Frequently Asked Questions about the Clean Water Rule:
What are intermittent and ephemeral streams?
These are small streams that may run sporadically or dry up during certain times of the year. They comprise more than 60 percent of the stream miles in the United States. They are headwaters to the larger rivers we enjoy for fishing, recreation or drinking water.
Why are they important?
Small streams and headwaters are the genesis of our larger rivers. They provide critical spawning grounds for fish populations and habitat for healthy wildlife populations.
Isn’t this just government overreach?
No. The provisions in the 2015 Clean Water Rule were in place for the first 30 years of the Clean Water Act. In 2001 and 2006 two Supreme Court decisions were handed down causing confusion about what the Clean Water Act covered and what it didn’t. In 2015, through a scientifically based and exhaustive public process, that issue was resolved by reinstating and clarifying protections that were part of the original Clean Water Act.
Does this regulate every ditch and puddle?
No, although some of those opposed to the rule would like you to think so. While there have been some cases of landowners being caught in red tape or fined for violations, they are few and far between and their cases are often far more complicated than they appear. In fact the rule has a whole list of items that are excluded:
- Drainage ditches not constructed in streams and that flow only when it rains
- Artificially irrigated areas that would revert to upland should irrigation cease
- Artificial lakes or ponds constructed on dry land and used for agricultural purposes
- Artificial ornamental waters created in uplands for primarily aesthetic reasons
- Water-filled depressions created as a result of construction activity
- Groundwater, shallow subsurface flow, tile drains
- Gullies, rills and grass swales.
In short, the “regulate every puddle” argument is quite simply a scare tactic from some of those who oppose the rule.
Does the Clean Water Rule hurt farmers and ranchers?
In short, no. The ag industry has very specific and long-standing exemptions which were reinstated in the 2015 rule. These were exemptions supported widely by hunters and anglers. They included:
- Most common farming and ranching practices, including “plowing, cultivating, seeding, minor drainage, harvesting for the production of food, fiber, and forest products”
- “Construction or maintenance of farm or stock ponds or irrigation ditches, or the maintenance of drainage ditches”
- “Agricultural stormwater discharges and return flows from irrigated agriculture”
- “Temporary sediment basins on a construction site”
- “Construction or maintenance of farm or forest roads or temporary roads for moving mining equipment”
So what did the rule do?
Basically it ensured the health of our streams and rivers by protecting water quality. To do this, the rule:
- Used clear, measurable physical boundaries
- Reduced the need for burdensome case-by-case analysis
- Clearly defined the limits of tributaries (i.e., bed, bank, ordinary high water mark) and distinguishes them from dryland ditches and erosional features.
- Narrowed the historic scope of Clean Water Act jurisdiction, excluding some wetlands and other waters protected for decades prior to 2001.
- Improved the case for protecting important wetlands located beyond river floodplains, such as the prairie potholes, western vernal pools in California, carolina and delmarva bays and pocosins along the Atlantic coastal plain, and Texas coastal prairie wetlands.
What will happen now?
It’s hard to say what the Trump Administration’s final decisions will be, and how the courts will respond to them. In the near term we will remain in the “status quo”, acceptable to virtually no stakeholders, where decisions are made on a case-by-case basis, increasing uncertainty and legal confusion.
What does the public think?
Of the 1.5 million comments that were submitted on the 2015 rule, 87 percent of them were in favor of the protections. Another survey showed that 83 percent of sportsmen and women supported applying Clean Water Act protections to small streams and wetlands.