Last week the U.S. EPA and the Army Corps of Engineers released the Draft Guidance on Identifying Waters Protected by the Clean Water Act. The draft guidance attempts to answer a very critical question — which streams, wetlands and other waters are protected under the Clean Water Act?
Since 1972 Americans have relied on the Clean Water Act to be the basic structure for regulating discharges of pollutants into the waters of the United States and regulating quality standards for surface waters. On a personal level, the main vehicle for which I strive to reach our program’s mission of being a vigilant guardian of the Spokane River and its watershed, and goal of defending the Spokane River against pollution and polluters is the Clean Water Act.
However, the Clean Water Act is far from flawless… and worse, far from consistent. Over the last ten years, interpretations of two Supreme Court decisions and two George W. Bush administration issued guidance documents have shed light on the need to clearly define which waterways are protected by the law. The Supreme Court decisions alluded to are a 2001 decision (Solid Waste Agency of Northern Cook County [SWANCC] v. U.S. Army Corps of Engineers) that suggested the law applied only to large navigable waterways, and a 2006 ruling (Rapanos v. United States) that suggested only waters with a “significant nexus” to navigable waterways could be protected. In all, these decisions confused regulators and exposed millions of acres of wetlands and thousands of miles of streams to development. The Obama administration hopes to clear up confusion with these new guidelines for the Clean Water Act that will help restore vital legal safeguards to wetlands and streams threatened by development and pollution.
“This is the first important step to enable the federal government to once again recognize what science and Mother Nature have known for a long time – the waters of the United States are connected,” read a statement from the River Network. “In their announcement, the Obama Administration recognized that all waters of the U.S. (including critical wetlands, small streams and streams that flow part of the year) must be protected if we are truly going to enforce the Clean Water Act”
Here’s a little background courtesy of a wonderful op-ed in The New York Times, “For nearly three decades, the 1972 act was broadly interpreted by the courts and federal regulators as shielding virtually all the waters of the United States from pollution and unregulated development — seasonal streams and small, remote wetlands, as well as lakes and large navigable waters. The basic idea was that small waters have some hydrological connection to larger watersheds and should be protected against pollution that would inevitably find its way downstream.”
However, when doubt and confusion over jurisdiction has been present, the benefit of doubt has gone towards no jurisdiction, meaning streams, wetlands and other water bodies have been without protection under the Clean Water Act.
These new guidelines would restore protections to small streams and wetlands that have a “physical, chemical or biological connection” to larger bodies of water downstream. For us here in the Spokane River Watershed, this is of significant importance. A great diversity of soils and geology creates an interesting hydrological environment here. In some places (West Plains) basalt sits but a few feet under top soil creating hard ground that isn’t permeable, whereas areas of North Spokane boast high densities of sand that drain very easily. What this does is place areas in the Spokane River Watershed under the current definition of Clean Water Act confusion, leaving the Spokane River in potential harms way via polluted tributary or spring runoff. More defined guidelines would go a long way in helping us, and other water advocates in the region, take a more holistic approach to identifying and cleaning up the Spokane River.
Since the question will inevitably come up, here’s some numbers to answer the critique of why more regulations or why now. First, it’s not really more regulations, just clarification of existing ones. According to the Washington Post, EPA Administrator Lisa P. Jackson said in a telephone news conference with reporters that although the new rules will expand the waterways enjoying federal protection, “this is not some massive increase, as far as we can tell.” But here’s the more important why now truth. According to a March Gallup Poll, Americans rank, “contamination of soil and water by toxic waste, pollution of rivers, lakes, and reservoirs, pollution of drinking water, and the maintenance of the nation’s supply of fresh water for household needs” as their top environmental concerns. Air pollution, extinction of plant and animal species, loss of tropical rain forests, urban sprawl and loss of open spaces and global warming followed, respectively.
Here’s the homerun line though – the line I’m most excited about: “I want to see another advance in clean water protection just like we saw in 1970s while I’m (EPA) administrator,” said Jackson. “I want be part of changes that will benefit American communities in 10 or 20 or 40 years down the road when it comes to their water, and I’m really glad to have the support of President Obama in that effort.”
If you’re interested in reviewing the draft framework set forth by the U.S. EPA and the U.S. Army Corps of Engineers, click HERE for the PDF.