Who's Afraid of the Clean Water Act?

Yeah, it is covered by the Clean Water Act. Vernal pool at the headwaters of East Kammerdiner Run, within the Mt. Logan Natural Area, Bald Eagle State Forest.

Even before any April showers, many clean water supporters cheered when the long-awaited Clean Water Act (“CWA”) draft rules were released in the “Waters of the United States” document, marking one of the most substantial steps towards improved US water quality in years.

Anticipation was high because the document clarifies which waters are protected under the Clean Water Act’s federal jurisdiction after two Supreme Court decisions made implementation murky. Coauthored by the EPA and the Army Corps of Engineers, “Waters of the United States” (full draft report) defines what types of waterways and water bodies are automatically protected, such as wetlands, small headwater streams and seasonal and temporary streams that flow after rainfall. The proposed rules do not broaden Clean Water Act authority, so they do not protect new categories of waters. And they continue to only regulate surface water, not groundwater. Furthermore, existing agricultural exemptions and exclusions from Clean Water Act continue with clarification and 56 conservation practices improve water quality will avoid permitting. The draft rules will soon enter a 90-day public comment period.

But considering “Waters of the United States” as a simple clarification of the Clean Water Act is just one interpretation, as expert environmental attorney, Reed Super observed in an email. Other people view the rules as narrowing existing EPA jurisdiction, while still others believe it is a monumental “land-grab” that allows federal government control over landowners’ use of their private property. These deep concerns expressed about the proposed rules tend to come from industries like agriculture, fossil fuel and construction/real estate development. To understand why they are afraid of the proposed Clean Water Act rules, let’s see what industry representatives say in their own words.

This proposal by EPA and the Corps would require cattlemen like me to obtain costly and burdensome permits to take care of everyday chores like moving cattle across a wet pasture or cleaning out a dugout. These permits will stifle economic growth and inhibit future prosperity without a corresponding environmental benefit.”
Bob McCan, President of the National Cattlemen’s Beef Association and Victoria, Texas cattleman
After an initial review of the proposed rule, we are deeply concerned that the agencies are attempting to obtain de facto land use authority over the property of families, neighborhoods and communities throughout the United States.”
Letter signed and sent by the eight Republican members of the Senate Environment and Public Works Committee to the Obama administration

If there is such great industry-related opposition to the proposed rules, what imperative drove agencies to clarify the Clean Water Act? One chief reason: numerous US citizens, businesses and organizations, federal, state and local officials as well as those in the agricultural and environmental communities all clamored for an end to the uncertainty of what the CWA covered. This is important because people want to know how to contend with deteriorating water quality throughout the US. Using the most recent data from a 2008-2009 comprehensive national survey of water bodies, the EPA found that 55 percent of the nation’s waterways are in “poor condition for aquatic life,” a key indicator of the overall health of our waters.

Addressing how US waters are becoming polluted is the second reason for the CWA rule clarification. The EPA notes that approximately 60 percent of US stream miles run only after rain or during certain seasons, yet those intermittent waters still have a large, cumulative effect on downstream water quality. One in three of all Americans receive drinking water from public systems that originate, in part, from these streams. Science also shows that since water is a shared resource, the purity of the source waters significantly impacts downstream water quality, as explained in major EPA synthesis review. Scientists now have a better understanding of the interconnectedness of our waterways and how they knit together to create the larger watersheds in which our farms, businesses, homes, communities, drinking water – what makes up our lives – are embedded.

That is why the new rules and the clarification should be embraced, not opposed, by various industries. Water and the greater watersheds are intrinsically valuable natural and economic resources, meaning that the source water and surrounding lands are vital to clean water. Certainly no one wants to deny landowners and operators the right use their land in a beneficial and sustainable manner, yet there must also be an understanding of the importance of wetlands and seasonal and temporary streams on downstream water quality.

In other words, there is a responsibility that goes with property rights, and how that property is used makes a big difference in how the water from our April showers ends up impacting others downstream, their property and their right to a high quality of life.