Ioway Creek Could Lose Protection
written by Dan Haug, Watershed Coordinator for Story County Conservation
EPA’s latest attempt to redefine “Waters of the United States” could strip protections from Ioway Creek in Ames. Who knows how many others are at risk! Please make public comment by October 9.
Which streams and which wetlands are protected by the Clean Water Act? That depends on how courts and environmental agencies interpret the phrase “Waters of the United States.”
Federal agencies have interpreted the phrase too broadly in the past, and the Supreme Court has pushed back. The issue in Sackett v. EPA, the issue was not whether filling in a wetland for a house would impact water quality in Idaho’s Priest Lake, it was whether the federal government had overstepped its authority in asserting jurisdiction over a wetland with no obvious connection to a navigable water body. All nine justices agreed that it had, although they disagreed about the treatment of “adjacent” wetlands.
However, in its latest attempt to comply with the Supreme Court ruling, the Trump Administration’s EPA has interpreted the phrase too narrowly, leaving substantial uncertainty about which waters are covered and potentially harming water quality and fisheries in streams across Iowa.
This is Ioway Creek.
As you can see from the picture, it’s a navigable water body in the sense that we regularly organize canoe trips on it. It’s a solid blue line on the topographic map. However, it dried up three times in 2021: on August 19, from September 11 to 29, and from October 8 to 12. There was a drought that year, but it was classified as “Severe.”
If you read the find print in EPA’s latest proposal, that means it would be classified as “intermittent” under the latest definition being considered by the EPA. That means that it’s not a waters of the United States. That means a federal dredge/fill permit would not be required to build in Ioway Creek, although state and local floodplain permits would still be required. I think a federal permit would still be required to discharge pollution into Ioway Creek, but it might affect the terms of the permit—i.e. allowing higher E. coli concentrations in the effluent.
It doesn’t do much good to ask the EPA to protect ephemeral streams and prairie pothole wetlands. The Supreme Court has ruled that this can only be done at the state level. But we need to stop this ridiculous game of telephone where you can start with “navigable waters” and “water quality” and end up regulating manmade ponds to protect waterfowl, or end up stripping protection from a navigable river!
The Fine Print I Find Objectionable
Under this supplemental option, “relatively permanent” would be defined to mean “perennial bodies of water.” The definition would also state that “A body of water does not lose its relatively permanent status if it dries up as a result of anomalous events such as drought or dry spell. A body of water also does not lose its relatively permanent status if it dries up for no more than a single period of up to 30 consecutive days in any given year as a result of non-anomalous events resulting in a temporary interruption such as low tide or a regularly occurring dry spell.” … When flow is interrupted for more than a single period in any given year, and the interruptions are non-anomalous and ordinary for that water body, the agencies would consider this to be an ephemeral or intermittent feature even if each period of interruption does not amount to 30 consecutive days. For instance, if flow is interrupted for two periods in any given year, and each period consists of 10 consecutive days of no flow, the water body would not be jurisdictional when these interruptions are non-anomalous.
The U.S. Drought Monitor uses four levels of drought: moderate (D1), severe (D2), extreme (D3) and exceptional (D4). The agencies are considering implementing drought under this supplemental option such that only extreme (D3) and exceptional (D4) droughts would qualify as anomalous drought conditions that can temporarily interrupt perennial flow, and can extend continuously across no more than a five-year timeframe, after which the drought condition would be nullified for purposes of identifying “relatively permanent” waters, and that water would no longer be jurisdictional under its ordinary conditions as the interruption has ceased to be `anomalous.’