By Sarah Peters
Water is essential to life, as Congress understood in 1972 when amendments to the Federal Water Pollution Control Act, now known as the Clean Water Act, was passed with bipartisan support. We have made significant progress in the following decades, but serious issues remain such as summertime toxic algae blooms in Lake Erie and the chronic poor health of the Chesapeake Bay.
Until now, the Clean Water Act has not kept pace with the times – it was last amended in 1987. One major issue is determining which waterways the U.S. Environmental Protection Agency (EPA) has jurisdiction to protect. Supreme Court rulings in 2001 and 2006 generated further confusion on the limits of the EPA’s regulatory authority.
For the last two years, the Obama Administration and the EPA have worked to write a Clean Water Rule that would clarify this issue. Since the rule was released on May 27th, it has generated opposition from 27 states, the coal industry and the American Farm Bureau Federation. Conversely, environmental groups and the Army Corps of Engineers argue that the new rule does not go far enough.
What does the Clean Water Rule do?
The EPA has outlined the rule’s major provisions on the clean water rule website. The Clean Water Rule will:
- Define and protect tributaries – any headwaters showing physical signs of flowing water that could affect the health of downstream waterways will be protected.
- Set measurable enforcement boundaries on waterways near rivers and lakes.
- Protect specific water features of importance: the Carolina and Delmarva bays, prairie potholes, pocosins, California western vernal pools and Texas coastal prairie wetlands.
- Emphasize enforcement on streams but not ditches: ditches that are not part of streams and flow only during rainfall will not be protected.
- Preserve the status quo for waters within Municipal Separate Storm Sewer Systems.
- Limit the use of case-specific analyses to waters subject to Clean Water Act enforcement.
The Clean Water Rule will not:
- Protect any additional waters not historically covered under the Clean Water Act.
- Place additional regulations on agriculture.
- Affect private property rights.
- Change policies on irrigation or water transfers.
- Take into account land use.
- Cover features created by erosion, groundwater, or tile drains.
As with many federal agencies, the EPA will have to contend with a future of reduced resources and budgets. The Agency anticipates that from 2014 to 2018 it will conduct 79,000 inspections, compared to the 105,000 inspections between 2005 and 2009.
The Clean Water Rule goes into effect on August 28th and should help the EPA make the most of its’ limited resources. Recent events like the accidental release of toxic mine waste into Colorado’s Animas River highlight the importance of clear and consistent enforcement of clean water protections.
Sarah Peters is a Gettysburg College alum with a B.A. in Environmental Studies. She is currently doing volunteer Geographic Information Systems (GIS) work at the Wilderness Society and frequently volunteers for the Sierra Club.