Administrative efforts are underway to roll back protections for our streams and wetlands. A new proposed rule revises the definition of “waters of the United States” (WOTUS) to exclude many wetlands and headwater streams that are critical to fisheries, wildlife and water quality.
In 2015, the EPA finalized a WOTUS rule that established protection under the Clean Water Act on real-world connections between headwater streams, wetlands and navigable water. The 2015 rule was based on scientific information after a multi-year analysis. The new WOTUS rule will eliminate protection for ephemeral streams and wetlands that do not have a direct surface connection to “navigable” water, and it lacks any scientific foundation. Many intermittent streams, ephemeral watercourses and wetlands of the Great Basin would lose protection.
While the new “rule” purports to produce clarity, it might remove protection for many watercourses in the Wasatch Plateau such as the Upper Price River & San Rafeal River, much of the Boulder Mountains lakes and wetlands, parts of Albion Basin or similar alpine areas, the Book Cliffs and the Diamond Mountain area near Vernal. Most of Utah’s desert “island” mountain systems such the Henry’s near Hanksville, the Blue’s near Blanding, and parts of Manti La Sals near Moab also might lose protection.
These “waters” are important sources of what we drink. They also support vegetation, wildlife, fishing and recreation. Activities such as mining, industry and development could move forward in these waterways without federal safeguards. The implications are far-reaching for all of us because “we all live downstream.” Once a river becomes polluted, it is difficult and costly to clean. Preventing pollution in the first instance is more cost-effective than cleaning it up, regardless of where the pollution occurs in the watershed.
The existing 2015 Rule is based on Justice Anthony Kennedy’s 2006 concurring opinion in the United States Supreme Court case of Rapanos et ux., et al. v United States. Kennedy concluded that a wetland constitutes “navigable water” if it possesses a “significant nexus” to waters that are navigable or that could reasonable be made so. The required “nexus” is assessed in terms of the purpose of the law to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”
Wetlands perform critical functions related to the integrity of other waters. Justices Scalia, Thomas and Alito, and Chief Judge Roberts, who made up the remaining majority, took a much narrower view and concluded that “the waters of the United States” include only those relatively permanent, standing or continuously flowing bodies of water “forming geographic features" that are described in ordinary parlance as “streams, oceans, rivers [and] lakes,” and do not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.” The 2015 Rule was based on Kennedy’s interpretation.
When the Clean Water Act was passed in 1972, congressional leaders were very clear that water quality must be controlled at the source. If we wait for pollutants to reach traditional “navigable waters,” it is too late.
The important question, in our view, is which policy will advance the goals and objectives of the Clean Water Act? We believe that a broad, inclusive interpretation of WOTUS that will “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,” is best. Clean water is essential to life. With such a critical commodity, any doubt should be resolved in favor of preservation and protection.
The public may comment on this proposed rule change until April 15. Comments do not need to be formal, legal documents. In fact, views of anglers, recreationalists, conservationists, developers, planners and citizens of all walks of life are valuable. Saying something simple like, “I fish and I want the streams and rivers that are important to me to remain protected” is powerful.
The link for submitting a comment is here.
This is your water. Protect it or lose it.
David Leta
Fred Reimherr
David Leta and Fred Reimherr are officers of the Stonefly Society Chapter of Trout Unlimited, Salt Lake County.