Proposed Rule Marks An Important Step For Clean Water
Today, the Obama Administration publicly released a proposed rule to address the uncertainty and confusion surrounding the types of waters that are protected under the Clean Water Act. Enacted in 1972, the Clean Water Act was broadly interpreted for almost thirty years to provide protections from the smallest intermittent streams, headwaters, and intrastate wetlands to larger rivers, lakes, and the territorial seas.
Approximately 117 million Americans rely at least in part upon small streams and wetlands for their drinking water supply. That’s more than one-third of the entire population of the United States. In Chester County, Pennsylvania where I grew up, 100 percent of County residents who rely on surface waters for their drinking water get at least some of their water directly or indirectly from headwater streams or streams that flow only seasonally or after rain.
However, following two Supreme Court decisions in 2001 and 2006, protections for these small streams and wetlands were put into question. Resulting guidance from the Bush Administration compounded the problem by effectively removing removed protections for “isolated” water bodies, such as playa lakes or prairie pothole wetlands. Additionally, existing guidance puts significant burdens [PDF] on EPA and Army Corps of Engineers field staff to repeatedly prove what we already know scientifically – that small streams and wetlands are integrally linked to the health of downstream waters – as a prerequisite for stream protection. The effect of these decisions and the resulting guidance, which remain in place today, is significant uncertainty, declining enforcement, and increased delays to Clean Water Act implementation.
The proposed rule makes no substantive changes to traditionally navigable waters, interstate waters, the territorial seas, or impoundments of “waters of the United States” which remain under the scope of the Clean Water Act. It makes clear that tributaries of traditionally navigable waters and interstate waters and the wetlands and other waters located within the floodplain of these tributaries are protected as “waters of the United States.” The proposed rule maintains existing exemptions for forestry, mining, ranching, forestry, and other specific land use activities. It also provides additional definitions for key terms that were not previously defined in the regulations.
These categorical protections are an important step forward and could result in the restoration of protections small streams and wetlands that are currently more vulnerable to pollution. Despite this progress, the proposed rule could go further to restore Clean Water Act protections closer to their historical scope. The proposed rule does not restore comprehensive protections for wetlands and other water bodies that are outside of the floodplain, such as prairie potholes, vernal pools, and playa lakes. Instead, a case-by-case analysis to determine whether there is a significant nexus is required for these types of “other waters.”
The proposed rulemaking released today is an important step forward to address the resulting uncertainty and increasing delays to Clean Water Act implementation that puts small streams and wetlands at risk. While it does not mark a return to historical protections and we will continue to work with the Agencies through the public comment process to strengthen the draft rule, this proposal marks an important effort to better protect clean water and the health of the communities that depend upon it.