in March followed Supreme Court rulings on wetlands issues, referred to as SWANCC (2001) and Rapanos (2006), the latter actually two consolidated cases, Rapanos vs. United States and Carabell vs. United States.

The Supreme Court ruled that navigable waters and adjacent wetlands were covered by the federal Clean Water Act, but was less specific about non-navigable waterways that come and go with the seasons, wetlands adjacent to non-navigable waters, and wetlands adjacent to but not connected to some non-navigable tributaries.

Such part-time wetlands, conservation groups noted, are important to nesting waterfowl, as well as recharge sources for groundwater, and for flood protection.

Last September, an EPA board released a report synthesizing peer-reviewed scientific literature on biological, chemical and hydrological connections of waters, including headwater streams and apparently isolated wetlands.

At the same time, EPA and the U.S. Army Corps of Engineers submitted for review a draft rule, informed by the science gathered in that report, to the federal Office of Management and Budget.

It was that proposal that was released in March.

TRCP had said the court decisions removed longstanding protections for many of the nation’s headwater streams and wetlands, including at least 20 million acres of wetlands, and headwater streams that provide fish habitat and sustain public drinking water systems for 117 million Americans. The proposed rule would partly restore that protection. Said TU’s Wood, “The point is, EPA has put forward a really good first effort; now we want to get input from those potentially regulated, plus hunters and anglers.”

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