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Why is it Essential to Protect Ephemeral Streams?

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What is an Ephemeral Stream?

Ephemeral streams are waters that only flow in response to precipitation and lack a clearly defined channel. These features are standard in arid or semi-arid regions and often presents as dry ground with no recent rainfall. These waters, also called temporary streams, may always be present on a project site but go unnoticed for long periods. This should not be confused with a seasonal stream- these are typically defined as an intermittent stream. The states provide further definitions for these waters. (ex. Texas defines these waters as flowing for less than 30% of the year), adding additional requirements for developers.

We nicknamed these streams: Ghost Waters because of their ability to be present but unseen. It's not an indie rock band; it's a potential lawsuit.

 

 

Are Ephemeral Streams Currently Protected

 

The protection of ephemeral streams has long been under debate. The law that provides protection for waters and outlines United States jurisdictional waters is the Clean Water Act (CWA). This act is a federal protection that protects water quality and regulates the discharge of pollution into surface waters. When the Clean Water Act doesn't cover some waters, they might qualify for protection at the state level as jurisdictional "water of the state." The states protect waters by further defining for them.  

 

The CWA specifies protection for Waters of the United States (WOTUS) but fails to define said waters. This ambiguity has led to varying interpretations of WOTUS across presidential administrations and inconsistent protection for ephemeral streams. Currently, these waters are protected at a federal level by the CWA. The U.S. follows a pre-2015 ruling on the defined WOTUS as a concrete definition for these waters will be developed, beginning in 2022. 

 

The Obama and Trump administrations offered polar opposite interpretations on WOTUS and the permits required to interact with them. This discrepancy led to significant confusion amongst developers who were unsure of their project's standing regarding environmental policy. 

 

In the 2015 Clean Water Rule, the Obama administration established the defined WOTUS as:

 

 

  • Traditional navigable waters
  • Interstate waters
  • Territorial seas
  • Impoundments of the jurisdiction in WOTUS: streams and ditches seen as having a "significant nexus" on the traditionally defined waters above  

This ruling required developers to hold a Section 404 permit when discharging material in WOTUS. The Clean Water Rule also protected ephemeral waters and other small waterways. Though it provided temporary streams protection, there was still debate over if this ruling encompassed all valuable waters as WOTUS. This extended protection for waters was short-lived. In 2020, the Trump administration decided to limit what waters required these 404 permits and protections. Once again, the defined WOTUS were changed, and developers were scrambling to learn how it impacted their projects.

President Trump altered the defined WOTUS under the Navigable Waters Protection Rule (NWPR), limiting protection to:

  • Intermittent streams and perennial streams that contribute to surface water
  • Navigable waters 
  • Territorial seas
  • Traditional interpretations of the word "waters" such as lakes, ponds, oceans, rivers, streams, ponds, and adjacent wetlands 

This back-and-forth protection for headwater streams and other waters is detrimental to the integrity of water systems, regulation clarity for developers, and the environment. Without a clear standard for protection, any administration can undo any work done previously to preserve these waters. Additionally, developers may spend money on permits for projects that were once subject to less regulation. It is easier to achieve environmental protection and progress when the regulatory process is straightforward. Good for business and good for the environment can be the same thing. These goals do not need to battle each other but can protect the environment and developers alike.

 

 

Justification for Protecting Ephemeral Streams

 

Ephemeral waters are "headwater streams," which are waters that flow into larger downstream waters such as a river or larger streams. These small streams make up 80% of the U.S. stream network. They play a crucial role in maintaining water quality for drinking water, recharging groundwater, and keeping dangerous pollution from entering larger waters. 

 

The prevalence of these waters varies by region and disproportionately impacts them. A primarily arid region may depend on these waters significantly more than a region with sufficient precipitation. When these waters are inconsistently protected, there is room for error in the development process, and water quality across the U.S. may vary significantly. 

 

Water Quality

Clean water protection is critical to ensure people have clean water to drink. Over one-third of people in the U.S. get their drinking water from water systems provided by ephemeral waters and other headwaters. Drops of rain or snowmelt eventually meet with springs and tributaries, growing in size and flow as they make their way downstream to form the most famous rivers that we depend on for life. These waters retain sediment and other pollutants, such as excess nutrients, from traveling downstream and destroying valuable water sources. Pollution can create a dead zone or toxic algal blooms in a larger waterway such as a bay or river, damaging ecosystems and drastically impacting communities.

 

Ghost Waters' streamflow and the flow they provide to other downstream waters aid in recharging aquifers and providing clean water to surface water. This water supply is used for drinking water, irrigating farmland for the crops the U.S. depends on, and the manufacturing process of products. This clean water is integral to our environment and economy via manufacturing and individual health. 

 

These streams also aid in groundwater recharge. Ephemeral waters and intermittent streams recharge the groundwater that supports springs, wetlands, and flora upland from the stream itself. 

 

Ecosystems

The process of groundwater recharge shows how ephemeral streams support various ecosystems. Fish, amphibians, mammals, and birds can all benefit from the presence of these waters. Small headwater streams provide shelter, seasonal feeding areas, and animal breeding habitats. 

Many species depend on these waters for life. Some of these stream species are now listed as endangered due to human impact on these streams and the isolated wetlands they feed. 

 

Ephemeral waters additionally support vegetation closest to their flow. Researchers use the presence of vegetation in these regions as a predictive measure for the occurrence of these streams, as life could not exist as freely without it. 

 

These ecosystems are valuable to the species mentioned above and our dependence on these species. Many ghost waters are the groundwater recharge for a wetland used for hunting and fishing. The fish spawning in these streams is the beginning of the fisherman's journey, and these streams fuel the wetlands and marshes in which many hunted birds rest.

 

Flood Protection

The process of groundwater recharge shows how ephemeral streams support various ecosystems. Fish, amphibians, mammals, and birds can all benefit from the presence of these waters. Small headwater streams provide shelter, seasonal feeding areas, and animal breeding habitats. 

Many species depend on these waters for life. Some of these stream species are now listed as endangered due to human impact on these streams and the isolated wetlands they feed. 

 

Ephemeral waters additionally support vegetation closest to their flow. Researchers use the presence of vegetation in these regions as a predictive measure for the occurrence of these streams, as life could not exist as freely without it. 

 

These ecosystems are valuable to the species mentioned above and our dependence on these species. Many ghost waters are the groundwater recharge for a wetland used for hunting and fishing. The fish spawning in these streams is the beginning of the fisherman's journey, and these streams fuel the wetlands and marshes in which many hunted birds rest.

 

 

Ephemeral Streams

 

What Land Developers Can do to Ensure Protection of Ephemeral Streams? 

 

Ghost Waters that go unnoticed when purchasing the property for developments can come back and haunt developers when they break ground. April showers might bring May lawsuits and permits. By identifying these waters earlier, developers can take the proper actions to follow regulations for these waters without sacrificing a project timeline. In some cases, land may not be purchased or leased if it is determined too risky based on proactive environmental due diligence.

 

Land developers can do the best for their projects and ephemeral streams by performing early environmental due diligence. During this process, an environmental consultant or a member of the United States Army Corps of Engineers (USACE) trained to look for ecological red flags will evaluate a project site for risk. They look for waters outlined in the Clean Water Act and waters outlined as jurisdictional waters of the state. Should they find environmental issues on a site, these professionals can inform developers of all the necessary actions and permits to protect these waters and follow guidelines that apply to their projects on the federal, state, and county levels. 

 

This expensive process traditionally takes weeks but can now be done via environmental permitting software. This step, though seemingly simple, is the key to efficient and ecologically ethical project development. Developers can avoid expensive environmental injuries or recovery efforts when they incorporate this step into the early stages of a project.

 

As our development changes, so should our development processes. Developers shouldn't have to sacrifice projects to avoidable red flags when they could have identified them with more agile systems. With movements such as the Infrastructure Bill, development is only increasing, but so are regulations. Environmental rules and permits are not going away any time soon, so the best gift a developer can give themselves is the gift of time. Less time spent figuring out what to do with the acres of waters that appear on a project site overnight is more time spent building tomorrow.

 

 

 

 

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