And the threat to intermittent streams could only get worse. Although the proposal as drafted does not immediately strip protection from every intermittent stream, the agencies specifically request comments describing how Clean Water Act protections should be limited only to streams that flow continuously all year. In other words, they say point blank: tell us how we can eliminate protections for more tributaries.
This proposed rule threatens to dramatically harm water quality across America and fails to account for science, the law, or the outdoor recreation economy.
In developing the 2015 Clean Water Rule, the EPA identified more than 1,200 studies demonstrating the biological, chemical, hydrologic, and other connections between waters. In the current rulemaking, the EPA has done nothing that explains how this body of science is incorrect or no longer relevant to a process focused on the very same issues as the 2015 Clean Water Rule: defining specific types of waters protected by the Clean Water Act. Instead, the agency has only said that the Clean Water Rule relied too heavily on science! But how can a scientific agency determining the scope of water quality protection in America rely too heavily on science?
Simple common sense tells us that pollution in a tributary stream, even if it only flows after a rainfall event, will make its way downstream and affect all of the waters and people it interacts with along the way. This rule fails this common sense test and does not account for what scientists and hydrologists have made clear: we all live downstream.
For decades, the Clean Water Act was interpreted so that regulation was based on effects to water quality. If a small stream could affect water quality downstream in a larger river or reservoir, that small stream was protected by the Act. That interpretation is accurate because the purpose of the Clean Water Act is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”
The proposed rule fails to meet the purpose of the Clean Water Act. The transmission of pollution from smaller to larger waters is not solely dependent on the length of time that a stream flows. The purpose of the Clean Water Act is to improve water quality nationwide, in part by regulating what is discharged into the waters of the United States. Pollution discharged into tributary streams, even if they do not flow continuously all year, will affect the chemical, physical, and biological integrity of the nation’s waters. Likewise, the vital hydrological role of wetlands for storage and purification of water within a system does not change simply because a wetland might lack a continuous surface connection to a large river or lake. It is imperative that we protect these important resources.
Clean Water and Outdoor Recreation Economy
In addition to failing to protect drinking water and public health, the proposed rule threatens the $887 billion outdoor recreation economy. Clean water and abundant wetlands are essential to a number of outdoor recreation activities, including hunting, angling, paddling, and boating. Isolated wetlands, including the prairie potholes of the Northern Great Plains, are essential breeding habitat for North American waterfowl, and many freshwater fish rely on ephemeral and intermittent streams at some time during their life cycle. Freshwater fishing alone has a $29.8 billion economic impact in the U.S.
Furthermore, Americans understand that protecting clean water is necessary to protect outdoor recreation, especially hunting and fishing. Instead of relaxing Clean Water Act protections, 92% of American sportsmen and women believe we should strengthen or maintain current standards, according to a 2018 poll conducted by the Theodore Roosevelt Conservation Partnership.