“Waters of the U.S.” Have you ever heard that term before? What about “waters of the Commonwealth?“
These are important terms that define, more or less, the streams, rivers, lakes, wetlands, and other waterbodies that are protected under the Clean Water Act nationally, and covered under Kentucky’s own water quality standards. This means that currently, not all smaller streams, and not all wetlands, and not all ponds, are protected under the Clean Water Act.
Why is this the case?
Well, when the Clean Water Act was written, it included the term “waters of the U.S.” because it intended to cover waterways that had a role in inter- and intra-state commerce. This mostly entailed main rivers (think the Kentucky, Licking, Green, Big Sandy, Tennessee River-Kentucky Lake and Cumberland River-Lake Barkley, and then even bigger to the Ohio and Mississippi) and some larger creeks that had direct affects to the rivers.
The goal, of course, was to reduce impacts to the main rivers by taking care of the primary tributaries, and all the associated pieces of those tributaries, like adjacent wetlands, impoundments for lakes, and so forth.
It’s understandable that the original definition of waters of the U.S., found at 40 CFR 230.3(s), was not necessarily interpreted to be wholly inclusive of all streams (ephemeral, intermittent, and perennial), or all wetlands. At the time of the Clean Water Act, the collective importance of the entire stream network, from first order streams, to much larger streams and rivers, was not fully understood. Even less understood were the critical importance of wetland ecosystems, for reducing flooding, removing pollutants from waterways, and for wildlife.
Now, science has caught up with the law, and sound science shows that everything flows downstream. Scientists have also shown that certain activities, and certain pollutants, can have long-lasting impacts downstream, even in headwater streams. Scientists have also found how important headwater streams are in terms of ecological services. Scientists have also found that wetlands are much more integral landscape and ecological features than what was known several decades ago.
Over the past decade, certain activities and actions by EPA have caused various groups to both ask for clarification of what exactly are considered “waters of the U.S.” and other groups to file lawsuits based on the definition. Information on those cases can be found here. One lawsuit and subsequent court ruling led to the use of the term “traditionally navigable waters” as the primary definition for “waters of the U.S.” That term referenced waterways that were traditionally used for commercial navigation, and wetlands that were immediately adjacent to those waterways. But that court ruling also allowed for tributaries to traditionally navigable waters, and adjacent wetlands, to be included so long as they flowed most of the year (3+ months continuously).
All the rest of our waterways–intermittent and ephemeral streams and isolated wetlands–would be examined on a case-by-case basis, but would not directly be considered “waters of the U.S.”
Why explain all this?
Well, in April 2011, EPA and the Corps of Engineers submitted guidance to help clarify the “waters of the U.S.” further. Just last Thursday, EPA’s Assistant Administrator for Water Nancy Stoner hopped on Twitter, and had a Q&A tweet session with citizens around the country. During that conversation, it was brought up multiple times that EPA needs to finalize the guidance, and to make sure it includes full protection for all streams and wetlands. Well, it seems that EPA and COE have sent their final guidance to the Office of Management and Budget for review. When this is finalized, according to EPA, it “will provide more predictable and consistent procedures for identifying waters and wetlands protected under the Clean Water Act.”
Kentucky is in need of this finalized guidance possibly as much or more than any other state. Why? Well, Kentucky has upwards of 92,000 stream miles, and a vast majority of those are headwater streams, also called ephemeral or intermittent, and for which current CWA protections are up in the air. These streams need protection because these are often sources of drinking water in many locations in the country, as shown by this map.
These streams need protections because they provide critical ecological services to the surrounding environment. These streams need protections because they are waters of the U.S.
Read more about Waters of the U.S. here: http://water.epa.gov/lawsregs/guidance/wetlands/CWAwaters.cfm
But do that when the weather is a little less amazing, and with the current weather forecast, it might be a while!