Clarifying which U.S. waters are within EPA’s jurisdiction
“Where the wetland or open water is not connected to the river network through surface or shallow subsurface water, the type and degree of connectivity varies geographically, topographically, and ecologically, such that the significance of the connection is difficult to generalize across the entire group of waters.
“Lastly, the Report concludes that to understand the health, behavior, and sustainability of downstream waters, the effects of small water bodies in a watershed need to be considered in aggregate. The contribution of material by, or an important water-retention function of, a particular stream, other open water, or wetland might be small, but the aggregate contribution by an entire class of streams, other open waters, and wetlands (e.g., all ephemeral streams in the river network) can be substantial.”
Based on the draft report, the agencies conclude that both “tributary streams” and “adjacent waters,” as defined in the proposed rule, “perform the requisite functions for them to be considered ‘waters of the United States’ by rule.” In addition, “other waters” may, in some cases, perform these requisite functions.” But the agencies are proposing that these would be evaluated on a case-specific basis.
The agencies assert that the scientific literature shows that the included waters “supply sediment, wood, organic matter, nutrients, chemical contaminants, and many of the organisms found in downstream traditional navigable waters, interstate waters, and the territorial seas.”
Furthermore, “These chemical, physical, and biological connections affect the integrity of downstream traditional navigable waters, interstate waters, and the territorial seas through the export of channel-forming sediment and woody debris, storage of local groundwater sources of baseflow for downstream waters and their tributaries, and transport of organic matter. Wetlands and open waters located in riparian and floodplain areas remove and transform nutrients such as nitrogen and phosphorus. They provide nursery habitat for fish, and colonization opportunities for stream invertebrates.
“Adjacent waters, including those located in riparian and floodplain areas, serve an important role in the integrity of traditional navigable waters, interstate waters, and the territorial seas because they also act as sinks for water, sediment, nutrients, and contaminants that could otherwise negatively impact traditional navigable waters, interstate waters, and the territorial seas.”
In the next column, we will examine the definition that the agencies have developed for the term “waters of the United States.”
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