Waters of the United States (WOTUS): Rule Changes, Potential Impacts to Ecosystems, Fish, & Fisheries, & State Specific Implications (hosted by AFS)

Loss of legal protections for vulnerable ecosystems under the proposed Waters of the U.S. (WOTUS) rule, especially for ephemeral streams and off-channel wetlands, would create a cascade of consequences, including reduced water quality, impaired ecosystem functioning, and loss of fish habitat for commercial and recreational fish species. Headwater streams and outside the floodplain wetlands are critical for sustaining aquatic biodiversity, fisheries, ecosystem functions, natural resource-based economies, and human society and culture. These systems are also critical for maintaining populations of many endangered aquatic species. Headwater streams comprise 79% of our nation’s stream networks; wetlands outside of floodplains comprise 6.59 million ha in the conterminous United States. Impacts may be geographically variable, however, based on state clean water laws, penalties, and ability to fund programs to protect these waters. The purpose of this session is to explore the specific rule changes, impacts to ecosystems, connectivity, fisheries, and fishes, state-by-state or jurisdictional variability in protection, inconsistencies with current science, and cultural impacts.

8:00AM Welcoming Remarks
8:20AM Waters of the U.S. Rulemaking: History, Current Status and AFS Policy Involvement
  Drue Winters
The 2015 Waters of the U.S. Rule or WOTUS rule sought to clarify which waters were subject to the jurisdiction of the Clean Water Act. Recently, the U.S. EPA and the Army Corps of Engineers have proposed a narrower rule to replace it based on a legal-policy construct. In contrast, the 2015 rule was based on the best available peer-reviewed science on the connectivity of waters. Ultimately, a narrower rule will allow activities like land development, water resource projects, infrastructure development and industrial expansion to proceed without the safeguards of a federal permit. The proposed rule has serious implications for the nation’s streams and wetlands, including headwater streams and millions of acres of non-floodplain wetlands that provide valuable habitat for many fish species. AFS Policy Director Drue Winters will discuss the policy history behind the rule including significant legislative and judicial action or inaction that led to the 2015 rule, the current status of the proposed re-definition, and AFS’ policy efforts to support a science-based rule.
8:40AM The Proposed “Waters of the United States” (WOTUS) Rule Flouts Sound Science
  S. Mazeika P. Sullivan, Mark Rains, Amanda Rodewald
Recognizing the value of clean water, the Obama administration advanced an evidence-based rule in 2015 that clarified which “waters of the United States” (WOTUS) were subject to regulation under the Clean Water Act. Although the Obama-era rule was based on a scientific review of >1,200 peer-reviewed articles and input from 49 technical experts, the Trump administration recently proposed its own definition of WOTUS – one that is inconsistent with both science and the intention to safeguard Americans’ access to clean water. If passed, the proposed definition would result in the loss of protections for over half of wetlands and one-fifth of streams in the United States and thus compromise ecosystem services that support human health and well-being. Here, we overview scientific inconsistencies of the proposed rule and highlight potential implications.
9:00AM Overview of Proposed Wotus Rule Changes and Impacts on Fish and Wildlife Habitat in Streams and Wetlands
  Gillian Davies
Are you wondering how the proposed new definition of WOTUS differs from existing regulations, and how those differences, if implemented, will impact ecological function, including fish and wildlife habitat in wetlands and waters? This presentation will outline the key differences between the proposed revised definition of WOTUS and the 2015 Clean Water Rule/pre-2015 regulations and guidance, and then will briefly examine the ramifications of these changes for wetland/waters ecological function, including fish and wildlife habitat. This presentation will be national in scope, and then will focus on two regional examples where important wetland resources will lose protective status: New England vernal pools, and geographically isolated wetlands (GIWs) in the Mississippi River watershed. Many of the GIWs in the Mississippi watershed have already been converted to other land uses, particularly agriculture, with significant impact on water quality, quantity and habitat. By looking at the consequences that have resulted from past losses of GIWs, we can anticipate future habitat, water quality and water volume impacts from the proposed changes.
9:20AM Ground Estimates Versus National Hydrography Dataset Estimates of Headwater Stream Occurrence & Extent
  Robert Hughes
Although headwater streams may be permanent, intermittent or ephemeral, those categories are fraught with error for several reasons. 1) Streams mapped by topographic crenulations differ from those mapped from air photos. 2) Differences in field annotation and map compilation occur among annotators and mappers. 3) Stream channels in xeric areas are typically more easily detected than those in densely forested areas. 4) The areas needed to generate an ephemeral stream vary between mountainous regions and flatland regions. 5) Changes in land use and water withdrawls increase and decrease flow amounts and frequencies. 6) Climate and weather changes increase or decrease flow amounts and frequencies depending on the year and region. Examples of each error source are given for the USA, and implications for applications of the revised Waters of the U.S. rule are discussed.
09:40AM Break
1:10PM Mapping Wotus: National Patterns and Example Impacts
  Kurt Fesenmyer, Matt Mayfield, Helen Neville
Properly evaluating the potential impacts of changes to the WOTUS rule requires an understanding of the distribution of streams and wetlands affected by the proposed change. We describe how the EPA has presented information on ephemeral streams from the USGS National Hydrography Dataset and discuss shortcomings of that approach. By not considering the origins, inconsistencies, and limitations of the NHD, EPA is greatly underestimating the amount and proportion of stream miles affected by the proposed rule. We present a rapid analysis derived from readily-available national datasets for mapping ephemeral streams to supplement the NHD, and discuss national and regional patterns of ephemeral stream abundance. We then describe several example actions on the ground which require permitting under the Clean Water Act, including pipeline construction, transmission line construction, and oil and gas development, and demonstrate how loss of protection for ephemeral streams increases risks to downstream fisheries, drinking water supply, and other ecosystem services.
1:30PM Assessing the Risk of WOTUS to Stream Fish Habitat: Current Condition of and Disturbances to US Headwaters
  Dana M. Infante, Wesley Daniel, Arthur R. Cooper, Gary Whelan, Kyle Herreman
Approximately 80% of all stream fish habitats in the United States are at some risk of degradation from landscape-scale stressors including urbanization, impervious surface, agriculture, mines, dams, and point source pollutants. Efforts to roll back protection for headwater streams currently covered under the Clean Water Act would expose many of these habitats to additional stressors, compounding current stressor effects, and in some cases, leading to threshold responses in stream fish assemblages in unprotected habitats. This effort assesses fish habitat condition in first- and second-order tributaries throughout the conterminous United States, including many headwater streams at risk of losing protection under the WOTUS rule. Results show that nearly 60% of these habitats are currently at low or very-low risk of degradation, underscoring the risk of the loss of protection. Additionally, we highlight the most severe landscape stressors to these habitats by region and identify those stream reaches for which modest amounts of additional disturbance, including increases in impervious surfaces, urbanization, and mining, could yield dramatic changes in their ability to support their current fish assemblages. Together these results underscore the importance of protecting these vulnerable habitats and fishes they support to ensure the integrity of all the Nation’s stream habitats.
1:50PM Connections between Forested Headwater Systems and Downstream Fish Habitat
  Robert J. Danehy, Robert E. Bilby
Headwater systems sustain downstream fish habitat by exporting heat, sediment, nutrients, instream biota, and large wood. We describe each in the upper Calapooia watershed, a tributary to the Willamette River in Oregon, USA. Stream temperatures in summer establish a strong gradient throughout the watershed from headwaters 15-16°C maxima to above 23°C in upper mainstem. Differences are attributable to reach-scale shading and bedrock substrate. Nutrients were measured in multiple studies, both extensively and intensively. Nutrient export was low — close to detection thresholds. Fine sediment was measured physically and biologically. Fine sediment was low (< 17%) in tributaries and lower (< 5%) in the upper mainstem, which has substantial bedrock substrates (11.3%). The watershed supports a macroinvertebrate assemblage which includes sediment intolerant taxa. Baseflow macroinvertebrate drift concentrations (per m3) were similar in headwaters and mainstem. Biomass was low with 65% in five taxa groups, yet richness was high, including 57 chironomid taxa and 28 terrestrial families in the drift. Current mainstem wood loadings are very low and future supply unclear. Early harvest and transport of primary forest logs altered large wood regime. Flood disturbances in 1963 and 1996 impacted channel differently due to stand age.
2:10PM Headwaters Dependency of Freshwater Fishes of the United States
  Susan Colvin
Many fishes are dependent on headwaters during at least some life history stage. Recent proposed changes to the Waters of the United States Rule (WOTUS) further increases the risk of habitat loss and degradation, especially in ephemeral streams and non-floodplain wetlands. However, mapping errors or lack of coverage, water withdrawals, and climate change make accurate assessment of stream type difficult and temporally variable also increasing degradation risk for intermittent and some perennial headwater streams. These analyses investigate headwaters life history dependency across approximately 700 native US freshwater species that are land-locked or reproduce in freshwater. Over half of US extinct freshwater fishes were headwaters or springs dependent. Almost 40% of currently endangered freshwater species are headwaters dependent. An assessment of the headwater dependency across fish families, region, imperilment and extinction status will expand our knowledge of the potential impacts of headwaters degradation on fishes and emphasizes the need for protection of these vulnerable waters.
2:30PM Stream Expansion and Contraction Drive Temporal Patterns of Fish Abundance in Intermittent Prairie Streams
  Skyler Hedden, Keith B. Gido
Studies that describe the dynamics of intermittent streams are of critical importance given current political pressure to ignore scientific evidence and deregulate these systems. Specifically, intermittent stream fish responses to variable water levels are complex and involve many spatial and temporal processes making it difficult to quantify the use and importance of these dynamic streams. With the use of long-term datasets we can begin to reveal patterns and processes that shape communities and populations. Our objective was to examine how fish community and populations responded to varying levels of water availability in two intermittent stream networks sampled over 10-16 years. We predicted fishes would disperse into previously dry habitats during wet conditions, and with low water availability, fishes would contract to wetted habitats. Observed fish community abundances were highly variable within and among study sites, but four of six sites matched our predictions. A tagging study supported our results and demonstrated that individuals moved away from perennial reaches and into newly wetted intermittent reaches. Our findings suggest that species dispersal dynamics should be carefully considered when considering the importance of streams, particularly in intermittent stream networks where access to habitat can change drastically with water availability.
2:50PM Refreshment Break
3:20PM Subsidence Impacts to Headwater Streams from Longwall Mining of Bituminous Coal
  Patrick Shirey, Andrea Kautz, Robert Winn, Taylor DaCanal, Jared Deglmann, Marja Copeland, Stephen Tonsor, Anthony Iannacchione, Daniel Bain
Longwall mining of bituminous coal causes surface subsidence. As a result, the substrate of some streams is fractured (cracks in substrate) or heaved (lifting of substrate). When subsidence causes fractures or heaves, stream flow can be lost to subsurface flow. In Pennsylvania, mine operators are required to augment streams. Other states with longwall mining don’t have the same level of protection for restoring stream flow after mining. Pennsylvania protects ephemeral streams under its Clean Streams Law and mining regulations, though the state has also relied on federal jurisdictional determinations for streams and wetlands by the U.S. Army Corps of Engineers. Even in Pennsylvania, restoration of flow is not always successful, and some headwater streams don’t fully recover after mining. Consequently, perennial streams can become ephemeral or intermittent. So, in effect, under the revised definition of Waters of the United States, perennial streams could be removed from federal jurisdiction by a legal activity (longwall mining) that reduces stream flow. Hypothetically, under the revised rule, someone could then fill these former perennial streams without needing to obtain a federal permit. These impacts and implications will be synthesized to estimate the broad implications of mine subsidence to WOTUS.
3:40PM Importance of Headwater Streams to Recreational and Commercial Fisheries
  Randall Colvin
Commercial and recreational fisheries in the United States are an economically and culturally important resource contributing billions of USD annually to federal, state and municipal governments and regional economies. The repeal and replacement of the 2015 Water of the United States Rule (WOTUS) would roll back protections for a majority of the nation’s streams and wetlands, especially ephemeral streams and non-floodplain wetlands. Current protections afforded to headwaters help maintain and contribute to the stability of these fisheries. Nationally, trout anglers spend $3.5 billion on their pursuits and support 100,000 jobs. Headwaters are vitally important for many commercial fish species including salmonids as they provide essential spawning and rearing habitat for Pacific Salmon. In one of the world’s most valuable salmon fisheries in Bristol Bay, Alaska, where headwaters remain relatively pristine, this fishery generates $1.5 billion in annual economic activity and 20,000 full-time jobs. The loss of legal protections for these vulnerable ecosystems would create a cascade of consequences, leading to the loss of fish habitat for commercial and recreational fish species and the subsequent loss of jobs, and revenue for rural fishery dependent regions.
4:00PM An Intermittent Stream Supports Extensive Spawning By Colorado River Basin Native Suckers
  Kevin Thompson, Zachary Hooley-Underwood
Bluehead Sucker Catostomus discobolus and Flannelmouth Sucker C. latipinnis are species of considerable conservation concern and interest across their native ranges. Anecdotal accounts from “old timers” bear witness to high volumes of tributary use during spawning seasons. An opportunistic survey in May 2014 of Cottonwood Creek, a Gunnison River basin intermittent tributary, revealed unanticipated numbers of spawning adult suckers in the stream. Over the next three years we sought to control the spawning run with a picket weir to favor reproduction by native fishes. We trapped fish for 12, 35, and 51 days in those years. Native suckers handled (not including recaptures) numbered 609, 8,027, and 10,652. Spawning fish entry varied by 6 weeks among years and was opportunistic, commencing as soon as flows were sufficient to allow passage. Average residency of PIT-tagged fish in 2016 and 2017 ranged from 26 – 37 d depending upon species. Larval suckers were sampled as far upstream as 21 Km from the mouth. These observations suggest that this intermittent stream is important spawning habitat for these species, even if not available every year.
4:20PM Discussion

Organizers: Drue Winters, Susan Colvin
Supported by: AFS Fish Habitat Section

Location: Reno-Sparks CC Date: October 1, 2019 Time: 8:00 am - 5:00 pm