The Environmental Protection Agency (EPA) has announced that it is seeking comments on a proposal that could seriously impact waterways and wetlands across the country. The public comment period, which started on September 9 and will last 30 days, has to do with technical definitions, but despite the Byzantine nature of the proposed rule changes, they could have a major effect on important habitats for waterfowl.
Essentially, the comment period is one of the results of the 2023 Sackett v. EPA Supreme Court Ruling, which dramatically restricted which wetlands and waterways could be protected under the Clean Water Act. Following that ruling, the EPA has already moved to roll back protections for the Waters of the United States (WOTUS).
Now, the EPA and U.S. Department of the Army have announced a Supplemental Notice of Proposed Rulemaking. The proposed rule changes would be wrapped into a 2025 proposed rule that has already had a public comment period and garnered significant pushback from the conservation community for its potential to negatively impact critical habitats.
The latest rulemaking effort has to do with clarifying the definition of terms like “perennial stream” and “relatively permanent.” While this may seem like a relatively minor action, it could actually have outsized impacts on which wetlands and streams can receive protection under the Clean Water Act—or not.
For instance, the EPA is considering defining a perennial stream as one that can only be dry for one 30-day period. This sort of narrow definition is arbitrary, according to experts who say that perennial streams in the Western U.S. can remain dry for far longer while still playing important ecological roles and preserving groundwater.
Similarly, the rulemaking proposal could narrow the definition of a “contiguous surface connection” such that wetlands that don’t visibly connect to rivers no longer receive protections. Conservation experts warn that doing so could pave the way for real estate developers to drain and develop wetlands that previously provided habitat for waterfowl and other wildlife. And the impacts could extend well beyond the waterfowling community, too.
“This is not the moment to be jeopardizing the nation’s water security by narrowing the safeguards of the Clean Water Act,” said Gary Belan, senior director of American River’s Clean Water Program, in a statement. “While we appreciate EPA’s effort to seek more public comment, the proposed changes will have consequences that will impact communities across the nation if finalized. The proposed definitions do not reflect the established science on how rivers function and would significantly reduce the scope of the Clean Water Act. When headwater and intermittent streams and wetlands lose protection, downstream flooding worsens, the costs of drinking water treatment rise, and water supplies become less reliable.”
Make your perspective heard by submitting a comment to the Federal Register by October 9.