Ephemeral Streams Receive Federal Protections under Clean Water Rule
June 2, 2015
Previously unregulated ephemeral as well as intermittent and perennial streams receive Clean Water Act protections under a joint final rule released today by the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers.
As a result, previously unprotected ephemeral streams and headwaters that are prone to destruction by mining and excavating practices could come under federal protection through permits. These permits would regulate how dredging and filling occurs with accompanying mitigation practices. Ephemeral and intermittent streams are sources of drinking water to one in three Americans, said EPA Administrator Gina McCarthy on a conference call with reporters.
In a change from the proposed rule, the agencies in the final rule also assert jurisdiction over wetlands adjacent to tributaries of navigable waters for the first time by defining how far they are located from a navigable water or its tributary. The agencies said the final rule protects waters and wetlands by increasing Clean Water Act program predictability and consistency by increasing clarity as to the scope of ‘‘waters of the United States’’ protected under the statute. The rulemaking in question seeks to clarify the scope of Clean Water Act jurisdiction over waters and wetlands consistent with U.S. Supreme Court and associated appellate opinions.
As promised, the joint rule streamlines the definition of tributaries by including waters that carry pollution downstream. It also streamlines the definition of adjacency and clarifies that ditches that carry ephemeral flow won't be regulated.
"In developing the Clean Water Rule, the Agencies used the latest science, including a report summarizing more than 1,200 peer-reviewed, published scientific studies—which showed small streams and wetlands play an important role in the health of larger downstream waterways like rivers and lakes,” McCarthy said in a blog post accompanying the rule's release.
The final rule allows the EPA and the corps to assert jurisdiction on a case-by-case basis over prairie potholes, Carolina Bays, Delmarva Bays and certain other wetlands that are physically distant from traditional navigable rivers like the Potomac and its tributaries. It maintains exemptions for agriculture and ranching activities. In addition, it excludes from federal protection features like artificial lakes and ponds, water-filled depressions from construction, and grassy swales, according to McCarthy. The rule will affect virtually any industry that uses water to generate energy, excavate for oil and gas, extract minerals, farm lands, and build homes and roads by clearing wetlands and filling streams.