Last week, the EPA finalized the Clean Water Rule and in so doing, made one of the biggest moves to improve US water quality in a generation. The purpose of the rule is to clarify which "waters of the United States" are protected under the federal Clean Water Act (CWA), a law whose jurisdiction was clouded by two earlier Supreme Court cases. Clearing away the uncertainty allows for the more predictable application of water quality regulations given the narrowed scope of those waters covered.
What does the rule mean for water that is now better defined and thus better protected? Practically speaking, it means such tributaries as wetlands and small and intermittent streams that flow downstream into larger rivers, lakes and estuaries are legally considered part of the overall water system. This understanding of how smaller streams and wetlands upstream contribute to the quality of downstream waters is based on the conclusive scientific understanding of connectivity as laid out in an exhaustive EPA review. Recognizing the strong ecological role that intermittent or headwater streams play in keeping US water clean is important because around 117 million people get at least some of their public drinking water from systems fed by those small waterways. Moreover, nearly 60 percent of all stream miles in the United States are small, intermittent or headwater streams.
That means that we need to protect all waters in our watershed - from tiny headwater streams to mighty rivers - because it's the combined sum of their flow that makes our waters, and our country, either healthy or not.
The need for the rule became clear in a first-ever comprehensive waterway assessment that noted that over half of American streams and rivers are in poor condition. One challenge facing communities, government officials and others determined to clean up water locally has been that some smaller tributaries that contribute pollution to larger waters were in legal limbo as to whether they were covered under the Clean Water Act. The new rule will provide more certainty in the effort to formulate plans and take action to clean up polluted water bodies.
What has escaped much of the discussion around the Clean Water Rule is the fact that the kinds of water (and air) pollution we see today has changed since 1972, in part due to the success of the CWA, which severely curtailed site-specific pollution from the likes of industrial plant outfall pipes that dumped pollution directly into nearby waterways. This easy-to-see pollution is called "point source," which can be thought of as pollution 1.0. The harder-to-see (and harder-to-catch) pollution is what's called "nonpoint source" which is attributable to runoff from such sources as hard urban surfaces, mountaintop mining, farm fields and factory farms. Nonpoint source pollution contributes to the dead zones in the Gulf of Mexico and Chesapeake Bay, and polluted waterways in coal country from surface mine runoff, to name just a couple of examples. Reducing nonpoint source pollution, or pollution 2.0, is a major feature of the Clean Water Rule because it finally addresses the cumulative pollution that smaller tributaries contribute from wider, more diffuse sources.
Not everyone is happy about the rule, though. Some industries and their major trade associations like the Independent Petroleum Association, national Chamber of Commerce and especially the Farm Bureau believe that the rule expands federal jurisdiction over private property and will be damaging to business because of compliance costs. Farm groups have consistently voiced concerns over potential changes to how farmers use their land, but the reality is that farmers retain more than 40 exemptions for normal activities and now have a clear, working definition of what waters are not covered by the CWA (e.g., non-tributary ditches). In fact, many in agriculture understand how crucial their position is as clean water stewards and realize they are partially responsible for the problem and solution.
The Clean Water Rule is not a punitive measure against particular industries, but an acknowledgement that we all depend on clean water to drink, swim, farm and operate businesses. If we all depend on clean water then we all have a stake in keeping our waters safe and clean. That means that we need to protect all waters in our watershed - from tiny headwater streams to mighty rivers - because it's the combined sum of their flow that makes our waters, and our country, either healthy or not. For at least a decade it was as if we fell asleep on some aspects of water quality, but now it's morning again in America for clean water.