Bay Journal

Most streams, many wetlands could lose protection

Change in federal role could affect drinking water; habitats

  • By Karl Blankenship on September 01, 2003
  • Comments are closed for this article.
Proposed changes could hurt many
amphibians, such as (right, from top) the 
spotted, Jefferson and marbled salamanders, 
which were found in the vernal pond above. 
Many amphibians require these temporary 
pools for reproduction because they are free 
of predators.

The Bush administration is considering actions that could remove federal protection for nearly two-fifths of the mid-Atlantic’s wetlands and more than half of the region’s streams, according to an EPA analysis.

Those areas provide drinking water for roughly 3 million people in the region, but under such a sweeping rule change, industries, farms and other polluters would be free to discharge into those waterways without federal oversight.

Although states can regulate those activities, it would add a strain on their resources, and some states lack the authority to fill the regulatory gap that could be created, according to an analysis by EPA’s Region III, which includes all of the states in the Bay watershed except New York.

Such a reduction in federal Clean Water Act authority, the analysis concluded, would cause “profound and far-reaching impacts” in the region.

“This reduction in scope will have serious effects on the progress made during the last 30 years to restore and maintain the chemical, physical and biological integrity of the nation’s water,” the analysis stated.

The analysis stemmed from a January announcement by EPA headquarters and the Army Corps of Engineers—the two federal agencies responsible for regulating wetlands and waterways—that they wanted to “clarify” the extent of Clean Water Act protection for waterways in the wake of a 2001 Supreme Court decision.

In that decision, the court ruled that the federal government could not regulate actions affecting isolated ponds where the only connection to other waterways was the presence of migratory birds. The wording of the decision, the EPA and Corps said, also called into question whether the federal government could assert any regulatory authority over isolated, intrastate and nonnavigable waters.

The agencies sought public comments about whether, and how, they might define “isolated” waters—a classification that could be extended to include headwater streams and those that do not always flow year round. It also asked for input about how such a change could affect federal and state programs.

The agencies collected 115,000 comments through the April 16 public comment period, mostly opposed to making a change. Thirty-five states, including all of the states within the Bay drainage except Maryland, which did not submit comments, filed statements objecting to any lessening of federal authority.

Others, though, contended the court was attempting to reign in a federal law that had grown out of control since the passage of the 1972 Clean Water Act, in which Section 404 gave the federal government the power to regulate “the discharge of dredged or fill material into the navigable waters at specified disposal points,” which became the basis for today’s wetland regulations.

A representative of the American Farm Bureau Federation, in testimony to Congress earlier this year, labeled the federal wetlands program “one of the more onerous regulatory problems production agriculture faces today.” Home builders and others have also been highly critical of the regulations, contending it denies them use of their land, and have fought the broad scope of wetlands programs for years.

At issue in the latest controversy is what constitutes “waters of the United States.” The Clean Water Act specifically addresses “navigable waters,” which can be regulated because they are tied to interstate commerce—a linkage required for the federal government to assert authority. Federal regulations and court rulings have consistently expanded federal jurisdiction throughout watersheds that are necessary to supply water to navigable waterway.

In its decision, the Supreme Court raised questions about the scope of federal jurisdiction over “isolated, intrastate, non-navigable waters.” But it did not overturn any previous court decisions upholding more expansive interpretations of federal authority. It did say that the “Migratory Bird Rule” was an insufficient link to interstate commerce for the Corps to assert jurisdiction over an isolated wetland—in this case a pond in a gravel pit.

That rule had contended that the presence of migratory birds provided a link to interstate commerce because people spend more than $1 billion annually on recreational activities related to migratory birds.

Earlier this year, the Corps and the EPA directed their field staff to no longer assert authority over isolated, intrastate and non-navigable waters where the sole link to interstate commerce was migratory birds.

But there has been no decision about when, or whether, the administration will go forward with rules that would attempt to more precisely define the extent of federal authority. Several recent court cases have interpreted the Supreme Court decision to mainly impact the migratory bird rule, and not broader federal jurisdiction.

In testimony to a Senate subcommittee in June, G. Tracy Mehan, EPA assistant administrator for water, said the “ultimate direction of any proposed rule making has not been predetermined, and will be influenced significantly by the public comment.”

But there is strong sentiment by some within the administration for a broad interpretation of the ruling. The Interior Department called for excluding all “isolated, intrastate, non-navigable waters” from federal regulation, rejecting input from scientists within the department’s Fish and Wildlife Service who argued differently (See”Interior Department ditches Fish & Wildlife Service’s comments” in this issue.)

“Everyone is hearing that the administration is very divided on the issue,” said Julie Sibbing, a wetlands specialist with the National Wildlife Federation. “Right now, the EPA seems to be pushing pretty hard not to do this, whereas the Interior Department, we have heard, is pushing very hard to have them go forward with this.”

The issue almost certainly will face Utah Gov. Mike Leavitt, should the Senate confirm him as EPA administrator. Utah, like most states, has no program to regulate wetlands, and Leavitt was heavily criticized for his efforts to push a new highway through wetlands around the Great Salt Lake—a project halted by court action.

This summer, EPA Region III submitted to the agency’s headquarters a pile of comments and supporting documents more than an inch thick which expressed skepticism about the ability to develop a scientifically based definition of isolated wetlands and raised concerns about how such efforts might affect water quality in the mid-Atlantic.

“Any revisions that would reduce the jurisdictional scope of waters of the United States could seriously weaken the [Clean Water Act] and our ability to provide safe and clean water for all Americans,” Region III officials said.

Under a narrow interpretation of “isolated” wetlands, which excludes any areas that appear to lack a permanent surface water connection to “navigable waters,” about 438,000 acres, or 12 percent of the region’s wetlands, could lose federal protection, according to the region’s analysis.

Under a broad interpretation, which excludes wetlands tied to small perennial streams and intermittent or ephemeral headwaters, that number jumped to 1.3 million acres, or about 36 percent of the region’s wetlands.
“Furthermore,” region officials commented, “these numbers may be conservative estimates considering that studies have shown that the maps used to generate these figures may underestimate actual wetland acreage by as much as 50 percent.”

If, as some suggest, the exemption is extended to headwater streams—a vast system of wetlands, swales and small channels that mark the beginnings of most watersheds—more than half of the stream mileage within the region could be exempted from federal regulations, officials calculated. “Region III respectfully disagrees with any such suggestion as not based in science,” officials commented.

The region argued that any attempt to define isolated wetlands be limited to small wetlands with no groundwater or surface connection to other waters—a definition which it said would maintain jurisdiction over almost all of the wetlands in the region.

If a broader definition is adopted, the region officials said the areas should still be considered “waters of the United States” for regulatory purposes. The region said that while some wetlands and headwater streams may periodically appear separated from other waters, they could not be considered “isolated in the hydrologic sense.” Many, in fact, are connected to the larger watershed through groundwater or intermittent stream connections and perform functions that are important to maintaining the overall water quality of the watershed, their comments stated.

Failure to protect those areas, they added, would make it difficult to achieve the Clean Water Act goal of “protecting the physical, chemical and biological integrity” of the nation’s waterways. Cumulatively, headwater wetlands provide “the full range of important wetland functions” as other wetlands, such as flood reduction, water quality protection, nutrient transformation, habitat and the production of food for aquatic life.

In addition, officials said, 14 threatened or endangered plants and animals within the region use those areas “which demonstrates their critical biodiversity function.” Isolated wetlands are particularly important to many species of amphibians, which rely on temporary pools for reproduction because they are free of predators. Waterfowl rely on wetlands of all types distributed across the landscape for migratory stops and nesting sites.

Small headwater streams account for the majority of stream miles within the region, which means they provide the greatest area of interface between water and land, officials said. It is in those areas where important functions for the entire watershed take place: the storage and transformation of nutrients, moderating the effects on downstream temperatures, the conversion of organic material such as leaves to particulates that serve as food for stream life, and a host of other functions. “Protection of the aquatic life in downstream waters could be severely compromised if such a large portion of the upstream resource were not protected, and attainment of water quality standards could be problematic,” Region III said.

Officials argued that the federal government had ample authority for jurisdiction over those areas. It stated that “controlling pollution at the source is paramount in order to achieve clean waters for the nation,” and failure to protect those areas, and control discharges into them, would “severely” affect downstream areas and “commerce of all kinds —intrastate, interstate and international.”

Depending on the definition of isolated waters that is used, Region III said streams providing water intakes for between 535,000 to 3 million people could be affected. Failure to protect those areas would likely increase treatment costs for public drinking water and require increased monitoring of those drinking water sources
Further, they said, the loss of headwater streams and wetlands would exacerbate the flooding of downstream navigable waterways. Sediment from those areas would likely increase, leading to more extensive and recurrent dredging of downstream waterways.

In addition, cold water streams which rely heavily on small headwater streams to protect habitat for sensitive trout—popular with both in-state and out-of-state anglers—could be disproportionately affected.

If federal jurisdiction were removed, Region III said, two states in the region —West Virginia and Delaware—have no wetland protection programs to fill the gap. Maryland, Pennsylvania and Virginia do have programs to protect wetlands, although Virginia’s has been challenged in court, which may limit the state’s ability to protect areas where there is no federal jurisdiction.

If the definition of “waters of the United States” is narrowed, officials said, it would “shift more of the economic burden for regulating wetlands and headwater streams to states and local governments.”

But Region III expressed concerns that went far beyond the wetlands program. It said the National Pollution Discharge Elimination System—the program that requires permits for discharges into public waterways— would not apply to areas exempted from federal jurisdiction. That would allow unrestricted discharges unless state agencies applied their own programs to those areas.

It’s also possible, officials said, that courts could interpret the state permitting programs to be linked to the federal programs in ways that would prevent them from issuing permits in areas where the federal government did not have jurisdiction. Further, the District of Columbia relies on the EPA to issue permits within its boundaries. That means there would be no agency to regulate releases into small streams within the district.

At the least, Region III officials commented, “removing waters from [Clean Water Act] jurisdiction will undermine the federal government’s role as a backstop for the states.” Even when states have their own permitting program, the EPA retains oversight authority for both issuing and enforcing discharge permits, but that authority would be lost in areas where jurisdiction is removed. Further, states often ask the EPA to take the lead in enforcing permit violations, but the agency would no longer be able to do that in nonjurisdictional waters.

Other important “backstop” roles could be lost as well. For instance, states are required to set water quality standards for individual waterways and submit them to the EPA for approval. If the EPA does not approve a standard because it would not meet Clean Water Act goals, it must develop and publish water quality standards on its own. Region III said it is likely that it would not be able to develop standards for nonjurisdictional waters. Because headwater streams affect downstream water quality, Region III said its inability to assert jurisdiction in such cases “can impact an entire watershed.”

Further, if headwaters are not “waters of the United States” it’s possible that states would not have to place them on the impaired waters list—the list of waterways that fail to meet water quality standards. That could also exempt those waterways from Total Maximum Daily Load requirements—the EPA’s backup program to get waterways to meet water quality standards. A TMDL is a calculation of the maximum amount of pollution a given waterway can receive and still meet its standards. That amount is then allocated to various sources of pollution which contribute to the problem.

The EPA writes many TMDLs where the states have failed to do so. But it’s questionable that the EPA could write a TMDL that could allocate loads—and force pollution reductions—for non-jurisdictional waters. “How do you assign [waste load allocations] to facilities discharging to streams that are not waters of the U.S.?” Region III asked in its supporting documents.

Region III’s comments were similar to the views expressed by many states and environmental groups, who have questioned whether the Supreme Court decision required a change in rules at all.

Environmental groups have suggested that reducing federal jurisdiction would likely cause states to relax—not strengthen—their programs. In jointly written comments, the Chesapeake Bay Foundation and the Southern Environmental Law Center said developers and and others would argue that “federal jurisdiction is over only those waters worthy of protection. The argument would be that the states should curtail their authority to be more in line with the EPA and the Corps authority.”

Indeed, in written comments, the Virginia Department of Environmental Quality warned that “should the definition of the U.S. change, we may be asked to justify why our state laws are more stringent than corresponding federal law, leaving us open to increased pressure to conform our requirements to the minimums set forth under federal law.”

By policy, Pennsylvania also strives to achieve consistency with federal requirements unless state laws or a state interest justify a more comprehensive program. Ken Reisinger, who oversees the wetland regulatory program for the Pennsylvania Department of Environmental Protection, said the state’s program could fill the gap if the federal jurisdiction was reduced, and expressed doubt that it would greatly increase the state’s burden. He said the DEP already handles more than 85 percent of wetland permitting within its borders.

“What causes us problems is when you get some headline coming out of a federal court case, and we have to go out and reaffirm to people that it doesn’t affect us,” Reisinger said. “It confuses people, and that’s not productive.”

The change could make it problematic for the Bay Program to reach its goal of attaining a “no net loss” in wetlands through regulatory programs. It may well threaten the Bay cleanup itself if protection were eliminated from all headwater streams, the smallest streams in the watershed.

Research has shown that biological processes in those streams are the most likely to remove nitrogen from waterways; once nitrogen gets into larger streams, it is more likely to end up in the Chesapeake Bay. That could make it more difficult to reach the nutrient reduction goals necessary to attain the Chesapeake 2000 agreement goal of removing the Bay from EPA’s impaired waters list by 2010.

“Those are the waters that are the most important for providing improved water quality or maintaining water quality,” said Ann Jennings, a CBF wetlands scientist. “Writing off these systems will only make it harder to remove the Bay from the ‘dirty waters’ list. It may even make it impossible.”

Impacts on other water programs are also a concern. Virginia officials calculated that a quarter of the 1,200 facilities that have permits discharge into intermittent or headwater streams. While officials said those facilities would be regulated by the state, “this could create an additional cost burden to the commonwealth as well as potential inconsistencies in permitting and enforcement.”

And, Virginia officials said they were concerned that upstream states could lose permitting authority, and increase the amount of pollution flowing into Virginia.

In its comments to the EPA, Pennsylvania noted that many of its water quality programs, including its discharge permit programs, are closely tied to federal definitions and authority. “Any changes to the definitions of waters at the federal level may compromise state implementation of important state water resource protection programs, which in some cases have taken years to reach their current level of effectiveness and understanding by the public and the regulated community.”

Indeed, many people suggested it was hard to predict the full impact of redefining what is—and is not—regulated water of the United States.

Reisinger said that if the federal government wants to minimize its role in certain wetlands and other waters, it would be more practical to do it by modifying its regulatory requirements rather than a changing jurisdiction. That way, states with effective programs can continue to operate without having to wrestle with conflicting state and federal jurisdictional issues.

“When you start messing around with changing jurisdiction, and modifying definitions, it can result in unforeseen and unintentional consequences. It’s sort of like a plate of spaghetti,” he said, “Pull on the wrong strand and the next thing your know, the whole plate is in your lap.”

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About Karl Blankenship

Karl Blankenship is editor of the Bay Journal and Executive Director of Chesapeake Media Service. He has served as editor of the Bay Journal since its inception in 1991. .(JavaScript must be enabled to view this email address).

Read more articles by Karl Blankenship

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