You may have heard conflicting information about the Environmental Protection Agency’s “Clean Water Rule”, which was presented in its final form on May 27, 2015. Many clean water advocates are struggling to decide whether the new regulations are an overall win or loss for the nation’s waters. Puget Soundkeeper and Waterkeeper Alliance have determined that despite the fact that some waterways will now clearly enjoy more definite and uncontestable protection under the Clean Water Act, the new rule protects fewer waterways overall and excludes waterbodies across the country from federal protection without a legal or scientific basis.
Clean Water Act history
Passed in 1972, the Clean Water Act compels the EPA and the Army Corps of Engineers to protect “Waters of the United States”. This would seem to mean all waters, but a reference to navigable waters in the language of the Act has been used in the past to exempt certain waterways from regulation, most recently when the Supreme Court issued confusing and conflicting statements attempting to narrow protections under the Act in Rapanos vs United States (2006).
Clean Water Act protection is most often contested as it applies to small streams and wetlands. While those waters were protected for many years, after the Supreme Court’s fractured 2006 decision legal protection of those water bodies was evaluated on a case-by-case basis, with the process often becoming resource-intensive and cumbersome. The stated goal of the new regulations was to more clearly delineate protected and unprotected water bodies based on their hydrological characteristics in order to avoid the need for case-by-case decisions on all waters.
Science supports protection of all waters
EPA had hoped to draw a bright line based on science so that piecemeal decisions would not mire the implementation of the rule. Unfortunately, when the science clearly pointed to the need for protecting wetlands and small tributaries, EPA’s solution was to follow political pressure and ignore the science.
In developing the rule EPA consulted with its Science Advisory Board and provided advance drafts of its rule and posed questions to an additional body of outside scientists, requesting their expert opinions regarding protection of headwaters, tributaries, wetlands and groundwater. EPA’s science advisors and consultants stated repeatedly that streams, regardless of size or frequency of flow, do indeed impact downstream water quality; that wetlands, even those that are small or isolated, provide critical water ecosystem functions and benefits including flood control and clean water; and that groundwater and surface water often intersect. From a clean water perspective, this means in many places they are one and the same, and that omitting groundwater from protections under the Clean Water Act is not scientifically sound.
Despite these scientific findings, EPA chose a political route. The new “Clean Water Rule” protects far fewer water bodies, narrowing Clean Water Act jurisdiction even more than the most conservative interpretation of Supreme Court precedent would dictate. Under pressure from agribusiness and industry, the EPA included new industry-focused exemptions that apply even for tributary waterways which would otherwise receive protection. The new rule also allows for damming of mountain streams to form waste lagoons in mining areas. In addition, EPA’s regulations exempt waterways adjacent to protected waters if they are associated with certain types of agriculture (frustratingly, agriculture is the leading source of pollution nationally in rivers and streams). And the new rules almost completely exclude protection of groundwater, regardless of whether such a position is scientifically supportable.
What does it mean?
If you live downstream of a newly-exempted waterway, this could mean a lot to you personally. We all have those special places we like to visit, a creek, a wetland or small lake. They form our connection to the natural world. They are places where we swim and fish. If that waterway provides your drinking water, this is even more impactful because these areas, and connected waters downstream, are now at grave risk.
What do the new regulations mean for Puget Sound and its 10,000 tributary streams? We have yet to hash out the details. But we do know this: the Sound and its surrounding waters are already suffering, and under pressure from toxic runoff, sewage, agriculture and industrial pollution. So are many other Washington waterways. Data from the EPA and Department of Ecology reveal that of rivers and streams in Washington assessed by the agencies, 80 percent are classified as “impaired”—an official designation which means they are too polluted to meet state or federal water quality standards. Any weakening of the Clean Water Act, the single most important law protecting our waters from destruction, is just plain bad news.
In the face of this decision, Puget Soundkeeper, Waterkeeper Alliance and our allies will work to create the best protection possible for our waters under the rule by enforcing existing law and where possible, restoring protections lost under the updated regulations.
(1) Katelyn Kinn/Puget Soundkeeper
(2) Sue Joerger/Puget Soundkeeper
(3) Chris Wilke/Puget Soundkeeper