The Clean Water Rule and Its Potential Repeal

August 31, 2017
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In February, shortly after taking office, President Trump signed an Executive Order beginning the process to repeal the Clean Water Rule and replace it with a set of rules that would weaken regulations surrounding water protection. The Clean Water Rule is also known as the Waters of the United States Rule (WOTUS). This rule is not to be confused with the Stream Protection Rule which legally prevented mining operations from dumping toxic waste into streams and was repealed in February.

While the Clean Water Rule is in federal appeals court and has yet to be fully implemented, the Executive Order issued earlier this year requests that agencies interpret the Clean Water Act and the jurisdiction of waterways as Justice Scalia did in an opinion regarding the Clean Water Act.

In Scalia’s 2006 opinion, which was rejected by the majority of Supreme Court justices, he posed that waterways must only be protected under the Clean Water Act when they are “relatively permanent”. As for wetlands, Scalia explained that there must be a “continuous surface connection” to other water bodies protected under the Clean Water Act. Using the opinion of Justice Scalia to dictate the interpretation and jurisdiction of the Clean Water Act is completely unsound from a scientific, economic, and governmental standpoint.

The rollback of the Clean Water Rule ignores scientific evidence related to the nature of watersheds, water quality, and water flow. It would undue federal pollution safeguards for 60% of streams and most wetlands in the continental United States. The repeal of the Clean Water Rule would also deny the EPA the authority to regulate intermittent streams, tributaries, and ponds which was granted with the Clean Water Rule of 2015. This would be detrimental as streams and wetlands provide water filtration, supporting clean and safe water; water storage, protecting against flooding and draughts; and natural protection against storm surges.

Along with this baseless understanding of watersheds of the U.S., there is little recognition of the financial cost of such action. Businesses, especially small operations, rely on access to clean and safe water at affordable rates. Outdoor recreation is dependent upon protected waterways and ecosystems and boosts many economies. The most alarming and far-reaching economic overlooks this proposed repeal ignores are the heightened cost of water treatment stemming from increased pollution and the economic costs of flooding and water damage. Pollution and poor watershed management ultimately cost governmental agencies, municipalities, and community members much more money than protective measures to address watershed and ecosystem health.

To understand the gravity of watershed management and regulatory protections, we can look at past weather and water related events. While Hurricane Katrina and the ongoing Hurricane Harvey were caused by a variety of factors, wetland destruction and poor watershed management certainly amplified the catastrophes. The Army Corps of Engineers acknowledges that when gulf coast wetlands are lost, natural storm buffers protecting land from storm surges are destroyed. The preservation of wetlands are critical to the wellbeing of coastal habitats.

For the Appalachian headwater streams, the rollback of the Clean Water Rule would put legal protections up for grabs. This rollback coupled with the previous repeal of the Stream Protection Rule hinders Clean Water Act protections, meaning less regulation to theoretically protect headwater streams and drinking water sources for so many. This has far-reaching implications and the potential to make it even more challenging to hold polluters accountable for the degradation of waterways.

Headwater streams, like the Kentucky, Cumberland, and Big Sandy in Letcher County, flow downstream, feeding larger waterways and the drinking water sources for many small and under-resourced water treatment systems. While it is small and rural communities relying on private wells and small water systems who are at the greatest risk, losing protections for headwater streams impacts all waterways and downstream treatment systems. The streams and wetlands protected with the Clean Water Rule provide the drinking water sources 117 million people in the U.S.

With many headwaters streams already polluted, many may question the significance of upholding the Clean Water Rule. In response to this, stream impairments and water quality issues are not addressed by writing streams off as lost causes only serviceable for more pollution. With watershed management and appropriate remediation, it is possible to improve watershed quality. With this being the case and the goal being to improve and protect waterways, it is more productive to lead stream protection efforts when there are laws and regulations in place to protect waterways and hold polluters accountable.

In 2015, a rigorous public process led to the passage of the Clean Water Rule. The Environmental Protection Agency held over 400 meetings with stakeholders and community members across the country. Over 1,200 peer reviewed scientific publications were compiled, explaining the necessity of small stream and wetland safeguards for the protection of larger waterways and drinking water. Efforts to repeal the Clean Water Rule have not followed the same public processes and due to this, there has been an extension of the public comment period.

The EPA Comment period has been extended to September 27, 2017. To leave a public comment regarding the potential repeal of the Clean Water Rule and the definition of “waters of the United States”, visit this site: https://www.regulations.gov/comment?D=EPA-HQ-OW-2017-0203-0001

 

 

Sources:

https://archive.epa.gov/water/archive/web/html/streams.html

https://cfpub.epa.gov/ncea/risk/recordisplay.cfm?deid=296414

https://fas.org/sgp/crs/misc/R43455.pdf

https://supreme.justia.com/cases/federal/us/547/715/opinion.html

http://www.alh2o.org/uploadedFiles/File/2012_EPA_Economic_benefits_of_protecting_healthy_watersheds_factsheet3.pdf

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3594144/

https://www.nrdc.org/experts/trumps-attack-clean-water-what-you-need-know

https://www.osmre.gov/programs/rcm/streamprotectionrule.shtm

http://www.swg.usace.army.mil/Portals/26/docs/PAO/Coastal.pdf

https://19january2017snapshot.epa.gov/cwa-404/geographic-information-systems-analysis-surface-drinking-water-provided-intermittent_.html

http://www.100daysinappalachia.com/2017/06/30/trumps-epa-working-scrap-clean-water-rule-appalachian-lawmakers-side/

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