FOR IMMEDIATE RELEASE
WASHINGTON, D.C. – Clean Water Action and Clean Water Fund are raising concerns about a new proposal from the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers that would significantly narrow which streams and wetlands are protected under the Clean Water Act.
The Clean Water Act regulates pollution discharged into “waters of the United States.” In 2023, the Supreme Court narrowed that definition in Sackett v. EPA, ruling that protected waters must be relatively permanent and that wetlands must have a continuous surface connection with an otherwise protected water.
The new proposal would go further. Streams would generally need standing or continuously flowing water every day of the year under ordinary conditions to qualify for federal protection. Wetlands would need perennial surface water continuously connected to an otherwise protected water.
EPA and the Army acknowledge that most intermittent streams would not meet the new standard and that the majority of wetlands currently protected as adjacent wetlands would likely lose federal protection.
“The scale of this change is difficult to overstate,” said Sean Jackson, National Water Campaign Coordinator of Clean Water Action. “Seasonal streams still carry water and pollution downstream, and wetlands still protect water quality even when they are not covered by standing water every day of the year.”
These changes have direct implications for drinking water. Rivers and reservoirs used for drinking water are fed by networks of headwater, seasonal and intermittent streams. Removing federal protections upstream can increase pollution risks downstream and put more pressure on drinking water systems.
The public will have 30 days to comment after the supplemental proposal is published in the Federal Register.
MORE ON THE PROPOSAL
The new supplemental proposal changes the basic test EPA and the Army would use to decide which streams and wetlands receive federal Clean Water Act protections. The biggest changes are a new perennial-water standard for streams and a much narrower surface-water test for wetlands.
The new proposal would generally limit “relatively permanent” waters to perennial waters, meaning waters with standing or continuously flowing water every day of the year under ordinary conditions. The proposal allows for one regularly occurring dry period of up to 30 consecutive days. Multiple ordinary dry periods, even if each lasts much less than 30 days, could cause a stream to lose federal protection.
Wetlands would face an even narrower test. A wetland would need perennial surface water that is continuously connected to surface water in an otherwise protected water. Only the portion of the wetland with that continuous surface water connection would remain federally protected.
The 30-day threshold creates another problem. The agencies acknowledge that there is no precise, scientifically grounded national time limit supporting the cutoff. Under the proposal, a stream that predictably goes dry once for 30 days could remain protected, while a stream that goes dry twice for 10 days could lose protection.
The consequences for wetlands could be even larger. EPA and the Army acknowledge that most wetlands do not contain perennial surface water and anticipate that the majority of wetlands currently protected as adjacent wetlands would not meet the new standard.
“This is a major change in how federal protections would apply on the ground,” said Sean. “The proposal could draw a federal jurisdiction line through the middle of a wetland based on where perennial surface water is present. It would also leave many seasonal and intermittent streams without federal pollution protections even though they remain connected to downstream waters.”
This has direct implications for drinking water. EPA has estimated that approximately 117 million people receive some or all of their drinking water from public water systems that rely at least in part on intermittent, ephemeral or headwater streams. Keeping pollution out of the streams and wetlands upstream of drinking water sources is an important part of protecting drinking water before it reaches a treatment plant.
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About Clean Water Action
Since the organization’s founding during the campaign to pass the landmark Clean Water Act in 1972, Clean Water Action has worked to win strong health and environmental protections by bringing issue expertise, solution-oriented thinking, and people power to the table. www.cleanwater.org