An analysis from the nonprofit Environmental Defense Fund says up to a quarter million wetlands in Arizona may have lost federal clean water protections. environmentalists and state regulators both say there’s a great deal of uncertainty.
A Supreme Court ruling last year, Sackett v. EPA, required that wetlands that have a “continuous surface connection” to federally protected water be covered under the Clean Water Act.
Environmental Defense Fund spokesperson Ben Bryce says it’s unclear which wetlands qualify.
"Not only do we have questions about what rules would apply," he says, "but also questions about whether any rule would apply at all. It’s tricky, and it puts in a tough spot, especially at a time when water availability is so important."
Ephemeral waters are especially at risk; they don’t have continuous surface flow but can still absorb floods, purify water and provide wildlife habitat.
Adam Gold of the Environmental Defense Fund says "the big fix" is for Congress to clarify which wetlands are federally protected and which are not, but for now, it's on states to fill the gap.
"They're extremely important, they provide a ton of benefits," he says, "and it’s really hard to get those benefits back if you lose the wetland in the first place."
The Arizona Department of Environmental Quality has a list of state-protected waters and is working to clarify the nomination requirements. A department spokesperson says the agency is awaiting clearer guidance from the U.S. Environmental Protection Agency and the Army Corps of Engineers on issues like how long water flow needs to last to be considered "permanent."
“Without guidance on these critical items,” ADEQ said in an email to KNAU, “it is difficult to determine which waters are regulated and which are not, especially when a water may be ephemeral or there is an ephemeral break in an otherwise flowing waterbody.”
Read the study from the Environmental Defense Fund in Science, or learn more about Arizona’s Surface Water Protection Program.
