Why the Clean Water Act is Currently Broken

  • After a decade of our collective efforts to restore Clean Water Act protections to the nation’s wetlands and streams, NOW IS OUR WINDOW to move what is an historic and crucial rulemaking to reinforce the Clean Water Act.
  • For almost 30 years following the passage of the 1972 Clean Water Act, the courts and the agencies interpreted the Act to broadly protect all the nation’s waters. In passing the Act, Congressional leaders understood that what happens in headwaters and wetlands upstream impacts the health of downstream rivers, lakes and bays.
  • The 2001 and 2006 Supreme Court decisions and subsequent agency guidance effectively denied or called into question CWA protections for over 20 million wetland acres and 2 million stream miles, putting at risk not only these waters, but downstream waters as well. Drinking water supplies for more 117 million Americans are also at increased risk as a result.
  • The confusion surrounding which waters are covered by the Act is also compromising the enforcement of CWA protections in these at risk waters.
  • Over the next year, we have a narrow but real window to advance a strong “waters of the US” rule but our success depends upon establishing a strong scientific basis for broad jurisdiction — and broad and effective grassroots mobilization across the country.

Timeline and Lay of the Land on Clarifying Waters of the U.S.

  • The EPA’s Science Advisory Board released a new report titled, “Connectivity of Streams and Wetlands to Downstream Waters,” which affirms the well-established scientific principle that we must protect the network of small interconnected wetlands and headwater streams in our watersheds to protect the health of our larger waters downstream.
  • This report is critical because it will be the BASIS of an open and scientifically sound rule making process on the Waters of the U.S.
  • The Science Advisory Board is looking for comments on the connectivity report, including any scientific information to add to this report to show how all of our waters are connected. TO BE CONSIDERED BY THE SCIENCE REVIEW PANEL, OUR COMMENTS MUST BE SUBMITTED BY NOVEMBER 6th.
  • December 16-18, the Science Advisory Board will have a public meeting in Washington, DC to discuss the science they have collected and the comments generated by the public.
  • Around this time, we can expect the EPA to issue a proposed rule on the jurisdiction of the Clean Water Act. As with other rules, this will be an open process to the public. Once we have more information on the rule and the timeline for engagement, we will host another call to help inform you all.
  • While the administration is moving ahead, we will continue to face opposition on clarifying the Clean Water Act. Opposition from Senators, House Members and industry has already started and I am sure we can expect to see bills and amendments to bills trying to stop this rulemaking process.

Details on Current Administrative Actions

  • First, the only thing we know for sure is what is in the science report, as the proposed rule has not been published for public comment yet, and won’t be until the White House clears it. The report looks at the degree to which headwater streams and certain kinds of other non-navigable waters are connected to downstream waters. The reason for doing so is that it’s clear from the court cases that the agencies at least can protect those waters that have a so-called “significant nexus” to navigable or interstate waters. The science report finds that:
    • Streams, regardless of their size or how frequently they flow, are connected to and have important effects on downstream waters. These streams supply most of the water in rivers, transport sediment and organic matter, provide habitat for many species, and take up or change nutrients that could otherwise impair downstream waters.
    • Wetlands and open-waters in floodplains of streams and rivers and in riparian areas (transition areas between terrestrial and aquatic ecosystems) are integrated with streams and rivers. They strongly influence downstream waters by affecting the flow of water, trapping and reducing nonpoint source pollution, and exchanging biological species.
    • Finally, there is insufficient information to generalize about wetlands and open-waters located outside of riparian areas and floodplains and their connectivity to downstream waters.
  • The second action that the administration took is that EPA and the Corps sent the White House a draft proposed rule. While we don’t know for sure what the rule will protect, EPA has given us some indication.
    • EPA is saying publicly that the science report and public input about the science is going to help determine the scope of the rule
    • We anticipate that we will see a rule that broadly protects streams and wetlands in floodplain and riparian areas
    • that leaves more remote waters, like prairie potholes, vernal pools, playa lakes, and Carolina Bays, subject to a case-by-case approach for determining protection
  • The real linchpin of the rulemaking will be to push for categorical protection of every resource that the law permits the Act to cover.
  • The one thing that EPA is being very specific about right now is what the proposed rule won’t cover. Agencies won’t change things they can’t change – like permitting exemptions written into the law for things like discharging dredged or fill material for “normal farming, silvicultural, and ranching activities” or for “construction and maintenance of farm or stock ponds or irrigation ditches”. Any rule also won’t require discharge permits – because the Clean Water Act says it can’t – for agricultural stormwater discharges and return flows from irrigated agriculture.
  • In addition, the agencies intend to continue present regulatory exemptions for prior converted cropland and for waste treatment systems. These features, even if they otherwise exhibit characteristics of covered waters, won’t be treated as protected.
  • EPA has stated that the proposal draft exempts:
    • Non-tidal drainage, including tiles, and irrigation ditches excavated on dry land.
    • Artificially irrigated areas that would be dry if irrigation stops.
    • Artificial lakes or ponds used for purposes such as stock watering or irrigation.
    • Areas artificially flooded for rice growing.
    • Artificial ornamental waters created for primarily aesthetic reasons.
    • Water-filled depressions created as a result of construction activity.
    • Pits excavated in uplands for fill, sand, or gravel that fill with water.

To take action on this issue, please visit our Activist Corner for Sign-on Letters and links for sending your personal own messages.